Cadillac Marine & Boat Co.

CADILLAC MARINE & BOAT COMPANY 107 professional employees, foremen, assistant foremen, executives, guards, watchmen, truckdrivers, and supervisors as defined in the Act. [The Board dismissed the petition in Case No. 1-RC-4230.6] [Text of Direction of Election omitted from publication.] 9 See footnote 4, above. 'Cadillac Marine & Boat Company and International- Association of Machinists, AFL-CIO. Case No. 7-CA-1053. January 20, 1956 DECISION AND ORDER On February 11, 1955, Trial Examiner Herbert Silberman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as -set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report together with a supporting brief. The Board has reviewed-the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner,' with the following additions and modi- fications. - i The following matters raised by the Respondent , in its exceptions and brief, warrant comment: ( 1) The Respondent contends that the Trial Examiner erred in refusing to admit evidence regarding dischargee Fulk's past employment record , and other evidence pertaining to the individual attitudes of three of the Respondent 's officials ( I e. Manager Weld, Superintendent Shervey, and Supervisor Swanson ) toward unionism . At the hear- ing the Respondent, in substance , offered to prove that Fulk's past work record is a poor one, in that Fulk had worked for numerous other employers and had not stayed long with any of them , and also offered to prove , in substance, that Weld and Swanson had in the past enjoyed pleasant relations with unions , and that Shervey was a former member of the Charging Union herein The Trial Examiner refused to admit the proffered evidence on the ground that it was not relevant. In the circumstances of this case , we cannot agree with the Trial Examiner and say the proffered evidence was not relevant However, we do not deem this evidence to be of sufficient probative weight, if admitted and fully considered , as to cause us to disagree with the Trial Examiner 's resolution of the issues to which such evidence was relevant , ( 2) the Respondent contends that the Trial Ex- aminer inaccurately reported , in his Intermediate Report, the testimony of Supervisor Ivon Waite, pertaining to the date when Waite first learned of the Union 's organizing -campaign . The Trial Examiner relied , in part, upon Waite's testimony to show that the Respondent had knowledge of the organizing campaign before it affected the discharge here in issue Waite's testimony in this respect is somewhat ambiguous, and the Respond- ent's contention is not without merit. Accordingly , we do not rely upon Waite's testimony to establish that the Respondent's officials were aware of the Union 's activities prior to the discharges , this latter fact being clearly established by other evidence . For example, as noted by the Trial Examiner , the Respondent 's superintendent, Wesley Shervey , admitted 115 NLRB No. 30. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . 1. In finding that the Respondent was engaged in interstate com- merce, the Trial Examiner relied solely upon facts adduced at an earlier representation case hearing before the Board involving the Re- spondent. ( Case No. 7-RC-2400, issued June 24, 1954; not reported in printed volumes of Board Decisions and Orders.) In that case the Board asserted jurisdiction over the Respondent, finding that the Re- spondent, which had commenced operations about October 1, 1953, expected to manufacture products of a value of $350,000 annually, of which 80 percent would be shipped outside of the State. Pursuant to a Board order, dated June 10, 1955, the record of this case was reopened and remanded for the purpose of obtaining addi- tional evidence pertaining to the Respondent's involvement in inter- state commerce. The parties thereafter entered into a stipulation of facts in this regard. The stipulation is approved , made a part of the record herein , and herewith considered. that he was aware of the Union 's organizing activities in January 1954 ; ( 3) at-the hear- ing, the Respondent referred to an earlier Michigan Employment Security , Commission proceeding arising out of the same incidents herein alleged to be an unlawful discrimina- tion against employee Blaylock, wherein Blaylock 's eligibility for unemployment compen- sation was litigated . That proceeding was decided against Blaylock on the grounds that he had been discharged for insubordination and had falsely assigned , on his application for unemployment compensation , "laid off for lack of work" as the reason for his discon- tinued employment . The Respondent contends that the decision in the Michigan pro- ceeding bars the Board from reaching a contrary result with regard to Blaylock Such a contention is clearly without merit . ( Aerovox Corporation, 104 NLRB 246 , 247 ; Seyfei t Foods Co., 109 NLRB 800 , 810, footnote 5 ) The Respondent also contends that the Trial Examiner erred in refusing to permit it to introduce into evidence the Michigan Employ- ment Security Commission decision relating to Blaylock The Trial Examiner , after rul- ing that the decision was not relevant to the issues herein , refused to admit a proffered copy of the decision into the record , but ordered it placed in the rejected exhibits file This file is now bet ore the Board Although , as noted , we disagree with the Respondent's contention that the decision is in any way controlling herein , we do agree that the deci- sion is relevant and should have been admitted into evidence for whatever probative value it may have (ibid ) Accordingly , it is so admitted So ruling, we have carefully ex- amined the decision and are convinced that such evidence does not alter our decision herein The Respondent further contends that the Trial Examiner also erroneously ex- cluded evidence which would show that certain testimony was introduced at the instant hearing which was not introduced , although apparently available, at the Michigan hear- ing. The Respondent made no offer of proof with respect to this "omitted" evidence. However, it appears that such evidence may be relevant , particularly with respect to the credibility of several of the Union 's witnesses testifying herein. Accordingly, we have also considered the full import, as claimed ,by the Respondent , of this-evidence and we are likewise here satisfied that such evidence , even if admitted , would not have altered our decision in this case , and (4 ) the Respondent argues that certain remarks contained in the Intermediate Report indicate that the Trial Examiner "permanently shifted" the but- den of proof onto the Respondent . We find no merit in the Respondent 's contention Regardless of how phrased , it is clear from a careful examination of the entire Interme- diate Report that the Trial Examiner at most expressed the well-settled principle that a party has the burden of going forward With the evidence , after a prima facie case has been established against it ( See Pacific Mills, 91 NLRB 60 , 61 ) The fact that the Trial Examiner found the Respondent 's defenses lacking in merit, or chose to disbelieve the evidence submitted by the Respondent, does not signify , as the Respondent appears to contend, that the Trial Examiner is laboring under any misapprehension as to the proper assignment of the burden of proof. In any event, in appraising the evidence in this case, we have adhered to the rule that the burden was on the General Counsel to prove each and every material allegation in the complaint With regard to (1), (2 ), and (3 ), above , we find that the errors the Trial Examiner committed have not in any manner prejudiced the Respondent herein, As noted, with respect to ( 4), we find that the Trial Examiner did not err. CADILLAC MARINE & BOAT COMPANY 109 It appears from the stipulation that prior to the dates of the unfair labor practices alleged in the instant case, the Respondent had a total inflow of materials from out of State amounting to approximately $36,186. The entire amount of this inflow was initially purchased by and billed to the Wagemaker Company of Grand Rapids, Michigan. Wagemaker is the sole stockholder of the Respondent and the two companies have the same officers. Whether or not the inflow of the materials to the Respondent be considered direct or indirect inflow, it is clear that prior to the unfair labor practices the Respondent was substantially engaged in interstate commerce, thereby investing the Board with legal jurisdiction under the Act. Moreover, in the interval following the occurrence of the unfair labor practices and the date of the hearing, the Respondent shipped approximately $230,000 worth of its products directly outside the State. Such a figure exceeds the Board's direct outflow standard for the assertion of its jurisdiction. Accordingly, we find that it will effectuate the policies of the Act to assert jurisdiction herein.2 2. Subsequent to the issuance of the complaint, the Respondent filed a motion for a bill of particulars with respect to paragraph numbered VIII of the complaint which alleged violations of Section 8 (a) (1) of the Act. The General Counsel, without being so ordered, sub- mitted a bill of particulars to the Respondent covering paragraph numbered VIII. At the hearing the Trial Examiner considered the bill of particulars as if it had been issued pursuant to his order, found it to be adequate, and denied the Respondent's motion to dismiss paragraph numbered VIII of the complaint. The Respondent now contends that it was denied a fair hearing be-- cause the portions of the complaint alleging violations of Section 8 '(a) (1) of the Act were not sufficiently specific as to the alleged viola- tions to permit the Respondent properly to prepare its defenses thereto. We note in this connection that the Respondent did not, at the hear- ing, request additional time to obtain-or present evidence with regard to the alleged 8 (a) (1) violations. Further, aside from its bare allega- tion of prejudice, the Respondent now fails to specify what evidence it was prevented from introducing, or in precisely what manner it was prevented from fully litigating its defenses to paragraph num- bered VIII of the complaint. Moreover, we have carefully examined the complaint and bill of particulars submitted by the General Counsel, as well as the transcript of the hearing, and are convinced that the Re- spondent was advised of the nature, time, and place of the Section 8 (a) (1) violations, with sufficient specificity to enable it to litigate them fully.' 2 See New London Mills, Inc, 91 NLRB 1003, 1004. 3 United Mine Workers of America, District ,.# 1, 95 NLRB ,544, 548. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Trial Examiner found that the Respondent violated Section 8 (a) (1) by the statement of Supervisor Swanson to employee Tyler to the effect that dischargee Merchant was discharged for her union activities; and also by Swanson's statement to employee Blaylock that dischargee Fulk was fired because Swanson had caught Fulk talking union to two older employees.- The Trial Examiner expressly noted, however, that he did not rely upon the above statements of Swanson in making his findings that the Respondent discriminatorily dis- charged Merchant and Fulk. We adopt the Trial Examiner's findings that Merchant and Fulk were discriminatorily discharged. In' so doing, however, we rely not only upon the evidence, detailed in the Intermediate Report, which was relied upon by the Trial Examiner,, but we also rest our conclusion in this respect upon Swanson's state- ments to employees Tyler and Blaylock. ORDER Upon the entire record in the case, and pursuant to Section 10 (c),_ of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Cadillac Marine & Boat. Company, Cadillac, Michigan, its officers, agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Ma- chinists, AFL-CIO, or any other labor organization, by discharging any of its employees or otherwise discriminating in regard to its em- ployees' hire or tenure of employment or any term or condition of em- ployment. (b) Threatening employees with reprisal or promising them bene- fits to discourage their affiliation with, or support of, any labor organ- ization. - (c) In any other manner interfering with, restraining, or coercing- its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Ma- chinists, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such ac- tivities, except to the extent that such right maybe affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : _ (a) Offer to Raymond Fulk, Rufus A. Blaylock, and Ruth Mer- chant immediate and full reinstatement to their former or substantially CADILLAC MARINE & BOAT COMPANY 111 equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of earnings they may have suffered by reason of the Respond- ent's discrimination against them. (b) Preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records,.social-secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (c) Post at its plant in Cadillac, Michigan, copies of the notice at- tached hereto and marked "Appendix A." " Copies of said notice, to. be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the.Seventh Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. _ MEMBER BEAN took no part in the consideration of the above De- cision and Order. A 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." 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, as amended, we hereby notify our employees that : WE WILL NOT threaten our employees with reprisal or promise- them benefits to discourage their affiliation with, or support of, any labor organization. WE WILL NOT in any other manner interfere with, restrain, or- coerce our employees in the exercise of their right to self -organ- ization, to form labor organizations, to join or assist International Association of Machinists, AFL-CIO, or any other labor organ- ization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protec- 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, 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 employ- ment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer Raymond Fulk, Rufus A. Blaylock, and Ruth Merchant immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their sen- iority or other rights and privileges, and we will make them whole for any loss of earnings they may have suffered by reason of their discharges. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. CADILLAC MARINE & BOAT COMPANY, 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 a charge and amended charge duly filed by International Association of Machinists, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for the Seventh Region (Detroit, Michigan ), on October 5, 1954 , issued a complaint against the Respondent, Cadillac Marine & Boat Company, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (a) (1) and ( 3) and Section 2 (6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing thereon were duly served upon the parties. With respect to the unfair labor practices , the complaint alleges, in substance, that the Respondent on February 3, 1954, discharged Rufus A. Blaylock and Ray- mond Fulk and on February 4, 1954, discharged Ruth Merchant because of their membership and activities in behalf of the Union , in violation of Section 8 (a) (1) and (3 ) of the Act; and that the Respondent since February 1, 1954 , by various acts set forth in the complaint has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8 (a) (1) thereof . The Respondent in its answer , verified October 9, 1954, denied that it committed the alleged unfair labor practices. Pursuant to notice , a hearing was held from November 9 to 12 , 1954, at Cadillac, Michigan , before -Herbert Silberman, the duly designated Trial Examiner. The General Counsel and the Respondent were represented at the hearing by counsel and the Union was represented by a grand lodge representative . Full opportunity to be -heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to present oral argument was afforded all parties. The Respond- ent's motion to dismiss certain allegations of the complaint on the ground that the General Counsel 's bill of particulars, served in response to Respondent's demand therefor, was insufficient was denied . The General Counsel and the Respondent have submitted briefs to the Trial Examiner which have been given due considera- tion. Respondent's motion to correct the transcript of the record is hereby granted, as follows: substitute "which was" for "we were" in line 14 on page 13; substitute CADILLAC MARINE & BOAT COMPANY 113 "cannot" for "can" in line 12 on page 89; insert "him" between the words "like to" in line 24 on page 307; insert "was to" between the words "Shervey notified" in line 8 on page 311; and insert "Trial Examiner: Objection sustained," between lines 12 and 13 on page 531. Upon the record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Cadillac Marine & Boat Company, a Michigan corporation, is engaged at its plant in Cadillac, Michigan, in the manufacture of boats and related equipment. The Respondent, since it was incorporated in September 1953, has been in the process of rebuilding and expanding its manufacturing facilities and plant in Cadillac, Michi- gan. The Respondent expects to produce manufactured products in excess of $350,- 000 annually of which 80 percent will be shipped from its plant in Cadillac, Michigan, to places outside the State of Michigan. Upon the basis of the foregoing, the Trial Examiner finds that the Respondent is engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.' H. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction The Respondent, which is a wholly owned subsidiary of the Wagemaker Com- pany of Grand Rapids, Michigan, was organized in September 1953 for the pur- pose of manufacturing metal and wood boats and related products. It acquired an existing structure in Cadillac, Michigan, which it commenced to remodel to meet its requirements. Prior to January 1954 Respondent's operations were limited to installing machinery and equipment in its plant and to effecting structural altera- tions of the premises. With the start of the new year Respondent commenced pro- duction activities although still engaged in plant reconstruction. It also began a steady expansion of its work force. The number of employees at Respondent's Cadillac plant, which totaled about 50 at the beginning of 1954, was increased to approximately 130 by November of the same year. In the early months of 1954 Respondent had not yet succeeded in systematizing its production processes. Be- cause of the transition from plant construction to production of boats which was taking place during this period, employees frequently found themselves without work upon the completion of an assigned task and while waiting for their super- visors to assign other jobs to them. This was not then of major concern to the Respondent for, as Robert Wold testified, "At that time it was less important that [Respondent] operate [with] extreme efficiency than it was to get a few boats out to the boat show." The officers of both Respondent and the Wagemaker Company are identical. John Bushnell, secretary and vice president of Respondent and its parent corporation, is the only corporate officer who devotes his time to the active management of Respond- ent. In February 1954, according to the testimony of Robert Wold, the organization of the plant was very loose and Respondent "actually didn't have a separate depart- ment set up as yet." John Bushnell was in charge of the wood division and was as- sisted by Oscar Swanson, who was in charge of the assembly of wood boats, and William V. Lewis, who was superintendent of the mold shape department. All other supervisory personnel were subject to Wold's direction who, in February 1954, was the manager in charge of the metal division. Wesley C. Shervey was then plant su- perintendent in charge of all production and maintenance work. Under him, among others, were David B. Hortemiller, who was hired about January 18, 1954, as as- sistant to the plant superintendent and towards the end of the month was placed in charge of the assembly of metal boats, and Ivon Waite, who was supervisor of con- struction. Although the authority of these men was not clearly defined, they were responsible for the direction of the employees subject to their supervision, they ' Cadillac Hat me d Boat Company, eup? a 390609-56-vol 115-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made recommendations regarding hire, discharge, and advancement of. employees which were accorded effective weight by Respondent's managerial officials, and they had authority to discharge employees in cases of gross misconduct. Accordingly, I' find that in February 1954, Hortemiller, Lewis, Waite, and Swanson, as well as Wold and Shervey, were supervisors within the meaning of the Act. B. Sequence of events Towards the end of January 1954, employees at Respondent's plant began dis- cussing among themselves the desirability of securing the representation of a labor organization. In due course Carl Cederquist, grand lodge representative of the Union, was contacted and arranged to meet with Respondent's employees after working hours on February 1, 1954. Notice of this meeting was passed by word of mouth among the employees. W. V. Lewis, superintendent of Respondent's mold shape department, testified that prior to February 1 he had learned that the union meeting was going to be held. He further testified that, although he attended sub- sequent meetings, he did not attend the first union meeting because he had not been invited. About 3 p. m. on February 1, 1954, five employees, including Rufus A. Blaylock and Charles Henry Bush, were summoned to a meeting in the Company's office. Management was represented by Robert Wold and Wesley C. Shervey. Wold stated at the meeting that he understood there was unrest among the employees arising from their dissatisfaction with their wages. He explained that the Company had been un- dergoing a period of hardship because of the expense involved in remodeling and equipping its Cadillac plant. However, he promised the employees that the Respond- ent was going to remedy their complaints, that it was planning to institute an incen- tive system which would increase employees' earnings, and also intended to obtain insurance and other benefits for the employees. Wold also advised the men who attended the meeting that they were selected from the various departments of the plant so that they could relay the substance of his statements to their coworkers? - Approximately 25 employees attended the first union organizational meeting which was held in the evening of the same day. At this meeting, the employees elected Charles H. Bush as temporary chairman and Rufus A. Blaylock and Ruth Merchant as temporary stewards. The next day employees in the plant were asked to sign union authorization cards by Ruth Merchant, Raymond Fulk, and Rufus A. Blay- lock 3 There is no evidence in the record indicating that any other employees were active in soliciting union membership on February 2. Ruth Merchant testified that during the 10 a in. rest period on that day she gave authorization cards to four other female employees. She also testified that while she was doing this, Oscar F. Swan- son, a supervisor, who was standing at his desk about 5 feet away from the table where the girls were seated, was watching her and the women with whom she was talking and was able to see what was taking place as well as to hear their conversa- tion .4 Raymond Fulk testified that he distributed quite a few cards on February 2 5 Specifically, he testified that during the lunch period he offered authorization cards to two part-time employees who refused to accept them and who told him that they did not want to have anything to do with the Union; later in the day he offered a card to George Jensen; and he also offered a card to William V. Lewis. According to Fulk, Lewis refused to accept the authorization card from him because Lewis and the other employees in the mold shape department had not been invited to the union meeting the previous night.6 Fulk further testified that after speaking with Lewis he went to the department where Blaylock was working and told Blaylock that the men in the mold shape department were resentful because they had not been invited to the union meeting and asked Blaylock to speak to the men, which Blaylock agreed to do. Hold testified that there was no particular occasion for calling this meeting "other than at our Christmas party we had promised the employees to give them periodic reports of what we were doing, and we have since established weekly supervisory meetings. I tmaguie it was the start of these meetings " s Ivon Waite, who was Respondent's supervisor of construction, testified that he was handed union authorization cards as he was leaving the plant on his way home from work on February 2, 1954 4 Swanson did not deny the foregoing H Fulk did not attend the union meeting on February 1. However, prior thereto, he had actively talked with his coworkers about the need for a union in the plant. 0 Lewis did not deny Fulk' s testimony that the latter had offered him a union authoriza- tion card on February 2. CADILLAC MARINE & BOAT COMPANY - 115, Blaylock testified that at 4 : 30 p. m., after he had punched out his timecard, he went to the mold shape department for the purpose of soliciting the employees in that department, who were still at work , to sign authorization cards. There were only three men in the department , including Foreman Lewis. According to Blaylock, he approached the tables where 2 of the employees , whom he identified as Dalton and Richard Dale Denean , were working, offered the men union authorization cards, and engaged them in a conversation which lasted about 1 minute . Blaylock testified that the two men did not stop working during the time he spoke with them? When Blaylock turned away from Dalton and Denean he saw Ruth Merchant , who had come into the department looking for him because they were to drive from work together. As Blaylock started towards Merchant , Lewis called to him from the other side of the room, walked over to Blaylock , and engaged him in a conversation. Blaylock's version of the conversation is as follows: He [Lewis ] said, "Why wasn 't me and my men invited to the Union meeting last night?" And so I explained to him the same as I did the others, and he said, well, he says, "We can' t belong to your Union anyway," and I said, "Why is that?" And he said , "You get your checks from Cadillac Marine and Boat, don't you?" And I said, "Yes, they had just been changed ," and he said, "We still get ours from Wagemaker in Grand Rapids , and therefore you belong to a different company than this department of mine," and he says, "We wouldn't be able to belong to your Union anyway," and I said , "Well, my ride is waiting so I got to go get my ride." Blaylock testified that his conversation with Lewis did not last more than 2 minutes. Blaylock's version of the event was corroborated by the testimony of Denean and Merchant . Denean testified that in the afternoon of February 2 he was working alongside Dalton . Blaylock came into the department and placed union cards on the tables before Dalton and himself and asked if they wanted to join the Union. As Blaylock walked away Lewis called to him. Merchant testified that when she walked into the mold shape department at 4:30 p . in. on February 2 she saw Blay- lock talking to Lewis. She overheard part of the conversation between the two. She testified that she heard Lewis say something to Blaylock about why they weren't notified about the union meeting the night before and also heard Blaylock tell Lewis that he did not want to argue with him and that the men should decide for them- selves what they wanted. On the other hand, Lewis testified that Blaylock was in the department on the occasion in question about 5 minutes. Lewis testified that be had been working at the bandsaw and when he looked up he noticed Blaylock talking with one of the men in the department . According to Lewis, "I just let it go for a minute because I thought they were going to break it up and he [Blaylock] would go on out, and I went back and asked him to please break it up because we had work to do. . . . I didn't stay there . I just turned-I can't state definitely, but I just turned and went back to my own work, and they [Blaylock and Merchant] went out." Lewis, in contradiction to the testimony of Blaylock and Denean, also testified that Denean was not 1 of the 2 employees with whom Blaylock spoke. Lewis also denied that he had any knowledge of what Rufus Blaylock was doing in the mold shape department on that occasion . I credit Blaylock's testimony as to what occurred when he went into the mold shape department on February 2. I do not credit Lewis' testimony that he did not know the purpose of Blaylock's visit. Although Lewis testified that Blaylock was in the department for 5 minutes, he also testified that after he first noticed Blaylock the latter continued to talk with the other men for 1 minute whereupon he asked them to break it up and Blaylock left. Thus 4 minutes are unaccounted for. The plausible explanation of what happened in this interval is furnished by the testimony of Blaylock and Merchant, namely, that Lewis engaged Blaylock in conversation . Lewis further testified that when he saw Wesley C. Shervey, Respondent 's plant superintendent, he reported that there had been a work stoppage in his department as a result of Blaylock and a woman (Lewis testified that he did not know Mrs. Merchant by name at that time ) having come into the department. On February 3, Raymond Fulk was discharged by Robert Wold upon reporting for work. Rufus A. Blaylock was discharged in the afternoon of the same day by Wesley C. Shervey. Ruth Merchant, who was excused from work to attend a funeral in the afternoon of February 3, was discharged by Shervey when she reported for work on the morning of February 4. The General Counsel contends that these 7 This was corroborated by the testimony of Denean. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees were discriminatorily discharged because of their union activities. The Respondent denies this and contends that each was discharged for cause unrelated to their union membership or activities. C. Respondent's alleged reasons for the discharges 1. Raymond Fulk Raymond Fulk was among the first employees hired by the Respondent in the late summer of 1953. His services were used primarily in connection with the heavy work incident to the remodeling of Respondent's plant. Wold and Shervey testified that Fulk was not a satisfactory employee because he was careless, had an excessive number of personal injuries, was undependable, did personal work on company time, wandered about the plant, and interfered with the work of others. They further testified that the rough work which Fulk had been doing since the beginning of his employment until February 1954 was diminishing and they knew of no production job for which Fulk was suited. However, Respondent does not contend that Fulk was discharged on February 3 because of lack of work for him or because of Respondent's dissatisfaction with his services, although these factors contributed to its decision to terminate Fulk's employment. It is Respondent's posi- tion in this case that the precipitating reason for Fulk's discharge was that on the afternoon of February 2 he had been interfering with the work of some men in the sanding room, a place where he had no legitimate duties. Robert Wold testified that in the afternoon of February 2, Oscar F. Swanson came to his office and reported to him that Fulk was interfering with the work in Swan- son's department. A few minutes later Mr. Wold left his office and went upstairs to the sanding room where he observed Fulk in conversation with 3 or 4 men. Wold watched Fulk for approximately 10 minutes until Fulk looked up, saw Wold, stopped his conversation, and immediately headed for the stairs. As Fulk passed him Wold asked Fulk what he was doing and the reply was that Fulk was checking on boats. Wold did not know what Fulk's particular duties were at that time or whether Fulk had had any business in the sanding room. Therefore, according to his further testimony, Wold looked for Fulk's foreman, Ivon Waite, who happened to be out of the plant. Wold found Waite later in the same day, told him what had happened, and asked him if he had sent Fulk to the sanding room. Waite replied that Fulk had no business there. The next morning when Fulk reported for work, Wold mentioned the incident of the previous day to him and also told Fulk his work was unsatisfactory and he was discharged. Wold also testified that at the time he discharged Fulk he had no knowledge of union activity among Respondent's employees or that Fulk had been engaged in any such activity. Swanson's version of the incident is that some men who were not subject to his supervision were making repairs near the sanding room. One of the men informed Swanson that Fulk was bothering them and wanted to know if Swanson could do something about it. Swanson replied that he would report it and thereupon went to the office and told Wold that Fulk "was bothering those two men." Fulk's testimony concerning the circumstances surrounding his discharge differs only in minor details from Wold's and Swanson's. Fulk testified that on February 2 he went to the sanding room and engaged George Jensen in a conversation about joining the Union and about other matters. He spoke to Jensen for about 5 minutes and as he left the sanding room he passed Wold who asked him what he was doing there. The next morning upon reporting to work he was sent to Wold's office and the latter told Fulk that the Respondent couldn't use him any more. When Fulk asked for an explanation Wold replied, "running around the plant too much." 8 9 According to Fulk, Wold also advised him that he was not fired but laid off Whether an employee is discharged for cause or laid off has significant bearing upon the employee's right to receive unemployment compensation from the Michigan Employment Security Commission Considerable evidence was adduced at the hearing, particularly as regards Rufus A Blaylock, relating to claims of employees of the Respondent for unemployment compensation and the actions of Respondent in regard to those claims After due con- sideration, I have reached the conclusion that this evidence has only remote bearing upon the principal issues herein, namely, whether Fulk, Blaylock, and Merchant were discrimi- natorily discharged. The General Counsel argues that the fact that the Respondent's replies to the Michigan Employment Security Commission's requests for wage and sepa- ration information with respect to the unemployment compensation claims of Fulk, Blay- lock, and Merchant « ere submitted several weeks late and after the Respondent had been advised that the unfair labor practice charges herein were being filed against it, indicates CADILLAC MARINE & BOAT COMPANY 117 In February 1954 Fulk's immediate supervisor was Ivon Waite. Waite testified that he was not consulted prior to Fulk's discharge. In fact, the discharge came as a sur- prise to Waite because Waite did not learn of the event until the following day when he noticed Fulk was missing and "inquiring around [I] was told by one of the men that he [Fulk] was done." Wold testified that "because I had observed the final inci- dent myself, I fired him [Fulk] myself." Although Fulk's unsatisfactory perform- ance on the job may have contributed to Respondent's decision to discharge him, it is clear from the evidence that Fulk would not have been discharged on February 3 but for the incident of the previous day. Thus, in relation to Respondent's defense, the subject of inquiry is narrowed to whether Wold discharged Fulk because he was in the sanding room purportedly disturbing other employees or whether Fulk was dis- charged for his activities in behalf of the Union and the February 2 incident was seized upon to furnish a seemingly nondiscriminatory reason for the discharge. The testimony and explanations by Wold and Swanson with regard to the termi- nation of Fulk's employment lack a tone of sincerity. First, Wold not only failed to explain why Ivon Waite, Fulk's immediate supervisor, was not consulted in advance of the latter's discharge,9 but in a significant respect Wold's testimony was contradicted by Waite. Wold testified that before he discharged Fulk he first inquired from Waite whether Fulk had had any duties in the sanding room on February 2. However, Waite denied that Wold had asked him about Fulk's duties on February 2 and further testi- fied that at no time did he have such discussion with Wold.10 Second, Wold offered no reasonable explanation as to why he found it advisable to personally observe Fulk's behavior on the occasion under discussion instead of accepting Swanson's report. When asked that question at the hearing, Wold testified, "Mr. Swanson said Mr. Fulk was interfering in his department, and somebody do something about it. It wasn't in the nature of a report so much. It was in the nature of a request. Mr. Shervey wasn't present, and neither was Ivon Waite, his foreman, so that meant it was up to me." Although Wold's purported reason for going to the sanding room was to do something about Fulk's interference with the work in that department, Wold's testi- mony shows that he did nothing whatsoever. He merely watched Fulk for 10 minutes until Fulk himself left the sanding room. Wold made no attempt to interrupt Fulk's alleged interference with the work in the sanding room. Wold's explanation for his inaction was, "I was quite irritated by the fact he [Fulk] stood around for such a long time, but I couldn't discipline him on the spot because I didn't know at the time whether or not he had been given direct orders by Ivon Waite to go up there." These explanations by Wold are implausible and inconsistent. If, as he testified, Wold went to the sanding room because Fulk was reported to have been interfering with the work in that department with the intention of correcting the situation, regardless of whether Fulk had legitimate business in that place, Wold could have stopped him from disturbing the other men by directing that they all return to their work. If Wold that the alleged reasons reported by the Respondent to the commission for the discharges were developed as afterthoughts in connection with the preparation of its defense to this proceeding Although this argument is not entirely without merit, other possible explana- tions exist for Respondent's delay in submitting its replies to the Michigan Employment Security Commission Therefore, I do not rely upon the evidence relating to the late filing by Respondent of its responses to the Michigan Employment Security Commission in support of any of my findings herein. The Respondent admits in this proceeding that Folk, Blaylock, and Merchant were dis- charged and not laid off. Therefore, the fact that Fulk and Merchant may have believed they were laid off in February 1954, rather than discharged, has no bearing upon the issues which were tried herein. Likewise, the fact that Blaylock, when he filed his claim with the Michigan Employment Security Commission, may have incorrectly advised the commission that he had been laid off by the Respondent and the further fact that the commission eventually dismissed Blaylock's claim for unemployment compensation on the ground that he had been discharged for cause do not affect this proceeding. Such determination by a State unemployment compensation body in the course of processing a claim filed with it is not relevant or material in a proceeding under the National Labor Relations Act and does not serve to divest the National Labor Relations Board of its juris- diction to find and remedy any unfair labor practices flowing from the discharge Wells Dairies Cooperative, 110 NLRB 875, footnote 8 U Wold testified that on the night of February 2 he advised Shervey of his intention to discharge Fulk. Likewise, there is evidence that on the same day or the next day the two also consulted together about Blaylock and Merchant. This is another circumstance indicating that the contemporaneous discharges of Fulk, Blaylock, and Merchant were not the product of mere coincidence 10 Waite testified that he might have spoken with Shervey about the matter. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had no such intention then there was no practical reason for him to go to the sanding room. Swanson's report that Fulk was in the sanding room bothering some men should not have surprised Wold. Wold testified that a contributing reason why Re- spondent considered Fulk an unsatisfactory emloyee was that "he was subject to wandering. He would get lost, and the foreman couldn't find him." Furthermore, Wold testified that he had not reason to doubt the accuracy of Swanson's report to him. Third, another incongruous circumstance in the matter was Swanson's con- duct. Swanson testified that when the complaint was made to him that Fulk was bothering the men, he made no attempt to correct the difficulty, but immediately went down to the office and gave his report to Wold. He further testified that the reason he reported the incident to Wold is that it occurred in his department, but the reason he made no attempt to stop Fulk from disturbing the other men is that none of the people involved were subject to his immediate supervision. It strains belief that in this newly organized plant, which then employed only 50 people and didn't have a firmly established departmental structure, the lines of supervision and authority were so rigid that a supervisor was unable to correct, or even attempt to correct, a situation of this kind. Fourth, although Fulk was severely disciplined for talking with the men in the sanding room on February 2, there is no evidence in the record that the other persons involved in the incident were disciplined or even reprimanded. Significantly, Wold testified that the reason Swanson reported the incident to him was that "he [Swanson] merely wanted me to take care of Ray Fulk." This naturally raises the question as to why there was any more interest in taking care of Fulk than there was in taking care of the other employees involved in the incident. The answer that suggests itself is that it was not the incident itself, namely, Fulk talking with the other men, that Swanson and Wold were concerned about. Finally, in view of the fact that Respondent permitted employees to talk with one another during working hours and even tolerated employees leaving their places of work to solicit funds for various purposes from employees in other parts of the plant, Fulk's abrupt dis- charge for talking with men in an area of the plant where he had no immediate duties 11 appears to have been excessive disciplinary action in the circumstance. No explanation was offered as to why Fulk's conduct on February 2 was more serious than other instances where employees left their assigned areas of work to talk with others. For instance, the uncontradicted testimony shows no one has been repri- manded for activity in connection with a regular weekly check pool, in which some of the supervisors participated, which required an employee to go about the plant collecting money from the other employees. Upon consideration of the foregoing, and all other testimony in the record relating to Fulk's discharge, I do not believe that his employment was terminated on the morning of February 3 because he had been interfering with work in the sanding room the previous day. 2. Rufus A. Blaylock Rufus A. Blaylock was hired on December 7, 1953. Toward the end of January he was assigned to the assembly of metal boats under the supervision of David B. Hortemiller. He was considered a superior employee. Immediately prior to his dis- charge on February 3 Shervey and Wold were contemplating advancing Blaylock to a supervisory position. However, Shervey testified that on February 3 Foreman Lewis informed him that Blaylock had been in the mold shape department interfering with the men. Shervey then called Blaylock into his office. According to Shervey: I did ask him [Blaylock] if he had been interfering with any of the other depart- ments, and he said no, and I told him that I had been informed that he was in another department, he had been interfering, and it was the Molding depart- ment, and he admitted it then.... After I had told him that I had been informed that he was in that department he got a little mad, I guess, and told me that he knew his union rights, and he had been around long enough to know what he could do and what he couldn't do; that he wasn't on company time, and also that we were a very cheap company, and we wouldn't be able to get anybody else to work for us. That's the reason he was discharged. Shervey further testified that "earlier in this here conversation he [Blaylock] had asked me if he was brought in to be discharged. I don't know what give him that idea, but I did tell him no." Shervey stated that the specific reason for Blaylock's discharge was insubordination. n In February 1954 Fulk's duties Included stock handling which required him to go into various areas of the plant. CADILLAC MARINE & BOAT COMPANY 119 Blaylock's version of the conversation differs from Shervey's principally in that, according to Blaylock's testimony, Shervey began the conversation by reprimanding Blaylock for engaging in union activity rather than for interfering with the work in the mold shape department the previous evening. Concerning their conversation Blaylock testified, as follows: He [Sherveyl told me, he says, "I suppose you know what I called you in here for," and I says, "No, I don't have any idea," and he said, "Well, Rufus, how long did you expect to do what you are doing out in the plant and get away with it?" And [ said, "I. don't know; what am I doing, Wes?" And he said, "There is no use of lying to me" because he says, "I know." He said, "I had an employee tell me," as a matter of fact he said, "Two employees told me that you was help- ing organize the Union in the plant"; and I said, "Who was it, Bill Lewis?" And I thought of that instance that happened out there, and he said, "No, I heard about that, but that isn't what I am referring to." . . . I said, "I suppose this means I am discharged?" And he said, "No, not necessarily," and then he said, "Have you been talking Union in the plant?" And I said, "Yes, but everybody is talking Union in the plant, you know that, you are not blind." So he said, "Well," he said, "Wagemaker in Grand Rapids, you know, hasn't got a Union," and he said, "This company is not going to have a Union in Cadillac." He said, "Dave told me that he wanted you to make more money because you are a pretty good worker." He said, "Dave thinks you are a good worker," and he said, "I know you are a good worker, and I would like to have you around," but he said, "This union stuff has loused up your chances of ever getting the money that you have been promised," and further stated due to our different way of thinking, he said, "I am going to have to lay you off." Blaylock also testified that at the point in their conversation following Shervey's averment that the Company was not going to have a union he said to Shervey, "Well, what could he [Sherveyl expect on the cheap wages he was paying, and the people was wanting a Union because of the promises he had made, that they wasn't showing up on our pay checks and it wasn't just me that was dissatisfied, it was a majority of the people." 12 Shervey's explanation of the circumstances leading to Blaylock's discharge lacks conviction. Shervey testified that "I had brought him [Blaylock] up there [to the office] with the purpose of telling him not to interfere back there with that group [in the mold department]." However, Shervey also testified that when he spoke to Blaylock on February 3 he did not know what Blaylock had been doing in the mold shape department the previous evening and he had made no attempt to find this out from Lewis. Thus, according to Shervey, he was prepared to reprimand Blaylock, an admittedly conscientious and industrious employee, without first having ascertained the nature or extent of Blaylock's alleged misconduct. Moreover, even more in- credulous is Lewis' and Shervey's testimony that Lewis did not report to Shervey that Blaylock had been soliciting union membership in the mold shape department on February 2. The overwhelming weight of the evidence shows that in the early months of 1954 discipline at Respondent's Cadillac plant was lax and conversations among employees as well as solicitations for various purposes were tolerated. Despite this, according to Lewis, although he saw Blaylock, who had already finished work for the day and had punched out his timecard, talking to the men in his department for only 1 minute and Blaylock left immediately after Lewis asked the men to break it up, nevertheless, he reported to Shervey that Blaylock had caused a work stoppage in his department. Such extreme characterization of Blaylock's presence in the mold de- partment is hardly compatible with Blaylock's alleged misconduct on the occasion in question.13 As indicated above, despite Lewis' denial, I find that Lewis knew that Blaylock had come into the mold shape department in the afternoon of February 2 to speak to the men about the Union. The inference which is most reasonable in the light of all the circumstances is that Lewis reported this fact to Shervey who called Blaylock to the office not to speak about Blaylock's alleged interference with the employees in the mold shape department but to talk to Blaylock about his union activities. This inference is supported by the testimony of Hortemiller. Hortemiller credibly testified that on February 3, before Blaylock was discharged, he had a con- versation with Shervey who told him that Shervey had found out Blaylock was an active union member and1 had learned about Blaylock distributing union literature 12 On cross-examination Blaylock testified that he made this latter statement after Sher- vey told him he was discharged. 13 Fnually unconvincing was Lewis' attempted explanation as to why he considered that a work stoppage had taken place. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the plant. They both believed that Blaylock was a valuable employee and that his adherence to the Union would operate to his detriment. It was Shervey's ex- pressed intention to talk to Blaylock and "reason things out with him , if possible." 14 Shervey specifically testified that at the time he spoke with Blaylock on February 3 he had not changed his mind about advancing Blaylock to a supervisory position. However, in this regard Shervey was contradicted by Wold who testified that prior to Blaylock's discharge on February 3 Shervey reported to him that something had come up that made Shervey seriously doubt whether Blaylock was the man who should be advanced to a supervisory position in the assembly department. Wold asked what it was and Shervey replied "that Blaylock had been reported as being in another department after working hours, something about interfering with the work of others. At least he said he had been reported by the foreman , the fore- man had to order him out of the department . Mr. Shervey told me he was go- ing to talk it over with Blaylock." Thus, according to Wold's testimony , before Shervey actually spoke to Blaylock on February 3, Shervey had already determined to discipline Blaylock for the incident on the evening before by denying Blaylock the opportunity for advancement to a supervisory position. Shervey testified that he discharged Blaylock because of the latter's insubordina- tion. The alleged insubordination was not any refusal by Blaylock to follow instruc- tions or accept proper supervision , but consisted of his defiant assertion of his so- called union rights and his characterization of Respondent as a "cheap company." 15 It is not consistent that Shervey would have discharged Blaylock, whom he had been considering for promotion to a supervisory job, for this single outburst while, as will be discussed below, showing greater leniency to less satisfactory employees for more serious misconduct . It is my opinion, upon the basis of all the evidence, that Shervey on February 3 summoned Blaylock to his office in order to dissuade him from further union participation. However, when Blaylock demonstrated his strong belief in the need for a union at the plant and that his adherence to the Union could not be shaken Shervey decided to discharge Blaylock. I do not believe that Blay- lock's alleged insubordination was the operative fact which motivated Shervey to terminate Blaylock's employment with Respondent. 3. Ruth Merchant Ruth Merchant was hired about December 15, 1953 . She was excused from work during the afternoon of February 3, the day on which both Fulk and Blaylock were discharged. However, she was discharged by Shervey at the start of the following workday, which was a Thursday. It is the Respondent's position that Merchant was discharged because she was an unsatisfactory employee. Merchant testified that when she was discharged Shervey merely told her that Respondent had no further need for her services and that there was no work available for her . Merchant also testified that Shervey told her she would be called back as soon as work became available for her. Shervey's version of their final conversation was substantially the same as Merchant's, except that Shervey denied that he had told her she would be recalled. For the first 4 or 5 weeks of Merchant 's employment with the Respondent she had been doing miscellaneous jobs about the plant. However, 1 or 2 weeks before her discharge she was assigned to painting and polishing metal boats under the super- vision of Hortemiller . Hortemiller testified that her work was satisfactory. Mer- chant testified that not only had Hortemiller complimented her work in the metal boat department but Wold and Shervey had done likewise. Specifically , Merchant testified that Shervey, in addition to telling her how well she painted the boats, had asked her if she would like to be an inspector. Shervey admitted that he had done so but explained the reason for this inquiry as follows, "My plans then was to get her off by herself someplace ; maybe that would work out." Merchant also testified that she received an increase of 5 cents per hour approximately 3 weeks be- fore she was discharged. Shervey and Wold both testified that more than 3 weeks before the day of her discharge they had determined to terminate Merchant's em- 14I do not credit Shervey 's denial of the foregoing conversation with Hortemiller 15 As I indicate in the above discussion , even were I to accept Shervey's version of his final conversation with Blaylock, I would find the purported reason for Bliyleck's dis- charge insincere However, I credit Blaylock's testimony , rather than Shervey's testi- mony , as to what took place during their meeting on February 3, 1954 Not only is Blaylock 's version of nis last interview with Shervey more consistent with other credited evidence bearing upon his discharge , but of the two Blaylock impressed me as the more reliable witness. CADILLAC MARINE & BOAT COMPANY 121 ployment. However, Shervey heard that a rumor was current in the plant that Merchant was going to be discharged because of her associations with the male employees and he did not then discharge her because of the fear that it would unfairly cause Merchant family problems. The issue as regards Merchant is not whether, in fact, she was an unsatisfactory employee, but whether she was discharged on the morning of February 4 for such reason or because she had engaged in union activity . Both Wold and Shervey testified that from the start of her employment Merchant failed to meet their ex- pectations as to the quality of her work and her attitude towards her employment. However, they continued her on the payroll because they had induced Merchant to leave another position to work for the Respondent and they felt an obligation to give her every opportunity to prove her capabilities and also because of the adverse public reaction that might be created in the community if employees were discharged soon after their hire. Their testimony, however, does not show why they precipitant- ly discharged her when she reported for work on the morning of February 4. Sher- vey testified that during the week or two that Merchant was working under the supervision of Hortemiller nothing had occurred which prompted him to reach the decision to discharge her on February 4. Having permitted Merchant to remain on Respondent's payroll for a long period of time after they found her to be an unsatisfactory employee does not explain why she was discharged upon reporting for work on a Thursday morning, instead of at the end of the workweek or at least at the end of that workday. Lack of such explanation is particularly significant in the light of the uncontradicted testimony that during the last week or two of her employment Merchant was doing a satisfactory job. Also, Shervey did not give Merchant's immediate foreman, David Hortemiller, any advance notice of his in- tention to discharge Merchant, although Hortemiller testified that Shervey con- sulted with him before discharging other employees under his supervision. Fur- thermore, only 3 weeks before her termination Merchant was given an increase in wages. This is inconsistent with the testimony of Wold and Shervey that about the same time they had reached the decision to discharge her but refrained from doing so only out of consideration for the family complications which might arise from such action on their part. Finally, Wold and Shervey testified that at the time Merchant was discharged she was engaged in painting boats by hand and Respondent was considering changing to spray paint so that the job she was last doing satis- factorily was about to expire. However, neither testified when, if at all, the Com- pany made the change from hand painting of boats to spray painting. The testi- mony of Charles Bush shows that by the middle of February the Company still had not effected the transition. Thus, this also fails to explain Merchant's sudden dis- charge. The record is barren of any nondiscriminatory reason for Merchant's abrupt discharge on February 4. D. Conclusions with respect to the discharges Union interest among Respondent's employees , still in a nascent state at the end of January 1954, became overt by February 1, 1954, when the first organiza- tional meeting was held, and February 2, when Merchant, Fulk, and Blaylock passed out authorization cards in the plant. These activities were not marked by furtiveness and Respondent through its mapagerial and supervisory employees became immedi- ately aware of the organizational drive. Thus, Wesley C. Shervey, the plant super- intendent, testified, as follows: TRIAL EXAMINER: When did you first learn that union organizational activity was taking place in the plant? The WITNESS: I heard rumors-let's see. When did I hear the first rumor? I think it was probably in January sometime, a man from town here, Mr. Donley, called me on the phone. Likewise, Ivon Waite, supervisor of construction, testified that by February 2, 1954, he had heard about the union activities in the plant. Also, William Lewis, superin- tendent of the mold shape department, testified that prior to February 1 he had heard rumors that there would be a union meeting on that evening. In the light of this evidence I do not credit Robert Wold's testimony that as late as February 4 he had no knowledge of the efforts toward employee organization that was taking place in the plant. It would not be natural for Respondent's supervisors to withhold information from Manager Wold that they had acquired concerning the employees' union activities. This is particularly true with regard to Shervey. The testimony of both Wold and Shervey shows that the two engaged in frequent consultations about plant and personnel matters. It is not reasonable that Shervey who transmitted to Wold information about comparatively trifling matters , as indicated by the evidence, 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to disclose to Wold the knowledge he had received about the organizational intentions of the employees. I find, therefore, that by February 1, 1954, Wold knew that Respondent's employees were making efforts toward self-organization. The inception of the employees' organizational campaign met Respondent' s prompt resistance. Respondent quickly took counteracting measures designed to preclude the campaign's success. During the early months of 1954, at least, Respondent was opposed to dealing with any union in behalf of its employees. This attitude of union opposition was reflected in Shervey's remark to Hortemiller on February 3 "that the union did not have any right to come in at that time [, i]t was too young-of a company," and in coercive statements, listed below, by various supervisory em- ployees. In addition, it was given expression on February 26, 1954, in a speech to all the employees by Respondent's vice president, John Bushnell. Bushnell began his talk with the general statement that in choosing to join or refrain from joining a union the employees can feel free from reprisal by either the Company or the Union. Then, and at much greater length, he assured the employees that they cannot be compelled to join a union in order to hold their jobs. He concluded his speech as follows: It is perhaps natural that the question of union membership should develop. We are only surprised that it should develop so early, before we are fully estab- lished and before the Company has had an opportunity to demonstrate its pro- gram and develop its wage scale. Also to establish its incentive system which we last spoke to you about at the Christmas Party. We are working out details of this now basing it necessarily on operations now being carried on and not even as yet fully developed and classification not fully determined. We purchased this plant at considerable cost. We have purchased $125,000 worth of machinery and material. We have paid 60 to 65 thousand dollars in labor and we have shipped, as you know, hardly any boats. You can hardly say that we are in business. The import of this speech was that the Respondent did not then want any union in the plant. Bushnell's emphasis upon the right of the employees to refrain from joining a union, his promise of benefits still to be given the employees, and his suggestion that the Company was not yet in business, in the context of his stated surprise that any union had appeared upon the scene, carried the message that Respondent did not then view union activity by its employees with favor. Likewise, the promises of improvements in wages and other conditions of employ- ment which Robert Wold made to a selected group of employees on February 1, 1954, is a further indication of Respondent's opposition to employee organization. It is more than mere coincidence that Wold should choose the afternoon before the first union meeting to inform employees concerning Respondent's plans, which at that time were still vague and undeveloped, to remedy their complaints with respect to wages and other conditions of employment. Wold's purported reasons for calling the employee meeting on February 1 are unconvincing. He explained that Re- spondent at the previous Christmas party had promised to give the employees periodic reports "of what we were doing." However, Wold's promises of future and still unformulated benefits does not fit the description, "what we were doing," and the one and only such meeting hardly constitutes "periodic reports." 16 A more valid explanation of the February 1 meeting and one which is more consistent with the pattern of events is that it was Respondent's initial move in opposition to its employees' organizational efforts and was called by Wold with the hope that promises of future benefits from the Respondent would discourage the employees from seeking to achieve similar ends through self-organization. The day following the Union's first organizational meeting employees Fulk, Blaylock, and Merchant openly solicited union membership in the plant. They were promptly discharged. I do not believe Wold's and Shervey's testimony that they had no knowledge of the union activities of these three employees when each of them was discharged. The credited evidence shows that about 10 a. in., on February 2, Foreman Swanson observed Merchant distributing union authorization cards to four employees, later the same day Fulk offered an authorization card to Foreman Lewis, and still later in the afternoon of the same day Lewis interrupted Blaylock's solicitation of employees in the mold shape department. Fulk was dis- 1s Wold testified that Respondent "since established weekly supervisory meetings." However, the employees who were summoned to the February 1, 1954, meeting were not supervisors There is no evidence in the record that any other similar meeting o&a.,se- lected group of rank-and-file employees has been held at any time, either before or after, February 1, 1954. CADILLAC MARINE & BOAT COMPANY - 123 charged by Wold upon reporting for work on the morning of February 3, Blaylock was discharged by Shervey later the same day, and Merchant, who had been excused from work on the afternoon of February 3, was discharged the next morning. The timing of the principal events, i. e., Wold's meeting with employees on Feb- ruary 1 preceding the union meeting during the evening of the same day, union solicitations in the plant by Fulk, Blaylock, and Merchant on February 2, and their contemporaneous discharges almost immediately thereafter, particularly in the light of Respondent's attitude of opposition towards the organization of its employees, indicates that the discharges of these three employees were not coincidental "but rather a part of a deliberate effort by the management to scotch the lawful measures of the employees before they had progressed too far toward fruition." 14 In the cir- cumstance, a very definite burden was imposed upon the Respondent to prove the existence of reasons, not within the prohibitions of the Act, sufficient in themselves to warrant or justify the discharges.18 However, as has been shown above, the Respondent failed to meet this burden. Not only has the Respondent been unable to establish convincing reasons, unconnected with their union activities, for the precipitous and concurrent discharges of Fulk, Blaylock, and Merchant, but the treat- ment of these three employees was inconsonant with Respondent's personnel practices and policies. Thus, Wold testified that it was not the practice of Respondent to discharge employees for misconduct without first resorting to lesser disciplinary measures and he, as well as Shervey, testified that Respondent gave employees "every chance" before firing anyone. Respondent's leniency towards its employees is borne out by several specific examples referred to in the testimony. For instance, James M. Reed, who was still employed by Respondent at the dates of the hearing herein, was not discharged, although otherwise disciplined, for being found drunk on the job; also on other occasions he was reprimanded by Wold and Shervey and disciplined by Hortemiller for leaving his work station without notice. Employee Glenn Barber was not discharged, although Shervey testified: His workmanship was terrible. He was drinking on the job. He would come back to work one afternoon drunk, and I had to send him home. I reprimanded him more than once. I don't know just how many times, but he was given the alternative either to straighten out or quit, and he quit [on January 18, 19541. Likewise, on February 26, 1954, employee Curtis E. Bougrand was reprimanded by Shervey and given an opportunity to straighten himself out, but was not dis- charged,19 for drinking on the job and continued absence from work. The evidence thus shows that employees whose work performance or record of misconduct was worse by far than the alleged discriminatees herein were not discharged without first being afforded an opportunity to "straighten out." In contrast, Respondent departed from its customary lenient treatment of its employees in the cases of Fulk, Blaylock, and Merchant who were discharged in the middle of a workweek without any prior reprimand, warning, or notice. Furthermore, the evidence also shows that only one employee had been discharged by Respondent prior to February 3. Bare chance does not account for the fact that although during the first 5 months of its operations Respondent only once discharged any employee, it found it necessary to discharge 3 active union supporters within a 24-hour period in the same week that the Union's organizational drive began gathering momentum. It would appear that, insofar as the Respondent was concerned, Fulk's, Blaylock's, and Merchant's alleged unsatisfactory work or attitude "apparently became intoler- able" 20 only after they had joined the Union and became active in its behalf. I find the evidence herein predominates in favor of the General Counsel's conten- tion that Raymond Fulk, Rufus A. Blaylock, and Ruth Merchant were discharged, not for the reasons asserted by the Respondent, but because of their membership and activity in behalf of the Union. 1 further find that the Respondent by thus discharging these three employees and by failing thereafter to reinstate them has discriminated with regard to their hire and tenure of employment thereby discourag- ing membership in the Union and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 21 19 N. L. R. B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C. A. 2). Is N. L. R. B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C. A. 4). 19 Bougrand voluntarily quit at that time. so N. L It. B. v Electric City Dyeing Co., 178 F 2d 980, 983 (C. A. 3). 81 Respondent's counsel in his able brief to the Trial Examiner renewed his objections to testimony by several witnesses, called to the stand by the General Counsel, that they individually were told either by Shervey, Swanson, or -Bushnell that Fulk, Blaylock, or 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Interference, restraint, and coercion The complaint alleges that the Respondent, in violation of Section 8 (a) (1) of the Act, has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act by various actions of its supervisory and managerial employees in addition to the discriminatory discharges of Fulk, Blaylock, and Merchant. I have considered all specific instances of such unlawful conduct referred to by the General Counsel in his bill of particulars and in his brief filed with the Trial Examiner and find that he has failed to prove violations of the Act except with respect to the instances listed below. Some of the below listed find- ings are based-on testimony which I credit by witnesses for the General Counsel and which testimony was contradicted by Respondent's witnesses. In arriving at such findings I have considered all evidence bearing upon the issues, particularly the con- troverting testimony by Respondent's witnesses. Accordingly, I find that Respondent violated Section 8 (a) (1) of the Act by the following: 1. Foreman Oscar Swanson's statement to Ruby L. Tyler within a week following the discharge of her sister, Ruth Merchant, that "he was very sorry, they [had] 22 let my sister go for union activities, they couldn't have anybody in the plant that had anything to do with the Union." 23 2. Assistant Plant Superintendent Hortemiller's statement to James M. Reed shortly after Blaylock's discharge that "they hated to let him [Blaylock] go, he was a good worker, but they had to because the Company wouldn't put up with any union activities." 3. Shervey's remarks to Blaylock on February 3 that "this union stuff has loused up your chances of ever getting the money that you have been promised," and "[t]his company is not going to have a union in Cadillac." 4. Foreman Oscar Swanson telling Blaylock towards the close of February 1954 that Fulk had been discharged because Swanson caught him talking union to two of the older employees 24 and that if Swanson were told who had started the Union, those employees would be discharged and Blaylock would have his job back. 5. The promises made by Robert Wold on February 1 at a meeting with a selected group of employees that Respondent was planning to institute an incentive system which would increase earnings and to grant other employee benefits. Wold's request that the men attending the meeting communicate Respondent's pledges to all the plant employees, timed as it was to precede the first union meeting, was intended to thwart the organization of the employees by encouraging them to believe that they would receive greater improvements in wages and working conditions without a union than with a collective-bargaining representative.25 For various reasons I do not find that the other alleged violations of Section 8 (a) (1) of the Act are supported by the necessary preponderance of the evidence. For instance, the testimony concerning surveillance of union meetings by Foreman Lewis was too vague and ambiguous to demonstrate that Lewis' activity was part of an attempt by the Respondent to spy upon the union activities of its employees. This Merchant had been discharged for reasons relating to their union adherence and activity. Although I do not accept all the arguments by Respondent's counsel , nevertheless, in reaching my conclusion that Fulk, Blaylock, and Merchant were discriminatorily dis- charged by Respondent I have not relied upon this testimony objected to by Respondent's counsel ?3 The transcript of record reads "would have to" instead of "bad." However, this reflected merely the witness' misuse of tense 26I have not relied upon this testimony to support my finding that Ruth Merchant was discriminatorily discharged 24I have not relied upon this testimony in support of my finding that Fulk was dis- criminatorily discharged. 21 On the other hand, I do not find that John Bushnell's speech to the employees on February 26, which indicated Respondent's opposition to a union in the plant, exceeded the limits of free expression His statement that Respondent was continuing work on the details of an incentive plan was coupled with the further advice that the formulation of the plan necessarily would be deferred until Respondent's operations had become better stabilized. Although the speech conveyed a promise of eventual increase in employees' earnings, the general tenor of Bushnell's remarks to the employees was that the Respond- ent then preferred not to deal with the Union and not that Respondent was promising significant benefits as an inducement to the employees to reject collective- bargaining representation. CADILLAC MARINE & BOAT COMPANY 125 is particularly so in the light of the evidence that Lewis had been invited to attend some union meetings. I have not credited the testimony of Warren R. Robinson whose recollection of the events at issue appeared too uncertain upon which to place any reliance. Likewise, I do not credit Fulk's testimony that on the night of February 3, 1954, Mr. Shervey told him that he had been discharged because of his union activity. Fulk impressed me as an individual possessing considerable undi- rected energy and enthusiasm but lacking an orderly method of activity and memory and therefore prone to confusion. The more credible version of the incident was furnished by the testimony of Shervey that the subject of the Union was raised by Fulk who had said he was sorry that he had passed out union cards. Because I have found substantial violations of Section 8 (a) (1) of the Act by Respondent it does not appear to me necessary to encumber this report by specifically discussing each additional alleged violation which, upon consideration of all the evidence, I find has not been sustained. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent 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 com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. - It has been found that the Respondent unlawfully discriminated in regard to the hire and tenure of employment of Raymond Fulk, Rufus A. Blaylock, and Ruth Mer- chant. It will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them by payment to each of them of a sum of money equal to that which each nor- mally would have earned from the date of his or her discharge to the date of the Respondent's offer of reinstatement, less net earnings during said periods. Said loss of pay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. It will also be recom- mended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amounts due these employees under this recommended remedy. The Respondent's violations of the Act, herein found, are related to other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The pre- ventive purposes of the Act will be thwarted unless the remedial order is coexten- sive with the threat. In order therefore to make effective the interdependent guaran- tees of Section 7 of the Act and to prevent a recurrence of unfair labor practices, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By discriminating in regard to the hire and tenure of employment of Raymond Fulk, Rufus A. Blaylock, and Ruth Merchant to discourage membership and activity in behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid -unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.]