Cosco Products Co.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cosco Products Company and Shopmen's Local Union No. 741, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO . Cases Nos. 12-CA-126, 12-CA- 161, 12-CA-165,12-CA-357, and 12-CA-406. April 16, 1959 DECISION AND ORDER On November 18, 1958, Trial Examiner Henry S. Salim issued his Intermediate Report in the above-entitled consolidated 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 and the General Counsel filed exceptions and supporting briefs. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report, the excep- tions, and the briefs, and adopts the findings, conclusions, and recom- mendations of the Trial Examiner only to the extent that they are consistent herewith.2 1. We find, in agreement with the Trial Examiner, that the Re- spondent interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act. However, in so finding, we rely only upon the following actions by the Respondent, which are clearly established by the record and all of which occurred between between August 14, 1957, when the Union requested recognition, and November 22, 1957, the date of the Board election : (a) Shop Superintendent Altman asked employee Bossie Reed how lie was going to vote in the election. (b) Superintendent Altman asked employee DZurkey what he thought about the Union. (c) Altman asked employee Ardley whether anyone had shown him a union card or read him anything about the Union. (d) Altman told employee Boatwright that if the Union came in, working conditions would change as the Company would no longer find things for the men to do when work was slack or while it was raining. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Panning]. 2 The Respondent contends that the Trial Examiner's credibility findings are erroneous. However, as the clear preponderance of all the relevant evidence does not demonstrate the Trial Examiner 's credibility findings to be incorrect, we adopt them . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). 123 NLRB No. 91. COSCO PRODUCTS COMPANY 767 . (e) Vice President Norman Runyon told employee Dornes that he had heard Dornes had been keeping bad company, riding in a car with a union man, and cautioned Dornes to keep his nose clean. (f) President King asked employee Gibbons how he was going to vote, for the Company or for the Union; and when Gibbons replied he would vote for the Company, King told him he appreciated it and would never forget it. (g) On October 1, 1957, a week after the hearing on the representa- tion case and prior to the election therein, the Respondent, for the first time, formulated, posted, and distributed a set of working rules, the infraction of which subjected its employees to layoff or discharge. These rules made working conditions more stringent in that employees were no longer allowed to wash up at the end of the day on company time, or leave company property during working hours. (h) The Respondent admittedly "tightened up" its policy with re- spect to making personal loans to employees, subjecting requests for loans to a more careful screening. (i) Two days after receiving the Union's request for recognition, President King, on August 16, 1957, called the employees together and urged them to give up the idea of a union. He told the employees they did'not need a union, as they could talk to him or the supervisors about their work, raises, or getting time off. Passing out cigars to all, King then announced that raises were waiting for some in the office, and that those who did not get a raise were free to talk to him about it. At least five employees received raises, and another, Wilcox, got a raise the same day after asking for it. From and including that day and the day of the election, a period of only about 3 months, raises were given to 20 of the approximately 25 employees, 4 of them being given on election day. Under these circumstances, particularly the timing, and the fact that the first group of raises was announced in an antiunion speech delivered immediately upon receipt of the Union's requests for recognition, we find, in substantial agreement with the Trial Examiner, that the natural effect of the raises was to interfere with the organization of the employees, and discourage union activity. (j) On September 25, 1957, less than a month before the election, the Respondent disciplined employee Wilcox, the leading union pro- ponent and a union witness at the representation case hearing held 2 days previously, by demoting and transferring him from his job as machine operator to isolated and onerous laborer's duties. Like the Trial Examiner, we find that such action was in reprisal for Wilcox's activities in behalf of the Union. 2. We find, in agreement with the Trial Examiner, and for the reasons given by him, that the Respondent discriminatorily dis- charged employee Vandergriff because of his union activities, in 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a) (3) and (1) ;1 constructively discharged Oscar B. Wilcox because of his union activities and because he gave testimony under the Act, in violation of Section 8(a) (1), (3), and (4) ; and discriminatorily discharged Tom Gibbons because he gave testimony under the Act, in violation of Section 8(a) (1), (3), and (4) 4 We do not, however, agree that the Respondent discriminated against Brinson. Brinson was hired on January 25, 1957, as a laborer at $1 an hour and was assigned work on Wilcox's bending crew. Beginning in June 1957, the Respondent assigned him to duties as assistant bending machine operator, and, at times, operator. He received two raises in pay. About September 25, when Wilcox was demoted from bending machine operator to laborer's work, Brinson was promoted to the operator's job. At the same time Brinson took Wilcox's place as employee leader of the Union. About a month later, a former employee, Robert Thompson, who had been serving in the Army, visited the plant, and President King reaffirmed his prom- ise, previously made, to give Thompson back his old job as bending machine operator when he was discharged from the Army. There- after, Thompson was discharged from the Army, and was reemployed in his former job as bending machine operator on December 5. Brin- son was taken off that job and assigned to laborer's duties. On December 31 Brinson, along with another employee, was laid off because, Altman told him, work was slack and he was junior on the job. On February 4 and April 5, 1958, the Respondent wrote to Brinson offering to reemploy him at the same rate of pay, but Brinson did not reply because he was afraid he would be assigned to laborer's, and not machine operator's, duties. President King testified that 3 In adopting the Trial Examiner's finding that the Respondent knew Vandergriff to be a union leader among its employees , we rely only upon the following facts : ( 1) The timing of the discharge , 5 days after the Respondent learned of its employees ' interest in the Union. ( 2) On Friday, August 16, 1957, the last day of Vandergriff 's employment, another employee, Robinson , shouted at him, "You are the head of the Union and you won't be here very long." Plant Superintendent Altman was at that moment standing in the warehouse door about 60 feet away , the yard was comparatively quiet because the machines were not operating, and Altman had heard employees call to him from that distance on previous occasions . ( 2) Upon discharging Vandergriff the following Monday, August 19, Altman said to him , "Here is your check. You know too much for me." (4) This is a small plant, employing only about 25 employees in a closely supervised, compact area. 4In adopting the Trial Examiner 's finding that Gibbons' discharge was discrimina- torily motivated, we rely solely on the Trial Examiner's finding, based on his resolution of the credibility issues, which we have adopted, that the alleged cursing incident did not occur ; the timing of this discharge, only 8 days after Gibbons testified for the Charging Party at the hearing herein ; the disparity of treatment as between Gibbons and employee Sherman ; and the Respondent's demonstrated animus toward the Union. In view of the foregoing, we agree with the Trial Examiner that the true motive for Gibbons' dis- charge was his union activity. However, we specifically do not adopt the following statements in the section of the Intermediate Report entitled "Conclusions" as to Gibbons : (1) In the first paragraph, the last clause of the first sentence , beginning with the word "but" ; (2) in the second paragraph, the first two sentences. COSCO PRODUCTS COMPANY 769 Brinson would have, in fact, been assigned to laborer's duties because no other job was available. The record clearly supports the Respondent's contention that Brin- son was removed from the bending machine operator job to make room for Thompson, who had been promised the job when he returned from the Army. The General Counsel contends, however, that this was not the real reason Brinson was taken off machine operator's duties, and that the Respondent revealed its discriminatory motive by its failure to make Brinson operator of the other bending machine then being operated by Bossie Reed and, presumably, putting Reed on laborer's work. We do not agree. Reed was senior to Brinson, and as his machine had been converted to a wire bender since Brinson had operated it, Reed had more experience on this operation than Brinson had. Nor is Altman's statement to Brinson at the time he was laid off his laborer's job, that work was slack and he was junior on the job, shown as to be untrue. Respondent's production had dropped from a high of 659 tons in August to 219 tons in December, when Brinson was let go. Several other employees had been laid off. Of the four employees retained when Brinson was laid off, who Brin- son said were junior to him, one, Thompson, was originally hired in 1954, 2 years before Brinson. The other three, while junior to Brin- son, were not doing general laborer's work as Brinson was. Hart was truckdriver, a job for which there is no contention, or showing, that Brinson was qualified to perform. Frank Sherman and Earl Mack were members of Robinson's shear crew, jobs in which Brinson is not shown to have had experience. Under all these circumstances, there- fore, we find that a preponderance of the evidence fails to establish that Brinson's demotion and layoff were discriminatorily motivated, and we do not adopt the Trial Examiner's finding to that effect.' 3. We find, in agreement with the Trial Examiner and for the rea- sons given by him, that the Respondent refused to bargain in violation of Section 8(a) (5) and (1) of the Act by its admitted insistence as a condition to entering into a contract, that the certified union, Shop- men's Local No. 741, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, post a $100,000 perform- ance bond or, in lieu thereof, that the International also sign the contract. In addition, we find that the Respondent violated Section 8 (a) (5) by its refusal to honor the Union's request for wages and per- sonnel data.' We further find, on the basis of the entire record, and in agreement with the Trial Examiner, that the Respondent on and 5 We note, also, that the General Counsel did not allege in the complaint or in the brief filed with the Board that Brinson's layoff was discriminatory. The General Counsel contends only that the offer to rehire Brinson at a laborer's job violated the Act. We find no merit in this contention. O As the requested data was finally furnished during the course of the hearing, the Respondent has not specifically been ordered to furnish the same. 508'8'80-60-vol. 123 50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after February 5, 1958, failed to bargain in good faith, in further violation of Section 8(a) (5) and (1). ORDER Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondent, Cosco Products Company, Jacksonville, Florida, its agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Shopmen's Local Union No. 741, International Association of Bridge, Structural and Orna- mental Iron Workers, AFL-CIO, as the exclusive representative of all its employees at the Respondent's Jacksonville, Florida, steel fabrication plant, excluding office clerical employees, draftsmen, en- gineering employees, watchmen, and supervisors as defined in the Act. (b) Discouraging membership in the above-named labor organiza- tion, or any other labor organization, by discriminatorily terminating any of its employees, or by in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (c) Interrogating their employees as to their union activities and sympathies in a manner constituting interference, restraint, or coer- cion in violation of Section 8 (a) (1) of the Act, threatening them for adhering to the Union, promising and granting benefits for aban- doning the Union, or punishing them for their union activities. (d) Discharging or otherwise discriminating against employees because they have given testimony under the Act. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, including the above-named labor organization, 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- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as author- ized 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) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if COSCO PRODUCTS COMPANY 771 an understanding is reached, embody such understanding in a signed agreement. (b) Offer D. C. Vandergriff and Oscar Wilcox immediate and full reinstatement to their former jobs as machine operators, and Tom Gibbons to the job of gauger, or substantially 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." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts due under the terms of this Order. (d) Post at its plant at Jacksonville, Florida, copies of the notice attached hereto marked "Appendix."' Copies of such notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent Employer's authorized representative, be posted by the Respondent Employer immediately upon receipt thereof, and be maintained by it for a period of at least 60 - consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twelfth Region in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent Employer has taken to comply herewith. IT is rURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated against Joe E. Brinson in violation of Section 8(a) (3) and (1) of the Act. 7 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 NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request with Shopmen's Local Union No. 741, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, as the exclusive representative of all the employees in the bargaining emit described below with respect to rates of pay, wages, hours 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of our Jack- sonville, Florida, steel fabrication plant, excluding office clerical employees, draftsmen, engineering employees, watch- men, guards, and supervisors as defined in the National Labor Relations Act. WE WILL NOT discourage membership in Shopmen's Local Union No. 741, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization, by terminating any of our employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. AVE WILL NOT interrogate our employees as to their union activities or sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act; threaten them for adhering to the Union; promise or grant them benefits for abandoning the Union; or punish them for their union activities. WE WILL NOT discharge or otherwise discriminate against our employees because they have given testimony under the Act. WVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to join, form, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized by Section 8(a) (3) of the Act. WE WILL offer D. C. Vandergriff, Oscar Wilcox, and Tom Gibbons immediate and full reinstatement to the positions they held before our discrimination against them or to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make them whole for any loss of pay suffered as a result of our discrimination against them. All our employees are free to join, form, or assist any labor organi- zation, or to engage in self-organization or other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent COSCO PRODUCTS COMPANY 773 that such rights are affected by an agreement made in conformity with Section 8(a) (3) of the Act. COSCO PRODUCTS 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 charges filed by Shopmen 's Local Union No. 741, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, herein called the Union, against the Cosco Products Company, the Re- spondent herein, the General Counsel of the Board issued a consolidated complaint on April 14, 1958, which was subsequently amended on May 26, 1958. 1 The con- solidated complaint- alleged that the Respondent Company had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a) (1), (3), (4), and (5 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. The complaint, as amended, alleges, in substance, that the Respondent violated Section 8 (a) (1) of the Act in that it enforced "company rules" which changed the working conditions existing prior to the advent of the Union and limited loans of money to those employees who opposed the Union ; interrogated employees about their own and other employees' union membership , activities, and sympathies; and threatened employees with reprisals if they engaged in union activities or if the Union became their bargaining representative. The amended complaint also alleges that the Respondent engaged in unfair labor practices within the meaning of Section 8(a) (3) and (4) of the Act by discriminatorily discharging D. C. Vandergriff, Oscar B. Wilcox, Joe A. Brinson, and Tom Gibbons because they engaged in union activi- ties and/or testified in a Board proceeding . The complaint also alleges that the Cosco Products Company, herein called both the Respondent and the Company, violated Section 8 (a)(5) of the Act in that the Company refused to bargain collec- tively with the Union. Respondent's answer admitted the jurisdictional allegations of the complaint and that the Union was a labor organization within the meaning of Section 2(5) of the Act, but denied generally the commission of any unfair labor practices. Pursuant to notice, a hearing was held from May 6 to 12, inclusive , and from May 26 to June 2, 1958, inclusive, in Jacksonville, Florida, before Henry S. Sahm, the duly designated Trial Examiner. All parties were represented by counsel, and were afforded full opportunity to participate in the hearing, to introduce relevant evidence, and to argue orally. Briefs were filed by the General Counsel and the Respondent, and have been carefully considered . During the course of the hearing various motions were made by the parties and after the conclusion of the hearing, the General Counsel moved to correct the transcript in certain specified details which will be found in the record of this proceeding. All other motions are disposed of in this report. Upon the entire record in this case, upon consideration of the arguments and motions of counsel , including the briefs 2 filed by the parties and citations of cases alleged to be dispositive of the issues in this proceeding , and from his observation of the demeanor of the witnesses , the Trial Examiner makes the following: 3 From May 13 to 26, the hearing was in recess during which time a new charge was filed (Case No. 12-CA-406). When the hearing reconvened on May 26, the General Counsel amended the complaint to allege the discriminatory discharge of an employee on May 17. See General Counsel's Exhibits 'Nos. 12, laa, lbb. ' Excellent briefs, thorough, documented, and well organized, were filed by both counsel which have been of much help in resolving the issues in this proceeding. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 3 1. THE BUSINESS OF THE RESPONDENT It is conceded that the Respondent Company, which is engaged in the fabrication of steel, products , during the year ending December 31, 1957, sold and delivered products valued in excess of $100 ,000 to customers in the State of Florida, which in turn during the same period sold and shipped in excess of $50,000 worth of their products to points directly outside the State of Florida . During the same period, Respondent purchased in excess of $500,000 worth of steel and other materials which were shipped directly to its plant in Jacksonville , Florida, from points outside the State of Florida . In addition, during the same period, Respondent sold and shipped in excess of $50,000 worth of its products directly to customers located outside the State of Florida. It is found, therefore, that the Respondent is engaged in commerce within the meaning of the Act, and it is subject to the jurisdiction of the Board. II. THE LABOR ORGANIZATION INVOLVED It is admitted and found that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background On July 5, 1957, Marvin L. Platt, special representative of the Charging Union herein, spoke to Oscar Wilcox, an alleged discriminatee in this case , with respect to the possibility of organizing a union at the Respondent 's plant. Wilcox agreed to cooperate with Platt who gave him some union membership application cards to distribute to the employees at the plant . These cards authorized the Union to act as bargaining agent for the signers . Platt requested Wilcox to solicit the employees to sign these cards for the eventual purpose of having the Union represent the employees in collective -bargaining negotiations with the Respondent and he also asked Wilcox to arrange a meeting at which he could speak to the employees. Wilcox, with the help of another employee, Vandergriff , notified and requested the employees to attend a meeting which was held on a vacant lot, a few blocks from the plant, on July 8, at which time Platt, the union organizer , met with 16 of the Respondent's approximately 25 production and maintenance employees, all of whom are colored, and explained to them the advantages of a union. The meeting lasted about 30 minutes. Some of the employees signed union cards and D. C. Vandergriff and Joe Brinson , alleged discriminatees, in addition to Wilcox, agreed to solicit those employees who did not attend the meeting to join the Union. By letter dated August 14, 1957, the Union advised the Respondent Company that it had been designated as the exclusive bargaining representative of a majority of its production and maintenance employees and requested the Company to bargain with it for the purpose of consummating a collective -bargaining agreement.. This letter also requested the Company not to make any changes with respect to the employment status of any production or maintenance employees except by mutual agreement with the Union. When no reply was received from the Company, Platt, on behalf of the Union, sent a letter to the Regional Director of the Board on August 17, 1957, accompanied by a petition for certification as representative of Respondent 's said employees. A hearing on the Union's petition was held on September 23, 1957, before a hearing officer of the Board .4 Thereafter, the Board , on November 1, 1957, directed that an election be held on November 22 to determine whether the said employees of the Company desired to be represented by a bargaining representative , and if so, by whom. Pursuant thereto, an election by secret ballot was conducted by the Board. A tally of the ballots revealed that of the 21 eligible voters, 11 employees cast their votes for the Union and 10 voted against the Union. As a result of this election, the Union was certified by the Board on December 3, 1957, as the bargaining repre- sentative of the Company 's employees in a unit found appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. Between the time that the Union requested recognition on August 14 and the date of the election on November 21, Vandergriff was discharged on August 19. Brinson, an alleged discriminatee , was separated from employment on December 31, 3In those few Instances in which no specific reference is made to conflicting testimony, It is because it is believed to be discredited , insubstantial , or immaterial. Case No. 12-RC-195. COSCO PRODUCTS COMPANY 775 1957, a month after the Union was certified; Wilcox, another alleged discriminatee, left Respondent's employ on January 20, 1958; 5 and Tom Gibbons was discharged on May 17, 1958. Upon receiving the Union's letter of August 14 requesting recognition, the Com- pany on August 16, during working hours, assembled the employees at which time they were addressed by the Company's officials. B. F. King, president of the Respondent Company, told them he received a letter from the Union, and in re- ferring to the Union's letter for recognition, spoke of the favorable working condi- tions which existed at the plant without the Union and expressed the opinion that there was no need for a union. A week after,the Board directed an election, King again addressed the employees on November 8, at which time he announced the election would be held on November 22. On November 21, King addressed the employees, showed them a sample ballot, and in referring to the impending election on November 22, he expressed the hope that the employees would vote against the Union and for the Company. After the Union was certified on December 3, 1957, negotiations commenced in February 1958 with the Company for the eventual purpose of negotiating and signing a collective bargaining contract. Four conferences were held between February 5 and April 17, but no agreement was reached. B. Contentions It is against this background that the General Counsel alleges that the following conduct constituted interference, coercion, and restraint in violation of Section 8(a)(1): A week after the representation hearing, rules were posted at the plant changing the working conditions that had existed prior to the advent of the Union and the infraction of which subjected employees to immediate dismissal without warning; employees were interrogated about their own and other employees' union membership, activities, and sympathies; employees were threatened with reprisals if they engaged in union activities or if the Union became their bargaining repre- sentative; loans which Respondent had heretofore made to its employees were limited, after the advent of the Union, to those of its personnel who were opposed to the Union; and a bonus which had formerly been given to the employees at Christmas was discontinued. The General Counsel further alleges that Respondent violated Section 8(a)(3) when Vandergriff was discharged because of his activities on behalf of the Union; Wilcox's working conditions were made so intolerable for him because he testified at the representation hearing and engaged in union activities that he was forced to quit his job; Brinson's "layoff" was due to his being in the forefront of union activities; and Gibbons' discharge 8 days after he had testified in this proceeding was discriminatorily motivated because he had testified in this proceeding adversely to the Respondent's interests. Finally, the General Counsel claims that the Respondent refused to bargain with the Union within the meaning of Section 8(a)(5) in that it unilaterally changed existing terms and conditions of employment after the Union's certification, in derogation of the Union's representative status, and bargained in bad faith by, inter alia, submitting unreasonable proposals designed to disrupt negotiations and prevent agreement by the parties. Respondent, on the other hand, claims it in no way interfered with, restrained, or coerced its employees and that the alleged discriminatees left the employ of the Company for reasons not proscribed by Section 8 (a) (3) of the Act: Vandergriff was discharged because of his inefficiency and failure to report for work; Wilcox left voluntarily; Brinson was laid off for economic reasons; and Gibbons was discharged because he swore at his supervisor. With respect to the alleged failure to bargain within the meaning of Section 8(a)(5), Respondent denies this and alleges that all its proposals were advanced in good faith and that all its actions and negotiations were conducted on the same basis. C. The alleged interference, restraint, and coercion 1. Interrogation and threatened reprisals Bossie Reed, who was employed by the Respondent Company at the time he testified, stated that Altman, shop superintendent, asked him about 2 or 3 weeks 5 Respondent's Exhibit No. 7 characterizes Brinson's separation as a "layoff" and Wilcox as "voluntarily quit." 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the Board election how he felt about the Union and how he was going to vote. Altman denied this occurred. Reed also testified that King, president of Respondent, asked him on the day of the election, which was held on the plant premises, how he was going to vote. King denied this. Gibbons testified (and King denied) that he had been asked by King-on the morning of the election; while he was working at his machine, how he was goirig to vote* .t Moses' Murkey testified that Altman came over to where he was working and asked him what he thought about the Union. Willie J. Domes, who was employed by Respondent at the time he was a witness, testified that before the election he and Altman were speaking about the Union and that Altman asked him what he thought about the Union. Domes replied that if the Union won the election "there would be a whole lot of changes" to which observation Altman agreed. Altman continued, according to Domes, that if the Union won the election, certain privileges which the employees presently enjoyed probably would be abolished and he also told Domes "that a job that was paying a regular salary was better than a job paying higher wages and not working regularly. He said that was something to think about too." Domes also testified that Altman told him that King, president of Respondent, was a "determined man" and that he was determined not to have the Union and that he "would spend a lot of money to keep the Union out." Altman denied saying this. Altman did admit, however, speaking with Domes about the Union but he denies that he told him that working conditions would become worse if the Union won the election. Altman testified that he did not ask Domes what he thought about the Union but that Domes volunteered 'this, information, nor- does he -recall" saying, that "we would ever spend large sum of money to fight the Union." He also denied that he told the employees on or about November 11, 1957, that working conditions would "worsen" if the employees voted in the Union. Theodia Boatwright testified that on or about October 18, about the time Wilcox and Brinson had asked him to sign a union card, he had gone to Altman and asked him about the Union and Altman told him the Company did not want a union in the plant. About a week later, Boatwright again went to Altman about the Union and Altman asked him if he had made up his mind about the Union to which Boat- wright replied he had. Boatwright testified that just before the election, he ap- proached Altman and when the latter asked him if he had made up his mind yet, he told Altman he had decided how he was going to vote, to which the latter said, "Well, I hope you will vote right." Then Altman said, according to Boatwright, . if the Union did come in that working conditions would change. At the time the company had been, you know, work had been slack and the Company had been finding something for us to do to make the time; that that possibly wouldn't happen again if the union came in." On cross-examination Boatwright testified as follows: Q. Now, you testified that you were talking with Altman at one time and Mr. Altman said that if the union came in working conditions would be changed? Did he mention what working conditions might be changed? A. Yes, Sir, he said that we had been working, you know, at times we worked when work was slack and rainy and what not, they had found some- thing for us to do in cleaning up and so forth and finding something for us to do and that that wouldn't happen anymore. Laurie Ardley, an employee, testified that just before the election, Altman asked him if "anybody" had shown him a union card or read anything to him about the Union. 2. Employees seen with Union's business agent Wylie Robinson, an employee of Respondent, testified that he had seen employees Domes, Wilcox, and Kelley with Platt, the Charging Union's business agent, and that while discussing the incident at work with another employee, Runyon, vice president of Respondent, overheard the conversation. Wylie Robinson also testi- fied that while he was working about the plant, Runyon "happened to hear me talking and asked me what it was and so I told him. . . He asked me what was I saying. He happened to hear it some way or other but how I wouldn't know." Later in his testimony, he inconsistently testified that he told Altman (after Altman asked him) that he had seen Wilcox, Domes, and Kelley in the company of the union representative. He again contradicted himself by testifying (when Domes asked him why he had reported to the company officials that he had seen Domes with the union agent), that it was Altman and not Runyon, whom he had first ap- prised of this incident. William Kelley, an employee who was also seen by Robin- COSCO PRODUCTS COMPANY 777 son with the Union's business agent, testified that when Dornes confronted Robinson and demanded to know why he (Robinson) had reported the incident to the com- pany officials, Robinson answered: "he was asked [by the company officials]." Dornes testified that Runyon come up to him at work, some time prior to the election, and said "he had heard I had been keeping bad company and I asked him what that was about and he told me, `I hear you been riding with a union man... ' When Dornes acknowledged that he had, Runyon, according to Dornes, said ". . . just keep your nose clean." Altman, his superintendent, how- ever, testified that Robinson had brought this information about these employees being seen with the union agent to him and ho, in turn, "in the course of a casual conversation," told Runyon about this incident which Robinson had reported to him. Kelley, in describing this incident in which he, Dornes, and Wilcox were seen with the union business agent and reported to the Respondent by Robinson, testified, on cross-examination, that in addition to himself, Frost, Brinson, and Wilcox became scared and Joe Jefferson, another employee, said "he wasn't going to fool with the Union." Dornes gave testimony on September 23, 1957, at the representation hearing be- fore the Board. About 2 or 3 days later, he testified that Altman came to him while at work and said that he had heard in the "office" Domes was "connected with the union." After speaking about what had transpired at the hearing, Altman, according to Dornes, said: " `Yes, I was sorry to hear that.' He said I was a good worker. `I was liking your work,' he told me. . I went on to try to tell him that I didn't know where they got my address . but I told him I signed a union card and I imagined that is where they got my address from. .. ." Altman denied this conversation ever occurred, but he did testify that Dornes told him what he thought of the Union but that Dornes volunteered this information. 3. Posting of rules and lending money Ardley, who was employed until December 28, 1957, testified that after union activity began around the plant, the Conpany posted a set of 17 working rules. It was stipulated that these rules were posted on October 1, 1957, a week after the representation hearing, and a copy was personally addressed to each employee. These rules which made working conditions more strict than they had been prior to the advent of the Union cautioned that: "Any employee who commits any of the following prohibited acts may be temporarily laid off or dismissed either after a warning, or immediately, without a warning, depending upon the character of the offense." Ardley testified that after the rules were posted, Altman threatened to send him home if he was tardy in reporting for work, but before they were posted he would only urge him to be on time. Some of the employees 6 also testified that before the rules were posted, they had "knocked off" a few minutes before quitting time to wash up and that they were allowed to "laugh and play" while at work but this was not permitted after the rules were posted. Kelley, who worked for Respondent from October 8, 1956, to December 6, 1957, testified as follows: Q. What if ,any changes did the posting of these rules make in your work- ing conditions? A. Well, we all got scared. What I mean, we figured we could get fired for anything, for the parts we understood; but most of the parts we didn't under- stand what they meant. Q. Were there any other changes after the rule was posted? A. Well, we used to shoot dice [during lunch period] and we all stopped shooting dice and stopped washing up before quitting time and things like that and also quit playing and pushing. Q. Were there any other changes after the rules were posted? A. Well, for one thing the Company quit loaning money. . I had bor- rowed some money from the Company a couple of times myself before then and after the rules were posted, well, I went to Mr. King and asked him to let me have a few dollars because I wanted to take my brother to the. doctor . . . and he said "No." He said, "The Company quit loaning money," up until just before the election and then, as I understand that some of the people got some money. Bossie Reed , Kelley, and Murkey. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelley then went on to testify on cross-examination that he knew a fellow employee by the name of Boatwright received a loan from the Company "just before the elec- tion, maybe a day or two." On cross-examination, Kelley testified as follows: Q. Is it your testimony that the Company quit loaning money, how do you know that? A. Well, two of us went to get some money one evening and mine was an emergency, which I explained to Mr. King, and I don't know what Willie Sapp wanted with his money but he also wanted money but he [King] said the Com- pany wasn't loaning any more money. . [That occurred] some time dur- ing the time -the rules were posted. It was after they was posted and before the election, [that the Company quit loaning money.] . . . That was before the election, way before the election. On redirect examination, Kelley testified that the above conversation with King with respect to the Company's policy on making loans to employees occurred 2 to 4 weeks after the rules were posted.? Bossie Reed testified that he received a personal loan of $50 ($35 from the Com- pany and $15 from King personally) on the morning of the election. Reed's testi- mony continues: Q. Have you tried to borrow any money since the election? A. Oh, about 4 or 5 weeks ago,8 I imagine and [Altman] said he would also consult with Mr. King and he returned and said the money loanings was closed on that day. Q. Have you tried any more recently than that? A. No, Ma'am. Boatwright testified that about 2 weeks before the election, he asked King for a $15 loan in the presence of Altman nand that King turned to Altman and said, "What about it Dick" and Mr. Dick Altman said, "Yes, I think he is all right. I think he is all right." So Mr. King said, "Well, come by the office before you go home this afternoon and pick up your loan check." King, Respondent's president, testified that the Company's policy with respect to loans to its employees has never changed and particularly not since the union activities began. King denied he told Kelley after the rules were posted that the Company had stopped loaning money to its employees. "I might have told them that we were tightening up but I didn't tell them that we quit [loaning money]. . . . I mean we were screening them a little more carefully and requiring more urgency in their need than perhaps we had been doing right recently." 4. Wage increases When the Company received a letter from the Union on August 14 requesting recognition and after King, president of Respondent, addressed the employees on August 16, Bossie Reed testified that he received a raise. in pay the following week. On direct examination, Reed placed the date of the raise as being the Friday before Vandergriff's discharge on Monday which would be August 16, the same day King made his first speech to the assembled employees. Respondent's Exhibit No. 7 places the date of the raise as August 9, 1957. This same exhibit shows that five other employees received raises on August 16: Monk Frost, Charles Reed, Joe Jefferson, Willie Sapp, and Earl Mack. Frank Sherman and Willie Gigger received wage increases a week later on August 23, 1957. Willie Sapp received another wage increase on November 8, 2 weeks before the election. Prior to the advent of the Union, Sapp had been granted one wage increase in approximately 5 years. Stallings, a machine operator, also received a raise on November 8. William Kelley testified that he received an increase in wages on August 16, 1957. Re- spondent's Exhibit No. 7 places the date as August 9 but Kelley in his testimony states he was given this raise on the same day that King made his first speech to the assembled employees, which it is stipulated was on August 16. Dornes testified that Altman told him "just before we had the election" that he had "a raise in the making." Respondent's Exhibit No. 7 shows that Dornes received a wage increase on October 11, 1957, which was 6 weeks before the election. 5. Bonus It appears it had been Respondent's policy prior to the advent of the Union to sell its scrap metal and that the proceeds therefrom were distributed to the employees 7 The rules were posted on October 1. 8 Reed testified on May 8, 1958. COSCO PRODUCTS COMPANY 779 in the form of a bonus. When Bossie Reed was asked if any company official spoke to him after the election about the bonus, he testified as follows: A. Well it wasn't direct to me. We was loading Monk Frost's truck and me and Monk Frost and Boatwright-that was shortly after the election.-I don't know the exact time. Well, I think it was Monk Frost asked Mr. Norman [Runyon, Respondent's vice president] concerning the scrap metal . . . and he said, "all the scrap metal was going for lawyer fee." He didn't say what lawyer or for what... . * * Q. As I understand it, one of the employees asked [Runyon] whether this scrap metal was going to be for their bonus? A. He said that the boys had wanted to get the Union in there once so all of the money for scrap metal was going for lawyer fee. Boatwright's testimony with respect to this bonus incident is as follows: I don't remember all of the exact days and the exact words, but it was the day of the election or the day after. It was right at the election time. Monk Frost, Bossie Reed and myself was loading scrap and that Monk Frost was getting from the Company they was selling it to him or something from Monk Frost's truck and Mr. Runyon came by and Monk Frost mentioned something to him about a Christmas bonus and he understood that the Company had been giving the fellows at Christmas time and Mr. Runyon said that it would take all of the money to pay lawyers fees if the Union came in or something about the Union. I don't remember the exact words, but any way he said that it would take all of the money to pay lawyer fees if . . . things kept going like it was, something about the union. 1 don't remember the exact words or just how he said it, but that was it. Runyon denied that he had ever told any of the employees that -their Christmas bonus would be abolished if they should vote in the Union. Ardley, Bossie Reed, Gibbons,9 Domes, Murkey, and Kelley testified that some of the more active union proponents and adherents were taken off machines which they operated and demoted to laboring duties and other menial work. Altman denied that employees were demoted and assigned to such work as punishment but that it was part of their regular duties. A partial list of the employees (in addition to the four alleged discriminatees) who were terminated after the advent of the Union or shortly after the election and certification of the Union is as follows: Name Date of Hire Date of Termination Otis Green' ---------------------------------------------------------------- May 22, 1956 Sept. 27, 1957 J. W. Brown --------------------------------------------------------------- Sept . 24:1956 Oct. 11, 1957 Ernest Glover------------------------------------------------ Sept. 3, 1957 Do. Theodia Boatwright ------------------------------------------------------ Oct. 11, 1957 Nov. 25, 1957 William Kelley '------------------------------------------------------ Oct. 8, 1956 Dec. 4,1957 Moses Murkey '---------------------------------------------------------- Nov. 6, 1956 Do. Willie Gigger------------------------------------------------------------- Apr. 8, 1957 Dec. 31, 1957 Laurie Ardley---- --------------------------------------------------------- May 4, 1955 Jan. 20,1958 Lut.her Davis"------------------------------------------------------------- Aug. 16, 1957 'Respondent's Exhibit No. 7, on which the above compilation is based, has the notations "Services un- satisfactory" and "incompetent" opposite these employees' names.'0 '"Davis testified he was "laid off" 2 or 3 days after the election but recalled on February 3, 1958. Respond- ent's Exhibit No. 7 shows his "lay-off" to be November 26, 1957. To summarize briefly, then, that part of the evidence produced by the General Counsel which was introduced for the purpose of proving violations of Section 6 Gibbons testified to this while he was still in Respondent's employ and before his discharge. 10 On cross-examination, Kelley testified that the day after the Union was certified, Altman told him he was being laid off because work was slack. Murkey was also laid off the same day. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8(a)(1) attempts to show that the employees were interfered with, restrained, and coerced in the exercise of the rights guaranteed them under the Act in the following respects: They were interrogated about their own and their fellow employees' union sympathies and how they intended to vote in the Board-conducted representation election; Respondent gave wage increases to its employees in order to discourage membership in or assistance to the Union and, conversely, threatened reprisals if the Union became their representative; promulgated rules which made their working conditions more onerous than they had been before the advent of the Union; changing its policy with respect to granting bonuses and to lending money to employees and granting loans in such a manner as to discourage union adherence as well as to influence the employees in how they would vote in the election.lt The Respondent's witnesses denied all these charges. Since the courts and the Board have made it abundantly clear that the determina- tion of whether unfair labor practices have been committed depends ultimately on the facts and circumstances of each particular case, a detailed account has been given of what the various witnesses alleged occurred. Also, many of the witnesses have been quoted verbatim in the belief that their choice of language is so expressive that much of the meaning would be lost and its significance escape the reader, if their testimony were paraphrased. Resolutions of Credibility This is a case, therefore, where the General Counsel's witnesses are contradicted on all the salient issues by the witnesses for the Respondent. Nevertheless, after observing the witnesses, analyzing the record and the inferences to be drawn there- from, and reconciling, where possible, the conflicting evidence, the Trial Examiner concludes that the testimony of the General Counsel's witnesses is reliable because it is consistent with certain undisputed and demonstrable facts in this case. This conclusion is based on observation of the witnesses with respect to the accuracy of their memories, their comprehension, and their general demeanor on the stand in answering the questions put to them. The resolutions of credibility made herein apply also to the testimony of D. C. Vandergriff, Oscar B. Wilcox, Joe A. Brinson, and Tom Gibbons, alleged discriminatees, with respect to their versions of what occurred when they left the Respondent's employ. The details of these termi- nations are discussed in later sections of this report. However, it is not meant to imply that the trier of these facts accepts as credible everything that was testified to by all the General Counsel's witnesses. It suffices to say, in the words of Judge Learned Hand, that "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." 12 Another practical consideration which cannot be overlooked in resolving the credibility issues in this case is the fact that some of the General Counsel's witnesses. were still in the employ of the Respondent Company at the time they testified.13 As such, they depended on their jobs for their livelihood and they understood that after testifying they must continue in the employment of the Respondent. This practical consideration coupled with the normal workings of human nature has led the trier of these facts to place considerable credence upon much of such witnesses' testimony with respect to Respondent's alleged unfair labor practices. In crediting some witnesses and discrediting others, having given weight to certain evidence as against other evidence, drawn inferences from circumstantial and con- flicting evidence, and come to certain conclusions, the Trial Examiner has necessarily had to detect and appraise various "potent imponderables" permeating the record.14 One of these "potent imponderables" is the demeanor of witnesses. The Board has recognized that the "demeanor of witnesses is a factor of consequence in resolving 11 See Respondent's Exhibit No. 13. 12 N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2), reversed on other grounds 340 U.S. 474. See I. C. Sutton Handle Factory v. N.L.R.B., 255 F. 2d 697, 698 (C.A. 8), where the court stated that the trier of the facts is not compelled to accept testimony even though it is uncontradicted. The Board in its decision in this same case (119 NLRB 951) held that even though the employer's testimony that the employee was fired for cause is uncontradicted, nevertheless, the Board can find the discharge was for union activities. 13 Tom Gibbons, one of the alleged discriminatees, first testified in this proceeding on May 9; the hearing recessed from May 12 to May 26, and during the recess, on May 17, Gibbons was discharged. 14 International Association of Machinists v. N.L.R.B., 311 U.S. 72, 79. COSCO PRODUCTS COMPANY 781 issues of credibility." 15 Credibility findings rest to varying degrees upon the evalua- tion placed by the trier of the facts upon the demeanor of witnesses . This type of evidence which does not appear in the record and is comprised of elusive intangibles and "potent imponderables" which are difficult to capture and describe by written words, often make it difficult for the trier of the facts to convey or describe the impression which a particular witness makes upon him.16 Judge Learned Hand describes it as "[findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity the bearing and delivering of a witness will usually be the dominating factors, when the words alone leave any rational choice. . . . nothing is more difficult than to disentangle the motives of another's conduct-motives fre- quently unknown even to the actor himself. But for that reason those parts of the evidence which are lost in print become especially pregnant ..." 17 As the Board stated : "Credibility findings may rest entirely upon evidence through observa- tion which words do not, and could not, either preserve or describe ." (Emphasis supplied.) 18 By this discussion of the evaluation placed upon the demeanor of the witnesses in testifying, it is not intended to convey the impression that consideration was given exclusively to this type of evidence in determining credibility. This was only one factor. Concomitant consideration was given equally to the surrounding circum- stances, and the consistency or inconsistency of individual witnesses ' testimony with uncontroverted evidence and demonstrable facts in determining which version should be credited . Moreover, in crediting one version as against another, the trier of the facts often derives considerable aid in comparing the witnesses' testimony on direct examination with what he testified to on his cross -examination. "A would-be deceiver weaves a tangled web, . and cross-examination is usually an effective device to enmesh the perpetrator of the embellished lie." 19 In later sections of this report , the Respondent's alleged discriminatory discharges and terminations of employment status are considered . The discussion and findings made above with respect to the resolutions of credibility of the witnesses applies not only to the alleged violations of Section 8(a) (1) of the Act, but also to that part of the complaint which alleges Respondent violated Section 8(a)(3) and (4) of the Act. With respect to the alleged violation of Section 8(a)(5), there is no sub- stantial disagreement between the parties on the salient facts; the disagreement arises as to the legal conclusions to be drawn from those facts. Respondent's counsel during the course of the hearing said: I think that it is important to show that this is a group of employees which is not a highly intelligent group .. . . In his brief, he stated: We have had as witnesses , to a great extent, uneducated laborers, some of whom could not even read or write. In connection with these statements of counsel , the employees who testified im- pressed the trier of these facts as not being intelligently capable of successfully practicing guile or deceit. This impression that they were testifying truthfully became a conviction when their stories were found, in the main, to be consistent with the attendant circumstances in this case and not substantially shaken by able counsel for the Respondent who vigorously , searchingly, and thoroughly cross- examined them. Discussion and Conclusions With Respect to Interference , Restraint, and Coercion In determining whether an employer's conduct amounts to interference , restraint, or coercion within the meaning of Section 8(a) (1),20 the test is not the employer's 16lladley Manufacturing Corporation, 108 NLRB 1641, 1643. 18 N.L.R .B. Y. James Thompson & Co., Inc., 208 F. 2d 743 (C.A. 2). N.L.R.B. v. Universal Camera Corporation, 190 F. 2d 429 , 430, 431 ( C.A. 2). is Roadway Express, Inc., 108 NLRB 874, 875. 19 Santa Clara Lemon Association , 112 NLRB 93, 104. 20 The relevant provisions of the National Labor Relations Act, as amended ( 61 Stat. 136, 29 U.S.C., Sees . 151, et seq.), are as follows : RIGHTS OF EMPLOYEES SEC. 7. Employees shall have the right to self-organization, to form, join , or assist labor organizations, to bargain collectively through representatives of their own 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intent or motive, but whether the conduct is reasonably calculated, or tends, to interfere with the free exercise of the rights guaranteed employees by the Act.21 Then too, on the issue of whether the Respondent violated Section 8(a)(1) of the Act, it is not required that each item of the Respondent's conduct be considered separately and apart from all others, but consideration must be given to all such conduct as a whole.22 It might be well to mention therefore, that in determining whether Respondent violated Section 8(a)(1) consideration has also been given Respondent's discriminatory treatment of four employees, as well as to its unlawful refusal to bargain within the meaning of Section 8(a)(5), insofar as it connotes an animus inconsistent with the policy and purposes of the Act. The surrounding circumstances in this case, which are singly and in combination unfair labor practices in that they were calculated to discourage and deter union activities, and upon which it is found Respondent violated Section 8(a)(1) are: (1) Altman, Respondent's shop superintendent, interrogated Bossie Reed as to how he felt about the Union and how he was going to vote in the impending elec- tion; (2) King, president of Respondent, asking Reed on the day of the election how he was going to vote; (3) Altman asking Murkey what he thought about the Union; (4) Altman inquiring of Ardley if "anybody" had shown him a union card or read anything to him about the Union; 23 (5) Altman stating to Domes that if the Union won the election, certain privileges which the employees presently en- joyed would probably be abolished and "that a job that was paying a regular salary was better than a job paying higher wages and not working regularly"; (6) Altman telling Boatwright that if the Union came in, working conditions would change for the worse; (7) employees' practices which had been tolerated heretofore and work- ing conditions becoming more stringent and the enforcement of the posted printed rules being strictly enforced after the advent of union activities; (8) the Respondent's policy of lending money and' granting wage increases was subverted and applied in a discriminatory manner subsequent to the union organizational campaign, so as to discourage union membership and influence employees in how they would vote in the election; (9) indicating the Christmas bonus might be abolished 'if the Union were successful; 24 and (10) punishing union proponents by making their working conditions more burdensome by demoting them from machine operators to laboring duties and other menial tasks. In addition, there are the interference, coercion, and restraint practiced by the Respondent in its discriminatory treatment of Vandergriff, Wilcox, Brinson, and Gibbons for their union activities and for giving testimony in Board proceedings, which are discussed in later sections of this report, and which it is found were an integral part of the Respondent's efforts to frustrate the employees' union organiza- tional campaign. It is found, therefore, that the conduct described above was intended to have the effect -of interfering with the rights guaranteed to employees by Section 7 and constituted interference, restraint, and coercion in violation of Section 8(a) (1) of the Act.25 The antiunion views expressed by the Respondent's officials in their preelection speeches (including the written statements) which clearly show their union anti- pathy but which were not coercive, are found not to be violative of the Act as they choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in section 8(a) (3). UNFAIR LABOR PRACTICES SFC. 8. (a ) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7. 21 N.L.R.B. v. Illinois Tool Works, 153 F . 2d 811, 814 (C.A. 7). 22 N.L.R.B. v. Popeil Brothers, Inc., 216 F. 2d 66, 68 (C.A. 7). =' See Ballas Egg Products Co., 121 NLRB 873, footnote 1. as As to the bonus incident, see The Guiberson Corporation, 121 NLRB ' 260 ; Crosby Chemicals, Inc., 121 NLRB 412; N.L.R.B. v. Nash-Finch, 211 F. 2d 622 ( C.A. 8) ; Schick, Incorporated, 118 NLRB 1160, 1162-1163 ; La Pointe Machine Tool Company, , 113 NLRB 171, 172-173. 2N.L.1.B. v. Gate City Cotton Mills, 167 F. 2d 647, 649 (C.A. 5 ) ; Graber Manu- facturing Company, Inc., 111 NLRB 167, 168-169. COSCO PRODUCTS COMPANY 783 fall within the protective ambit of Section 8(c) of the Act26 and the free speech clause of the first amendment to the Constitution. D. The alleged violations of Section 8(a) (3) Contentions The complaint alleges, in part, that the Respondent violated Section 8(a) 27 of the Act by discriminating in the hire and tenure of D. C. Vandergriff, Oscar Wilcox, Joe A. Brinson, and Tom Gibbons. Respondent denies it attempted to discourage union activity among its employees or that the employment of the above-named alleged discriminatees was terminated because of union activities or other proscribed reasons. On the contrary, Respondent affirmatively maintains that Vandergriff was discharged for inefficiency, dereliction of duties, and failure to report for work; Wilcox quit his job voluntarily; Brinson was laid off for economic reasons; and Gib- bons was terminated for insubordination and cursing at his supervisor. Discussion There are here presented mutually exclusive stories which require the resolution of pure questions of fact. To resolve these questions regarding the propriety of the terminations and alleged discharges, consideration must be given to circumstantial evidence as well as what is direct. However, it is well recognized that a finding of discrimination must frequently rest on inference, since direct evidence of intention to violate the Act is rarely obtainable.28 Moreover, it is well established that relief should not be denied because of the absence of direct evidence, but recourse may be had and reliance made upon circumstantial evidence which is relevant to resolving the issues.29 What then are the factors to be considered? First, there is the credibility evalua- tion placed upon the demeanor of the witnesses in testifying, which has been dis- cussed supra, and resolved in favor of the versions told by the General Counsel's witnesses.30 Altman's testimony has been carefully considered and his demeanor intently observed on the witness stand and it is concluded for the reasons hereinafter stated that his testimony that Vandergriff was inefficient and failed to report for work, that Wilcox voluntarily quit, that Brinson was laid off for economic reasons, and that Gibbons was discharged for cursing him is not credible. Furthermore, certain objective circumstances have been considered also, such as uncontroverted physical and temporal factors, as well as demonstrable facts, and it is concluded that the Respondent's version of what occurred is not consistent with the attendant circum- stances. Moreover, in evaluating Respondent's witnesses' testimony, considerable importance has been attached also to the background evidence which requires an appraisal of Respondent's entire course of conduct. In this proceeding, that includes a consideration of the findings heretofore made, with respect to Respondent's inter- rogation of its employees, threats of reprisals if the Union were successful in the election, more onerous working conditions, and abolishment and curtailment of privileges after the advent of the Union as well as other conduct on Respondent's part which is detailed above. After evaluating all these factors and carefully considering all countervailing evidence, it is found that the Respondent unlawfully discriminated against Vander- griff, Wilcox, Brinson, and Gibbons within the meaning of Section 8(a)(3) and (4) of the Act. In arriving at this conclusion, it has been kept constantly in mind '"The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit." n "SEC. 8. (a) It shall be an unfair labor practice for an employer- " * * * * * * "(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: 21N.L.R.B. v. L. C. Ferguson at at., d/b/a Shovel Supply Company, 257 F. 2d 88 (C.A. 5) ; Kramer Bros. Freight Lines, Inc., 121 NLRB 1461. "Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4) ; N.L.R.B. v. Piedmont Wagon and Manufacturing Company, 176 F. 2d 695 (C.A. 4). Cf. N.L.R.B. v. Nabors, 196 F. 2d 272, 275 (C.A. 5), cert. denied 344 U.S. 865. ^N.L.R.B. v. Dinion Coil Company, Inc., 201 F. 2d 484, 487-490 (C.A. 2). 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it is not the burden of the Respondent to show the absence of discrimination but that the General Counsel to show its presence. However, after balancing the evidence on both sides, the Trial Examiner is persuaded that the General Counsel has met by a preponderance of the evidence the burden of establishing that these discharges and terminations were discriminatory. The Alleged Discriminatory Discharges 1. D. C. Vandergriff D. C. Vandergriff was hired by Respondent on May 29, 1956, and worked until the middle of August 1957, when the was involuntarily terminated. He was hired as a laborer at a pay rate of $1 per hour. Approximately 6 months after going to work for the Respondent, he was promoted to machine operator and given an in- crease to $1.05 per hour on November 23, 1956. After his promotion, Vander- griff's job was that of a shearing machine operator. As a shearing machine operator, he was assigned a crew of men in processing this type of work which entailed the cutting of steel bars into specified lengths. The steel bars are stored in bundles in separate bins according to size and grade (foreign and domestic) and stacked in a yard adjoining the Respondent's building.31 After the grade steel which is to be used in filling the order is selected by the shop superintendent, whose responsibility it is to select the proper grade of steel, some of the crew members, called "throw down men" or "shakers" then remove from the various bins the size and grade steel bars which are required to fill the particular order, and place the bars upon the ground. Other crew members attach the bars to a crane by a sling arrangement which transports these steel bars to the shearing machine where they are disengaged from the crane and each bar is then lifted singly onto a table and placed upon rollers. The steel bars are then shoved, one at a time, along these rollers by other crew members, called "feeders," toward the cutting blade until they are at a point determined by the gauge man who sets up blocks by placing the gauge in a slot or notch at a point necessary to have the steel bars cut to the length specified by the order. The gauges are notched every 3 inches and the block is inserted in that slot or notch for which length the steel is to be cut. When the steel bar comes to rest against the block on the gauge table, the shearing operator brings down the blade of his cutting machine on the steel bar at the point predetermined by the gauge man who had previously set up the blocks at the requisite point in order for the steel bar to be cut the proper length called for by the order. It was Vandergriff's job to bring down the cutting blade of his shearing machine on the steel bar at a point determined by the gauge man.32 For about a month prior to the time he was discharged, Vandergriff, who was one of the first to sign a union card, was in the forefront of those actively engaged in soliciting Respondents employees to support and join the Union. At the request of the Union's business agent, he spoke to the employees during their lunch hour, at their homes, and on the street about the advantages of a union.33 Vandergriff testified that on Friday, August 16, 1957, he and Wiley Robinson, who operated another shearing machine, engaged in a heated argument concerning the manner in which they operated their respective machines. During the course of the argument, according to Vandergriff, he and Robinson shouted at each other so loudly that the employees stopped their work to listen and Robinson yelled at Vandergriff, "you are the head of the Union and you won't be here very long." Vandergriff states that Robinson shouted this threat in the presence of Altman, the shop superintendent, who witnessed this argument from a point about 60 feet distant from where Robinson and Vandergriff were arguing.34 The substantive aspects of Vandergriff's testimony regarding this incident were corroborated by employees Ardley and Gibbons, both of whom were employees of Respondent at the time they testified . Robinson denied on direct examination that he ever had such an argument with Vandergriff or told him he would not be around long because he was the head of the Union. On cross-examination, however, Robinson did recall an argument that '+ Respondent's production work is done outdoors in this yard in an area measuring approximately 60 feet by 80 feet. 32 King, president of Respondent, testified that the gage man sets up the blocks in order that the steel will be cut the proper length. 32 Gibbons, Brinson, and Kelley, fellow employees , corroborated this. ' According to Vandergriff's testimony, King, president of Respondent , came out into the yard and ordered Robinson and Vandergriff to stop their argument . The record does not disclose what, if any, part of the argument was overheard by King. COSCO PRODUCTS COMPANY 785 he had with Vandergriff concerning their work . Altman also denied that he heard any such argument. The Monday following the argument, August 19, 1957, when Vandergriff arrived at work, his timecard was not in the rack located alongside the time clock . He found Altman and told him his timecard was not in the rack , whereupon Altman told him he was fired, saying, according to Vandergriff's testimony. "You don't have a card. Here is your check. You know too much for me." Altman denied he told Vander- griff, "You know too much for me." Vandergriff testified that prior to his discharge , he had had no complaints about his work from Altman or any of the other officials of Respondent . Vandergriff also testified that when he was promoted to machine operator and received his wage increase in November 1956, Altman said to him , "Keep the good work up and you will get another raise soon." On cross-examination , Respondent's counsel asked Vandergriff if it was not true that members of his crew had complained to Altman that Vandergriff had cursed them but Vandergriff denied that Altman had ever brought this complaint to his attention . Vandergriff was cross-examined about trouble he had with respect to an unpaid debt and a loan company attempting to garnish his salary which caused Respondent considerable annoyance 35 Vandergriff was also questioned about an incident in which a woman was alleged to have come onto company premises and drawn a pistol on Vandergriff.36 On further cross-examination, Vandergriff denied the accusations brought out by Respondent's counsel that he was ever cautioned for loafing or that Altman had to order him out of the men's restroom in July and August of 1957, because of the excessive amount of time he spent in there.37 Altman testified he so reprimanded Vandergriff "maybe 4 or 5 times." Vandergriff also denied Respondent's charges brought out on cross-examination , that he had cut some steel bars improperly on August 16, the last day he worked, or that he had improperly cut steel bars on another occasion .38 He did testify, however, that about 3 months prior to his discharge, bars were cut by him from the wrong grade of steel, but selecting the proper grade, he continued , was the sole responsibility of the shop superintendent.39 Respondent's counsel in his cross-examination attempted to elicit that Vandergriff was ordered to report for work on Saturday , August 17, by Altman but that he failed to appear. Vandergriff denied that Altman asked him to report for work on Saturday and contended that when Altman told him the following Monday he was fired, Altman never mentioned at that time anything about failing to report for work on the previous Saturday .40 Altman's testimony is that he told Vandergriff he was being discharged for failing to report on Saturday although he admitted that he did not afford Vandergriff an opportunity to explain or justify his failure ss Runyon , Respondent's vice president, testified that on March 3, 1957, he reprimanded Vandergriff for his failure to pay this debt because his creditors coming to the plant interfered with Vandergriff's work and the plant routine. 3a Altman fixed this incident as occurring "early in the year 1957" while King placed it as occurring in May 1957. 37 King testified this was brought to his attention when he saw members of Vandergriff's crew standing around the machine which was not operating because Vandergriff was in the restroom . However, testimony shows that one or more members of the crew could operate the machine in the event the operator went to the restroom . Altman testified on direct examination that when Vandergriff left his machine , "Just about any one of [his crew members ]," could operate the machine in his absence. At another point , Altman testified , "I usually like to have a standby on each machine in case one man 's out." S8 Altman testified that Vandergriff "made two mistakes" on August 16, 1957 , the last day he worked . The first was an order for the Auchter Company which was "sheared too long" and the second mistake was an order for Henry C. Beck which also was cut too long as the order called form bars 6 feet 6 inches in length and Vandergriff was alleged to have cut them 7 feet 6 inches long. Although Altman originally testified that Vandergriff "made two mistakes" on August 16, he also testified as to a third mistake that Vandergriff was alleged to have made on that same day. This concerned an order for the Atlantic Coast Line . Vandergriff denied these incidents ever occurred. 39 Altman admitted in his testimony that it was his responsibility , and not the machine operator's, to select the proper grade of steel . On cross-examination, Altman testified that he did not "remember" the incident which Vandergriff testified occurred about 3 months prior to his discharge. 4O Vandergriff testified that he would glady have reported for work on Saturday if he had been told to do so as he needed the extra money badly. 50'8889-60-vol . 1.23-51 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to report for work on Saturday. King, president of Respondent, testified that the cause for Vandergriff's discharge was the accumulation of -these incidents and that the decision to discharge him was made after he failed to report for work on Satur- day, August 17.41 In addition to all these many charges of derelictions of duty on Vandergriff's part, King and Altman testified that Vandergriff's attendance record was not good and that he was frequently tardy. Willie Domes, a member of Vandergriff's crew on Friday, August 16, testified on rebuttal that he was working with Vandergriff on that day and to his knowledge Vandergriff did not cut any steel improperly on that day nor did he hear Altman say anything to Vandergriff on that same day with respect to cutting steel "wrong." Altman testified that Domes was the gauge man that day when the Atlantic Coast Line order was cut improperly but Domes disclaimed any knowledge of such an incident ever occurring.42 Vandergriff's charge against Respondent was filed with the Board 4 days after his discharge. Discussion and Conclusions There is here presented then a situation in which the General Counsel alleges that Vandergriff was discharged because of his union activities and sympathies, and the Respondent denies this charge, contending that his employment was terminated "because of an accumulation of reasons" and that the "immediate reason was Vandergriff's, failure to report for work on Saturday, August 16, 1957, after being told to report." It must, therefore, be determined whether these derelictions were the real reasons or a pretext. However, the existence of some justifiable cause for discharge is no defense, if it was not the moving cause. The coexistence of a separate, valid reason does not eliminate the unlawful aspect of the employer's action where motivated by a cause proscribed by the Act.43 This principle was stated by the Court of Appeals for the First Circuit as follows: 44 Although the discharge of an inefficient . . . union member is lawful, it may become discriminatory if other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire him than did dis- satisfaction with his performance. The state of mind of Respondent in discharging Vandergriff is partly a question of credibility to be given to the various witnesses who testified with respect to Vander- griff's discharge. At various points in the record, as shown by the above-related facts, there is a sharp conflict in the testimony. The matter of credibility with respect to the evaluation of the demeanor of the various witnesses has already been discussed and resolved. Moreover, the trier of these facts was favorably impressed by Vandergriff's testimony both on direct and on cross-examination, as it was found to be more consistent both with the attendant circumstances and the inherent proba- bilities of what are believed to be the facts surrounding his discharge. In addition to the demeanor of Vandergriff in resolving credibility, specific indicia will be dis- cussed below which are peculiar to Vandergriff's termination and upon which it is found he was discriminatorily discharged. From an appraisal of the general situation and the surrounding circumstances, as well as the reactions of certain of the employees who -testified (other than the alleged discriminatees), and the unfair labor practices of the Respondent, which.' 41 Respondent's Exhibit No. •7 has the following notation after Vandergriff's name under the column captioned "Comments" : "Discharged-Disobeyed Orders." This same exhibit gives the day of Vandergriff's discharge as Friday, August 16, although it is uncontra- dicted that the decision to discharge him was made on the 17th, and that he was so ' notified when he reported for work on Monday, the 19th. 42 Altman testified at another point in the record that normal measuring procedures were not used on the Atlantic Coast Line order as he instructed Vandergriff "not to gauge the steel on the gauge board [but], set up a mark on the rollers and behind the shearer and pull the bar through the shearer till the tall end of it came to that mark which would [make it the correct] length." Altman testified that this method of measure- ment was used about a dozen times during the time Vandergriff was operating a shearing machine. Vandergriff operated a shearing machine from November 23, 1956, to the date of his discharge in the middle of August 1957. 43TVells, Incorporated v. N.L.R.B., 162 F. 2d 457, 460 (C.A. 9) ; N.L.R.B. v. A. B. Swinerton, et al., 202 F. 2d 511, 515, 516 (C.A. 9) ; Plastic Molding Company, Inc., 110 NLRB 2137, 2138. The Supreme Court held in N.L.R.B. v. Nevada Consolidated Copper Corporation, 316 U.S. 105, 106, that the power to draw either of two incon- sistent inferences is a proper function of the trier of the facts. 44 N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885. COSCO PRODUCTS COMPANY 787 have heretofore been discussed , the Company 's union animus has been established. The conduct of the Respondent shows an improper attitude in union relations. The evidence shows the Respondent resorted to numerous devices, including its conduct described above and also discussed in later sections of this report , to impede the efforts of its employees to engage in the freedoms guaranteed by Section 7 of the Act. Company officials interrogated them about their union sympathies , threatened reprisals, made working conditions more onerous, and engaged in other actions tending to discourage union activities . Moreover, Vandergriff's discharge cannot be viewed in isolation , separate and apart from Respondent's entire course of conduct, which was to thwart the Union's organizational activities at its plant . The entire scope of events revealed by the record in this proceeding must be considered in order to determine properly whether Vandergiff was discharged discriminatorily. Against the charge of inefficiency , dereliction of duties, and failure to report for work, alleged by Respondent for Vandergriff's discharge, the following facts have been considered . Vandergriff was employed by Respondent for over 14 months; 6 months after he was hired , he was promoted from laborer to machine operator at an unsolicited increase in pay at which time his immediate superior , Altman, com- mended the quality of his work . There is no substantial evidence on the record which discloses there was any basis for Respondent's alleged dissatisfaction with the quality of Vandergriff's work prior to the time he began to engage in union activities . Moreover, the record is devoid of any suggestion as to why with a record of apparently over 1 year 's satisfactory service, Vandergriff should begin in his last few months of sevice to become inefficient and neglectful of his duties . Although great emphasis was placed on Vandergriff's incorrectly cutting steel on August 16, the last day he worked , nevertheless, it would appear his alleged dereliction was not considered too seriously by Respondent as how else can his being asked to report for work the following day be evaluated? Nor does it seem plausible that if Vander- griff had committed such serious errors on August 16 , he would have considered. approaching King, Respondent 's president, for a wage raise that same day. Reprimands , if any there were, were of a minor character . Nevertheless , Vander- griff was suddenly preemptorily , and precipitately discharged with no warning that disciplinary action was contemplated or imminent . Moreover, the interjection of other reasons and the variation in the stated grounds for Vandergriff 's discha-ge, 'as well as the resurrection of numerous and unconvincing reasons advanced for his dismissal, cast doubt upon the meritoriousness of the Respondent 's defense and indicate that the reasons given for Vandergriff 's discharge were afterthoughts marshaled to conceal Respondent's discriminatory motive. Vandergriff was alleged to have been involved in a pistol incident, caused Respondent annoyance by failing to pay his debts, cursed members of his crew, was accused of excessive loafing, spending too much time in the restroom, repeatedly tardy and absent, leaving his machine unattended so that members of his crew stood about idle, cutting steel bars the wrong length, and failing to report for work on Saturday , August 17 . Shifting reasons for an employee 's discharge are indicative of a discriminatory intent,45 and the employer's inconsistent explanations of a discharge are a circumstance indicating its motivatiori .46 The Respondent's shifting reasons for discharge not only tend to discredit each of the contradictory reasons advanced, but also serve to indicate that the Respondent must have been intent on covering up an unlawful reason, thereby itself adding support to an inference that the true reason was a discriminatory one.47 Furthermore , Respondent's claim that Vandergriff was repeatedly tardy and absent was not corroborated by his timecards . The unexplained failure to produce these records at the hearing renders this purported reason dubious and also warrants draw- ing an inference that if produced , such records would not have been favorable to the Respondent's contention.48 Then, too, the precipitate manner in which Vandergriff was discharged indicates it was discriminatorily motivated as Respondent neither warned him nor waited for an explanation as to why he did not report for work on Saturday . Assuming, arguendo, that Altman ordered Vandergriff to report for work on Saturday , August 17,49 which Vandergriff denies, nevertheless, for Altman to summarily discharge Vandergriff the following Monday without making any effort to ascertain if he had a valid reason for not coming to work on Saturday, connotes a state of mind from 45 Dant & Russell, Ltd., 92 NLRB 307, 320. 46N.L.R.73. v . Condenser Corporation of America, 128 F . 2d 67 , 75 (C.A. 3). 47 See N.L.R.B. v. International Furniture Company, 199 F. 2d 648 , 650 (C.A. 5), enfg. 98 NLRB 674. S8 Interstate Circuit v . U.S., 306 U.S. 208 , 225, 226: N.L.R.B . v, Sam lhallick, 198 F. 2d 477, 483 ( C.A. 3) ; Concord Supplies & Equipment Corp ., 110 NLRB 1873, 1879. 49The normal workweek for Respondent 's plant is 5 days , Monday to Friday, inclusive. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which it can be inferred that the decision to discharge him was made not for the reasons alleged by the Respondent but for his union activities 50 It is not believed that a nondiscriminatorily motivated employer would have acted so unreasonably under such circumstances . It is more reasonable to infer that Vandergriff's union activities, toward which Respondent was hostile , were the real explanation for his discharge. It is found , therefore, that the reasons alleged for discharging , Vander- griff, but which were not stated to him at the time he was fired, were spurious and a pretext to screen Respondent 's discriminatory motivation. There is little in the record which shows that the Respondent ever complained about the work habits of Vandergriff prior to July 1957, when significantly, not long after, he began his intensive union activities and Respondent concurrently became more critical of his work. Argumentatively assuming that Respondent may have had some cause for dissatisfaction with Vandergriff's work prior to his discharge, yet, as the Court of Appeals for the Third Circuit observed in a somewhat similar case, "[it] apparently became intolerable only after he had joined the Union." 51 Refuting Respondent's charge that Vandergriff improperly cut steel on two occasions the last day he worked is Dornes' testimony completely discrediting Respondent's witnesses. When it is considered that Dornes was still in Respondent 's employ when he testified and was a member of Vandergriff 's crew on the day in question, considerable credence must be placed on Dornes' testimony . Moreover, it appears by the testimony of Respondent 's President King that the error in cutting the steel the wrong length, if any there was, resulted from the gaugeman's fault, whose responsibility it was to measure the correct length and not the shear operator's, Vandergriff's.52 Respondent also contends that it did not know of Vandergriff 's union activities at the time he was fired on August 19. Direct evidence of such knowledge is rare in cases of this type, so that if the employer denies that he was aware of the disciplined employee's union activity , the issue must be determined on the basis of the facts established by the record.53 What then does the record disclose in this regard? It is uncontradicted that Respondent received a letter from the Union requesting recognition of it prior to August 19, the date Vandergriff was discharged. More- over, Altman overheard Robinson on August 16 accuse Vandergriff of being the leader of the union adherents . Furthermore, it can reasonably be inferred that from July 8, when many of the Respondent 's employees met with the union business agent on a vacant lot a few blocks from the plant, until Vandergriff's discharge on August 19, information as to Vandergriff 's union activities came to Respondent's attention during this period of over 5 weeks when it is considered that the employees worked in a closely supervised and compact outdoor area and that Respondent's small plant only employed approximately 25 production and maintenance employees at this particular time and that' about 16 of them attended the union meeting.54 Present during a part of the time that this union meeting was held was Robinson, an employee for 13 years , whose testimony at the hearing indicated a reluctance to state frankly any matter adverse to Respondent's interest. It will also be recalled that Robinson reported to company officials that Wilcox, Domes, and Kelley were seen by him in the company of the Union's business agent and he also reported to Altman that he had found Wilcox sleeping in the washroom . Indeed, it is believed not only that Respondent 's officials solicited reports from Robinson, a nonsuper- visory employee, concerning the derelictions and union activities of other employees, but that he efficiently cooperated . It is found , therefore, under the circumstances 50 When it was pointed out to King, president of the Company , that Respondent's Exhibit No . 7 shows Vandergriff was discharged on August 16 and not the 19th, King testified : "The last day Vandergriff worked was August 16 . His check was prepared August 17 . It was presented to him and he was told he was no longer employed on August 19." Q. Why was Vandergriff's check prepared August 17? A. The determination to let him go was made on that day. Q. Wasn't it possible that he might have had a valid reason for not appearing on the 17th? A. His record was such that we were through with him. 51 N.L .R.B. v. Electric City Dyeing Co ., 178 F. 2d 980 , 983. Cf. Agwilines, Inc. V. 1T.L.R.B., 87 F . 2d 146, 154 (C.A. 5). se See footnote 32, sutra. i3 Kramer Bros . Freight Lines, Inc., 121 NLRB 1461. s4 Bremer Tanning Co ., Inc., 50 NLRB 894. COSCO PRODUCTS COMPANY 789 here present, that the Respondent knew Vandergriff actually participated in protected concerted activity prior to the date of his discharge.55 This is a situation, therefore, where it is believed that the Respondent has belatedly characterized the union activity, of which Respondent, it is found, had knowledge, and for which Vandergriff was discharged, as dereliction of duties and inefficiency in order to justify the discrimination against him. Accordingly, it is concluded and found that by discharging Vandergriff, Respondent was guilty of discrimination in violation of Section 8(a)(3) of the Act56 2. Oscar B. Wilcox Oscar B. Wilcox was employed by Respondent from August 31, 1956, until January 9, 1958. His first assignment was doing laboring work at $1 an hour. On December 21, 1956, about 4 months after he was hired, he was promoted to a machine operator at an hourly wage rate of $1.05. He was given another pay increase to $1.10 on April 26, 1957, and on August 16, 1957, he was increased to $1.15. Sometime in July 1957, Wilcox, as a result of several meetings with the union organizer, agreed to arrange a meeting at which the union agent could address the employees and he also agreed to solicit Respondent's employees to join the Union. He became an ardent union proponent and devoted much of his time to enlisting his fellow employees to aid the Union's cause.57 He also testified at the Board representation hearing which was held on the morning of September 23, 1957. After testifying, he returned to Respondent's plant about 12:30 p.m. but was told by Altman to take off the rest of the day [without pay]. Dornes, who also testified at the same representation hearing, returned to the plant during the lunch hour and worked the rest of that day. The following day, September 24, Wilcox was handed a letter by Altman and told to read it. This letter reads as follows: Re Oscar Wilcox SEPTEMBER 24, 1957. On the morning of September 19, 1957, I was advised that one of the shop employees, Oscar Wilcox, was asleep in the washroom. I went to the washroom and Wilcox was coming out. The following day Wilcox asked to be excused from his job at about 10:00 a.m. to go to the doctor for a cold shot. I told him that he was needed in the shop and could not be excused. Later in the morning, he started dragging and showing little production on his machine. I asked him what the trouble was and he replied that he was sick, so I told him to go home. I then told him that I had noticed him dragging in his work for several weeks, and asked him why. He replied that he had had this cold for some time, and felt bad. I asked him why he had been asleep in the washroom on the day before, and he said that he hadn't been sleeping. I told him not to lie to me, and he admitted that he may have been "dozing a little." I warned him that if he was found asleep again he would be discharged. I also warned him about spending excessive time in the washroom. RICHARD ALTMAN, Shop Superintendent. Wilcox testified that after Altman read the letter to him, "he [Altman] told me to sign it and I jumped up and I signed it because I figured if I didn't sign it he would fire me right then." Then Altman was asked why he handled this incident in this manner, he testified as follows: I never had heard of anyone sleeping in there, in the washroom before. And I wanted to make a record that he had been sleeping in the washroom. I mean that's a pretty serious thing to do and I wanted to have him acknowledge the fact that he had been sleeping in the washroom, and that's about it. Wilcox denied that Respondent had ever complained about his work habits prior to his testifying in the representation hearing. However, Altman testified that King w Angwell Curtain Company, Inc. v. N.L.R.B., 192 F. 2d 899, 903 (C. A. 7) ; Hartland Plastics, Inc., 93 NLRB 439, 448; S. S. Coachman i Sons, Inc., 9 ,9 NLRB 670, enfd. 20.1 F. 2d 109 (C.A. 5), where the "employees worked together in a small area." mN.L.R.B. v. C. d J. Camp, Inc., 216 F. 2d 113 (C.A. 5). 51 Domes testified that Wilcox was the first person to approach him to join the Union ; Kelley testified that after Vandergriff was discharged , Wilcox took over as leader of the union movement in the plant and Brinson testified that he took over from Wilcox when the latter was isolated from the employees by being assigned to doing laboring work by himself about the plant grounds. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spoke to him "a little later than [August 1957]" about Wilcox "spending too much time in the washroom." Altman also testified that sometime in September, Wylie Robinson , another employee, reported to him that he had seen Wilcox sleeping in the washroom. On September 25, the day after he signed the above letter, Wilcox was demoted from a machine operator and assigned to working by himself , away from the other employees , at such menial tasks as panwork ,58 cutting weeds, 59 scattering rocks, and cleaning up the premises.so After Wilcox was demoted from machine operator to laborer , there were several times when he left his work in and about the plant grounds in order to get a drink at the water keg, located in the area where the other employees worked and which was a popular place for the employees to congregate. On these occasions when Altman saw him go to the water keg and talk to the employees , he would order Wilcox to return to his work in the yard. On another occasion , Brinson, who took over the operation of Wilcox's machine when he was demoted, walked out to where Wilcox was working at his laboring job and asked Wilcox to come to his (Brinson's ) machine and help him in reading some blueprints . When Altman found Wilcox at Brinson's machine, he said, according to Wilcox, "Go back down to the pans where I put you and stay down there." This was corroborated by Reed, Dornes, and Kelley . Altman recalled this incident and testified that Brinson asked Wilcox to help him in reading the detail sheet when the latter was "working on the pans or cutting grass . iI told Wilcox to go back . . . because if there is any explaining out there or if they don't understand anything, I always try to tell them myself so they don't get it secondhand , because I have a set way I like to have things done and any time any of them have any difficulties with their machines, their detail sheets or anything, I tell them to come to me." During the period of time subsequent to September 25, when he was relegated to laboring work, an unusually large order , which had to be gotten out quickly and which required the reading of blueprints , came into the plant. Altman admitted that he took Wilcox off his laboring work and assigned him to operating a machine in order to get this order out on time . After the emergency passed and the order was filled, Wilcox was again assigned to working about the plant premises at menial tasks. Wilcox's testimony continues as follows: Well, I left in January because I just couldn 't stand no more of that junk they were putting down and giving me all of that old nasty stuff . . . . And the way that they were treating me. The treatment that I had been getting and after the election and talking to me like a dog and treating me like an animal and I couldn't stand it any more. Wilcox testified that "this treatment" began immediately after he testified at the Board representation hearing on September 23, •1957. On cross-examination, Wilcox in explaining what he meant by "being treated like a dog," testified that Altman isolated him from the other employees: I was taken off easier work and put on the low class work and everybody laughed at me and I didn 't have no more opportunity to have another crew of men and to be a machine operator or something like that. They just kept es Panwork consisted of cleaning cement from the pans , pounding the dents out of the pans with a sledge hammer and then applying grease to the pan to prevent rusting. so The weeds which were in an unused field behind the plant were cut by a sling scythe. Wilcox testified that in the 15 months he worked 'for the Company he had never seen these weeds cut before. 60 Ardley in his testimony characterized being assigned to panwork as "punishment." He also testified on cross-examination that heretofore such work had been assigned to a machine crew under the direction of a machine operator at such times as there was no machine work to do and that he had never known an employee to be assigned to this type of work alone, other than Wilcox and Brinson, another alleged discriminatee . Moreover, testified Ardley, who was an employee at the time he testified , he had never seen a machine operator assigned to working by himself on pans as this task was usually per- formed by two or more men because the pans had to be lifted onto a block and were so cumbersome and heavy that it was a physical strain for one man to do this work by himself without help . Also , testified Ardley, when the machine operator took his crew to work on pans and other work of a menial nature , the machine operator did not actually do the laboring work but gave his crew directions which in turn were transmitted to him by Altman. Ardley was corroborated by Kelley, Reed, and Murkey. COSCO PRODUCTS COMPANY 791 me all the time just lowered. I never had a good chance to talk and say nothing to the boys like the rest of the boys did. Q was alway off by myself... . On January 9, 1958, Wilcox testified that he went to Altman and told him he was leaving and going back to his home in Miami. Conclusions The complaint alleges, in effect, and General Counsel claims, that because of Wilcox's testifying for the Union in the representation hearing and his union activities, Respondent began to harass him and treat him so intolerably that Wilcox was forced to quit, thereby discharging him constructively. Respondent's version, however, is that Wilcox quit voluntarily. After observing the witnesses, analyzing the record and inferences to be drawn therefrom, it is concluded that Wilcox was constructively discharged for testifying at the representation hearing and because of his activities on behalf of the Union. Wilcox appeared to be a truthful witness and the events narrated by him follow a logical sequence, which are consistent with the attendant circumstances in this case. The probative value of Altman's testimony regarding the circumstances of Wilcox's leaving the Respondent's employ is a matter of credibility and if such testimony is substantially contradicted by other evidence and accompanying circumstances , as it is in this case, the Trial Examiner is not required to accept it.61 At the height of the Union's organizational drive at the plant, Wilcox spear- headed the campaign and after Vandergriff's discharge he was the most outspoken and active employee advocate in attempting to organize the Union. The Respond- ent's animus toward the Union has been established , as well as its awareness, par- ticularly after he testified at the representation hearing, of Wilcox's protected activi- ties, as evidenced by Respondent's punishing Wilcox by demoting him to menial tasks and isolating him from the rest of the employees in order that he could not talk union to them. Furthermore, it stretches credulity too far to believe that there was only a temporal connection between Wilcox's testifying at the representation hearing, signing the accusing, condemnatory, and admonitory letter composed by Altman, and being transferred almost immediately thereafter from operating a machine to laboring work. Nor is Altman's testimony credited that Wilcox was assigned to menial tasks "because they had nothing else for him to do" or that "it was a while after [Wilcox] had testified before I did learn" that he had testified at the representation hearing. It is believed and so found that the purpose in as- signing Wilcox to laboring work was not only to punish him but also to exclude him from that part of the plant premises where the other employees worked and thus prevent him from talking union to his fellow employees. It is believed that another reason for demoting Wilcox and assigning him to menial tasks was to humiliate him with the hope that he would be coerced into resigning , and it was also a means of Respondent expressing its disapproval of his union activities and indicating to the other employees that similar treatment awaited them if they should engage in pro- tected activities. It is found, therefore, that the facts warrant a finding that Re- spondent's conduct toward Wilcox was motivated by antiunion considerations, .namely, to rid itself of an ardent union adherent. Argumentatively assuming that Wilcox quit and was not discharged literally, nevertheless, discrimination may manifest itself in actions other than outright dis- charge as, for instance, forced quits.62 If the discriminatory action of the employer has created a situation so intolerable to the employee that he quits his job, the em- ployer may be guilty of a constructive discharge.63 In this case, it is uncontradicted that Wilcox was efficient. As late as August 17, 1957, King acknowledged that he consulted with Altman, and Altman told him (King) that Wilcox was "entitled" to a raise in pay which he received a few days later. Moreover, King testified on cross-examination that it was Respondent's policy not to break up a shearing or bending crew which was operating efficiently. If so, it is difficult to reconcile Wilcox's demotion from machine operator to a laborer approximately 5 weeks after he was given a wage increase. Nor is there any plausible explanation in view of Wilcox's admitted efficiency as to why Runyon, vice president of Respondent , should have injected into his testimony an irrelevant 61 Victor Manufacturing and Gasket Company v. N.L.R.B., 174 F. 2d 867, 868 (C.A. 7). See footnote 12, supra. °' N.L.R.B. v. D. W. Newton, 214 F. 2d 472, 475 (C.A. 5). Q3 Hamilton-Scheu & Walsh Shoe Co., 80 NLRB 1496; Macon Textiles, Inc., 80 NLRB 1525, 1531-1532. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incident as to Wilcox getting some paint on the shearing machine or Altman's testi- mony as to Wilcox spending too much time in the washroom sometime in August, in view of the fact that he told King on August 17 that Wilcox was "entitled" to a raise. On the basis of the foregoing and the entire record, including Respondent's proscribed conduct in violation of Sections 7 and 8(a) (1) of the Act, as well as the suggestive indicia inhering in the circumstances surrounding Wilcox's leaving Re- spondent's employ, it is found (contrary to Respondent's contention that Wilcox quit voluntarily) that Wilcox's quitting was the culmination of a deliberate plan or scheme resulting from Respondent's harassing tactics adopted to force such action and that the motivating or proximate cause of such tactics and his resultant termina- tion was his union activities. This constructive discharge of Wilcox for his union activities, and for the further reason that he had given testimony at a Board repre- sentation hearing, constituted interference with, restraint, and coercion of Wilcox in the exercise of his rights provided for in Section 7 of the Act and was discrimina- tion in regard to his hire and tenure of employment, thereby discouraging member- ship in the Union, in violation of Section 8(a)(3) and (4) of the Act.64 Whether the constructive discharge be viewed as a violation of Section 8(a)(3) and/or 8(a)(4) is immaterial as the remedies are substantially the same.65 3. Joe E. Brinson Brinson worked for Respondent from January 25, 1957, to December 31, 1957. At the time he entered Respondent's employ, he was assigned to work as a laborer in Wilcox's crew at a pay rate of $1 per hour. About June 1957 he was promoted to a machine operator with a crew of his own, and in August, raised to $1.05 an hour and increased to $1.10 on October 11, 1957. On July 8 he attended a union organizational meeting of company employees presided over by Platt, business representative of the Charging Union. Brinson testified, and this was corroborated by Kelley, that after the meeting was underway and Platt was soliciting the employees to join the Union, Wylie Robinson, one of Respondent's nonsupervisory employees, was seen walking toward the vacant lot where Platt was addressing the employees. Some of the employees warned Platt that Robinson was not to be trusted insofar as reporting back to Respondent their union activities, whereupon Platt cut short his union solicitation speech and in order to mislead Robinson pretended he was an automobile salesman attempting to sell the employees automobiles as they were anxious to keep their union plans secret from Robinson.66 When Robinson left, Platt continued on with his talk as to why the employees should join the Union. Brinson was among the first of the Respondent's employees to become interested in the Union, and he testified that "everytime [he] got a chance [he] spoke on behalf of the Union" and that he "told [the employees] about the Union and . that [he had] worked on a union job and that the Union was good for a working man." He also testified, and was corroborated by Gibbons, another employee, that after Vandergriff's discharge and after Wilcox was assigned to work by himself and was isolated from the other employees, he took over Wilcox's union leadership and assumed the initiative with respect to union activity among Respondent's employees. Dornes, an employee at the time he testified, stated that Brinson, during working hours, told the employees "that the Union would benefit them, and, well, in general, he just tried to show them where the Union could probably do more for them than was being done at the present time." Kelley, another employee, testified similarly as to Brinson's union activities. Brinson also testified as to an incident which occurred "about the last of October" wherein he requested Altman for time off to straighten out a matter involving money due him from a job he had in Philadelphia before coming with Respondent. When Altman asked the details, Brinson told him he was a member of a union at the time he was working in Philadelphia and that the union went out on strike and obtained 04 N.L.R.B. v. Stowe Spinning Company, et at., 165 F. 2d 609, 615 (C.A. 4) ; N.L.R.B. v. Elwood C. Martin, et at., 207 F. 2d 655 (C.A. 9), enfg. 100 NLRB 1118; Bausch & Lomb Optical Company, 107 NLRB 790, 826; Lingerie, Inc., 101 NLRB 1374, 1377-1378. R5 Southern Bleachery t Print Works, Inc., 11.8 NLRB 299, 300, footnote 4. G It will be recalled in this connection that Robinson accused Vandergriff of being the union leader, and he admitted that Runyon, Respondent's vice president, had learned through him that Wilcox, Kelley, and Dornes had been in the company of the union representative, Platt. Robinson also reported to Altman he had caught Wilcox sleeping in the washroom. COSCO PRODUCTS COMPANY 793 a wage increase for the members and the money due him represented retroactive back pay from the date the increase was granted until the date it became effective. About the first week in December, immediately after the Union was certified, Brinson's machine was taken over by Robert L. Thompson who was hired on Decem- ber 2,67 and Brinson was demoted from machine operator to laborer and assigned to the yard cleaning pans along with another employee named Ardley.68 On Decem- ber 31 he was told by Altman, according to Brinson, "that work was getting slow and he said the reason he had to lay me off was because I was junior on the job. Brinson testified that Robert L. Thompson, Lawrence Hart, Frank Sherman, and Earl Mack had less tenure than he had with Respondent. Respondent's Exhibit No. 7 shows Thompson was employed on December 2; Hart on September 4; Sherman on May 13; Mack on May 8, and that Brinson was senior to all of them as he was hired on January 25, 1957. On February 4, 1958, a month after he was laid off, Brinson received a letter from Respondent, stating in relevant part: We find it possible to take on an additional man and we are offering you the job at your old rate. On April 5, 1958, he received another letter from Respondent, this time registered with return receipt requested, stating in relevant part: On February 3, 1958, we wrote you offering to take you back to work. We have never heard from you . . . . We are writing you again just to make sure whether or not you would like to return to work for us. Brinson testified that the reason he did not accept Respondent's offers was because "I was afraid I wasn't going to get any machine operating job back. . . They said that if I come back I would start back at my same rate and they didn't say what job I would have." It appears that Brinson's "fears" were justified because King, president of Respond- ent, testified that "We had no job that we could give him except laborer in the yard." 69 Conclusions We have here, then, a situation in which Brinson, an active union adherent, was allegedly separated in a reduction in personnel by Respondent because of a decrease in work. However, the evidence does not establish the factual validity of the reason assigned for Brinson's layoff. Brinson had a good employment record, unmarred by any past warning or reprimand indicating company dissatisfaction with the man- ner in which he was performing his assigned duties. Brinson was undeniably an effi- cient employee as King admitted that he was "a man with intelligence" and that he was "reluctant" to let him go "and that we had no complaint to make with his work. . . Then, too, King testified that it was the policy of the Company not to break up an efficient crew.70 It is, therefore, difficult to reconcile this policy with demoting Brinson from a machine operator to a laborer and then letting him go entirely, particularly when it is considered that three other employees, all of whom had less tenure than Brinson and all of whom were not machine oper- ators,71 were retained by Respondent. Therefore, it would appear that the Respond- ent in laying off Brinson did not follow a seniority pattern. Such procedure, the 81 The record is not clear as to whether Thompson, who formerly worked for Respondent but left to enter military service, was entitled on his release to reinstatement under the Universal Military Training and Service Act. Boatwright was laid off about a week before Thompson went to work and Luther Davis was laid off "two or three days after the election" (November 22) but recalled on February 3, 1958. Murkey and Kelley were discharged on December 4, 1957, 2 days after Thompson went to work , and Gigger and Brinson were laid off on December 31, 1957. See N.L.R.B. v. El Paso-Yolets Bus Line, 190 F. 2d 261 (C.A. 5) ; Warren Company, ^ 18 Inc., 90 NLRB 689, enfd. 197 F . 2d 814 (C.A. 5), where new employees were hired shortly after the discriminatees were laid off. 69 Although Respondent attempted to show there is no distinction between a machine operator and a laborer , King's own testimony refutes this. 40 Altman inconsistently testified that Brinson was laid off because of his "productivity." See supra, and footnotes 45, 46, 47. 71 Brinson operated a bending machine, which some of the witnesses testified required considerable skill and experience . Also, Bossie Reed was promoted to machine operator about the same time Brinson was relegated to laboring work although Reed had no prior experience on a bending machine. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board has held, is inconsistent with the usual practices of management, in the ab- sence of a plausible explanation,72 which is not here present, as it is undenied that Brinson was an efficient machine operator and senior to other employees of less experience who were retained. Assuming, however, that Brinson's layoff was attributable to an economic reduc- tion in force for the purpose of reducing excess personnel, nevertheless it was discriminatorily implemented in that the layoff date was not only accelerated 73 but employees junior to Brinson were retained, while he was laid off. Therein lies the reason for the finding that Brinson's layoff was discriminatorily motivated 74 In the absence of any other plausible explanation for Respondent's laying off Brinson, it is found that Respondent's real reason was to rid itself of him because of his union activities. Nor is any compelling importance or overriding significance attached to Respondent's offers to Brinson on February 4 and April 5 of a laboring job (as distinguished from his former job of machine operator) as this, it is believed, was a contrived plan or tactical maneuver adopted in anticipation of litigation and designed to screen Respondent's true motive in having laid off Brinson. Then too, Brinson's fears that by returning to work he would be assigned to laboring work and not to operating a machine, which he was doing prior to his demotion, is con- firmed by King who testified the job he was offered after his layoff was that of a laborer. It might, therefore, be argued that Respondent's offering to rehire Brinson as a laborer and not at his former position of machine operator was discriminatory. Furthermore, where an employee has been praised for his good work, and then after his affiliation with a union he is laid off, even though he had more seniority than at least three other employees, it is obvious that the motive was to discourage union activity, thereby refuting Respondent's economic layoff defense, as it is not consonant with sound personnel policy, under the circumstances herein, for an employer to deprive itself of the services of an employee of Brinson't worth.75 Then, too, the fact that the record in this case discloses there was no basis for laying off Brinson, as compared with those who were retained, is persuasive that the decision to lay him off was made in pursuance of a definite plan by Respondent to rid itself of the Union by deviously terminating the employment of those employees who comprised the nucleus of the union movement in the plant. Respondent contends, however, that it did not know of Brinson's union activities. The reasons stated in the Vandergriff discharge are likewise applicable, in part, with respect to Respondent's knowledge of Brinson' s union activities. Then, too, there is the additional testimony of Altman's conversation with Brinson with respect to the latter having been a union member when he was employed in Philadelphia. Based upon Section 10(e) of the Act which authorizes the trier of the facts to draw inferences from the facts and to appraise conflicting and circumstantial evidence, as well as the weight and credibility of testimony, it is found that Respondent had knowledge of Brinson's union activities at the time he was terminated 76 The evidence when appraised in its entirety, and particularly in the light of the Company's substantial unfair labor practices, warrants a finding that Brinson was separated because of his participation in union activities and not, as contended by the Respondent Company, because of lack of work.77 In fact, it is difficult to under- stand, except on the theory of discrimination and an effort to defeat the union campaign to organize the plant, why the Respondent laid off Brinson, an undeniably efficient employee, under the circumstances explicated above. Therefore, upon a study of the evidence on the record as a whole, and based upon a preponderance of the reliable, probative, and substantial testimony in this proceeding, it is concluded and found that Respondent discriminated against Joe E. Brinson because of his union 73 Lincoln Brassiere Co., 117 NLRB 1237, 1243, where the respondent company had no contract with the charging union. 73 Mount Hope Finishing Company, 106 NLRB 480. 74N.L.R.B. v. Jones Sausage Company, 257 F. 2d 878 (C.A. 4). 75 Illinois Tool Works, 65 NLRB 1181. Cf. N.L.R.B. v. Rock Hill Printing and Finishing Co., 131 F. 2d 171 (C.A. 4). 79 The Supreme Court in N.L.R.B. v. Link-Belt Company, 311 U.S. 584, 602, stated the Board "was not required to deny relief because there was no direct evidence that the employer knew these men had joined [a union] . . ." and that "the Board was justified in relying on circumstantial evidence of discrimination." See also Clark Bros. Transfer Company, 121 NLRB 727, where the Board stated it is not restricted in making findings to direct evidence. "It may also rely on circumstantial evidence." 77 See N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2). COSCO PRODUCTS COMPANY 795 activities which resulted in his termination of employment in violation of Section 8 (a) (3) of the Act.78 4. Tom Gibbons Tom Gibbons, a witness subpenaed by the General Counsel testified in this proceed- ings on May 9. At the time Gibbons testified he was in the employ of Respondent. On May 17, 1958,79 during .the period of time the hearing was in recess (May 13 to June 1, inclusive), Respondent discharged Gibbons. The General Counsel amended the complaint to allege that Gibbons was discharged because he gave testimony adverse to the Respondent's interest when Gibbons testified at the hearing on May 9. Respondent denied this accusation and alleged in defense of the charge that Gibbons, when reprimanded by his superior, Altman, for dereliction of duty, cursed Altman, whereupon he was fired. Gibbons was a gauger in the shearing crew of Robinson.80 Around noon on May 17, Gibbons testified, and this was corroborated by Frank Sherman, another member of the crew, he was sitting down by the shearing machine as he was caught up with his work, waiting for the other members of the crew, variously called "throw down men" or "shakers," to bring more steel from the storage bins to the shearing machine in order for Gibbons to gauge the length called for in the specifications of the particular order for which the steel was being cut. As he was sitting down, continues Gibbons' testimony, waiting for the steel to be brought to the shearing machine by those members of the crew whose duty it was to do so, Altman told Gibbons to stand up and get to work. Gibbons testified he explained to Altman that the reason he had been sitting down was because "There wasn't no iron up to the cutting machine for me to gauge at that time . .. . Gibbons' testimony continues as follows: . . . in about 3 minutes they brought some iron up there to the cutting machine, and Wiley Robinson evened it up and put a tag on it and passed [it] across the cutting machine and I grabbed it .to put it on the table and gauged it and cut it off, and at that time Mr. Dick Altman had walked around from the table to the bending machine and I called to Mr. Altman and asked him, I said, "Mr. Dick, Johnny's sitting down there. You didn't say nothing about nobody sitting down there but me." He said, "Yes, I saw him.61 I was talking to you." He said, "I know who I want to talk to." Then he told me to go punch the clock. I didn't take the iron out of the table or anything. I just pulled my apron off just like he told me to do and walked back to the shed and hung it up and went back to the doorway to punch my clock and to the office, and by that time he [Altman] had walked around the steel pile and met me back at the door. I said, "You all been getting nasty around here since we came down to this hearing," and he told me, he said, "You're fired," and he got my card and punched it. Altman's version of this incident agrees with Gibbons' testimony up to the point where he told Gibbons to stand up and get to work. From that point on the stories differ. Altman testified that after he told Gibbons to get to work, Gibbons cursed him and used obscene and scurrilous language in doing so. Gibbons denied he used any offensive language at any time or that he cursed Altman. This was corroborated by Frank Sherman, another member of the same crew, who ,testified -that Gibbons in speaking to Altman -addressed him in a "friendly" tone of voice. Willie Gigger, who had been employed by the Respondent until January 1958, when he was laid off, went to the plant on May 17 to see his uncle who was an employee there in order to discuss a personal matter. Gigger testified that: Tom Gibbons and Johnnie Sherman were sitting down and I started talking and all of them was waiting on the iron to come to the machine. Then Mr. Dick Altman come to the warehouse door. . . So he asked Tom Gibbons sitting down-he asked him was he working there. Tom Gibbons say, "Yes, sir." 78 N.L.R.B. v. L. C. Ferguson et al., d/b/a Shovel Supply Company, 257 F. 2d 88 (C.A. 5). 79 There is a slight variance in the various witnesses' testimony as to the date of Gibbons' discharge. However, all witnesses agree it was on a Saturday, which was May 17, 1958, and it is so found. "The duties of a gauger are explained at page 784 of this report. "This is an unmistakable reference to Johnny Sherman, another member of the crew who was also waiting for more iron to be brought to the machine by the other crew members. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He say, "You better get up then if you want the job." Mr. Dick Altman went over to Bossie Reed bending machine and Tom Gibbons pulled the iron down the table and Tom Gibbons said, "You must not see anyone sitting down but me." Q. When Altman came to Gibbons and Gibbons then got up as Altman was walking away did Gibbons say anything? Did you hear Tom Gibbons say anything !after that? A. No, sir. I didn't hear him say anything. * * * * * * * Q. Did you hear Gibbons use any curse words at any time during the time you were there? A. No, ma'am. He talked to him friendly. He talked to him friendly ways. There wasn't no cussing and raising sand.82 Q. What did you hear Gibbons say after Altman told him to get up? A. I didn't hear him. He didn't say nothing then. When he got up, he got on up and drug iron down to the table, and as Mr. Dick Altman went up to Bossie Reed machine, he went down to pull it down to the table. So I was walking on by him and [Gibbons] say [to Altman], "You must not see nobody sitting down but me." Altman was about 10 feet from Gibbons when Gibbons said this to him. Altman was standing still at the time. Altman didn't say anything. [The next thing I noticed Gibbons and Altman were] walking off together, and when they got to the plant Mr. King, he came on out to there and told me [to leave]. On cross-examination, Gigger was asked: Q. Was Mr. Altman friendly in his statement to Gibbons or was he mad? A. He didn't talk friendly to him. Conclusions For the reasons hereinafter indicated, it is not only found that Gibbons incurred the enmity of Respondent's officials when the testimony he gave at this proceeding on May 9 buttressed some of the allegations in the General Counsel's complaint, but it is also believed that Respondent's officials affirmatively undertook to provoke Gibbons by their enmity, thereby affording themselves an opportunity to fire him. Such enmity was displayed when Gibbons requested permission of Altman on May 15 to attend his nephew's funeral. Gibbons testified that Runyon, vice presi- dent, was present when he requested permission of Altman to attend his nephew's funeral. Altman refused this request although he granted permission to Frank Sherman, another employee, who was related to the deceased, to attend the same funeral. Altman, in testifying about the funeral incident, stated that Gibbons re- quested permission on Friday to take off the following day "and I told him that he better be in [to work] in the morning, and he didn't say anything else and that morning all the men were there." Argumentatively assuming that Gibbons' alleged cursing of Altman was cause for his discharge, it is well settled, nevertheless, that where a clearly unlawful reason is one of the motivating causes of a discharge, which in this case is found to be Gibbons' testifying as a witness for the General Counsel, the coexistence of a separate valid reason, namely, his cursing Altman, does not eliminate the unlawful aspect of Respondent's action.83 A charge of discrimination against an employer can be supported without proving conclusively that the employee's union activity was the sole motivating factor; it is enough that the discriminatory motive was a con- tributing factor.84 It will be recalled that -Gibbons was sitting down because there 82 Gigger testified that he was about 1 or 2 feet away from Gibbons when this incident occurred. 83 Kingston Cake Company, Inc., 97 NLRB 1445, 1451 ; N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885 (C.A. 1) ; see also N.L.R.B. v. A. B. Swinerton, et al., 202 F. 2d 511, 515, 516 (C.A. 9). In N.L.R.B. v. Nevada Consolidated Copper Corporation, 316 U.S. 105, 106, the Supreme Court held that if the evidence supports one of two incon- sistent inferences, and the trier of the facts draws one of the two possible conclusions, this is within his competency. 84 Edward G. Budd Manufacturing Co. v. N.L.R.B., 138 F. 2d 86, 90, 91 (C.A. 3), cert. denied 321 U.S. 773. COSCO PRODUCTS COMPANY 797 was no work for him to do as he was waiting for iron to be brought up to the machine by other members of the crew whose duty it was to bring the iron to the machine in order for Gibbons, the gauger, to measure it. Then, too, other members of the crew who were also waiting for more iron to be brought to the machine were allowed to continue to idle without being reprimanded by Altman. Only Gibbons was singled out by him. Account also must be taken of the summary and precipitate manner in which Gibbons was discharged, and it was made without Altman consult- ing his immediate superior, Runyon, or King, both of whose offices were close by and with whom, Altman testified on cross-examination, he consults when he dis- charges an employee. Therefore, it is believed that the alleged cursing incident was spurious and made of whole cloth in order to cover the real reason, namely, to punish an employee whose testimony supported some of the charges filed by the Union. When Respondent's antipathy to the Union is considered in conjunction with Gibbons incurring Respondent's enmity by testifying adversely to its interests at this proceeding, as evidenced by its refusal to give him time off to attend his nephew's funeral, and the cursing pretext used as an excuse to discharge him, plus the timing of the discharge in relation to Gibbons testifying, it is found that Gibbons' discharge resulted solely from his testifying in the proceeding, an activity protected by Section 8(a)(4) of the Act. By such discharge, Respondent forcibly indicated to its other employees that similar action awaited them if they should give aid and comfort to the Union-115 It is therefore concluded and found that by the discharge of Tom Gibbons because he had given testimony, Respondent violated Section. 8(a)(4) and discriminated in regard to Gibbons' tenure of employment, thereby discouraging membership in the Union in violation of Section 8(a)(3) of the Act.86. By the same act, Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section; 8(a)(1) of the Act. E. The alleged refusal to bargain There is no substantial dispute over the basic facts concerning the alleged viola- tions of Section 8(a)(5).87 The controversy is mainly as to the legal conclusions to be drawn from the facts. On August 14, 1957, the Union notified the Respondent Company that it had been designated as the exclusive bargaining representative of a majority of its production and maintenance employees and requested the Company to bargain with it for the purpose of consummating a collective-bargaining agree- ment. The letter also requested the Company not to make any changes with respect to the employment status of any production or maintenance employees except by mutual agreement with the Union. When no reply was received from the Company,88 the Union directed a letter to the Regional Director of the Board on August 17, 1957, accompanied by a petition for certification as representative of Respondent's said employees. A hearing on the Union's petition was held on September 23, 1957, before a hearing officer of the Board S9 Thereafter, the Board on November 1, 1957, directed that an election be held on November 22 to determine whether the said employees of the Company desired to be represented by a bargaining representative, and, if so, by whom, if anyone. Pursuant thereto, an election by secret ballot was conducted by the Board. A tally of the ballots revealed that of the 21 eligible voters, 11 employees cast their votes for the Union and 10 voted against the Union. As a result of this election, the Union was certified by the Board on December 3, 1957, as the bargaining repre- sentative of the Company's employees in a unit found appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. After the Union was certified, it sent a letter on December 5, 1957, notifying the Company that it had come to the Union's attention that layoffs had been made not in accordance with the seniority of the employees involved and requesting the 85 Cf. Farmers Co-operative Company, 102 NLRB 144, 145. 90 Southern Bleachery & Print Works, Inc., 118 NLRB 299; Wagner Transportation Comnany, 1.10 NLRB 11.79. 87 "SEC. 8. (a) It shall be an unfair labor practice for an employer- s s a x a « "(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a)." 88I{ing, on cross-examination, testified that he did not reply to the Union's request for recognition because he did not believe that the Union represented a majority of the employees. 88 Case No. 12-RC-195. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company to recall those employees not laid off in accordance with seniority and to adhere to seniority in the future in determining who shall be laid off. By letter dated December 18, the Company advised the Union that it is its policy to determine who shall be laid off on the basis of dependability and efficiency, along with length of service and "that the Company has and will continue to decide who will be employed and decide who will be laid off." The Company received a letter from the Union on January 20, 1958, requesting a meeting to discuss a proposed contract . Thereafter, four negotiating sessions were held by the union and Company representatives on February 5, March 20, April 2, and April 17 , 1958.90 The Charging Union was represented by T. W. Odeneal, general organizer of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, and Marvin L. Platt, special representative. Counsel for Respondent was spokesman for the Company Respondent, together with B . F. King, its president, Norman E. Runyon, vice president, and George W. Connors III, secretary-treasurer. At the first meeting on February 5, the Union submitted a copy of a proposed contract to the Company , the provisions of which were discussed generally except for the wage scale which had been left blank because the Union claimed that it did not have sufficient time to propose a definite wage scale as it had not received until January 10 certain information from the Company concerning wage rates, which it had requested on December 9. Moreover, asserted the Union, it was their policy to discuss the wage scale last after the other provisions contained in their proposal were negotiated. After negotiating for approximately an hour at this first meeting on February 5 , and when no agreement was reached with respect to any provisions of the Union's proposed contract, it was decided to meet at a later date. On March 1 , 1958, the Union received the Company 's counterproposals whereupon a second meeting was held on March 20. The Company 's proposed contract was reviewed, comparing its provisions with its counterparts in the Union's proposed collective-bargaining agreement . The conferees discussed article 1 of the Com- pany's proposed contract which provided that in the event a majority of the employees should not, at any time, be union members, or in the event a majority of the said employees should affiliate themselves with another labor organization, or in the event the Company should file with the Board a petition asking for a determination of the collective-bargaining agent for said employees, the contract would immediately become null and void without notice. When the parties, after meeting for about 4 hours, foundered on this issue , the second meeting was brought to a close. Four days later, on March 24, the Union filed a charge alleging viola- tions of Section 8(a)(5) of the Act. The third meeting, which lasted about 4 hours, was held on April 2. The only provision agreed upon was section 7(h) of the Union's proposal which provides that employees would not be required to work more than 12 consecutive hours in any 24-hour period. Also, during this same meeting the Company proposed the following provision: Article X Performance Bond The Company has large investments in this City and State which are assurance of responsibility for performance of this Agreement . The Union has no assets in this City and State. Therefore, the Union hereby agrees, within ten (10 ) days after execution of this agreement , to enter into a good and sufficient bond, in the amount of One Hundred Thousand ($ 100,000.00) Dollars, with a bonding Company or three sureties satisfactory to the Company, payable to the Company , conditioned upon the full and complete performance of this Agreement on the part of the Union , its officers and members. If said bond is not forthcoming within ten ( 10) days of execution of this Agreement, as aforesaid , this Agreement shall automatically terminate and all parties shall be released from its obligations. At this third meeting , the Union also requested the names of all employees who were hired, rehired, recalled, laid off, or discharged and wage increases granted individual employees from the time the Union was certified to the date of the third meeting (April 2). This information was not furnished because the Company advised the Union (General Counsel's Exhibit No. 19) on April 15 that since the data requested was a material part of the defense of the Company to the pending 90 A meeting scheduled for May 14 was canceled as it conflicted with this proceeding. COSCO PRODUCTS COMPANY 799 alleged unfair labor practice charges, upon which a hearing was scheduled to be held, such information would not be furnished until after the hearing.91 The fourth meeting on April 17, which lasted approximately 4 hours, was devoted primarily, but not exclusively, to discussing the Company's proposals, paragraph by paragraph. The only matters agreed on at this meeting were section 17(d) of the Union's proposals which provides that the Company shall furnish periodically to the Union the names of employees who left the Company's employ and the reasons therefor, and section 17(e) under which the Company agreed to post on bulletin boards the seniority list of its employees. Other than these provisions and the one with reference to no employee being required to work more than 12 consecutive hours in 24, the parties, after discussing all the provisions of the Union's and the Company's proposals except wages, were still in complete disagree- ment after the four meetings. Contentions The General Counsel contends that the Company violated Section 8(a) (5) of the Act by refusing to bargain in good faith with the Union. The Company denies that its conduct during the negotiations constituted a refusal to bargain, contending that it fully discussed and negotiated in good faith with the Union on all phases of the matters in dispute. Concluding findings The certification of the Union on December 3, 1957, as the statutory bargaining representative of the employees imposed upon the Company the duty of entering into "sincere negotiations with the representatives of the employees." 92 This obli- gation as defined in Section 8(d) of the Act includes: .. the performance of the mutual obligation of the employer and the repre- sentative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employ- ment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession." It is true, as stated in N.L.R.B. v. American National Ins. Co., 343 U.S. 395, 404 (1952) ., that the Board may not "sit in judgment upon the substantive terms of collective bargaining agreements." But at the same time it seems clear that if the Board is not to be blinded by empty talk and by the mere surface motions of collective bargaining, it must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations. See Wilson & Co., Inc. v. N.L.R.B., 115 F. 2d 759, 763 (C. A. 8, 1940). See also Smith, The Evolution of the "Duty to Bargain" Concept in American Law, 39 Mich. Law Rev. 1065, 1108 (1941). Thus if an em- ployer can find nothing whatever to agree to in an ordinary current-day con- tract submitted to him, or in some of the union's related minor requests, and if the employer makes not a single serious proposal meeting the union at least part way, then certainly the Board must be able to conclude that this is at least some evidence of bad faith , that is, of a desire not to reach an agreement with the union. In other words, while the Board cannot force an employer to make a "concession" on any specific issue or to adopt any particular posi- tion, the employer is obliged to make some reasonable effort in some direction to compose his differences with the union, if § 8(a ) ( 5) is to be read as imposing any substantial obligation at a11.93 The test to be applied is whether it is to be inferred from the totality of the Employer's conduct that it went through the motions of negoiations as an elaborate pretense with no sincere desire to reach an agreement if possible , or that it bar- gained in good faith but was unable to arrive at an acceptable agreement with the Union. In other words, a refusal to bargain is usually based on a pattern of conduct rather than on a single act. However, the General Counsel contends that Respondent Company's single act of proposing in its contract that the Union post a $100,000 financial responsibility bond conditioned upon the Union's full and complete performance of the agreement 91 This information was subsequently furnished during the course of this proceeding. 9N.L.R. B. v. Bites-Coleman Lumber Co., 98 F. 2d 18, 22 (C.A. 9). uN.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134-135 (C.A. 1), cert. denied 340 U.S. 887. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violated Section 8(a)(5) in that it was proposed with the purpose and intent of avoiding an agreement with the Union and in disregard of the representative status accorded the Union by the Board certification . Moreover, argues the General Counsel, the Company's proposal requiring a performance bond from the Union is not cognizable under the terms of Section 9(a) of the Act which lists "rates of pay, wages, hours of employment, or other conditions of employment" and, there- fore, is not a proper subject for bargaining . The Company's insistence on this non- bargainable provision is per se a violation, claims the General Counsel, as it evidences an absence of good faith and reveals an attitude antagonistic to the acceptance of the principles embodied in Section 8(d) of the Act. In North Carolina Furniture , Inc.,94 the Board held that the employer's refusal to sign a contract with a certified local union in the absence of a provision making the parent international liable for breach of a no-strike clause constituted an un- lawful refusal to bargain. In that case the employer in bargaining with a local union insisted that as a condition of signing an agreement the local agreed to the inclusion in a collective-bargaining contract of a provision that liability for a breach of the contract's no-strke clause be extended to the resources of the local's parent international. The Board held that the employer's action constituted an unlawful, refusal to bargain since the liability provision is not a mandatory subject for bar- gaining as it does not relate to "wages , hours, and other terms and conditions of employment," within the meaning of Section 8 (d). The Board found it unnecessary to determine the good or bad faith of the employer 's insistence stating that the employer's insistence , by itself, was a violation of Section 8(d). Instead, it based its finding on the fact that the provision sought by the employer was not a compulsory subject for collective bargaining. The authority for this holding of the Board is the decision of the Supreme Court in N.L.R .B. v. Wooster Division of Borg-Warner Corporation 95 where it was held that an employer acted unlawfully and violated Section 8(a)(5) of the Act in in- sisting on inclusion of a strike-ballot clause before it would sign a contract with the Union. The employer , held the Supreme Court , still has the right to bargain over such a clause but insistence on it as a condition precedent to accepting a collective-bargaining contract would be an unfair labor practice . The Borg- Warner doctrine recognizes two categories of bargaining proposals : "mandatory" and "volun- tary." "Mandatory" proposals are those relating to wages, hours , and other terms and conditions of employment . When "mandatory" prposals are made, the other party is required to bargain on them , and they may be insisted upon to the point of impasse. Proposals in the "voluntary " category, however, may merely be put before the conferees for voluntary bargaining . The other party is not required to bargain on them, and it may not be insisted upon as a condition precedent to an agreement. The strike-liability clause proposed in the North Carolina Furniture case, supra, the Board ruled , falls within the "voluntary" category. It does not relate to wages, hours, and other terms and conditions of employment . So it was bad-faith bar- gaining, the Board concluded, for the employer to insist on the clause as a condition to an agreement. In the Economy Stores, Incorporated , 120 NLRB 1, the Board held that an em- ployer did not violate the Act by insisting that a contract contain a clause requiring the union to reimburse the employer for all damages resulting from a violation of the contract by the union or its employees and to pay a penalty of $5 a day for each member who participates in an illegal strike or slowdown. The Board , however, divided evenly on the reasons for the holding . Two members regarded the clause as a mandatory subject for bargaining . The other two members-only four par- ticipated-said it was unnecessary to reach the issue of bargainability, since the parties at all times had treated the proposal as bargainable. In the case at bar, however , it would appear under the Borg-Warner doctrine, supra, that Respondent committed an unfair labor practice by insisting 96 that the Union post a financial responsibility bond conditioned upon the Union's full and complete performance of the bond or in lieu thereof the signature of the International 94121 NLRB 41. 95 356 U.S. 342 . The employer also insisted on a recognition clause making the local union, rather than the certified international , the exclusive bargaining representative of the employees. 0o Although Respondent contends it did not insist on this provision , the record indicates otherwise. King, on cross-examination , testified that the Company insisted that the Union should assume some responsibility for the enforcement of the contract. COSCO PRODUCTS COMPANY 801 to the contract.97 The Act requires good-faith bargaining with respect to wages, hours, and other terms and conditions of employment. Within this area of manda- tory bargaining either party may insist upon the adoption of its proposals and need not yield. However, outside the mandatory category, while the parties may agree to various conditions , neither side may insist upon its proposals as a condition to any agreement. To do so would subject them to a charge of a failure to bargain in good faith on mandatory issues which is tantamount to a refusal to bargain. Article I of Respondent's counterproposal stated that the Union would be recog- nized by Respondent "for such period as the Union represents a majority of the employees in said bargaining unit." The article then continued: In the event the Union should at any time not have as members a majority of the employees of the Company in the above described bargaining unit; or in the event the Company should file with the National Labor Relations Board a petiton asking for a determination of the collective bargaining agent for said employees ; or in the event a majority of the employees in said bargaining unit should affiliate with a labor organization other than the Union herein; then, in any such events this contract shall immediately become null and void with- out notice. It would seem that such a proposal casts doubts upon Respondent 's bona fides in approaching the bargaining table as it saps the strength and vitality which a Board election gives to the stabilization of employees ' collective representation rights. "Inherent [in the results of a Board election] is some measure of permanence in the results : freedom to choose a representative does not imply freedom to turn him out of office with the next breath." 98 "Stability . is one of the chief advantages of collective bargaining ." 99 By proposing article I, supra, Respondent was violating the statutory purpose "to stabilize industrial relations through collective bargaining" in that this proposal tended to withhold the very stability from the Board certifica- tion which the Act seeks to impart. Moreover , against the background evidenced by Respondent 's violations of Section 8(a)(1), (3), and (4), the record as a whole, including Respondent 's unilateral actions, discloses a foundation for the conclusion that the Company failed to bargain within the meaning of Section 8 (a)(5) of the Act.i00 Corroborative of this conclu- sion are the following circumstances . Shortly after the Company became aware of the Union's organizational campaign, and certainly after it received a letter from the Union on August 14 requesting recognition , it embarked on an antiunion campaign by unlawfully interrogating employees, threatening reprisals and the abolishment of certain working conditions and the withdrawal of certain benefits and privileges pre- viously enjoyed by the employees , as well as discriminatorily terminating four em- ployees. This unlawful conduct was intended to discourage union adherence, win employee allegiance from the Union , and thus dissipate the Union 's majority. More- over, the several actions taken unilaterally and without consulting the Union were persisted in after the Union was certified and they, too , were aimed at dissipating the Union's majority. This pattern of conduct was all part of a scheme to under- mine the Union's representative status and to destroy its standing by bypassing it in order to avoid its duty to bargain and thus indicating to employees that it was not necessary to belong to a union in order to obtain satisfactory employment terms. As soon as the Union was certified , the Respondent could not deal directly or indi- 07 Respondent's proposed contract provides for the signature of the International thereto, and contains the following provision (article XII(E)) : Nothing in this Agreement shall be construed to relieve the International Association of Bridge , Structural and Ornamental Iron Workers, AFL-CIO , from any liability of any kind , including damages, imposed upon or resulting from its responsibility under any Federal or State law or from any legal liability of any kind to the Company because of any acts or omission or commission of the said International Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO, or any of its agents, servants, employees or representatives. See North Carolina Furniture, Inc., supra, where the company insisted on the parent international being made liable for breach of a no-strike clause. os N.L .R.B. v. Century Oxford Manu facturing Corporation, 140 F. 2d 541 , 542-543 ( C.A. 2), cert . denied 323 U.S. 714. 99H. Rept. No. 1147, 74th Cong., 1st sess., p. 20. 100 See White's Uvalde Mines v . N.L.R.B., 255 F . 2d 564 ( C.A. 5), enfg. in part, 117 NLRB 1128 ; Fant Milling Company, 117 NLRB 1277 ; Shoreline Enterprises of America, Inc., 117 NLRB 1619. 508889-60-vol . 123-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rectly with its employees, nor unilaterally make changes in the employees' terms or conditions of employment, without first giving the Union an opportunity to bargain collectively on such matters.101 However, the Respondent continued to take uni- lateral action even though the Union made it abundantly clear that there should be no changes as to matters affecting the employees unless the Union was first con- sulted.102 The Union, after its certification, should have been advised of and given an opportunity to bargain on the recall of laid-off employees (West Boylston Mfg. Co., 87 NLRB 808), as well as the impending layoff of employees (U.S. Gypsum Co., 94 NLRB 112) even though such layoffs were for economic reasons (Eva Ray Mfg. Co., 88 NLRB 361). In these circumstances and based on the Company's overall actions, in cumulative effect, and the incidents discussed and referred to above, it is found that this unlawful conduct constituted a refusal to bargain within the meaning of Section 8 (a) (5) of the Act.103 Moreover, it may be argued, and persuasively, that even though the parties held only four bargaining sessions, any additional meetings, as evidenced by what hap- pened at the four they held, would have been futile, as the only concessions offered the Union were "nominal and illusory." 104 All authorities cited by Respondent have been carefully considered and it is not believed that holdings in those cases require a finding contrary to the conclusions reached herein. However, the Trial Examiner finds no occasion for lengthening this report by citing or distinguishing them, because it is believed that the controlling reasons for this decision have been sufficiently discussed. Moreover, the Respond- ent's contentions are based, in part,los on an interpretation of the facts in this pro- ceeding which are materially different from the Trial Examiner's and since the applicability of precedent necessarily depends on one's view of the facts, no purpose would be served by discussing all the cases cited by him. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth above, occurring in connection 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 commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Employer has engaged in unfair labor practices in violation of Section 8(1), (3), (4), and (5) of the Act, it will be recommended that the Respondent Employer cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Thus, having found that the Respondent interfered with, restrained, and coerced its employees by the conduct enumerated above, it will be recommended that the Respondent Employer be ordered to cease and desist from this conduct. Having found that the Respondent Employer discriminated against D. C. Vandergriff, Oscar Wilcox, Joe E. Brinson, and Tom Gibbons, it will be recommended that the Respond- ent Employer be ordered to offer them immediate and full reinstatement to their former or substantially equivalent position without prejudice to their seniority or 101 Sixteenth Annual Report of the NLRB, page 199 and cases there cited. 103 Brinson was laid off approximately a month after the Union was certified by the Board, but Respondent did not first consult with it although the Union requested Respond- ent to do so on such matters. On April 7, the Union wrote a letter to the Respondent in which it referred to the request made in its letter on August 14 that the Union should be consulted before making any change in the working conditions of employees ; called atten- tion to the Respondent's changes in personnel and wages since August 14 without con- sulting the Union ; protested such action, and requested Respondent "to promptly notify the Union of all employees which have been granted wage increases since August 14, 1957, and in addition, the names of all employees hired, fired, laid off or recalled since that date." 103 Gebhardt Chili Powder Company, 120 NLRB 1502; Smith Transfer Company, Inc., 100 NLRB 834, 836, enfd. 204 F. 2d 738 (C.A. 5). As to the wage increase granted by Respondent to various employees, without consultation and negotiation, constituting an unfair labor practice, see May Department Stores v. N.L.R.B., 326 U.S. 376, 384. 104 N.L.R.B. v. Marion G. Denton, et al., d/b/a Morden,Mfg. Co., 217 F. 2d 567 (C.A. 5). See N.L.R.B. v. Tower Hosiery Mills, Inc., 180 F. 2d 701 (C.A. 4) ; N.L.R.B. v. Burton- Dixie Corporation, 210 F. 2d 199, 201 (C.A. 10). 106 Including Respondent's contention that it merely proposed but did not insist on section 10 of its proposed contract, the "Performance Bond" provision. COSCO PRODUCTS COMPANY 803 other rights and privileges, and make them whole for any loss of pay suffered by them as a result of the discrimination, by payment to them of a sum of money equal to the amount they would have earned from the date of the discrimination to the date of the offer of reinstatement, less their net earnings, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It is also recommended that the Respondent make available to the Board or its agents, upon request, payroll and other records to facilitate the checking of the amounts of back pay due. Having found that the Respondent Employer refused to bargain collectively with the Union as the exclusive representative of the employees in an appropriate unit, it will be recommended that the Respondent bargain collectively with the Union upon request, as the statutory representative of the employees in that unit, and, if an understanding is reached, embody such understanding in a signed agreement. The Respondent Employer's infractions of Section 8(a)(1), (3), and (4) of the Act, herein found, disclose a fixed purpose to defeat self-organization and its objectives. Because of the Respondent Employer's unlawful conduct and its under- lying purposes, the Trial Examiner is persuaded that the unfair labor practices found are related to other unfair labor practices proscribed by the Act, and that the danger of their commission in the future is to be anticipated from the course of the Re- spondent Employer's conduct in the past. The preventive purpose of the Act would be thwarted, unless the remedial order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thus to effectuate the policies of the Act, it will be recommended that the Respondent Employer be ordered to cease and desist from infringing in any manner upon the rights guaranteed by Section 7 of the Act.106 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Shopmen's Local Union No. 741, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of the Act. 2. All production and maintenance employees of the Respondent Employer employed at its steel fabrication plant in Jacksonville, Florida, exclusive of office clerical employees, guards, draftsmen, engineering employees, and supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. The above-named labor organization was on December 3, 1957, and at all times thereafter has been, the exclusive representative of all the employees in the unit above described for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the above-named labor organization, as the exclusive representative of all the employees in the unit above described, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating with regard to the hire and tenure of employment of D. C. Vandergriff, Oscar Wilcox, Joe E. Brinson, and Tom Gibbons, thereby discouraging membership in the above-named labor organization, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By discharging Oscar Wilcox and Tom Gibbons because they gave testimony in Board proceedings, the Respondent violated Section 8(a) (4) of the Act. 7. (a) By threatening employees with reprisals; (b) coercively interrogating employees about their union activities; (c) granting wage increases for proscribed reasons; (d) threatening the elimination of benefits and privileges including bonuses; and (e) demoting and making working conditions more onerous for union adherents, the Respondent Employer has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 8. 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.] 106 N.L.R.B. v. Express Publishing Company, 312 U.S. 426.