Massey-Harris-Ferguson, Inc.

e328 DELI} EONS QI4' N TTE3 - X481 X-5`_':; '941 Tempora;ry Track Gang:'- Track Gang Boss Laborer-s• - Mining Department : Powder Leadman Jackhammerman Powderman Powder Truckdriver Compressor Truckdriver Powder Laborers Mining Dept - C©ntinued Water Truckdrivers Blast Hole Drillers Blast Hole Driller's Helper Shovel Operators Oilers Crane Engineer Pit Cat Operators Euclid Drivers i The parties agreed to include these employees in- the unit if they are still employed- at the time of the election. - APPENDIX, B STIPIILATED ExcLusloNs FROM ITNrr Superintendent of Operations Engineering Department; Chief Engineer Engineers Senior Samplers Draftsman Geology Department Chief Geologist Geologists Metallurgical Department : Metallurgist Assay Office (Lab.) : Chief Chemist Ass't. Chief Chemist Chemist Assayers Office : Chief Clerk Accountant Chief Timekeeper Office-Continued Manager's Secretary Typists Warehouse : Parts Manager Churn Drill Department: Drill Foreman Mechanical Department: Master Mechanic Repair Foreman Garage Boss Electrical Department : Chief Electrician Surface Department : Surface Foreman Mining Department : Pit Superintendent Pit Foreman Shift Foremen Mine Clerk Massey-Harris-Ferguson, Inc. and General Drivers, Chauffeurs & Helpers, International Brotherhood o€' Teamsters, Chauf- feurs, Warehousemen & Helpers of America, Local 886, AFL. Case No. 16-CA-782. - October 11, 1955 DECISION AND ORDER On May 31, 1955, Trial Examiner John C. Fischer issued his -Inter- mediate Report in. the above-entitled, proceeding, a copy of which is 114 NLRB No. 70. MASSEY-HARRISrFERGUSON; INC. attached hereto, finding that the Respondent had not engaged, in any, of the unfair labor practices alleged in the complaint and recommend- ing that the complaint be dismissed in its entirety. - Thereafter, the General Counsel filed exceptions to the Intermediate, Report and -a, supporting brief, and the Respbrident filed a reply brief" -iii support' of the intermediate Report. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.. The rulings. are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and, briefs,.and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBER MURDOCK took no part in the consideration of the above, Decision and Order. INTERMEDIATE REPORT ' AND RECOMMENDED ORDER STATEMENT OF THE CASE - This proceeding, brought under Section 10 (b) 1 of the National Labor Relations Act, as amended (61 Star. 136), was heard in Oklahoma City, Oklahoma, on Feb- ruary 1 , 1955, pursuant to due notice to all parties before John C. Fischer, the Trial Examiner duly designated by the Chief Trial Examiner.2 All parties were repre- sented by counsel and were afforded full opportunity to be heard , to examine and cross-examine witnesses, to introduce relevant evidence , to argue orally, and-to file briefs and proposed findings of fact and conclusions of law. The complaint, issued on December 20, 1954, against the Respondent and based on charges filed by the Union alleged in substance that the Respondent had engaged in unfair labor practices proscribed by Section - 8 (a) (1) and (3) of the Act- charging that Respondent did discriminate and is discriminating in regard to the hire or tenure or terms or conditions of employment of an employee; interrogated its employees concerning their union affiliations; and threatened and warned its em-. ployees to refrain from assisting, becoming members of, or remaining members of; the Union. The gravamen of the charge on which these allegations of unfair labor practices are predicated is that on November 1, 1954, the Company, by its officers, agents, and employees, terminated the employment of C. D. Johnston, a warehouseman, because of his membership and activities in behalf of the Union , and at all times since such date has refused to employ the above -named employee. Respondent's answer submitted on December 27, 1954, admitted certain of the allegations, ampli- fied them with reference to its corporate status, and affirmatively pleaded that said employee was discharged because of his inefficiency and general lack of ability in carrying out his duties and responsibilities as a foreman for Respondent Company., As a further affirmative defense, Respondent admitted that its employee and branch manager, K. S. Spicer, on or about November 1, 1954, did interrogate certain of its employees in groups concerning a demand made by the Union to represent such employees for collective-bargaining purposes , but contended that any statements made by its officers and agents were made in accordance with and under the protection i Section 10 (b) snakes provision for a hearing before the Board or an agency thereof whenever it is charged that any person has engaged in or is engaging in any unfair labor practices. 2 The General Counsel and his repiesentatives at the hearing are referred to herein as the' General Counsel and ' the National Labor ' Relations Boaid as'the'Board The above- named Respondent is referred to as Respondent' or Company and the General Drivers, Chauffeurs & Helpers, International Brotherhood of T eanisters , Chauffeurs , Warehousemen & Helpers of America, Local 886, AFL , as the Union. • 330' DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 8 (c), the "Free-speech" provision of the Act. Respondent also moved, to strike paragraphs numbered 8, 10, 11 , and 12 from the complaint as not being violative of the Act under present Board decisions . This motion was denied for reasons set ' forth more fully hereafter. Respondent's answer particularly denies certain statements , outlined in paragraph numbered 8 of the complaint, alleged to have been made by Branch Manager Spicer. Also, during the course of the trial, Re- spondent was allowed to amend its answer and affirmatively plead that Foreman Johnston was a supervisor within the meaning of the Act and therefore not entitled to protection as a rank-and-file employee. - Upon the entire record in the case , and from his observation of the witnesses and their demeanors, in testifying under oath , the Trial Examiner makes the following: FINDINGS OF FACT 1. THE'BUSINESS OF-THE RESPONDENT The Respondent is a Maryland corporation , organized' under and existing by virtue of the laws of the State of Maryland , -having a- principal office ' and place of business as a sales outlet for its manufactured items consisting of farm machinery, at 3920 N. W. 39th Street in Oklahoma City; Oklahoma. The Respondent in the course and conduct of its business operations at its Oklahoma City plant, during the 12- month" period ending October 31, 1954, which period is representative of all times material 1l e'reto ; purchased 'equipment'consisting principally of tractors-and combines valued in excess of $4,000 ,000, of which 90 percent was shipped in interstate.com- merce to the Oklahoma City plant from points outside the State of Oklahoma. During the same period , Respondent sold products consisting principally of tractors, valued in excess of $4;000,000,-of which more than 25 percent -was shipped in inter- state commerce from its Oklahoma City plant to points outside the State of Okla- homa. It is therefore concluded and found that the Respondent is engaged in com- - merce within the meaning of the Act..) II. THE LABOR ORGANIZATION INVOLVED General' Drivers, Chauffeurs & Helpers, International ' Brotherhood of Teamsters,, Chauffeurs, Warehousemen & Helpers of America, Local 886; AFL, is a labor , organization -admitting' to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction and questions involved The unusual feature of this case is that the alleged unfair labor practices occurred on the first anniversary of the operation of the' newly consolidated Oklahoma-City, branch of the Company, viz, November 1, which date importantly, as *ill later be developed, also marks the beginning of the Company's business year. From this branch, farm machinery consisting of combines, tractors, gang plows, harrows, and other agricultural equipment and parts were distributed to dealers in Oklahoma, part of Texas, and five counties of New Mexico. About 35 men were employed to ac- complish this, and they were functioning in some 6 or 7 divisions, among which was the warehouse division in which Charlie Doyle Johnston, the discharged employee,' was-working under the title of warehouse foreman. His duty as warehouse fore-' man, as stated by Manager Spicer, was "to run the warehouse, to receive our ma- chines in from boxcars." Ordinarily, he had one assistant but a few others were made available during a rush season. Johnston was discharged on November 1, the beginning of a new business year, plead by the Company-for good and sufficient' cause, i. e. "incidents of error and incidents of wrong shipments," but charged by the Union, "because of his membership and activities in behalf of the Union." The question as to whether Johnston was a supervisor is involved in this determination.3' 1. The advent of the Union ' Warehouse Foreman Johnston was the first employee to be involved in the ad- vent of the Union. He described his original contact as occurring around the middle of October when one of the Viking Freight Delivery drivers asked him: "Was we, 8 Johnston admitted that as foreman In the machine warehouse, it was his duty and responsibility to supervise shipments of machines, but denied that he had the right to hire or fire or effectively recommend the people who worked under him I find, however, that Johnston had the same authority duties and responsibilities as did Branson who, succeeded him as foreman. Cf. ante-Branson's sworn statement. MASSEY-HARRIS-FERGUSON, INC. 331 unionized. I told him we- wasn't." He testified , however, that shortly thereafter, about . October 26, Earl Hyden and Ray Hughes, representatives of the Teamsters' Union, came to his home and gave him some authorization cards to give to the men and asked him to arrange a meeting . He talked to the "boys"-Harold Ward, Wil- liam Fred , and Howard Crier-at the "coffee break," and as a result they met with Organizer Hughes at the Golden Boot Cafe about 5:30 that Friday evening. On the following Monday morning, November 1, before starting to work, he gave George F. Gilbert, a shipper in the parts department , an application card which Gilbert signed and returned at noon , but he apparently made no further solicitation progress before being discharged that afternoon at 5 p. in. 2. Management learns of the union activity Union Organizer Hughes went to work immediately on his campaign . Follow- ing the meeting at the Golden Boot Cafe, Hughes sent a telegram on Friday evening, October 29, marked 7:15 p. in., to Branch Manager Spicer, which telegram was re- ceived by his daughter and turned over to him at about 11 p. in . when he returned home. This telegram read as follows: K. S. SPICER, 2731 Northwest 17 (Report delivery) OK City. We have been authorized by the following employees to represent your ware- housemen regarding wages and working conditions . We request recognition as their bargaining agent. This request is made in compliance with the National Labor Relations Act. Which guarantees employees right to organize . Letter will follow immediately. RAY HUGHES, Business Representative Teamsters Union Local 886 No listing of the "following employees " referred to in the telegram appears in the evidence, but Hughes followed this telegram with a special delivery letter dated No- vember 1, 1954, which reads: Mr. K. S. SPICER, Massey-Harris-Ferguson Inc., 3920 N. W. 39th Street, Oklahoma City, Oklahoma. DEAR MR. SPICER: This is to advise you that a majority of your employees in the appropriate unit described below have authorized Local Union No. 886, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, AFL, to represent them for purposes of col- lective bargaining. The unit of employees is as follows : Warehousemen. We are prepared to make proof of our majority representation. Should you contest such representation, we shall be glad to submit authorization cards to a neutral third party for a check against your payroll records. You are hereby requested to meet with representatives of this Union for the purpose of negotiating a contract covering wages, hours and working condi- tions of the employees in the above described unit. We suggest that such meet- ing be held at your company offices at Oklahoma City, Oklahoma 10:00 A. M., November 2, 1954. If this time and place is not convenient for you , please advise as soon as possible and I am sure that we can arrange an appropriate time and place of meeting. Yours very truly, (Signed ) RAY J . HUGHES, Business Agent Teamsters Local Union No. 886. RJH:wl REGISTERED MAIL-RETURN RECEIPT REQUESTED Manager Spicer answered Hughes by letter, dated November 1, which Hughes stated was received at 10 p. in. this same day, November 1. This communication reads, as follows: November 1, 1954. Mr. RAY J. HUGHES, Business Representative, Teamsters Local Union No. 886, 2910 Northwest 12th Street, Oklahoma City 7, Oklahoma. DEAR MR. HUGHES: The writer does not have the authority from my Home Office, nor do I deem it necessary to meet with you in connection with your letter of November 1, 1954. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is the writer's understanding that you must first petition the National Labor Relations Board for permission to hold an election that would certify you as an authorized representative Yours truly, (Signed) K. S. SPICER, Branch Manager. 3. The Monday morning meeting Thus it was under the foregoing circumstances that operations began on Monday morning at the beginning of a new business year-certain employees, including the warehouse foreman, were involved in a unionizing effort and management was con- fronted by a union seeking immediate recognition and requesting a meeting the following day for the purpose of negotiating a contract covering wages, hours, and working conditions. The denouement was that by nightfall Foreman Johnston had been discharged and management was threatened with being charged with unfair labor practices-and such charges culminated 2 days later-obviously, not an auspicious way to start a new business or fiscal year. Nevertheless, Branch Manager Spicer called all present employees together in the dining room that morning, testifying as follows: "It was a meeting that I mentioned before to gather the people together and say, `We of Massey-Harris have completed, finished our first year of operation in the Oklahoma City branch. I am sure that you are interested to know that we sold more machines than we were budgeted to do. We sold more parts than we were budgeted to do. We collected more cash than we were budgeted to do, and I didn't do it because you can't do this unless you have 'the cooperation of the entire staff.' ` I thanked different ones. I thanked boys in the repair department and their manager, Les Wright, who worked hard and worked very hard, probably worked harder than any other division of our business through our tough time, thanked them for the cooperation, and it was just generally a meeting at that .time to start a new year, which will happen every year, and it not only happens in the Oklahoma City branch, it happens in every other branch as it is management's policy to tell the people whether we are doing good or bad." 4. Subsequent meetings on Monday. Manager Spicer followed this general convocation with meetings of various de- partmental groups such as the machine warehouse group, the parts warehouse people as a group, and individual employees. In this connection he testified that his reason for calling them together was: "Well, the thing to do is to find out whether this telegram comes to us and-I mean these people are working there in our office. I wanted 'to-know, which I think was within my rights, to ask the people if they were joining the union, if the plant was being unionized, just exactly what the program was following that telegram that had come in." Witnesses called by General Counsel testified to these meetings and gave their versions of the matters discussed at the various meetings . The first witness was George Franklin Gilbert, who had worked for the Company in Enid, Oklahoma, in January 1953-and at Oklahoma City on September 13, 1954. He attended the meeting at the Golden Boot Cafe with the union representatives to "see if they could get it [the Union] at Massey-Harris Co." This activity was followed by overtures, of Johnston who asked him, on Monday morning, to sign a union card-and after talking to other employees, he signed it and returned it to Johnston about noon. He next stated that between 9:30 and 10 a. m. a meeting was called in Manager Spicer's office by Parts Manager Les Wright which included Spicer, Wright, Assistant Man- ager Culley, parts' employees Harold Ward, Howard Crier, Willard Fred, John Wolf, and, Harold Hardwick, as well as himself. He quoted Spicer: "Mr. Spicer said that he had heard a rumor that the union was trying to move into the Massey-Harris Com- pany, and that he was sorry that the boys would rather work for the union than 'to work for him, but that it was a democratic country and that everybody had his own way to look at it." Gilbeit said that Harold Ward told Spicer at that time that the Union was in process of organizing. Gilbert described this as a friendly meet- ing. Later that afternoon between 3 and 4 o'clock he was again called into Spicer's office in company with Wright and criticized for inefficiency. At this time he told Spicer that he had engaged in no union activities, but stated: "He asked that if I had signed a card, and I told him yes, that I had, at noon" explaining "that Mr. Johnston had approached me with the card that morning and asked that I sign it." The next witness called by General Counsel was David J. Branson When Bran- son went to work for the Company on September 14, 1954 (previously he had worked MASSEY-HARRIS-FERGUSON, INC. 333 for a Massey-Harris dealer), he became assistant to Foreman Johnston in the machine department: When Johnston was fired on November 1, he became acting foreman, and, on November 9, he became foreman of the machine warehouse in Johnston's place. With reference to his union activities, Branson stated that he over- heard the conversation with the Viking truckdriver, that Johnston suggested that he join the Union and that he attended the first meeting. Branson then described a meeting with Spicer and Assistant Manager Culley, which included Foreman John- ston and himself as occurring about 3 o'clock in the afternoon of November 1. With reference to the ensuing conversation he testified- "As near as I remember, Mr. Spicer said,'when we first went in, he said, `I understand that the union is about to move in.' And Mr Johnston asked him what union, and then Mr Spicer proceeded to say what [union] it was, said, 'it is a democratic country. If you would like to work through the union, that is your privilege, or if you would rather .work for me that is the privilege of workilng for me or through the union.' Then he men- tioned something about time off for funerals or unexpected occasions, and as we were about to leave. he asked if we signed any cards, and I didn't answer positive or negative " Questioned by Counsel Youngblood: "Q. You say he mentioned time off to attend funerals. What did he say about that? A. Well, I don't exactly recall what he did say about it. However, I do know it was mentioned." 5 Branson's statement to Board examiner-evidentiary ruling On November 17, 1954, Branson made a comprehensive statement under oath to NLRB Field Examiner Marvin L Smith Respondent Counsel Wolf objected to the introduction of this evidence. Counsel Youngblood contended that the witness' recollection had been exhausted, that this statement was made near' the time that the conversation occurred, and that he ,was offering this statement in evidence as a past recollection recorded of the conversation that occurred at that time which would be more correct then than his recollection now I concurred and found this to be relevant and admissible evidence on the theory that evidence of a written statement constituting a record of what was perceived by a witness who is present and subject to cross-examination is admissible if the statement would be admissible were the witness making it as a part of his testimony, and if the judge finds that at a time when the matter was recently perceived and the, recollection of it by the witness was clear, the witness recognized the written statement as an accurate record of what he had perceived, and that the written statement, by whomever or however made, correctly sets forth what the witness stated. The text of Branson's sworn statement-to the Board field examiner reads as follows: I have been employed by Massey-Harris Company since Sept. 13, 1954. I was warehouseman until November 9, 1954, at which time I was promoted to Warehouse Foreman. When I started work I received $200 per month, about the first of Oct. I was raised to $218.00 per month and at the time of my promotion I was raised to $233 per month. . My duties consist of checking in and checking out machinery that the Com- pany receives by truck and box car. I also help load and unload this ma- chinery when it is received and shipped out. This,machinery consists of various farm implements, such.as tractors, plows, combines and related equipment. I receive a disbursement from the Head of the Machine Department which is a customers order. I take the order and number and with a check sheet which has the number of each part or bundle number that goes with the order. -I then pull out each bundle take it to the dock and tag it and then write out a bill of lading on it. If it is light equipment the truck driver loads it himself on the truck. But if it is heavy equipment I get the fork'truck and my helper I load it. When equipment is'received [usually by railroad car] I get a check sheet and check out, the equipment received against the check sheet & then my brother, who is my helper, unload it and store it in the warehouse according to the bundle numbers. I also, clean the warehouse and transfer equipment around in the ware- house. I also, keep the batteries charged that are stored in the warehouse. I close and lock the warehouse each night. My helper & I also, care for the lawn in front of the building,such as watering it. I also, dispose of scrap material that accumulates when equipment is received. I work from 8 AM to 12 PM and'-1 PM to 5 PM, Monday through Friday. I fill in the time sheet for the hours worked for myself and my helper. There is one warehouseman that works with me and he helps me in all,my jobs except keeping records. When I was ma'de' foreman, Mr. Spicer told me that 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if I had someone working in the warehouse that wasn't doing the job to send him in to get his time. And if I needed more help to tell the Head of. the Machine Department and he'd make arrangements to see that I got it. I receive my orders from Mr. Spicer or Mr. Larkom, Head of Machine Dept. & I relay these orders to my helper. I tell the helper how to do the job and what to do and I am responsible if he does the job in the wrong manner. [Emphasis supplied.] About a week after I started working I heard Johnston, former warehouse foreman, talking to a truck driver about loading a box-car & the driver told him if we were union we'd have more help loading the car. I attended a meeting on Friday in the last part of October, I believe the 29th, at the Golden Boot Cafe. Mr. Hughes, Teamsters Rep. was there & John- ston, Harold Ward, Willard Fred, Howard Crier & myself. At this meeting I signed a card as well as Johnston & Crier. On Nov. 1, 1954, at about 3 PM, Tom, the cashier, told Johnston & I that Mr, Spicer wanted to see us in his office. Spicer said, "I hear a rumor that the Union is moving in on us, do you know anything about it?" Johnston asked him what union. Spicer said he didn't know. Spicer then said, "Has there been any one talking to you about the Union out there?" Johnston said No- I told him there was a truck driver that had said something about a,union and' Johnston agreed. Spicer then asked us if we had signed cards-& said it is a question of you'114 working for the Union or me. Johnston told him we hadn't signed any cards but I didn't answer him. Spicer also, said, "If anyone does talk to you'll about the Union let me know." Johnston said that he would do that. Spicer also, told us that we wouldn't be allowed to take time off to go, to funerals and such things if a union did come in. (I had been given time off to, go to a funeral about a month before this time without loss of pay.) - On November 2, '54, Spicer told me that Johnston was discharged because of the mistakes he had been making in shipping. [Emphasis supplied.] On or about Nov. 9, '54, Mr. Spicer asked me if it would be a fair ques- tion if he'd ask me how I'll vote on the union deal, yes or no. I told him that it depended on how the rest of the boys voted, I'd go with the majority. I told him I was speaking for myself but it looked as though it would go "yes." He said do I understand by that you'll vote "yes." I told him that's right as,long as it looks the way it does now that's how I'm going to vote. -He said no one will know how you'll vote-I told him I thought I was obligated to the men. He said I'm the one that's paying you, it looks as though you'd be obligated to me. I told him again I didn't want to go back on my word. About two days [about November 11, 1954] after my brother started work- ing, Mr. Spicer came to the warehouse and told me that my brother would probably be allowed to vote in the union election & he didn't want him -to be implicated with anyone else. He told me I could talk to him on the road & tell him to vote No. Johnston made no mistakes in shipping that I knew of before he was dis- charged but I did learn later that some mistake had been made in a shipment to Norman. But I don't think any make up order was sent to Norman. L have read the above consisting of five handwritten pages & it is true and correct to the best of my knowledge & belief. Sworn & subscribed to before me this 17th day of November. 1954 Marvin L. Smith, Jr., Field Examiner, NLRB (Signed) David Branson, DAVID BRANSON. 6. Foreman Johnston testifies Next in sequence, Charlie Doyle Johnston, the alleged discriminatorily discharged employee, described his original contact with the Viking Delivery drivers, the meet- ing at his home with Organizers Hyden and Hughes, and his meeting at the coffee break with fellow employees, Ward, Fred, and Crier prior to the meeting with Hughes at the Golden Boot Cafe. He told about the general meeting of some 35 employees in the plant dining room on Monday morning at which time he stated that Spicer congratulated them on the good work which they had done. He testified to the meet- ing in Spicer's office that afternoon about 2 or 2:30 at which Spicer, Culley, Bran- ' The Trial Examiner understands the word written by the official reporter as "you'll" to be the colloquialism "you all," and interprets the record accordingly. MASSEY-HARRIS-FERGUSON, INC. 335 son, and himself were-present--- His testimony in this connection was: "Well, when we went into-the office there, why, hefsaid tliat'there was a rumor going around of the union moving, in; said, `You know, you can hear anything.' And he said that, asked us if we had heard anything about the union, and Branson spoke up'and said, 'Yes, there was a truck driver here talking to me about the union, one of Viking's.' And he said that it was all right, democratic country, that people have a right to do as they wish, that if we had rather work for the union as him, that was our privilege. He said that if it went union he guessed that we understood that we would be, if we wanted a day off, as it was, we could consult him about it and we'd work it out where we could take a day off if we needed it, but if it went union or if we taken a half day off or a day off for a funeral, it would be without pay, and if we came in late in the morning, we would be docked 30 minutes if it were union." "Q. (By Mr. Youngblood.) Anything else? A. Well, he thanked us. Well, he did ask if we-had signed any cards and I told him no, and he thanked us and asked me if we heard anything else about the union, would I come in and tell him, and 1 told him I would." [Emphasis supplied.] 7. Spicer's version of the first meeting As previously indicated, Spicer' s meeting on Monday morning with Johnston and Branson was occasioned by the telegram and letter which he had received from Union Representative Hughes. Spicer explained that he discussed the matter with his assistant, Culley, "partly from the standpoint of trying to find out something about it myself," but "he didn't know anything about it at all." His next step was: "Well, I called Mr. Johnston and Mr. Branson to come to my office and Mr. Culley was present, and I think the conversation was correctly stated as starting like this: 'Fellows, I hear or understand that the union is going to move in on us and that they are going to unionize the warehouse,' and I said 'Naturally the people to ask if this is true are the people [warehousemen] whose names are used in the telegram. Do you know anything of the union activity?' And I said, 'Let me say this. Feel free; this is a democratic country; you can do as you like and say as you like. If you want to belong to the union, that is entirely up to you.' Mr. Branson had hardly anything to say. And I said, 'Do you know anything about this, C. D.?' And he said, 'No, sir.' I said, 'Have you joined the union?' He said, 'No.' I said, 'Have you ever signed a union card?' And he said no. I said, 'Have you ever worked for a union?' And he said, 'No, and I don't want to work for a union.' Then I said, 'As far as you are concerned, you know nothing of this union coming into this plant?' And he said, 'I sure don't.' I said, 'Now, C. D., you are sure you don't know anything about this union coming into this plant?' And he said, 'I sure don't.' And I said, 'Have you been approached by a union?' And he said, 'No, but a month or so ago there was a truck driver stopped by here and asked if we would start a union.' And I said, 'That's all?' And he said, 'Yes.' And I said, 'That's fine, fellows.' And that wasrthe extent,of the matter which lasted but a few minutes." It should be borne in mind that this interrogation was directed to Johnston, the foreman, but occurred in the presence of the assistant, Branson. It is further to be noted that the telegram was indefinite in that it recited that: "We have been authorized by the following employees" but did not enumerate them, nor does letter amplify it other than to claim a majority of his employees "in the appropriate unit described below . the unit of employees is as follows: Warehousemen." In this connection, I find and hold that Spicer was motivated by a desire to know whether they had signed union authorization cards in order to enable him to reply to the Union's request for collective bargaining . In this aspect, this case is similar to Blue Flash Express, Inc., 109 NLRB 591. 8. How Johnston became foreman Spicer, related that the removal of -machines from the Enid branch to stock the new Oklahoma City branch required that "we get the people around us who knew something of the shipment business to properly house this equipment and set it away so that our records could be right." The then foreman was a Mr. Nance and Johnston, with previous experience at the Amarillo branch , was taken on as his assistant. Nance was promoted to the position of product education manager- which -left the position of warehouse foreman open . Spicer said : "Mr. Culley and I talked of it, as; to -what we should do, because it's a job that requires a lot of super- vision and watching because you are dealing with expensive items, you are dealing with people who expect service. Mr. Johnston's name had been discussed previously as to , whether or not we could put him in charge of the Amarillo warehouse when 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we took over, and ,the decision was_that..those that knew him thought.that-possibly he couldn't handle-it,--and -so he was.oveilooked._ The policy of.oui•_ compa.ny; as borne out if you'w'ant to investigate ;further; is always-to-move -people-front=t ranks up into befter. .positions,- and_witE this-7thought in 'iriirid; .Mr. 'Culleey and .I_„ , _ 'discussed it. We discussed-it with Mr.I;auritsen, our, shipper, and'decided'the fair thing to do was to offer the' opportunity. to Mr. C: D' Johnston to' be supervisor of .our machine warehouse, which was done." [Em'phasi's supplied ] 9. Spicer's recital of Johnston's responsibilities and his performance Among other responsibilities, Spicer testified that the foreman was "to be re- sponsible for the employing or discharging of people that work' with him and I clarify, that-by saying-that' he-doesn't have the authority to walk out onto the street and hire ten people and- put them to work in the warehouse, but what he does is recommend that there is' a lot of things happening and. we should have one more man or two-more men; whatever the case may be: Also it is his responsibility-to keep- these men busy, if the time should come when they are not -busy, to come to man- agement and say, `We have too many, people,' and suggest or recommend that these people be discharged. Plain and simple he is in charge of a warehouse division or branch as the,title of warehouse foreman implies." Questioned by Counsel Wolf, as to how Johnston did carry out his duties'and- responsibilities, he answered- "Not to our 'satisfaction , I want to go on record 'as being fair. There were many things =that Mr. Johnston did that satisfied' us' as' well as anyone that could` have in our warehouse: On the, other hand, there'were things that happened that did not satisfy us which called for Mr: Culley' and I discussing many things whether we had been right in the selection of Mr. Johnston as a warehouse foreman, incidents of error-and ,incidents of wrong shipments." One of the incidents -was that Spicer had to take Johnston to task for his -,failure to securely -lock the windows and doors Spicer testified' that he came back to the warehouse on several' occasions on weekends or nights and found them not secured. Spicer was considerably exercised one time and threatened- Johnston with, discharge if it occurred again, explaining that'the ware- house- had been robbed 'and the police came to the conclusion that the thieves had effected entrance through an unsecured -window .5 Spicer testified that Johnston made mistakes in shipping farm machinery which was inoperable because of Johnston's failure to include all the necessary parts and attachments to new dealers or dealer-customers. He cited, an erroneous shipment to a Pryor, Oklahoma, dealer, of a motor drive attachment for a combine: "but the entire motor, which was actually what the man wanted, was left in our warehouse," also a mistake on a "No:40 gang harrow" that could not be assembled by the dealer, and necessary parts on some "three-point hitches" weren't. sent to a new dealer at Norman, Oklahoma. Spicer, said, that Assistant Manager Culley warned Johnston specifically about these mistakes, but: "I talked to-Mr. Johnston in generalities many times about mistakes." He stated that Johnston could 'reasonably have prevented these mistakes by using the check sheets that list what comprises a complete machine. Asked the reason for his discharge of Johnston on November 1, Spicer answered "Accumulation of errors and mistakes that had, gone on for- many months that brought it up to a point of the start of a new year; that in our discussions that we found the time that we gave Mr. Johnston opportunities to show whether or not he had the.ability to carry this position, it was evident to us that he couldn't, and with that we decided to discharge him." 10 Johnston found to be a supervisor Johnston testified that when he was appointed foreman in September 1954 that Spicer's only direction as to what his duties would be was: "that I would be re- sponsible for the warehouse." He admitted, however, that it was his responsibility to supervise shipments of machines, but said that three-fourths of his time was spent in manual labor and he denied that he had been told that he had the right to hire or fire or effectively recommend the people who worked under him On redirect exam- ination, in response to counsel's question as to whom he worked under,' Johnston answered: "Well, Mr. Spicer told me, especially on one Monday that I were work- ing for Lauritsen. I thought I were working for Mr. Spicer up until that' day." But Carl L. Hardwick testified that at a time when they were unloading machinery : "Mr. Johnston came out and talked to Mr Huckaberry and was pretty well peeved because Mi Spicer had chewed hint out about the windows." MAS,SEY-HARRIS-FERGUSON, INC. 337 I believe,this assertion to be in the nature of an afterthought Spicer's testimony is in line with Branson's description of duties and responsibilities of warehouse foreman= which description constitutes the basis of determining whether' or not-Johnston; and likewise Branson, were. supervisors within. the' meaning- of the- Act: Johnston did admit that at various times there was part-time help under his' supervision in the warehouse. - Although Johnston equivocated, under cross-examination, I find that he had the authority to recommend hiring and firing, as well as to responsibly direct employees working under him 6 Significant- in the determination of the question of supervisory status of Johnston is the relevant and'admissible evidence of Foreman Branson who succeeded'John- ston within a matter of 8 days This evidence was given freely to the Board investi- gator on November 17, a month before the complaint was issued, and 21/2 months before Respoiident's answer was amended to plead supervisory status as a defense to,the Section 8 (a) (3) count of alleged discriminatory discharge Further, it was stipulated between the Company and the Union at the Board representative elec- tion, that the job formerly held by Johnston, but -then occupied by Branson, would be excepted in the voting as representative of management. Manifestly, these parties .to a consent election cannot usurp a mandated. function of the Board, anymore than can•parties litigant oust from or vest with jurisdiction, a court of law. It is clear from the history of the Taft-Hartley. legislation that Congress intended to restore to employers the right and. power to insist upon the undivided loyalty of their supervisory personnel . The following observations of Senator Taft are espe- cially illuminating : "The bill provides that foremen shall not be considered em- ployees-under the National Labor Relations Act They may form unioni'if they please, or join unions, but they do not have the protection of the National Labor Relations Act. They are, subject to discharge for union activity, and they are gener- ally restored to the basis which they enjoyed before' the passage of the Wagner Act. It is felt-very strongly by management that foremen are part of management ; that it is impossible to manage a plant unless the foremen are wholly loyal to the manage- ment . We tried various in-between steps, but the general conclusion was that they must either be a part of management or a part of the employees. It was proposed that there be separate foremen's unions not affiliated with the men's unions, but it was found that that was almost impossible; that there was always an affiliation of some sort ; that foremen , in order to be successful in a strike, must have the support of,the i-employees' union. A plant can promote other men to be foremen if nec- essary. The tie-up with the employees is inevitable . The committee felt that fore- .men either had to be a part of management and -not have any rights under the Wag- ner Act, or be treated entirely as employees, and it was felt that the latter course would'result in the complete disruption of discipline and productivity in the factories of 'the United States." Cf. Accurate Threaded Products Co., 90 NLRB' 1364, also Inter-City Advertising Co., 89 NLRB 1103. Also Texas Company V. N L. R. B., 198 F. 2d 540 (C. A. 9), reversing 93 NLRB 1358. It is the opinion of the Trial Examiner who heard this case and carefully observed the demeanor of every witness, that when Spicer, between 3 and 4 o'clock, found out -from Gilbert that Johnston, his foreman (and supervisor within the meaning of the Act), was the ringleader, he decided to discharge' him for disloyalty and untruthful- ness and directed Assistant Manager, Culley to effectuate this decision at quitting time-5 o'clock. I hold that this revelation was the fulminating factor in Johnston's -discharge on Noyember 1. Doubtless Johnston was not the most satisfactory fore- man, but 1 am, convinced that Spicer would not have discharged Johnston right out of hand on this gala anniversary, had, he not discovered Johnston to be the prime mover of the Union., This I hold to be a lawful exercise of a prerogative of -management. - 11. Culley's recital of Johnston',s discharge - Assistant Culley called Johnston in the office about 5 p. m. and discharged him saying: "I told Mr Johnston that this was something that no man liked to do, but e The term "supervisor" means any individual having authority, in the interest of the employer,-to hire, transfer, suspend, lay off, recall, promote, discharge, assign , reward, or discipline other employees, or responsibil ity to direct them or to adjust their griev- ances, or effectively to recommend such action, if in connection with the foregoing-the exercise of such authority is, not of a merely ioutine-or clerical nature, but requires the use of independent judgment 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I felt that the point had been reached where-we could no longer use his services." Culley granted him 2 weeks' pay,_ plus whatever time he had coming on vacation. Culley quoted Johnston as having said: "Well, I think the-only thing that is causing that [discharge] is this union thing." Culley explained: "I pointed out to Mr. John- ston at that, time that we had no knowledge of his union activity; that he had just told us that afternoon that he knew nothing of the union activity; he had signed no card; that it was caused from his mis-shipments; pointed out these particular three, and told him that there were many more, which there 'are, and we would no longer need him. Mr. Johnston again stated that he felt it was union activity and I told him that was his privilege to feel as he felt, that the fact was we were letting him go for incompetency." Culley iefused to retain Johnston as a laborer explaining to Coun- sel Wolf: "Q. Did Mr. Johnston suggest anything as far as being retained in other capacities? A. Yes, Mr. Johnston suggested we put him back as a laborer and make someone else warehouse foreman. I explained to Mr. Johnston not only in this company, but in business for myself, that you never demote a man successfully." Cf. N. L. R. B. v. Columbus Iron Works, 217 F. 2d 208 (C. A. 5). Johnston proceeded to union headquarters immediately after being discharged and advised Representative Hughes of Respondents action. Hughes thereupon tele- phoned Spicer at his, home-about 5:30 p. m.- In this connection, Hughes;.testified: Mr. Johnston come in and said he was discharged for union activities and -I said, Well, I will call Mr. Spicer and check into it.' So I called out to plant and nobody answered there so I called Mr. Spicer's home, and he come to the phone and I in- troduced myself to him as Mr. Hughes, and he said, 'This is Mr. Spicer,' and I said, 'I have a boy up here in the office by the name of Mr. Johnston that you dis- charged.' And he said, 'That's right.' I said, `Well, Mr. Spicer, did you discharge him for union activities?' He said, 'I did.' He said, 'When I found out he was working for the union rather than Massey-Harris, it was time to discharge him.' I ,said, `That is going to bring up further problems, Mr. Spicer, I was hoping that could have waited until after we had the election.' He further informed me that he didn't give a damn what I did; that he had plenty of other things that he could' fire Mr. Johnston for and that was the extent of the conversation." Spicer's version of this' telephone conversation with Hughes anent Johnston's dis- charge is.just about as succinct as Hughes' version. His, testimony is as follows: "I got home sometime after 5:00 o'clock.- I don't know what time, to be exact, but I would guess that it must have been around half past five because our family usually has our evening dinner around 6:00 o'clock, and it was while I was eating dinner that Mr. Hughes called my home, and to me the name Hughes meant nothing. I had never heard of Mr. Hughes or his organization. And I answered the call, and I think if we want to recite it exactly, I think my first words were, "Well, Mr. Hughes, you will have to pardon me for a few moments because I still have a mouthful of food.' And then he advised me who he was and that Mr. Johnston was there and that he had been advised that he had been discharged. And he said, 'Is' that correct?" And I said, `Yes, sir, that is true.' And he said 'You have dis- charged him because of union activities.' And I said, 'No, sir, that its not correct.' And he said, 'Well, Mr. Spicer, I am offering you the opportunity of taking Mr. John- ston back to work.' And I said, 'You have no authority to offer me the opportunity to do anything. I happen to be running the Massey-Harris organization and I will hire and discharge people as I see fit."' The credibility test applicable to these conflicting versions depends, primarily, on the witness' inherent ability to perceive, remember, and relate, and on his ability and desire to tell the truth, supplemented by his demeanor on the witness stand. Of course there are amplifications of this rule See 3 Wigmore on Evidence,. Sec. 876. In the resolution of this conflict, application of the rule results in the Trial Ex- aminer's acceptance of Hughes' version, because in the climate of this conversation, Hughes was an intermediary-less subject to emotional stress and strain. Neverthe- less, it does not follow that simply because one does not believe a particular thing to which a witness testified that everything he says must be rejected. Judge Learned Hand in N. L R. B v. Universal Camera Corp., 179 F. 2d 749 (C. A. 2), states the, rule thus: "It is no reason for refusing to accept everything that a witness says because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." Nevertheless, I find and hold that in light of the evidence recited and relied upon and upon the whole record, Respondent did not violate Section 8 (a) (3) of the Act MASSEY-HARRIS-FERGUSON, INC. 339 by discharging Charlie Doyle Johnston, and I shall recommend that the complaint• be dismissed as to this issue. As to the issue of Johnston's reemployment, Culley's reasons for refusing rank-and-file employment to a former supervisor as being bad business practice-is controlling. This I find to be a prerogative of management. B. Interference, restraint, and coercion The allegations of the complaint that Respondent interfered with, restrained, and coerced its employees are comprehended in paragraphs numbered 5, 6, and 8. Para- graph numbered 5 charges that Respondent did on or about November 1, 1954, dis- charge C. D. Johnston, employed at its said Oklahoma City plant. This alleged violation, if found, would be derived from an unlawful discriminatory discharge. Such is not the case here, because Respondent was acting within its rights when it discharged its supervisor C. D. Johnston for disloyalty and untruthfulness, in addi- tion to unsatisfactory work performance. Paragraph numbered 6 charges that Re- spondent has, since the date of discharge, on or about November 1, 1954, failed to and refuses to reinstate C. D. Johnston to his former or a substantially equivalent position or employment. This charge fails for the reason that Respondent was acting within its rights when it refused to reinstate Johnston because of its policy not to de- mote employees or employ a former supervisor in a rank-and-file job. The statement that Manager Spicer made: "I've heard a rumor that the boys are trying to form a union out here, do you know anything about it?", was motivated by his desire to get information in order to answer the Union's assertion that it rep- resented his employees. In absence of union animus, or of other unfair labor prac- tices, I find this interrogation to be permissible under the facts of this case. En passant, I find that Spicer's statement: "Is it a fair question to ask how you're going to vote in the union deal, yes or no" to have been made to Branson, then acting supervisor, and the next day supervisor-warehouse foreman. Thus, this indictment fails because of Branson's holding supervisory status as heretofore explicated. Paragraph numbered 8 alleges that Respondent by its employee, K. S. Spicer, inter- rogated its employees concerning their union affiliations, threatened and warned its employees to refrain from assisting, becoming members of, or remaining mem- bers of the Union. This charge is predicated on the particularization set out in the complaint which reads as follows: On or about November 1, 1954, K. S. Spicer, manager, stated to employees: "I heard a rumor that the union is moving in on us. Do you know anything about it? . . . Has there been anyone talking to you about the Union out there? . . . Have you signed cards? . It is a question of you all working for Union or for me . If anyone does talk to you all about the union let me know. . . You won't be allowed to take time off to go to funerals and such things if a union does come in." I find that Spicer directed these remarks to Johnston and his assistant in order to get information to reply to the Union's letter and tele- gram. This type of interrogation is protected, in absence of other independent viola- tions of Section 8 (a) (1), under the doctrine of the Blue Flash case, supra. This same legal premise i1 applicable to the interrogation which Spicer admitted to on the second meeting on Monday afternoon, November 1. The Trial Examiner finds these interrogations in the setting found above not to contravene the law. I also find the threat regarding "funerals and such things" to be too isolated and of such a minor nature as not to warrant the issuance of a cease and desist order. In.conclusion, I find and hold that the General Counsel has not sustained the burden of proving the allegations in his complaint by a preponderance of the evi- dence as required under the law. CONCLUSIONS OF LAW 1. Massey-Harris-Ferguson, Inc., is and all times relevant herein has been en- gaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. General Drivers, Chauffeurs & Helpers, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Local 886, AFL, is a labor organization within the meaning of Section 2 (5) of the Act 3. Respondent has not engaged in any unfair labor practices within the meaning of the Act. [Recommendations omitted from publication. 387644-56-vol . 114 ---23