I.C. Sutton Handle Factory

'1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 Ed Hale, Al May, Dennis Adams, and Robert Gillespie were within the times mentioned herein agents of the Respondent Union within the meaning of Sections 2(5) and 8 (b) of the Act 3 The Respondent, by directly appealing to the employees of customers, suppliers, carriers, and other employers doing business with Louisville Cap Company not to cross picket lines to do business with Louisville Cap Company at said establishments, and by threatening the employers of said employees if they continued to do business with Louisville Cap Company at said establishments, and by other means, including orders, directions, instructions, requests, appeals, and threats of disciplinary action, the Respondent has engaged in, and is inducing and encouraging employees of customers, suppliers, earners and other employers doing business with Louisville Cap Company at the said establishments, to engage in, strikes or concerted refusals in the course of their employment to use, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities, or to perform services for their respective employers By such picketing and inducement and encouragement of employees of the said various employers, to engage in a concerted refusal to f perform services for their several employers , the above-named labor organization has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (4) (A) and (B) and 8(b) (1) (A) of the Act 4 The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication 1 I. C. Sutton, Sr., d/b/a I. C. Sutton Handle Factory i and United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746. Case No 3Z-CA-610 Decem- ber 23, 1959 DECISION AND ORDER On June 5, 1959, Trial Examiner Charles L Ferguson issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that he 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 to the Intermediate Report with supporting briefs The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed' 1 The Respondent's name is corrected to conform with the evidence in the record, which consists of (1) an admission in the answer of the allegations of the complaint describing the Respondent's business, and (2) the direct testimony of I C Sutton, Sr, that he is the sole owner of the Company 2Pursuant to Section 3(b) of the National Labor Relations Act, the Board has dele- gated its powers herein to a three member panel [Chairman Leedom and Members Bean and-Jenkins]. 3 We find without merit the Respondent's-allegations of bias on the part of the Trial Examiner The Respondent relies primarily on the Trial Examiner's credibility resolu- tions There is no basis for finding that bias or partiality existed merely because the Trial Examiner resolved important factual conflicts arising in the pyoceeding<in favor of the General Counsel's -witnesses As the Supreme Court has stated , [T]otal .rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact " N L R B v Pittsburgh S S Company,,332 U,S 656, 659 Moreover, the Board will not overrule a Trial Examiner's credibility findings unless a clear preponder- 125 NLRB No 112 I. C. SUTTON HANDLE FACTORY 1095 The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner, with the following additions, modifications, and exceptions. 1. We agree with the Trial Examiner that the Respondent violated Section 8(a) (3) and (1) of the Act by discharging Walter Davis and Grayson Manes on January 13, 1958, because of their continued sup- port of, and adherence to, the Union and because of their union activities, suspected as well as actual. The General Counsel excepts to the Trial Examiner's failure to find that these discharges were also violative of Section 8(a) (4). The Trial Examiner found, and the record amply supports the conclusion, that one reason for the decision to discharge Davis and Manes was the Respondent's conviction, despite their repeated denials, that these men had instigated the filing of the November 5, 1957, charge against him. Accordingly, we find that, by discharging Davis and Manes because of their suspected activity in connection with the filing of that charge, the Respondent violated Section 8(a) (4) of the Act.5 2. The Trial Examiner further found that the Respondent's re- fusal to employ or reemploy Herrel McAlister on or about July 15, 1957, was not violative of the Act, because he concluded that McAlister had not unequivocally applied for a job and that a job was not avail- able. We do not agree. Contrary to the Trial Examiner's findings, the undisputed evidence here compels the conclusion that McAlister did seek reemployment by the Respondent, that his request was so understood by Harry Sutton, and that he was refused reemployment solely because of his testimony in the hearing on the prior charge against the Respondent.6 Thus, while McAlister was at the Sutton plant on or about July 15, 1957,' he approached Harry Sutton and they talked about various things, ance of all the relevant evidence convinces the Board that such resolution was incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, 545, enfd. 188 F. 2d 362 (C.A. 3) ; Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 492-497. Upon the entire record, such conclusion is not warranted here. Further , we construe the Trial Examiner's observation that Respondent's union animus had not abated since the prior case in- volving this Respondent (119 NLRB 951, enfd. 255 F. 2d 697 ( C.A. 8), cert. denied 358 U. S. 865) as based on his interpretation of the evidence in the instant case rather than, as contended by Respondent, indicating his state of mind when the instant hearing opened. ' Although the Trial Examiner throughout the Intermediate Report refers to the speech by Sutton , Sr., as occurring on Jan. 10, 1958, at one place he incorrectly states that date as Dec . 10, 1958. This is an obvious inadvertence which is not material to his conclu- sions or our findings herein . However, we hereby correct that error. 5 Briggs Manufacturing Company, 75 NLRB 569. Cf . Oregon Teamsters' Security Plan Office, et at., 119 NLRB 207 , and 113 NLRB 987, at 1016. G The facts concerning McAlister's affidavit and its use in the hearing in the prior case are fully set forth in the Intermediate Report. 7 These findings of fact are based entirely on the testimony of Harry Sutton , except that he was uncertain about the exact date on which it occurred and, as noted , McAlister and Harry Sutton did not agree on the exact language used by McAlister. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD including how McAlister was doing in his other job. McAlister said that the weather was so bad that he was only getting work a day or two now and then and was not even making expenses, and Harry Sutton commented that the Respondent's work was getting slack. As they approached the factory door, McAlister asked Harry Sutton for reemployment. Specifically, McAlister testified that he asked "if he [Harry Sutton] needed anyhands," while Harry Sutton testified that McAlister said that he "would kinda like to have [his] job back." Regardless of the exact language used, it is clear from Harry Sutton's testimony, part of which is quoted below,' that he understood that McAlister was seeking a job. It is equally clear from Harry Sutton's testimony that he rejected this request only because of McAlister's testimony in the prior case, and, in fact, he repeatedly admitted this throughout his testimony.9 Under these circumstances, it is apparent, and we find, that the Respondent's refusal to employ or reemploy McAlister was violative of Section 8(a) (4) and (1) of the Act.10 The fact that Respondent had no job available at the time of McAlister's application does not require a different finding." Nor does the fact that McAlister did not 6 Thus, Harry Sutton testified as follows : Q. (By Mr. Cummins [Respondent's counsel].) Did he ask you for reemployment at that time? A. He did. a a s s x a e TRIAL EXAMINER: And it was after that [statement by Harry Sutton that work was slack] that he hit you for a job? The WITNESS : Yes, it was after that he bit me for a job. a a a a a a a TRIAL EXAMINER: And despite that [statement that work was slack] he turned around and asked you about hiring him? The WITNESS : He certainly did. TRIAL EXAMINER: . . . then he said how about hiring me, is that it? The WITNESS : Well, words to that effect. 'For example, Harry Sutton's testimony contains the following statements, among others, on this point: The WITNESS: . . . I told Mr. McAlister . . . that I bad heard his testimony read at the hearing during the Hulsey trial . . . and it would certainly be a sur- prise to me that he would even want a job back after lying [sic] about us the way he did.... a a a a a a a TRIAL EXAMINER: Well, you would have hired him then if-- The WITNESS: If he hadn't made liars out of us. TRIAL EXAMINER: You would have hired him if he hadn't made liars out of you? The WITNESS: I wouldn't say that I would because the job wasn't available; at that time ; but if we had had work I would say we probably would have rehired him if lie had not just made liars out of us, and as I said before if I can't put my con- fidence in a man I don't want him around. io Briggs Manufacturing Company, supra; Oregon Teamsters' Security Plan Office, et al., supra. In view of this conclusion, we find it unnecessary to determine whether the Respond- ent's refusal to employ or reemploy McAlister also violated Section 8(a) (3) and shall dismiss the complaint in this regard. n Yutana Barge Lines, Inc., 123 NLRB 1073, and cases cited therein ; The H. K. Ferguson Company, 124 NLRB 544; A. Cestone Company, 118 NLRB 669. I. C. SUTTON HANDLE FACTORY 1097 reapply when jobs were available affect our conclusion, since it is ap- parent that such an application would have been futile.I" 3. In view of the foregoing, we shall supplement the remedial recommendations of the Trial Examiner, with provisions set forth be- low which we find will effectuate the policies of the Act. We shall order the Respondent to cease and desist from discharg- ing, refusing to employ, reinstate, or reemploy, or from otherwise discriminating against any employee because he has filed charges or given testimony under the Act, or in any other manner interfering with the right of employees to file and prosecute charges or to give testimony under the Act. We shall also order the Respondent to offer Herrel McAlister immediate employment in a job he is qualified to perform and to make him whole for any losses that he may have suf- fered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned in the employ of the Respondent from the date after the discrimination against him when a job became available," to the date the Respondent offers him employment, less his net earnings during said period. Back-pay is to be computed on a quarterly basis in the manner estab- lished by the Board in F. IV. TVoolwortli Company, 90 NLRB 289. Because the Trial Examiner found no violation as to McAlister, we shall, in accord with our usual policy, toll the Respondent's liability for backpay for the period beginning with the date of the Intermedi- ate Report herein and ending with the date of this Decision and Order. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, I. C. Sutton, Sr., d/b/a I. C. Sutton Handle Factory, his agents, successors, and as- signs, shall : 1. Cease and desist from : (a) Discouraging membership in, or activity on behalf of, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746, or any other organization of his employees, by discrimi- nating against his employees in regard to their hire or tenure of em- ployment, or any other term or condition of employment. (b) Discharging, refusing to employ, reinstate, or reemploy, or from otherwise discriminating against any employee because he has filed charges or given testimony under the Act, or in any other manner is Consolidated Western Steel Corporation, et at., 108 NLRB 1041, 1044; Swinerton and Walburg Company, 94 NLRB 1079, 1080, enfd. 202 F. 2d 511 (C.A. 9), cert. denied 340 U.S. 814. "The record indicates that sometime subsequent to the application, jobs did become available. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interfering with the right of employees to file and prosecute charges or to give testimony under the Act. (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bar- gaining 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 employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Grayson Manes and Walter Davis immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of them whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. (b) Offer Herrel McAlister immediate employment in a position he is qualified to perform and make him whole for any loss of wages suffered by him as a result of the Respondent's discrimination against him, in the manner set forth in paragraph numbered 3 of this Decision. (c) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the rights of employment under this Decision and Order. (d) Post in his plant in Harrison, Arkansas, copies of the notice attached hereto marked "Appendix." 14 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, upon being duly signed by the Respondent's representative, be posted by him, immediately upon receipt thereof, and maintained by him for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 14 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." x. C. SUTTON HANDLE FACTORY 1099 (e) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that the Respondent discriminatorily refused to employ or reemploy Herrel McAlister on July 15, 1957, in violation of Section 8 (a) (3) of the Act. 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 Labor Manage- ment Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in or activity on behalf of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746, or any other organization of our employees, by discriminating against employees in regard to their hire or tenure of employment, or any other term or condition of employment. WE WILL NOT discharge, refuse to employ, reinstate, or reem- ploy, or otherwise discriminate against any employee because he has filed charges or given testimony under the Act, or in any other manner interfere with the right of employees to file and prosecute charges or to give testimony under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act as modi- fied by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Grayson Manes and Walter Davis immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and we will make them whole for any loss of pay they may have suffered as a result of the dis- crimination against them. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL offer Herrel McAlister immediate employment in a position he is qualified to perform and make him whole for any loss of wages suffered, by him as a result of the discrimination against him. All our employees are free to become or remain members of the above-named Union or any other labor organization. 1. C. SUTTON, SR., D/B/A I. C. SUTTON HANDLE FACTORY, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon an amended charge duly filed by United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746, herein referred to as the Union, the General Counsel of the National Labor Relations Board, herein referred to as the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint, dated August 13, 1958, against the Respondent, I. C. Sutton Handle Factory, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (4) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charges, the complaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices, the complaint alleged in substance that on January 13, 1958, the Respondent discriminatorily discharged Grayson Manes and Walter Davis, and thereafter "failed and refused . to reinstate" them, "because of their membership in and activities on behalf of the Union . and because they gave testimony under the Act" in a prior Board hearing; and that "on or about July 15, 1957," Respondent discriminatorily "refused to employ or reemploy Herrel McAlister because of his membership in and activities on behalf of the Union . . . and because he gave testimony under the Act" in said prior Board hearing. Respondent filed a verified answer denying the commission of any of the alleged unfair labor practices, and averring affirmatively that the discharge of Manes and Davis was solely for cause, in that, their persistent inefficiency in the performance of their work, in the respects therein specified, became to I. C. Sutton, Sr., the sole owner of the factory, "a source of increasing irritation" which "produced ill effects upon his health." As to McAlister, the answer averred that he "quit the employ of Respondent, of his own volition" and "never -thereafter asked for reemploy- ment . . . other than to inquire on one occasion . . . if any more employees were needed" at which time "no more were needed, and he was so advised." Pursuant to notice a hearing was held at Harrison, Arkansas, on September 23, 24, 25, and 26, 1958, before me, Charles L. Ferguson, the Trial Examiner duly desig- nated to conduct same. The General Counsel and the Respondent were repre- sented by counsel and the Union by an International representative. Full oppor- tunity was afforded all parties to be heard, to produce, examine, and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally at the conclu- sion of the evidence, and to file briefs. Counsel for the General Counsel has submitted a brief which has been considered. Upon the entire record in the case, and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY The complaint alleges, and Respondent's answer admits, that: "Respondent is a sole proprietorship, the sole proprietor being I. C. Sutton, Sr., which has its principal I. C. SUTTON HANDLE FACTORY 1101 office and place of business in Harrison, Arkansas, and is, and at all times material herein has been; engaged in the business of manufacturing, selling and shipping wood. handles and 'other wooden products . During the year ending December 31, 1957,. which period is representative of all times material herein , Respondent manufac- tured finished products valued in excess of $150,000, which were sold and shipped from Respondent's Harrison, Arkansas, plant directly to customers located outside the State of Arkansas." I find that Respondent is and was, at all material times, engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and. that assertion of jurisdiction is warranted. H. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local. Union 2746, is a labor organization within the meaning of Section 2(5) of the Act_ III. THE ALLEGED UNFAIR LABOR PRACTICES Introductory or Background Facts I. C. Sutton, Sr., is, and at all material times was, the sole owner of the business carried on under the name, I. C. Sutton Handle Factory. He has operated the, business since 1929, and same has been located at Harrison, Arkansas, for over 5 years prior to this hearing. "Management was carried on by," I. C. Sutton, Sr.,. and his two sons, I. C. Sutton, Jr., and Harry W. Sutton, and C. W. Clayborn, the general foreman. The witnesses referred to 1. C. Sutton, Sr., as "Mr. Sutton," and to the sons as Irving and Harry. Herein I. C. Sutton, Sr., will generally be referred to merely as Sutton, Sr. While the named Respondent, I. C. Sutton Handle Fac- tory, "is a sole proprietorship, the sole proprietor being I. C. Sutton, Sr.," and is not in a legal sense a company, it may for convenience sometimes be referred to herein as the Company. The plant manufactures wooden handles and baseball bats, and other wood products. At one point Sutton, Sr., said: "Our principal pro- duction were bats and ax handles," however, "hoe handles" were also specifically mentioned, and at one place reference is made to an order for "table legs." In normal times, excluding supervisors, the employees numbered 30 to 37. Efforts by the Union to organize Respondent's employees were commenced in 1956. Employee "Joe Hulsey . became its [the Union's] most active protago- nist in the plant and its contact with the other employees . by October 22, 1956 about 25" of the then "37 employees had signed applications for membership in the Union." On the next morning, October 23, Hulsey, on his way to work, accom- panied by another employee, Chaney, mailed the group of cards which he had last received to the Union's representative. After their arrival at the plant, Hulsey and Chaney informed various other employees that a majority had signed union cards and that the cards had been mailed to the Union that morning. Before the day was over ". . . this information had circulated `pretty well through the plant.' " Joe Hulsey was discharged the following afternoon, October 24, 1956. On October 29, 1956, the Union filed an 8(a)(1) and (3) charge with the Board (Case No. 32-CA-560), the initial charge in that case, against I. C. Sutton Handle Factory, "and also a petition requesting a representation election" (Case No. 32-RC-981). The 8(a)(3) portion of the charge related to the discharge of Hulsey, and two other alleged discriminatees were also named. The foregoing statement of events leading up to and resulting in the filing of the initial charge in the Hulsey case (No. 32-CA-560), in which a complaint subse- quently issued on May 22, 1957, and the filing of the representation petition in Case No. 32-RC-981, supra, is based upon findings made and set out by the Trial Examiner in his Intermediate Report in the Hulsey case, and in part on a stipulation the parties entered into in the instant case. The stipulation herein further details the subsequent course of events as follows: "A Representation Hearing," in Case No. 32-RC-981, "was ordered for November 28, 1956, however, a Consent Election Agreement was signed by the parties at that time," which was approved by the Regional Director on December 3, 1956, pur- suant to which an election "was held on January 8, 1957. . . . The Tally of Ballots showed that of a total of 35 eligible voters, 17 votes were cast for the petitioner (the Union) and 17 votes were cast against. . . There were three challenged bal- lots . . . sufficient in number to affect the result of the election. . . . The challenged ballots were those of the three employees named as discriminatees (one being Hulsey) in the original charge" filed on October 29, 1956, in Case No. 32-CA-560; "Subsequently the Regional Director . . . dismissed the charge as it pertained to two of the alleged discriminatees (but not as to Hulsey), therefore, the vote of Joe Hulsey, the remaining discriminatee" named in the original charge "and 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the alleged 8(a)(3) named in the complaint" thereafter issued, as above stated, in Case No. 32-CA-560, "was the determinative vote in the election . . . On June 18, 1957, a hearing was held before" a Trial Examiner of the Board, and "on August 2, 1957, the Trial Examiner issued his report in which he upheld the allegations of the complaint, and recommended the reinstatement of Joe Hulsey." That hearing is referred to by the witnesses in this hearing, and herein, as the Hulsey case or the Hulsey hearing. Continuing, the stipulation is that, "Exceptions were taken to the Trial Examiner's report, and on December 16, 1957," the Board affirmed and adopted the report "and ordered the reinstatement of Joe Hulsey. Subsequently, Hulsey's ballot was opened and the Regional Director, acting for the Board, issued Certification of Representa- tion inasmuch as it had been determined that the petitioner (the Union) had received the majority of the votes in the election. . . . Respondent petitioned the Circuit Court of Appeals for the Eighth Circuit who denied the petition and ordered the Board's order enforced" (255 F. 2d 697, June 11, 1958). At the time of this hearing the Respondent had not "complied with the Board's order in the Hulsey case, but was seeking review by the U.S. Supreme Court." I note here that on October 20, 1958, after the hearing herein, the Supreme Court denied certiorari. In the Hulsey case the Trial Examiner found independent 8(a) (1) violations, including unlawful interrogation of employees, threats to curtail operations in the event the Union was selected as bargaining representative for the employees, and threats of reprisal against employees who belonged to or supported the Union, and a violation of Section 8 (a) (3) of the Act, in that Respondent had discriminatorily discharged employee Joe Hulsey. In that case Respondent claimed Hulsey was discharged solely for cause, that is, "wasting time," and "visiting, and interfering with" the work of other employees during working hours. The Trial Examiner's Intermediate Report in the Hulsey case refers to the testi- mony of 12 employees who were at the time of that hearing working at Respondent's plant. All were apparently called as witnesses by the General Counsel, and their testimony was in varying degrees adverse to Respondent. Eight of the twelve had disappeared from the scene and were no longer working there at the time of the instant hearing. Walter Davis, one of the alleged discriminatees in the instant case, was one of three witnesses who testified at the Hulsey hearing that Sutton, Sr., "told them he had discharged Hulsey for wasting time while engaged in organizational work for the Union." Davis further testified -in that hearing that, on October 26, 1956, 2 days after Hulsey was discharged, General Foreman Clayborn told him (Davis): "This Union is going to mess us up . . . Mr. Sutton [Sutton, Sr.] said if the Union went through it [the plant] was going to run only six months out of the year," and "that the ones that vote against the Union would get a better deal than the ones that vote with it." Davis also testified, at the Hulsey hearing, that on the same date (October 26, 1956) Sutton, Sr., stated, while talking with some of the employees, he (Davis) being one of the group, that, "Joe [Hulsey] made a good hand, and he worked hard but he tried to organize that goddam . . union and I had to fire him." Davis' testimony was credited by the Trial Examiner. Grayson Manes, named as a discriminatee in the charge and complaint herein , testified at the Hulsey hearing that, "A week or two following Hulsey's discharge," Sutton, Sr., told him (Manes) that "Joe Hulsey was a good guy and a good worker, but he got in the toilet and tried to form a union . I had to let him go. I would any other boy." Manes' testimony was also credited by the Trial Examiner. In his testimony at the hearing herein Sutton, Sr., said that, "When the Union came around I did not get angry," but "I did get angry at their [the Union's] methods," and "I did not get angry when some of my hands testified against me at the hearing in regard to Joe Hulsey . . . because the Union organizers had primed them.'.' At one point in his testimony herein Sutton, Sr., charged that, "Mr. Manes made mis-statements about me at the" Hulsey hearing. Admittedly Sutton, Sr., stated, in an affidavit taken by a Field Examiner in the course of the investigation of the charges filed in this proceeding: "These men [Manes and Davis] made mis- statements both at the hearing [in the Hulsey case] and at other places against both me and the management of the company. I disregarded this in making my decision to terminate them." 1 I There is not a scintilla of proof that either Manes or Davis ever made any adverse statements of any kind on any matter against Sutton, Sr., or any of the management or the Company at any time or place other than the credited testimony they gave at the Hulsey hearing. I. C. SUTTON HANDLE FACTORY 1103 It appears, from the credited testimony herein that the Sutton and General Fore- man Clayborn were well aware and knew that Manes, Davis, and McAlister, the alleged discriminatees herein, as well as others of their employees, were members and supporters of the Union. In his report in the Hulsey case the Trial Examiner observes that, "It is undisputed that Respondent was opposed to the unionization of his employees," and, in that connection, I am constrained to observe, as will appear in the course of this report, that that opposition, and the union animus re- vealed by the Hulsey case, of Sutton, Sr., his two sons, and General Foreman Clayborn, has not since abated one whit. The Place of Work and the Kind of Work Performed by the Dischargees, Manes and Davis, Respectively The facts in this case have but little to do with the work carried on inside the factory buildings where the machine processing of wooden handles, bats, and other wood products is done, but relate mostly to that part of the plant premises adjoining the factory buildings referred to as the "receiving yard" or merely "the yard." Respondent owns and operates a sawmill located less than a quarter of a mile from the manufacturing plant. At this sawmill ash, elm, and gum logs or timbers are sawed into "squares." There are "two kinds of squares, one is handle blanks and the other for bats . . . some squares are two by two [inches], some two and a quarter by two and a quarter [inches], and some two and half by two and half [inches]. . . . Another kind of square is about an inch and three quarters square. . . Squares used for handles are of varying lengths from four or four and a half to five feet," while the bat squares vary in length "from 21 to 37 inches." At the sawmill the squares were loaded or stacked on pallets,2 which were lifted, by a lift or fork truck, onto a flat-bed truck, which hauls the pallets to the receiving yard at the plant; where another lift or fork truck, the one used at the plant premises for moving, shifting, and placing loaded pallets, driven and operated by Davis, lifted them from the flat-bed truck and placed them on the ground at one or the other of the two grading places, one for bat squares, the other handle squares, according to the kind of squares on the pallets. The flat-bed truck was unloaded "right between the bat set up and the handle set up." In loading the squares on the pallets at the sawmill they "were mixed up," this was true of both the pallets loaded with bat squares and those loaded with handle squares, and "there would be two or three different sizes and lengths, and two or three different varieties" in a pallet as it was received from the sawmill. When the loaded pallets, brought from the sawmill, were placed at the grading places on the yard, the graders took over. "Each pallet," from the sawmill, "has to be gone through and graded." The grader separates the "useable squares .. . out of the culls." Before commencing the grading, the grader lines up three or four, sometimes even five or more are required, empty pallets "around him" on the ground, and then separates or sorts out the usable squares from the sawmill pallets on to these empty pallets placing or stacking them thereon so as "to get the same kind of timber and the same lengths and sizes together in one pallet." This job is called grading and stacking. When these pallets were thus loaded with squares of the same kind, size, and length, the lift or fork truck moved them and placed them on the storage area of the yard where they "are covered over until they air-dry," at which stage the fork truck then picks them up and moves them "into the dry kiln." At all times material to this phase of the case three men worked regularly in the yard, Math Virnig, Grayson Manes, and Walter Davis, the latter two are alleged discriminatees . Most of the time at least one or another employee also worked there for varying periods; named are Ed Reid, R. B. Allen, Otis Wells, and a Will Allen, who worked there "fairly regularly from the time he was put on," which is not stated. As stated, Davis drove and operated the fork truck. He worked on that job for 18 months next preceding his discharge on January 13, 1958.3 Davis, with the 2 Frequent reference is made herein to pallets . A pallet, as herein used, is a square wooden platform, "with a box on two sides" raising the platform from the ground ; at each corner is a steel rod ("three-fourths inch in diameter") ; wires are "tied in" or around the steel rods "to hold the stacks upright," when squares are placed or stacked on the pallet. 9 Davis first started to work at the Sutton Handle Factory in 1945, when she "lacked a little of being 17" years of age. He worked there until 1950 when be quit, but he "came back to work there" in 1054 and continued thereafter until be was discharged on January 13, 1958. He worked for Respondent an aggregate of between 9 and 10 years, 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fork truck, "worked both inside [the factory building and dry kiln] and outside [on the yard] . he moved material [squares on pallets] into and out of the dry kiln . . . and into the [factory] building . . , to supply the men working on machines there," unloaded the pallets brought from the sawmill on the flat-bed truck, and placed them at the two grading places to be graded, and moved the pallets there loaded, by the graders and stackers, with graded squares, from the grading places and placed or spotted them on the yard. He "handled" all the moving of loaded pallets on the yard and when same were ready "he put them in the dry kiln." With the fork truck he moved the squares, "piled" or stacked on pallets, "to where they were turned [inside] and the turned material to the finishing room" (also inside). Manes was a grader. His job was known as "grading and stacking," and has been described, supra. He was one of the two regular graders. He had worked at that one job for approximately 15 months next preceding his discharge on January 13, 1958, and at the Sutton Handle Factory approximately 18 months next preceding his discharge. Manes was 37 years of age at the time of this hearing. At all times material herein Math Virnig was the key man on the yard. Virnig's age was not stated, but he appeared to be a man well past middle age. Sometime in the early part of August 1958, about 6 weeks prior to this hearing, Virnig asked Irving Sutton, Jr., for a lengthy leave of absence in order that he and his wife could make a "prolonged visit to the State of Oregon to celebrate their 40th wedding anniversary." Irving Sutton, Jr., granted Virnig the leave of absence he requested. "A slack period was then coming on," and Sutton, Jr., told Virnig he could take such time off as he might want "up to 3 months," but could return to work earlier if he desired to do so. Pursuant to a subpena by the General Counsel, Virnig returned from Oregon, after 6 weeks of his leave had run, to testify at this hearing. On the first day of the hearing Sutton, Jr., urged Virnig to return to work earlier than first contemplated saying they "needed" him. Virnig was an important witness in this case on behalf of the General Counsel, and I relate the foregoing events as illustrative of the esteem in which management itself held him. There are numerous. circumstances in the evidence tending to show that management trusted, relied upon, and reposed confidence in Virnig, and made him largely responsible for the immediate supervision of the yard. Except as to one incident there is no outright contradiction of Virnig's testimony,. and, at this point I note that where any conflict, direct or indirect, arises between Virnig's testimony and that given by the Suttons and Clayborn, and there is in fact little, I fully credit Virnig. I observed Virnig as a witness, and was impressed by his: forthrightness, and his demeanor as a witness considered together with the con- sistency of his testimony with the realities and well-established facts, and his lack of motivation, and the absence of any reason on his part, to distort, color, or mis- state the -facts, and particularly to create out of the whole cloth, constrains me to accept and credit his testimony. Virnig did not join the Union, he refused to sign a card, and testified that, "when they were trying to organize the Union, I was against the Union," and that he voted in the election against the Union. He was not a witness at the Hulsey hearing. About the situation in the yard Virnig testified as will immediately follow, and his testimony in this respect stands without any substantial contradiction or denial, and, as above stated, is fully credited. Virnig said, "I worked out in the yard, I was more or less a straw boss there . . . we all [Virnig, Manes, and Davis] worked out there. I did my own work and kinda kept my eyes on the boys [Manes and Davis and others who worked there from time to time]. . . . Mr. Davis and Mr. Manes worked under me.. . . Mr. Davis on the fork truck and Mr. Manes on the grading and stacking with me.... I consulted with Irving [Sutton, Jr.] right often about the work in the yard . . . and after Mr. Sutton [Sr.] was sick 4 I took practically all my orders from Irving. . There was not much supervision required. . . . We [he and Irving, Jr.] would tell the boys what was to be done and they would go ahead and do it . . . work together . . I usually graded the handle squares, and Mr. Manes graded the bat squares, and in the busy season we usually had an extra hand to do most of the stacking." In this connection Virnig further testified that, "They [Sutton, Sr., and Irving] left the supervision of the yard pretty well to me, and if there was anything. . I didn't know about I would consult Irving. . If there was anybody out in the yard that wanted to know anything they usually came to me." and continuously for approximately 4 years next preceding his discharge. At the time of the hearing, Davis was 29 years of age. 4 Sutton, Sr., had a heart attack in November 1955, and has been under medical care and treatment since, with his formerly normal activities greatly curtailed. I. C. SUTTON HANDLE FACTORY 1105 Manes said: "Math Virnig mostly told me what to do there in the yard," and Davis: "I got my orders . on the yard . principally . . . from Math Virnig on the yard I worked with Math Virnig, Grayson Manes, and a Mr. Allen." 5 Otis Wells, whose regular job was driving a truck with which he hauled timbers from the woods to the sawmill, was quite often called into the factory to work "in the winter time whenever it was too wet . or snowy . to go to the woods," at which times he generally worked in the yard stacking for Virnig and Manes. Wells said, "When they sent me out on the yard to work they always told me to ask Mr. Virnig what to do and he would tell me," and that when he "first started to stack .. . Mr. Virnig showed me how to stack, and after that I just stacked." The August 1957 Layoff Generally a slack season was encountered sometime during the summer, falling somewhere between June and September, necessitating a temporary layoff of some of the employees for varying periods. The number laid off on these occasions varied according to the orders on hand and work which could be "continued." When a lay- off was made seniority was not considered in selecting the employees to be laid off. Sutton, Sr., said that in selecting employees for layoff, "we keep on the employees that can do more jobs and that we can work wherever and whenever needed. We do not keep the employees on by seniority." He further stated that in selecting em- ployees for layoff they gave consideration to requests of any employees who for one reason or another at the time wanted to take a temporary layoff as was sometimes the case. Davis said that during the nearly 10 years he worked for Respondent, "there were a few lay-offs," and that in some years he continued working throughout the period some of the other employees were laid off, and that in other years he was one of those laid off. On the other hand Wells whose regular job was hauling timber from the woods to the sawmill said that he was never laid off during the 3 years he worked there. In the summer of 1957 the slack season came in August, "later than usual," and a temporary layoff was made. Virnig said that at the time this August 1957 layoff was made "they needed to lay off people." There is little, if in fact anything of sub- stance, in the evidence tending to controvert the testimony that the August 1957 lay- off was a bona fide temporary layoff for economic reasons. Virnig testified that shortly before the layoff was made, General Foreman Clay- born "came out to me [where Virnig was working on the yard], and told me" there was going to be a layoff and "asked me whether I preferred to be laid off or to work, and I said, `I need to work if they can use me'; he [Clayborn] said, `we are going to lay Walter [Davis] and Manes off because they played with the Union.'" On cross- examination, the attorney for Respondent asked Virnig: "Would it make any dif- ference in your testimony if you knew Mr. Clayborn will subsequently in this hearing deny that he made that statement to you?" Virnig's answer was: "No, it wouldn't change my testimony. . . . I say positively he said that to me." The attorney for Respondent called General Foreman Clayborn as a witness and after identifying him and how long he had worked for the Company ("around thirteen years"), asked Clayborn only one substantive question on direct examina- tion: "Have you at any time or on any occasion to any person ever indicated . that any employee . might be, would be, or has been discharged because of that employee's activities in connection with a union?" [Emphasis supplied.] Clayborn answered: "I have not." The attorney for the General Counsel waived cross-exami- nation, whereupon I asked Clayborn if he knew Math Virnig. At that point the at- torney for Respondent asked leave to take the witness on redirect examination. In the course of this redirect examination Clayborn said that he did not "recall any conversation with Mr. Virnig about Manes and Davis"; that he did not "ever go to Mr. Vernig and ask him,... whether he wanted to be laid off"; and did not "ever at any time tell Mr. Virnig that Mr. Manes and Mr. Davis would be discharged because of their union activities." [Emphasis supplied.] The foregoing is the nearest approach to an outright and direct denial of any phase of the testimony given by Virnig. Clayborn was general foreman, and had worked for and been associated with Respondent for "around thirteen years." The Trial Examiner, in the Hulsey case, whose report was adopted in toto by the Board, in his findings of independent 8 (a) (1) violations in that case, found that Clayborn had made threats of reprisal, and threats that the plant would be shut down, or work- ing time curtailed if the Union came in, to seven different employees, Davis being v It will be remembered that part of Davis' work with the lift truck was inside the factory building. Allen mentioned here is one of the men who did stacking for Virnig and Manes. 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one. Clayborn's union animus, reflecting that of Respondent, was established in the Hulsey case. Without doubt he was in this hearing a highly interested and con- cerned witness. To whatever extent Clayborn's testimony may be construed as a denial or contradiction of Virnig's testimony, I am unable to credit it. I have here- tofore stated that I consider Vernig a reliable and trustworthy witness, and for the reasons heretofore stated, I accept and give full credit to his testimony about Clay- born's statement to him concerning the layoff of Manes and Davis. In the layoff Virnig was retained and Manes and Davis were laid off, and during the period Manes and Davis were off Virnig did all of the grading and stacking in- cluding bats ordinarily handled by Manes and most of the fork-truck work which Davis normally handled. On August 14, 1957, one employee LaFayette McElroy, was laid off, and on August 16, nine other employees were laid off, Manes, Davis, Kathryn Smith, Silby Estes, Robert Amerson, Bervin Trice, Vernon Dickey, Marion Honeycutt, and Leonard McElroy. Thus 10 employees were involved in this August 1957 layoff. Rather typical of his testimony Sutton, Sr., said at one point that at the time it was decided that a layoff was necessary 30 to 35 employees were working, and "17 or about one half were laid off," while at another point he said 14 employees were laid off. Irving Sutton said he "contacted" each employee selected for layoff and told each that "the reason for the layoff was that the slack season was on and we didn't have any orders." LaFayette McElroy was called back on September 3, 3 weeks after being laid off; he worked about a week and quit, saying he had obtained a better job elsewhere at higher wages. Three weeks after they were laid off Manes and Silby Estes were recalled, and 5 weeks after their layoff Davis and Kathryn Smith were recalled; Vernon Dickey was recalled after 6 weeks, Marion Honeycutt after 7 weeks, and Bervin Trice and Robert Amerson after approximately 8 weeks. Leonard McElroy was not recalled, because, according to Sutton, Sr., "He told our foreman he had a job that paid more wages and didn't want to be called back." Thus by October 16, when Amerson, the last to be recalled, returned to work, all of the 10 employees laid off in the August 14-16 layoff were again working except the 2 McElroys who had quit as above noted. Manes, after being off 3 weeks, returned to his former job of grading and stacking, and Davis, after 5 weeks, resumed his job with the fork truck. On November 5, 1957, the Union filed a charge (the initial charge in this case, 32-CA-610) stating, in substance, that "on or about August 16, 1957" (referring to the layoff above described), Respondent "terminated the employment of Leonard McElroy, Fate McElroy,6 Walter Davis, Kathryn Smith, Grayson Manes, Silby Estes, and Bob Amerson C7 of the 10 employees laid off] . . . because of their membership in and activities on behalf of" the Union and "because they engaged in concerted activities with other employees . . . for the purpose of collective bar- gaining and other mutual aid and protection, and in order to discourage member- ship in" the Union, "and at all times since that date . has refused, and does now refuse, to employ the above-named employees." It is here again noted that at the time this charge was filed all of the persons named therein as having been discrim- inatorily terminated on August 16, had been recalled some weeks prior, and were then working except the two McElroys, and what the evidence shows as to them has been related supra. This original charge also alleged a discriminatory refusal, on August 16, 1957, to employ Herrel McAlister.? A copy of the original charge, filed on November 5 as aforesaid, was received by Sutton, Sr., on November 7, 1957. Sutton, Sr., said when he received this copy of the charge, it did not make him "angry . . . I was just disgusted . . . the charge was not just." Irving Sutton said when the copy of the charge was received on November 7, he "figured it was an unjust charge," and he immediately, that same 5 Fate McElroy, here named, and LaFayette McElroy, one of those laid off on August 16, is one and the same person. 4 On May 5, 1958, the charge was amended to allege the discriminatory termination of Leonard McElroy and the discriminatory layoff on August 16, 1957, of the other six of the seven laid-off employees named in the original charge; the discriminatory refusal on or about July 15, 1957, to employ Herrel McAlister, and the discriminatory discharge, on. January 13, 1958, of Manes and Davis. On July 8, 1958, a second amended charge was filed omitting the discriminatory termination of Leonard McElroy and the discriminatory layoff of the other six named employees, as alleged in the first amended charge, and limiting the charge to the alleged discriminatory discharge of Manes and Davis, and the alleged discriminatory refusal to employ McAlister, and the complaint herein, issued August 13, 1958, was based on this second amended charge. I. C. SUTTON HANDLE FACTORY 1107 day, called in Robert W. Cummins, their attorney, the same attorney who repre- sented the Respondent in the Hulsey hearing and in this hearing , and "asked Mr. Cummins . . . to find out why these charges were placed against us . . . I wanted to know . what . and who was behind all this," and "who reported it to the Union so they [the Union] could file the charges . I just wanted to find out who done it . we contacted these parties that were listed who were still working for us . and took affidavits." Of the seven "parties . . . listed" in the charge as discriminatees , five "were still working" there on November 7, Manes, Davis, Kathryn Smith, Silby Estes, and Robert Amerson. ,On November 7, the same day Respondent received the copy of the charge and Irving Sutton commissioned Attorney Cummins to contact and interview those of the alleged discriminatees still working there , Cummins contacted two of them, Davis and Kathryn Smith. The uncontradicted and credited testimony of Davis about his interview by Cum- mins is that Claybom "came out where" he "was working and told" him "they want you in the office . I went in the office and Mr. Cummins was in there and he handed me a paper the Suttons had received from the Labor Board charging them with the lay-off, and be said read this, I read it, and he asked me if I turned them in about the lay-off and I told him I didn 't . . . and he asked me if I would make a statement on it, so I made a statement [in the form of an affidavit ] on what I. C. Sutton, Jr., told me when he laid me off, and I signed it and went back to work." Davis' affidavit, taken by Cummins on that occasion , reads: So far as I know I was laid off because of the lack of work, and not because of ,any union activity on my part. It was my belief and understanding that there was a shortage of orders in the plant at that time. Davis further testified, and there is no circumstance in evidence directly indicating the contrary, that the first information he had of a "new charge" being filed against Respondent was "when Mr . Cummins ... gave me that paper and I read it .. . that was the first time I had heard of it.... I didn't know the Union was going to or had filed that charge . . . no one ever talked to me about including my name in it . and I did not authorize anyone to put my name in that charge." On that same day, "about an hour" after he had been interrogated by Cummins and had made the affidavit as above related , Davis "was called back to the office," and according to Davis' uncontradicted and credited testimony, "Mr. Cummins said, `you told me you didn't turn them in over the lay-off'; I said, `I didn't'; he said, `Do you know who did'; I said, `No'; he said, `all right,' and I went back to work." Cummins' interview with Kathryn Smith resulted in an affidavit by Miss Smith, dated November 7, as follows: So far as I know, and I was so informed at the time, I was laid off because of the lack of work . Irving told me they did not have any orders at that time and I would be called back to work when they had some. Nothing was said to me about union activities. Miss Smith, who worked in the packing room, was off 5 weeks, and was recalled on September 23. Called as a witness by Respondent, Miss Smith testified that the first she knew about the charge was "when Mr . Cummins called me in the office and 'asked me about it [November 7]," and that "no one ever discussed with me the use of my name [in the charge] as an employee who had been discriminated against because of that lay-off." Cummins did not get around to interrogating Manes until November 15, on which date Irving Sutton, Jr., came to Manes where he (Manes ) was working and told him Cummins "wanted to talk" to him in the office of Sutton, Sr. The uncontra- dicted, in any way, and credited testimony of Manes is the sole statement to be found in the evidence as to what was said and done on that occasion . Manes said that when he entered the office, "Mr. Cummins said , `I want to talk to you in regard to the Union and the lay-off,' and he handed me . . . the charge made to the Labor Board about this lay-off . . . and I read it . . . and he asked me what they told me when they laid me off . and I said, Irving Sutton told me . I am going, to have to lay you off tonight; I said, `Do you figure on calling me back anyways soon,' and he said, 'It might be sometime, and if you find anything else go ahead and take it'; and he [Cummins ] asked me if Irving said anything about union activities, and I told him, `No,' and he [Cummins ] asked me if I would sign a state- ment and I told him I would." The statement , dated November 15, 1957, in the form of an affidavit , reads 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On . . . August 16, 1957 . . I was told by Mr. Irving Sutton that he was going to lay me off that night. So far as I can remember, that is all he said, nothing was said by him . . . that it was because of any union activities in which I may have. engaged. Manes also testified that the first he knew that the Union had filed the charge, and that his name was included therein as an alleged discriminatee, was when Cum- mins commenced his investigation to ascertain what employees had instigated the charge, that is, "reported" the layoff to the Union as being made in a discriminatory manner, and that he "was not consulted by anybody . before the charge was made with reference to putting" his "name in the charge." I here observe-and my conviction in this respect is not based solely on the direct testimony of Davis and Manes but also on a series of circumstances appearing in the evidence tending to corroborate them, and it is my belief-that neither Manes nor Davis had anything whatever to do with initiating the charge or knew of it or anything about it, or knew that their names were to be or were included therein as alleged discriminatees until Cummins commenced his investigation on November 7, 1957. It will be noted that in his affidavit Manes said that all Irving Sutton told him at the time he (Irving) laid him (Manes) off was that he was to be laid off that night. Irving Sutton claimed he explained to each of the employees who were laid off that a "slack season was on and we didn't have orders," and that, for that reason, a layoff was necessary, and he further testified that "when Manes would not put that [what he says he told him and the others was the reason for the layoff] in his affidavit . . . I didn't like it." By reason of his displeasure with Manes because he considered Manes' affidavit unsatisfactory, Irving Sutton went, during the week following the Cummins' interro- gation of Manes, to where Manes was grading in the yard, for the sole purpose of talking to Manes about the matter. Manes' version of the ensuing conversation is that, "He [Irving Sutton, Jr.] said [to him, Manes] `you know why we laid you off, don't you'; I said, 'I know what you told me'; he said, `you knew we were getting short of work, didn't you'? and I said, `I thought we might be getting a little bit short of work, but I know what this is all about. . . . I read the charges . made to the Labor Board'; and he said `yes, somebody reported us to the Union,' and I said `Irving I didn't report it'; he said, `well, you or somebody else did,' and I said, 'I was not the one who did it,' and he said, `well , you have got to be on our side or the Union's side one'; I said, `Listen Irving, I won't lie for you or for the Union.' That is all that was said." Irving Sutton, called as witness by Respondent, was not asked on direct exami- nation about this conversation with Manes. On cross-examination the attorney for the General Counsel asked him if he ever "commented to anybody" about Manes not putting in his affidavit that he ( Irving Sutton) told him he was being laid off because of the lack of work. Irving Sutton 's answer was : "I refuse to answer that question." The following day the attorney for the Respondent recalled Irving Sutton to the stand and repeated the question ; the answer was that he had "com- mented on the affidavit made by Mr. Manes . only in business communications." However, on cross-examination on Irving Sutton's original appearance as a witness for Respondent he seems to say, although his answers are confusing and mixed up, that "after" Cummins "showed" him "the affidavit . that he [Manes] made," he (Irving) thought it should have been more "specific," and he told Manes, "to see if he couldn't put an extra phrase in there, that lack of work was the reason he was laid off." To the question, "Did you ask him [Manes] if he reported you to the Union," Irving answered, "I asked him did he sign the petition to emphasize this charge." There is no explanation or basis in the evidence for the implication made. There is not a scintilla of evidence to be found in this record that any kind of a petition or document, bearing the signatures of any employees , ever existed or ever went to the Union in support of the charge . Finally, on cross -examination, asked if he told Manes that he (Manes ) "would have to be" on the Company's side "or the Union's side one," Irving said : "I don't know whether I did or not"; later to the same question, he said: "I don't recall . but I would say I did not." The Manes' version of this conversation stands uncontradicted . I do not view the scant, vague, and indefinite references to that conversation found in the cross- examination of Irving Sutton as being contradictory of Manes' testimony, and appar- ently Irving Sutton did not so intend. Therefore, the Manes' version of the conver- sation is credited as being substantially correct. It will be recalled that LaFayette McElroy was recalled on September 3, 1957, after having been laid off 3 weeks , but after working about a week quit. This was about 8 weeks before the charge concerning the layoff was filed on November 5. I. C. SUTTON HANDLE FACTORY 1109 Apparently Leonard McElroy quit shortly after the time he was laid off on August 16, as Sutton, Sr., the only witness who testified about the matter, said that Leonard McElroy told General Foreman Clayborn that he had a better job and did not want to come back. This seems to have been long before the charge was filed, so appar- ently the Suttons, in their efforts to ascertain who "reported" 8 the layoff to the Union as having been made in a discriminatory manner, absolved the McElroys of having done so. After her interrogation by Cummins, and her affidavit at that time, Kathryn Smith seems to have been exonerated. There is no specific mention that Cummins ever interviewed Silby Estes, and, for whatever unrevealed reasons, the Suttons ap- parently eliminated him as a suspect. Robert Amerson, called as a witness by Respondent, said he had worked at the plant "off and on about three years"; that a layoff was necessary in August 1957, "because the orders were not there for us to do with," and that he was so informed when he was laid off on August 16; that Cummins never interrogated him about the charges or his name being included therein as an alleged discriminatee; and that he had never heard anything about the charges until this hearing. In an affidavit given to a field examiner, and put in evidence, Amerson stated that he had never signed a union card, and that he was not a witness at the Hulsey hearing. It is, I think, a reasonable inference that such and other facts reflecting Amerson's attitude about the Union were known to the Suttons for apparently they did not so much as suspect Amerson of having had any part in reporting the layoff to the Union and Cummins did not even contact him in the course of his investigation to ascertain who did so. At this stage of their investigation, with five of the seven employees who were alleged in the charge to have been discriminatorily laid off eliminated, by one process or another of reasoning, from suspicion, the Suttons seem to have arrived at a fixed and immovable conclusion and belief that the remaining two members of the group, Manes and Davis, had reported them to the Union and were the instigators of the charge. Other than by the process of elimination as above outlined the basis for their professed and proclaimed belief in this respect nowhere appears. Sutton, Sr., took, and announced, it as an established and indisputable fact that Manes and Davis had given the Union "signed affidavits that we had laid them off unjustly on account of union activities," 9 and his testimony in various wordings reiterated that theme. Such fixed belief on the part of the Suttons is evidenced by the incident which next follows. Shortly after Irving Sutton went to where Manes was working on the yard, he .took him to task for what he had and had not said in the affidavit which Cummins took. At this time Irving Sutton, as he himself testified, told Manes "to see if he couldn't put an extra phrase," which Irving suggested, in his affidavit. Otis Wells, who drove a truck hauling timber from the woods to the sawmill, "started to the woods" one morning and "a carrier bearing in the old truck burned out." Wells phoned the factory, Harry Sutton brought him a bearing, Wells and Harry Sutton fixed the truck, and Harry "went on into the woods" with Wells. Wells' uncontradicted and credited version of a conversation between Harry Sutton and him on that occasion, follows: As we were going into the woods, Harry and me were talking about the factory and things, and Harry told me that new charges against the Sutton Handle Factory had been filed with the Labor Board . and he said he knew who filed the charges, that it was Manes and Davis, and I told him it was not Manes and Davis, that I thought I knew who filed the charges, and it was not them, but he insisted %t was Manes and Davis that filed the charges. . . . He did not ask me who I thought it was. Wells rode home with Manes that same evening and told Manes "that Harry Sutton had that day told" him that Manes and Davis "filed those charges .. . and he [Manes] said he did not file them." Shortly after Wells told Manes about Harry Sutton's accusation, Cummins "came out to where" Manes was working in the yard and told Manes he [Cummins] again "wanted to talk to" him "awhile in the office." There were no other persons in the office during the ensuing conversation. Manes' account of what was said, on this 8In this connection the phrases "reported" or "turned in . . . the lay-off to the 11n;on," were used by all the witnesses who -testified about this phase of the case, the Suttons as well as the others. n There is no proof at all in the evidence herein that any person or persons ever gave or sent the Union's affidavits about the layoff or the manner in which it was made. 535828-60-vol. 12 5-71 ,1110 DECISIONS OP NATIONAL LABOR RELATIONS BOARD occasion, stands without contradiction and is credited. He testified that Cummins "asked me if I had any further statement to make, I said `no, J don't think there is any use of me making any further statement. . It has already been laid onto me anyway'; he said, `I don't think it has'; I said, `I think it has, a guy told me, and I believe it'; 10 he said, `Do you know and would [you] tell me who turned it in?' I said, `I think I know but I will not tell you."' The Christmas Holiday Pay (1957) The Board's Decision and Order affirming and adopting the Trial Examiner's report and recommended order in the Hulsey case issued on December 16, 1957. One morning during the week after Christmas 1957, Sutton, Sr., came through the yard and stopped to talk to Virnig. He told Virnig that, "If the boys hadn't made me so much expense with the Union I would give them some -holiday pay" and he "told" Virnig "to tell them that." This testimony by Virnig was not denied and is credited. The context in which Sutton, Sr., made this statement indicates that "the boys" to whom Sutton, Sr., referred were Manes and Davis, who were at the very time working in the yard a short distance away in plain view. As directed or sug- gested by Sutton, Sr., Virnig, that same day, told Manes and Davis what Sutton, Sr., had said about holiday pay and the reason it was being omitted that year. Virnig further testified that "later that day" Irving Sutton "came by [the yard] very angry," and "said, `what in the devil did you [Virnig] tell them boys that for' . . . Mr. Sutton, Sr., happened by at that time, and I said, `Here is your dad, he knows what he told me . and why I told them' . Irving looked over there . . . where Manes and Davis were [on the yard], and said, `I still have a. notion to fire him' [Virnig said this reference was to Davis]. Mr. Sutton said, `we can't do that on account of the Union, but I got a notion to send Manes down to the saw mill, I can't stand the looks of him any more.' " Sutton, Sr., did not deny or contradict Virnig's testimony about these conversa- tions. Irving Sutton, called as.a witness for Respondent, was not asked on direct examination about this conversation, but on cross-examination Irving admitted he had "a little conversation" with Virnig, "in the yard," in which "maybe I did say something to Vern'g . . . about holiday pay." Asked if his father (Sutton, Sr.) told Virnig that there would be no holiday pay that year "because of the Union," Irving answered: "The `grape vine' got started some way, I don't know how it hap- pened. . I don't know how I got the information." Irving admitted that it was about this that he went on the yard to talk to Virnig, and he said, "I believe I told him [Virnig] that I didn't think it a good idea to say too much about it" (holiday pay), and that while he was talking with Virnig "seems like he [his father, Sutton, Sr.] came up," but, he did not recall his father "saying he would like to send Manes down to the saw mill" and he did not "remember saying anything" himself about Manes in that conversation. I do not consider these statements by Irving Sutton,' elicited on cross-examination, as amounting to a credible denial or controriirt;'n of Virnig's testimony about the incident. My opinion of the credibility of Virnig, as a witness, specifically and his testimony as a whole, has been stated and I accept and credit his testimony about these conversations, involving Irving Sutton, Sutton, Sr., and himself, as being substantially correct. Speeches by Sutton, Sr., and Cummins on January 10, 1958 There was considerable testimony, found mostly in the questioning of Sutton, Sr., about certain speeches made by Sutton, Sr., and Cummins, his attorney, par- ticularly that made by Sutton, Sr., to an assemblage of employees. When the testimony relating to these speeches is summed up, it does not appear to have.%anv great consequential impact upon the determination of the controlling issues involved. However, the General Counsel called Sutton, Sr., an adverse party, as a witness under Rule 43(b), and his answers to the questions propounded by the attorney for the General Counsel about these speeches afford a fair sample of the gyrations and peregrinations which characterize so much of his testimony and reflect his manner and disposition as a witness. As his lengthy testimony went along, both as a witness called by the General Counsel and later by his own attorney, Sutton, Sr., he was prone more and more to generalize and philosophize to such an extent that little of factual substance bearing on the real issues involved emerged. Sutton, Sr.'s answers to questions, including even those by his own attorney, were so often not "An obvious reference to what Wells had told him about the accusation made by Harry Sutton. I. C. SUTTON HANDLE FACTORY 1111 responsive and far afield as to have the effect, if not the intent, of being evasive and beclouding the facts. His answers were often stated in such a variety of shadings and word wrappings that it is difficult, if not impossible, to discern any clear meaning or factual content. All of which had and has a - debilitating effect upon his reliability and credibility as a witness particularly in those instances where his testimony is directly contradicted by unimpeached witnesses. Questioned by the attorney for the General Counsel, under the rule, Sutton, Sr., said that the last time he made a speech to his employees "was when I finished the new dry kiln . . . it must have been . very nearly . . . a year ago [this testi- mony was given on September 23, 1958] . . . but it was not in 1957 . . . I think it was 1956.11. . I don't recall having ever talked to them [his employees] about the Union; it [the Union] was secret and I didn't know a thing about it. I did not call the employees together on Friday [January 10, 1958] before I discharged Manes and Davis [on January 13, 1958] . and did not call Mr. Cummins in to talk" to them on that date, adding that neither he nor Cummins talked to the employees on that date about the Hulsey case. Still referring to the last speech he made to the employees as being at the time "I completed the new dry kiln," and at this one point he said that was in 1958, Sutton, Sr., said he did not "mention the Union to the employees that day." Asked again and later about an assemblage of his employees on Friday, January 10, 1958, he said, "I don't remember calling the employees together" on that date "and talking to them about the Union. . I don't know of any reason why I should have called them together" at that time. Whereupon, the attorney for the General Counsel asked him if he "ever called them [his employees] together to discuss the Union with them." His answer was, "No . I may have made some reference to the Union at the time I talked to them when I completed the new dry kiln," but here he added: "That was in 1956," (here he goes back again to 1956) and that he had "never called them together since that time." Finally he said that he did not "recall ever making a speech [to the employees], and talking about the Joe Hulsey case" or that Mr. Cummins ever did so. My puzzlement, already at this early stage of the hearing (Sutton, Sr., was the first witness called), about Sutton, Sr.'s accuracy as a witness was compounded by his testimony on cross-examination by his own attorney, Cummins.12 He then re- called that he did make a speech to an assemblage of his employees "sometime subsequent" to the Hulsey hearing (which closed June 18, 1957), the occasion being "the opening of our new dry kiln which was an important event to us," and "I got them [the employees] together so they could see it" (the new dry kiln). At this point Mr. Cummins, attorney for Respondent, handed Sutton, Sr., a typewritten paper and asked him to identify it. Sutton, Sr., said that the paper was a transcript of "what I talked about" in the speech to the employees "at the opening of the new dry kiln"; that on that occasion he had "the girl . secretary" who worked in his office present "to take down" what he said "just like I would dictate a letter"; that the paper was a transcription made by the secretary of her notes; that he had "read it over" and it was "substantially correct." Respondent's attorney then stipulated that this speech was delivered by Sutton, Sr., to an assemblage of his employees "early in January, 1958, prior to the discharge of Manes and Davis." The date of the speech was in fact Friday, January 10, 1958. The stenographic report of the speech as identified and verified by Sutton, Sr., reads: We don't want you to have the wrong impression about what we think about the Union. I don't appreciate it very much the way things have been running lately. We are not trying to keep you from joining the Union. I am not going into detail regarding union contracts on this. Mr. Cummins will tell you exactly the procedure in Law that have been made up to date. He will brief you on that with a short statement. This is actually the standing of the Union and of our plant. There are about seven that recently claimed that I fired Joe Hulsey for Union activities. That is a mistake. Mr. Cummins will read to you that joining the "The testimony of every witness who gave testimony nbnut the speech in question, except Sutton, Sr., was, and it is clearly the fact, that the new dry kiln was not com- pleted until after the discharge of Manes and Davis which was on January 13. 19.iS, and it appears a reasonable inference that it was not even under construction in 1956 or the first -part of 1957. "Following his direct examination by the attorney for the General Counsel under Rule 43(b). 1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union is not necessary in the State ...13 rights to work. You don't have to join the Union without you want to. None of you have ever heard me say I don't like the Union but I will tell you frankly that I don't appreciate the Union. I am just the man that goes out and signs notes for you and gets your money ready every Friday. Grover Breedlove will tell you I have been as much as three months between getting his pay. I was lucky. I have been lucky and very lucky borrowing and getting your money. Mr. Cummins will brief you on your employer's rights. He is going to read from three different union contracts. We had a vote that come out a tie. All of you know what happened to Joe Hulsey. All of you know he was discharged because he was a fisherman, a hunter, and a farmer and he had plenty to talk about in the wash room. I don't know what he talked about but a group of men can tell you. If you want to join the Union, we will not interfere with you. If you don't want to join it, that is your business. Mr. Cummins will read and tell you what the set up is. When reminded that he had said that the occasion was to celebrate the opening of the new kiln and that there is no reference even remote in his speech to the new dry kiln, Sutton, Sr., claimed he had his secretary to take down only that part of his speech which related to the Union, and that before he directed his remarks to the Union, he "talked about the new dry kiln." There is no question whatever that the employees were notified to assemble at the new dry kiln building at 4:30 p.m., on Friday, December 10, 1958, and that "most everybody" or "all of the employees were there" at the appointed time. Sutton, Sr., personally notified Manes of the time and place of the meeting, and told Manes at the time that "We are going to make ,a statement on that union." Every witness who gave testimony about the meeting, except Sutton, Sr., testified that "nothing" whatever was said by anyone about the new dry kiln, and that the sole subject matter of the speeches made by Sutton, Sr., and Cummins was the Union. No witness, ex- cept Sutton, Sr., undertook to recall any specific statement made by either. They did, however, say in substance that after Sutton, Sr., made a talk, all of which related to the Union, he introduced Mr. Cummins "who talked something about the trial they had up yonder" (the Hulsey case, and the developments in that case) and "read some quotes . . . pieces . . . from union contracts" or "agreements with different companies," and commented on same. Cummins did not testify. This much emerges about this assemblage of the employees on Friday, January 10, 1958. Attorney Cummins reviewed the developments in the Hulsey case to date, and defined the status of that case, and read some excerpts from certain con- tracts the Union had with other companies, and commented on same. Assuming that what Sutton said on that occasion was no more than what appears in the purported transcript which he identified as being a correct record of his remarks (the girl who "took it down" did not testify), some of it is vague as to meaning, as for instance, the statement: "There are about seven that recently claimed I fired Joe Hulsey for union activities." Asked what he meant by that, he said he "had reference to" the Hulsey hearing, back in June 1957, and the employees who testi- fied thereat, and disclaimed that it was intended as a veiled reference to the more recent charge filed against him on November 5, 1957, that he had discriminatorily laid off seven employees, which had greatly displeased the Suttons. Further, the meaning, purpose, and intent of the single sentence, "All of you know what hap- pened to Joe Hulsey," was not explained by context or otherwise. Could it have been intended as an admonition or warning? Discharge of Manes and Davis on Monday, January 13, 1958 On the morning of Monday, January 13, 1958, following the speeches to the employees on Friday, January 10, Sutton, Sr., arrived at his office at the plant "shortly before ten o'clock." He said that after getting to the office he "thought over" the matter "an hour or two," and came to a decision to discharge Manes and Davis. This was his decision alone. He did not consult with anyone in making it. The testimony of Manes and Davis as to what occurred, and was said and done, when they were discharged the morning of January 13, 1958, was not denied or la The omitted part as it appears in the transcript in evidence, is not understandable but it is quite apparent that here was some kind of reference to a State, what is referred to as, right-to-work law. } I. C. SUTTON HANDLE FACTORY 1113 contradicted in any particular.14 Therefore the testimony given by Manes and Davis about their discharge is accepted and credited, and is the basis of the recital of events which follows. About 10:40 that morning Harry Sutton came to Davis where he was working with the lift truck in the yard and told Davis that the "old man" wanted to see him in the office. Davis went immediately to Sutton, Sr.'s office. Sutton, Sr., said, without any preliminaries at all, "I can't use you anymore, you can clock out now and I will pay you up to eleven o'clock 15 .. . you know everytime I see you my blood pressure starts bothering me, and I am going to have another heart attack if I don't get you away from here." Whereupon Davis, who did "not say anything to" Sutton, Sr., "clocked out," and went to the front of the office to wait for his pay- check, at which point Manes came in and went to Sutton, Sr.'s office. When Manes returned to the yard, about 10:40 that morning, from taking a load of empty pallets on the flat-bed truck, to the sawmill, Virnig told him, "Mr. Sutton wanted to see" him "in the office." He went immediately to the office where "Harry Sutton . . . motioned" him "on back to Mr. Sutton's office." Sutton, Sr., met Manes "at the door" of his office and said: "It will take about 15 minutes to get your check ready, I think I will let you go." Manes said, "Okay, but I would like to ask for a copy of my release stating why I was fired." Sutton, Sr., said "That won't be necessary . I don't think I have any of them blanks anyway." Manes said, "I would like to have it, just write it on any kind of a piece of paper," but Sutton, Sr., ignoring this request and suggestion, told Manes, "It has got to where every time I look at you boys [Manes and Davis] my blood pressure comes up, and I won't take chances on having another heart attack." At that point Manes "turned and walked up front and told Harry [Sutton]" that -he "wanted to go and see" his "uncle [who worked there] and see if" he "could get" his "Uncle's car to get home in," and Harry told him to go ahead. On his way to contact this uncle, Manes passed Virnig in the yard and told him, "I just got fired," whereupon Virnig said, "If you got fired, I'm quitting." Returning after a few minutes, from his mission to see his uncle, Manes "sat down by" Davis, "there in the front of the office." Sutton, Sr., "walked up close to where" Manes and Davis were sitting, waiting for their checks and statements of their earnings "the last year" to be made up, and said "It has got to where I just can't get the money to pay you boys what you want." At that point it was announced that their checks and statements were ready. Sutton, Sr., took them, and as he handed them to Manes and Davis said, "Now, I want to ask a favor of you boys, I don't want you trespassing on my property, you can come out at the noon hour and talk to the boys if you want to, but not in working hours"; thereupon, Manes and Davis left with Virnig. More about Virnig's appearance on the scene later. I interrupt the narrative of events marking this January 13, 1958, date to com- ment on what has already been related. I note, and the testimony of Manes and Davis to that effect is not controverted, that in discharging them Sutton "did not say anything" at all to either Manes or Davis about his work, "did not refer to it, or mention it in any way," and that when Manes requested a statement in writing of the reason he was being discharged Sutton, Sr., refused to give him such a state- ment, but orally gave two reasons for discharging them: (1) That it had gotten to the place where he could not pay them what they wanted; and (2) that it had gotten so that every time he looked at them his blood pressure came up and he was going to have another heart attack if he didn't get them "away from here," despite the fact he had looked at Davis altogether about 10 years, and continuously for the past 4 years, and at Manes for the past 18 months, without any dire results. Sutton, Sr., did not tell them what it was about them that caused him to suffer such a reaction from just looking at, or seeing, them. Considering Sutton, Sr.'s statement to Manes and Davis, "I just can't get the money to pay you boys what you want," it is undenied, and is in fact admitted that neither Manes nor Davis had asked for "any" increase or "raise in pay," nor had either "said anything about" his wages, or had expressed any intention of personally doing so, and it is not claimed that Sutton, Sr., ever had any information to that effect. The whole context of events and prior history considered, and the manifest disposition and attitude of Sutton, Sr., and his two sons and Clayborn taken into 14 In fact the testimony of Sutton, Sr., about the discharge fully corroborates Manes and Davis. Two women secretaries were in Sutton, Sr.'s office and heard what was said. They were not called as witnesses. Harry Sutton heard at least part of the conversa- tions . He in no wise controverted or attempted to modify the Manes-Davis versions. 15 "It was then somewhere around ten forty-five." 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD account, I drew the inference, as I heard the testimony which I deem reasonable, that Sutton, Sr., well knowing Manes and Davis were members of the Union, was here referring to the Union, and his belief that if the Union became established in the plant it would want and seek higher wages for the employees than he was then paying. That inference has not been dispelled by the sort of explanation given by Sutton, Sr. After a feeble, if indeed it even amounts to that, denial that the statement had any union connotations,1e his explanation was: Everybody reads the papers, we are in a substandard industry, the automobile workers, the teamsters, skilled workers in carpenters and mechanics, all alike had received increases in pay; well I couldn't give my men an increase because our prices were set . when a man works for wages that is the foremost thing in his mind, and they [Manes and Davis] didn't have to say anything direct to me to know that that was their wants and I wanted to fill their wants, but there was no way I could do it. So he had to discharge them. The foregoing, if it applies at all, would apply alike to all his employees, but here he was talking to just Manes and Davis, and apparently advancing as one of the reasons for discharging them that he could not get, at another point it is put, "did not have," the money to pay them the wages they wanted. I cannot disregard and brush aside as mere coincidence that at the time of the discharge, January 13, 1958, of these two known members and adherents of the Union the entire management harbored continuing animus toward the Union; that on December 16, 1957, the Board's decision affirming in toto the Trial Examiner's report in the Hulsey case finding 8(a)(1) and (3) violations had issued; that the Suttons had since the hearing in the Hulsey case, on June 18, 1957, held steadfastly to the accusation that both Manes and Davis had as witnesses for the General Counsel at that hearing made harmful "misstatements" against the management; that since November 7 or thereabouts the Suttons had adamantly held to the accusa- tion and professed belief that these two men, Manes and Davis, had initiated, in- stigated, and were responsible for the new charge against the Company filed on November 5, 1957, and pending at the time. Other January 13 Events It will be recalled that when Manes left the office for a few minutes to go see the "man he rode to work with" he passed Virnig in the yard and told Virnig that he had been discharged. Virnig said this made him angry, and he told Manes, "If you got fired I'm quitting." At that time Virnig did not know that Davis had also been discharged. Shortly thereafter Virnig went to the office "to quit." There he saw Manes and Davis sitting together in the front part of the office, and Sutton, Sr., Harry Sutton, and an "office girl" were also there. It was then that Virnig realized that Davis too had been discharged, and he became "very angry" and "blowed" his "top" because, as he stated, he "liked those boys [Manes and Davis] they were good workers," and he believed they had been discharged "because of their union -activity." Here it should be remembered that Virnig had throughout refused to join the Union, voted against the Union in the election, and his position on the Union was well known; nonetheless he had worked closely with Manes and Davis, liked them, knew them to be "good workers" and he felt and believed that their discharge was solely because of their known union affiliations and adherence, and that it was unfair and unjust; hence his anger, and resolve to quit his employment in protest. Virnig's version of what occurred when he quit is not controverted. He went to the office and announced he was quitting, and Sutton, Sr., said, "Give him his card." As before stated, Virnig was at the time "very angry," and he told Sutton, Sr., "You are trying to make liars out of my buddies 17 . . . the big trouble with you is that you got caught with your pants down and now you are trying to blame somebody else." 18 The only further thing Sutton, Sr., said, apparently addressing Virnig, 10 Sutton, Sr., was asked if what he "had in mind" when he made the statement was that Manes and Davis "were tied up with the Union and were thinking" that through the- Union "they were going to get more money." His not very illuminating, but rather typical, answer was: "The Union was secret and there was nothing I could do about it." 11 The reference here is to the refusal of the Su'ttons to credit the Manes and Davis denials that they knew about or had anything to do with the filing of the new charge of l ovember 5, 1957. Is An obvious reference to the findings made by the 'Trial Examiner, in the Hulsey case, and affirmed and adopted by the Board, that Sutton, Sr„ had engaged in and was engag- ing in unfair labor practices. I. C. SUTTON HANDLE FACTORY 1115 Manes, and Davis collectively, was: "If I have a heart attack you boys will be to blame for it." At this point Harry (Sutton) speaking to Virnig said: "You haven't been fired . you are quitting on your own." About that time Manes and Davis were handed their checks and they got in Virnig's truck with him and they "all rode home." Virnig said that "after working around home for a week, I discovered I was going to have to eat, and I went back and asked for a job." On cross-examination the attorney for Respondent asked Virnig if when he "reapplied for work" he "had come to realize that" his "precipitate action in quitting may have been prompted by a mistaken belief about why these two men had been discharged." His answer was: "I never did have it in my mind that they were fired for anything else but Union doings . . It was in the air all around there. . . . I couldn't possibly see any other reason." Virnig Goes Back and Asks for a Job About a week after he quit, Virnig, as above stated, went back to the plant seeking a job. The first representative of management he encountered was Harry (Sutton), whom he asked, "Do you think I can get my job back?" Harry told him he would have to see Irving (Sutton, Jr.). When he asked Irving "about my job" he said "You better go see Dad." While talking to Irving, Virnig "decided" to take this opportunity "to put in a good word" with Irving "for Manes." He told Irving that "Manes had told" him (Virnig) "that they [the Suttons] still thought he had turned them in to the Union" (about the layoff), and he (Virnig) asserted, "I don't believe he [Manes] did do it," and "that made Irving very angry . . . awful angry . . . and he swore . and cursed and called him [Manes] a dirty so and so." 19 Virnig went alone to the home of Sutton, Sr., to ask for his job back. He told Sutton, Sr., that he "kinda felt" that he "was abusive" on the day he quit. Sutton, Sr., told him he could come back to work the following Monday morning, at which time Virnig reported and was put to work; however, he did not get his former job back; about that he said, "they had a man on my place" and "I was put to work doing the work Manes used to do," but although there was "no change in wages," he "soon found out" that he "was no longer a straw boss." Some Pertinent Comments Made by Sutton, Sr., During January 1958, Shortly After He Discharged Manes and Davis on January 13 Charles Casey, called as a witness for the General Counsel, was employed in January 1958 as "a butcher" at "Pickens Market" in Harrison. Sometime during that month, and admittedly after the discharge of Manes and Davis, on January 13, Sutton, Sr., was shopping at the Pickens Market, and made some purchases at the meat counter where Casey worked, at which time he and Casey engaged in a conversation. Casey testified that, "Some way or another the subject of the Union entered the conversation . . . and he [Sutton, Sr.] began to rave about the Union and said that if the Union was going to run his business he just might as well get out, and he also said that he had gotten rid of some of the men that had anything to do with the Union, and was going to get rid of some more." Asked, by his attorney, if in this conversation with Casey he made a statement that he was going to get rid "of any" of his "employees because of their activities in behalf of the Union," Sutton, Sr., answered, "I did not." The attorney then asked him, "Do you consider Mr. Casey's testimony to be incorrect on that point?" and Sutton, Sr., answered, "It was not complete." I do not know what Sutton, Sr., meant by this answer and it is not clarified. Asked then to give his version of what he said, Sutton, Sr., stated: The conversation was quite general in a way and it didn't last very long and the gentleman [Casey] brought up the subject of the Union 20 and I told him that I recently discharged a couple of men 21 and they apparently belonged to the Union, not apparently, but they did belong to the Union, that is I don't know whether they belonged today or not, they favor the Union and I don't know whether they belong to the Union or not, I never have seen a card, they have never discussed it with me so I don't know anything about their union 19 On cross-examination the attorney for Respondent asked Virnig if at this time Irving Sutton said "anything about" or "referred to the Union." Virnig answered: "That is what we were talking about, and I didn't see what else could have made him angry." e0 On cross-examination Casey said he had "heard about the union trouble out there." 21 Admittedly a reference to the discharge of -lanes and Davis, shortly before that date. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities, and they were immaterial to me; I told this gentleman I expected them to do their work and union activities was not important except during working hours. I am unable to determine from this statement just what in full Sutton, Sr., claims he told Casey, or what parts purport to be what he said to Casey, or what is mere soliloquy, or at best a commentary. There was naught in the cross-examination tending to impair or impeach the credibility of Casey's direct teastimony. He was a wholly disinterested witness. So far as appears he was in no way, even remotely, related to the union controversy at the Sutton plant. He was not himself a member of a union. There certainly was nothing in his demeanor as a witness which would cause me to discount his testimony. I cannot conceive of any possible motivation which would move Casey to concoct the testimony he gave. I have heretofore commented upon the de- meanor, manner, and attitude of Sutton, Sr., as a witness, and the vagueness of his testimony generally. Insofar as there is any conflict between the testimony of Casey and that of Sutton, Sr., I credit Casey, and find that on this occasion, Sutton, Sr., told Casey, in substance, that "if the Union was going to run his business he just might as well get out," that he had "recently discharged a couple of men" who "did belong to the Union" 22 and that he "was going to get rid of some more" of his employees who "had anything to do with the Union." The testimony of Walter Crum concerning remarks made to him by Sutton, Sr., on January 15, 1958, 2 days after the discharge of Manes and Davis, about their discharge and about the Union, stands undenied and uncontroverted. Crum, "a self-employed plumber" had formerly worked for Sutton, Sr.; he had "left there the last time in July 1957." Crum testified that, on January 15, 1958: I was out there [the Sutton plant] to see about some handles. . . I went by the door of Mr. Sutton's office and spoke to Mr. Sutton and he said, "Come on in, how are things going with you," and I said, "OK, how are they going with you," and Mr. Sutton said, "the God Dam Union is still around, and that hasn't been settled yet," and then he said, "I just fired a couple of the boys here the other day. . It got so I couldn't stand to see them around here, every time I looked at them I come near having a heart attack, and so . . . I just decided it would be cheaper or better to pay a fine to the Federal Govern- ment than to pay it out in doctor bills if I had another heart attack." What Sutton, Sr., said to Crum when the inferences and implications are inter- preted in plain language comes out thus, that the Union was still around and his controversy with the Union had not been settled, that he had "just fired a couple of the boys" connected with the Union (Manes and Davis), that because of their union connections it had gotten so he couldn't stand to see them around there, and that every time he so much as looked at them he came "near having a heart attack," therefore he decided it would be cheaper to discharge them and take a chance on having to meet a charge of unfair labor practices for doing so, with a possible back pay order against him, which he denominated a fine, than "to pay doctor bills" if he "had another heart attack." It will be noted that Sutton, Sr., did not say anything at all, inferentially or otherwise, to Crum about the work of Manes or Davis having anything to do with their discharge, or anything about any personal qualities on their part, which caused them to be so offensive to him, and no reason for their obnoxiousness to him, other than their union affiliations or connections, can be inferred from what he did say. What Sutton, Sr., Said on April 17, 1958, About the Discharge of Manes and Davis After his remarks in mid-January 1958 to Casey and Crum, respectively, about the discharge of Manes and Davis, the next statement in that respect by Sutton, Sr., appearing in the chronological order of the evidence, was made on April 17, 1958, in the form of an affidavit which he gave a field examiner of the Board. Sutton, Sr., said that he had his "own secretary type up" this affidavit "the way" he "wanted it," that he "went over it to see if it was correct" before he signed it, and that he "put down" in the affidavit the reasons he fired Manes and Davis, and at another point he said he included in the affidavit "all the reasons." That part of the affidavit of April 17, 1958, which,Sutton prepared in response to the request of the field examiner that he state "all the reasons" for discharging Manes and Davis, follows: ^ This much Sutton said he told Casey. I. C. SUTTON HANDLE FACTORY 1117 On the morning of January 13, 1958, I came by the lift truck, and it sounded very bad, and it did not seem to be greased. . . That same morning while in the factory office and on the yard, I saw Manes and Davis from time to time. They seemed to be conferring with each other pretty regular. That particular morning I just happened to also check some correspondence which said I had laid them [Manes and Davis] off for union activities. This sort of aggravated me and irritated me. Due to my high blood pressure and heart condition, I decided that it would be cheap medicine for me to, get rid of Davis and Manes instead of to see them from time to time and let it irritate me and limit my health. It seemed that every time I looked at Davis and Manes it irritated me and caused my blood pressure to rise which might affect my heart.23 I know Manes does not have any use for us because of the misstate- ments that he made at the [Hulsey] hearing and also to me 24 In short It caused me to feel bad every time I laid eyes on Manes and Davis and I decided to discharge them because of my health. I decided that it would be healthier for me to discharge them and suffer the consequences than it would be to look at them and injure my health. I considered both Davis and Manes to be disturbers and their attitudes seemed to be uncooperative with management and their actions seemed to be against the goals of management. . . Their actions after their termination justified my decision that they were disturbers .. . that is, causing Virnig to quit with a few words.25 I was not irritated at Manes and Davis because they testified at the [Hulsey] hearing, I was irritated at them because they were chronic complainers and in agitation of other employees.26 My feeling toward them [Manes and Davis] was probably intensified by the fact that the Labor Board charge was filed [November 5, 1957] concerning their layoff in August even though they had been back to work several weeks prior to the filing. These men made misstatements at the [Hulsey] hearing and at other places against both me and the management of the Company. I disregarded this in making my decision to terminate them 27 The work of Walter Davis was average. We have had some better. We have had some men worse . but he was not cooperative. If his attitude had been cooperative then he would probably have never been noticed and would not have been terminated. The work of Grayson Manes . . . was satisfactory, his attitude was sullen and uncooperative. He had a very low opinion of management. He seemed to think he could run our business better than we could.28 It had been considerable time prior to his discharge since my last talk with him [Manes]. 0 This is indeed a significant statement. It is quite apparent that the "correspondence" which Sutton, Sr., says he "just happened to check" that morning was a copy of the November 5, 1957, charge, or something in that connection. Since the Cummins investi- gation, in the early part of November 1957, Sutton, Sr., and his sons, had professed to believe and had persistently charged that Manes and Davis had instigated and caused that charge to be filed. Sutton, Sr., in effect, here says that his review of this "corre- spondence" the morning of January 13, 1958, so "aggravated" and "irritated" him that he decided then and there "to get rid of" Manes and Davis. as The alleged misstatements of Manes at the Hulsey hearing were credited by the Trial Examiner. The alleged misstatements to Sutton, Sr., remain in the realm of the unknown and undisclosed. 25 The circumstances of Virnig's quitting have been factually described. It was his own voluntary act in angry protest against the discharge of Manes and Davis. 2e The basis of this accusation, which Sutton, Sr., did not make at the hearing herein, remains undisclosed so far as the record herein is concerned. There certainly is nothing in the evidence to support it. By "agitation of other employees" Sutton, Sr., doubtless refers to their affiliations with the Union in that controversy. sz The so-called misstatements made by Manes and Davis as witnesses at the Hulsey hearing were credited by the Trial Examiner. There is no proof in this record that they ever made any adverse statements of any kind against Sutton, Sr., or the management at any other time or place. Os Here is another concluslonary generalization such as marked the testimony of Sutton, Sr., as a witness herein. It suffices to say there is not a scintilla of evidence of any act, statement, remark, or conduct on the part of Manes in this record supporting such accusation. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, To be perfectly honest a person can't help remembering such things as the filing of Labor Board charges unjustly [charge filed November 5, 1957], but I did not discharge Manes and Davis for that reason. However, the filing of these charges after they had been called back to work substantiates my position on the attitudes of Davis and Manes, and also by their getting Virnig to quit after their discharge. I have told a few outside persons that I have discharged a couple of my employees that had been union supporters, and that I was irritated so much by their presence that it injured my health. It is not necessary to read between the lines, or rest the conclusions alone on inferences from what Sutton, Sr., said in this statement which he himself so care- fully prepared, worded, and edited, 3 months after he discharged Manes and Davis, to find that his claimed continuing irritation against Manes and Davis, which he says decided him to "get rid of" them, stemmed from their union affiliations, and his professed -belief that, as witnesses for the General Counsel, they had made "misstatements" against him and management at the Hulsey hearing, and that thereafter they instigated and caused the "new c>.arge" of. November 5, 1957, to be filed against him. Nothing of substance is to be found in this statement warranting or tending to support the contention made for the first time in the last minute amended answer herein, and attempted by Sutton, Sr.'s testimony, that it was the continuing unsatisfactory nature of the work done by Manes and Davis that so irritated and annoyed him that he found it necessary for the preservation of his health, and for 'that reason alone, to discharge them. Respondent's Claim That Manes and Davis Were Discharged Because of Unsatisfactory Work The complaint herein issued on August 13, 1958. An August 26, Respondent filed an answer in the nature of a general denial, whereupon the General Counsel filed a motion titled, "Motion to strike Respondent's purported answer and for judgment on the pleadings," which was referred to Trial Examiner Buchanan for ruling, and denied by him. Counsel for Respondent then submitted a written motion to Trial Examiner Buchanan for leave to file an amended answer, a copy of which was attached. On September 15, 1958, Trial Examiner Buchanan "accepted . the amended answer subject to any objections which the General Counsel may make thereto at the opening of the hearing." I overruled the objections made by the General Counsel at the hearing to the acceptance of the amended answer. As before stated, in his amended answer Sutton, Sr., apparently for the first time made public a claim that he had discharged Manes and Davis for cause, that is, as he there alleged, unsatisfactory work in specific respects. The first that either Manes or Davis ever heard that Sutton, Sr., claimed that he had discharged them back on January 13, 1958, because their work was not satisfactory was when they came to attend this hearing, which opened September 23, 1958, at which time they were advised by the attorney representing the General Counsel that such a claim was advanced by the amended answer. The testimony offered in support of this belated claim was principally that of Sutton, Sr., himself, and that was made up for the most part of vague generalities, implications, and conclusionary statements largely unsupported by specific facts, while the testimony of his two sons was so lacking in factual matter as to afford little, if any, credible corroboration of Sutton, Sr.'s testimony in that respect. None of the several employees who appeared as witnesses, whether called by the General Counsel or by the Respondent, corroborated, or attempted to do so, in any degree, or in any way, Sutton, Sr.'s accusations concerning the work of Manes and Davis, and those who gave testimony concerning their work with unanimity contradicted and refuted such claims. The amended answer first states: The discharge of Grayson Manes and Walter Davis was motivated by the necessity that, upon advise of his physician, respondent should take all steps reasonable and necessary to avoid sources of irritation. As to Manes the amended answer avers: Grayson Manes was employed in sorting and stacking lumber. Either be- cause of indifference or wilful neglect, and with utter disregard for the direc- tions and requests made to him by respondent on sundry occasions to do other- wise, Manes would perform this work in a haphazard and negligent manner. (1) As a result of this manner of performance by Manes the stacks were dis- I. C. SUT7•ZiN HANDLE FACTORY 1119 arranged in and as to the area devoted to the stacks so as to restrict the total usefulness of the area; (2) Manes would not construct these stacks in a straight and orderly manner , for which reason, they would slip and tilt , and this made subsequent handling of these materials -a sometimes dangerous and always un- necessarily difficult process. The numbering appearing in the above -quoted excerpt from the amended answer purporting to define Respondent 's complaints concerning Manes' work was inserted by me. Thus it appears that the complaints specified were two in number but when Manes was on the stand , and, in the course of his cross-examination by the attorney for Respondent , an off-the-record conference was held between Sutton , Sr., and Mr. Cummins, his attorney, at the conclusion of which , Mr. Cummins announced on the record: "On advice of the Respondent [ Sutton , Sr.], we are withdrawing the allega- tion which charges Mr . Manes with any negligence in building up the stacks [num- bered 2, above] ; it appears that I have misunderstood the facts with reference to that. . The thing that is left here is the way they [the stacks ] were put on the yard [the allegation numbered 1, above ], that is what we are going to talk about." I shall hereinafter discuss the testimony of Sutton , Sr., bearing on this one remain- ing charge against Manes. Concerning Davis , the amended answer sets out two complaints about his work. In quoting same I have inserted the numbering: Walter Davis was employed as driver of a fork-truck . [ 11 It was his duty to see that this fork-truck was properly maintained and cared for. One very necessary item of this care and maintenance was the greasing and oiling of this truck . Though often reminded in this matter, Davis failed to attend to this necessary lubrication of this truck. [2] Another of the duties of Davis was the transportation of pallets in the factory yard by means of a flat bed truck.29 He would set these pallets in aisles between the stacks thereby blocking the aisles and creating bottle necks. And he persisted in so doing in spite of remonstrances made to him on several oc- casions by respondent. As it pertains to Manes and Davis , the amended answer then concludes with the averment that , "The continued inefficiency" of Manes and Davis "persisted in by them even in the face of numerous requests to do otherwise , became to" Sutton, Sr., "a source of increasing irritation which produced ill effects upon his health. . For this reason , based upon the matters above alleged , respondent discharged" Manes and Davis. The allegation in the answer as to the manner in which Manes stacked the squares on the pallets having been withdrawn , but one lone complaint remained about Manes' work as being the reason for his discharge , that is, as best I can make out in the light of the lone testimony of Sutton , Sr., purporting to support same, that by reason of the negligent manner in which Manes arranged the pallets on which he stacked the bat squares , as he sorted them according to lengths , sizes, and kind of wood, "the stacks" were so "disarranged in and as to the area devoted to- the stacks as to . . . restrict the total usefulness of the area." As heretofore stated Manes graded bat squares . This bat grading area is on a slight ground "slope" or "knoll." Just across the driveway from the bat grading area or spot , Virnig, the other regular grader , graded and stacked handle squares. The ground there is flat. Thus the two grading areas were adjacent and the work of the graders identical . As heretofore described , in preparation for grading, sorting, and stacking the squares brought from the sawmill , the graders (Manes and Virnig) placed three or four empty pallets , and added more if required as work progressed, on the ground , in a row, and as they sorted out the useable squares , they placed or stacked them on the different pallets in the row according to size, lengths, and kind of wood. When a pallet was loaded , in the manner described , Davis came in with the fork truck and moved it to and placed or spotted it on the storage area of the yard for air drying. Neither Manes nor Virnig had anything to do with how the loaded pallets were thus arranged or placed by Davis on the storage "area devoted to stacks." This makes it difficult to understand what this one remaining allegation of the answer really does refer to, since after withdrawing the allegation concerning the manner in which Manes stacked the squares on the pallets, the attorney for -D This is a verbatim quotation from the answer, but as I understand the testimony; and as I have heretofore stated in describing the work done by Davis, the movement and placing of pallets on the yard in the dry kiln, and at the machines inside the factory building, was clone by Davis with the fork truck. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent said that the only "thing left here [as to Manes] is the way they [the stacks] were put on the yard." However, in view of the testimony of Sutton, Sr., which I am assuming purports to support this remaining allegation against Manes, I have concluded it must have been intended to refer solely to the way Manes placed or arranged the empty pallets on which, as he sorted them, he stacked the squares. Apparently just across the driveway in the handle grading area, Virnig placed the empty squares, on which he stacked, in some manner. Very little of the lengthy testimony given by Sutton, Sr., bore directly on this one and only allegation of his answer purporting to give the reason for his discharge of Manes. The most he said was that when a load of squares came over from the saw- mill and was "lifted off the" flat-bed "truck and set down there" (at the two grading places) Manes "might" get "as many as five" separate "piles out of the one load" (the same applied equally to Virnig), but "he [Manes] didn't conserve his space. very well. He would have the stacks extended out until we didn't have room to bring raw material in.30 . If he had better arranged his stacks . he would have had more room for stacks. . . . I called his attention to that a number of times . . but time after time he persisted in doing it in a manner contrary to the proper use of the area devoted to that purpose." Further about the way Manes placed or arranged the pallets on which he stacked, Sutton, Sr., seems to say that Manes at times so arranged the pallets that it turned out that pallets which he had loaded would be blocked off by pallets on which stacking was still in progress and Davis coming in with the fork truck would sometimes have to move one or more of such stacks to get to and move the loaded pallet or pallets, and seems to claim that by foresight and some other arrangement of the empty pallets in the first instance that could have been avoided. Another statement Sutton, Sr., made concerning the way Manes placed the empty pallets was that he did not arrange them so the fork truck could come easily between the piles and pick them up. Asked by his attorney if Manes refused to follow instructions about placing the pallets, Sutton, Sr., said, "He had a short memory." Also asked, by his attorney, if he let Manes know he was "displeased with the way he [Manes] was doing," Sutton, Sr., answered, "I suppose my manner must have warned him," but he nowhere said and in fact disclaimed that he did ever reprimand Manes for his alleged refusal or failure to follow instructions about placing the pallets, although apparently Manes' alleged derelictions in that respect extended over the whole 15 months during which he was engaged in the work of grading and stacking. Neither Irving nor Harry Sutton, corroborated their father's testimony concerning the way Manes placed the pallets, nor did General Foreman Clayborn. Only one reference which might seem possibly to refer to that is found in their testimony and that is the statement of Harry Sutton that, "We had a limited space out there [in the grading area] . and there were times that the pallets were not in what I would think proper places and positions." Finally, his attorney asked Sutton, Sr., "when you called it [the alleged improper manner of placing the pallets] to his [Manes] attention . did he thereafter arrange them in a better manner," Sutton, Sr., answered: "I don't recall that as being one of his troubles just before he was discharged.". Despite this statement Respondent apparently still solemnly advances the claim that he discharged Manes, on January 13, 1958, because of the manner in which he placed or arranged the pallets, the sole reason for the discharge remaining in his answer. Virnig said that "as much as humanly possible" Manes "kept everything in place," and that the only times he and Manes ever got out with their pallets on "the runway," or driveway, which separated their respective grading areas, was when it was muddy 31 and -then "we [he and Manes] would have to drift kinda out on the main runway, and when it would dry up we would move back in." Virnig, who was in immediate charge of the work in the yard, worked with and adjacent to Manes, and did the same kind of work in the same way, said of the manner in which Manes performed his work, "I have yet to see the man who could beat him," and added that since he (Virnig) had been working there, they had not had a man on that job who "could beat" Manes. 80 Sutton, Sr., did not give one specific instance of what he here seems to imply was a practice on the part of Manes of extending the stacks so far out into the driveway that the flat-bed truck from the sawmill could not get in to deliver the squares to the grading areas, nor did either of his sons, or Clayborn, or Virnig, or any witness, corroborate him on this. 31 Chat had been placed on this driveway, which Virnig refers to as a "runway," but none had been put on other parts of the yard. I. C. SUTTON HANDLE FACTORY 1121 Virnig, Wells,32 Manes, and Davis, as well as other witnesses, testified that in "dry weather," when the ground was dry, the fork truck, operated by Davis, "could go on each side" of the row of pallets, in the bat grading space, on which Manes had stacked the squares, and had no difficulty at all in getting to, picking up, and moving the loaded pallets, but that in "wet weather" when the ground was wet and muddy, the fork truck had great difficulty in getting to the loaded pallets in the bat grading area, where Manes worked, which was on a slope, or "knoll," and ofttimes "he [Davis, with the fork truck] could not get up there to" the loaded pallets "without being pushed," (by the flat-bed truck), and "lots of times he couldn't even get to them" because of the muddy and slippery slope. These witnesses were unanimous that the difficulty in reaching and moving the loaded pallets with the fork truck when the ground was wet and muddy was solely because of the weather and the muddy and slippery ground conditions, and "not because of the way the pallets were placed" by Manes. Admittedly there were times when a pallet was loaded and had to be moved out, and to reach same Davis, with the fork truck, would have to move a pallet on which Manes was still stacking "back" temporarily to get to the loaded pallet which was to be moved out. Presumably this was the case in Virnig's area as well as that of Manes. This seems to have been routine. Sutton, Sr., did not undertake to explain, nor did any other witness, how the grader and stackers could possibly fore- tell which pallet would first be filled or loaded or how in the very limited and cramped space allotted, the pallets could be conveniently arranged so that each would stand out to itself alone and be reached without sometimes moving another back. Manes said, and I credit his testimony to that effect, and it was not directly denied, that none of the Suttons nor anyone representing management "ever . . . at any time complained to" him, "or said anything to" him, "about the manner in which" he "placed the pallets" on which he stacked the squares according to grade. Virnig stated that no one connected with management ever said anything to him about the matter, and that he had never heard any of the Suttons reprimand Manes for the way he performed his work, or heard of them doing so. Wells, who fre- quently worked with Manes and Virnig assisting them in the stacking, said that Manes "placed the pallets . . . as good as he could, he didn't have much room," and added that he "thought" Manes "was a good man" on that job, "he did more" work on the job "than any two guys" who were there "after him." This explanation of the discharge of Manes made by Sutton, Sr., and him alone, is so farfetched and so lacking in substance that it is not credible, and the very weakness of it but tends to strengthen my belief already indicated that union con- siderations alone motivated the discharge. I have covered the sole reason assigned by the answer for the discharge of Manes, but Sutton, Sr., was not disposed to be circumscribed or limited by his answer as to the reasons he discharged Manes and Davis and a witness announced, for the first time, and at that late date, various and sundry reasons, relating to their work, which were not mentioned in the answer for discharging them. It seems a fair inference that he did not have these additional alleged reasons in mind when the amended answer was drawn else he would have advised his attorney of same at that time- When, at one point, Sutton, Sr., was asked, "why did you fire Mr. Manes," he came up with an alleged reason, not mentioned in his answer, and apparently never heard of before as a reason for the discharge: He [Manes] was resentful against me as an Employer. . The reason he was resentful was he wanted to sell me some land,33 and I had it looked' over and the land didn't turn out with any immediate prospect of getting my money back out of it; I would have bought the land anyway, but there was not enough money 'available in the business at the time to take care of it; he didn't seem to like it because I didn't buy his land. His resentment showed from the time I could not . . . purchase his land. No basis for the accusation is stated, nor does it appear what is meant by the statement that, or how, Manes "showed" resentment against Sutton, Sr., "from the time" Sutton, Sr., "could not purchase his land," except at one point Sutton, Sr., attributed Manes' action in filing, or causing to be filed, the charge of November 5, 1957, as he steadfastly professed to believe was the case, to resentment on the part of Manes against him (Sutton, Sr.) for not buying his land back in December 1956. Manes denied that he ever had or harbored resentment against Sutton, Sr., "Heretofore identified as one of the men who at times stacked for Manes and Virnig. 39 These negotiations about the land occurred in December 1956, 13 months before the discharge of Manes on January 13, 1958. 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for not buying his land, and in that connection said, "I didn't have any feeling at all about it. I never gave it a thought." Virnig said he knew when Manes was trying to sell his land to Sutton, Sr., and that Manes "went one time to see Mr. Sutton about it," that later he asked Manes if he sold the land to Sutton, Sr., and Manes said, "No" and "that is all there was to it." There is not a scintilla of evidence, and Sutton, Sr., did not so claim, that Manes ever at any time or place expressed re- sentment against Sutton, Sr., for not buying his land, or for any other reason. This claim illustrates Sutton, Sr.'s disposition and tendency to generalize, extem- porize, and magnify. The accusation is so baseless as hardly to deserve the atten- tion I have given it, but since Sutton, Sr., claimed that it was one of the reasons he .discharged Manes I have felt constrained to mention and comment on it. As stated above the amended answer specifies two complaints about Davis' work .as the cause or reason for his discharge. The first is that it was his duty in the -proper maintenance and care of the fork truck to grease and oil same, but "though often reminded in this matter, Davis failed to attend to the necessary lubrication of this truck." When -Sutton, Sr., was interrogated by the attorney for the General Counsel on direct examination, as,a witness under Rule 43(b), he was asked to give his reasons for discharging Davis, and was afforded full opportunity to do so. He enumerated some three or four reasons, none of which were specifically mentioned in his answer and said they constituted all the reasons he had for discharging Davis, and that he could not recall any other reason. It is a strange circumstance that although it was one of the two reasons set out in his answer for the discharge of Davis he made no mention whatever or at all of the alleged neglect and failure of Davis to properly oil and grease the fork truck, and did not assign that as a reason for dis- charging him. However, on cross-examination Respondent's attorney asked Sutton, Sr., "What duties, if any, did Mr. Davis have with reference to the maintenance and care of the fork-truck?" This must have served to remind Sutton, Sr., of what he had alleged in that respect in his answer as one of the two reasons why he had discharged Davis, and thereafter, both in that cross-examination by Respondent's attorney and later when he returned to stand as a witness for Respondent, he em- phasized the alleged, but at first forgotten, neglect to properly oil and grease the fork truck as the principal reason for the discharge of Davis, that is, that he (Sutton, Sr.) became so irritated by the persistent neglect of Davis in that regard that it was necessary to the preservation of -his health to get rid of Davis. Sutton, Sr., and his son, Harry, gave the only testimony purporting to support the allegation that Davis was, throughout the whole 18 months next preceding his dis- charge, during which he operated the fork truck, negligent about oiling and greasing it, and continuously disregarded and failed to carry out the instructions given him in that respect. About .this, as it was about all the reasons he, as a witness, assigned for discharging Davis, and Manes as well, the testimony of Sutton, Sr., was vague and general, and, as will appear, Harry Sutton's testimony about the matter can scarcely be said to corroborate that of his father or lend much, if any, weight to the accusation. Sutton, Sr., said Davis "neglected the lubrication of the truck." that he "called" that neglect to Davis' "attention from time to time," and that Davis had "special instructions to lubricate the truck oftener during rainy weather than when the yard was dry." The attorney for the Respondent asked Sutton these questions to which he gave answers, as follows: Q. Did he [Davis] carry out those instructions? A. I could not see any signs of where he did lubricate lots of times. Q. Would you say he did not? A. No. I would not say he didn't all the time, but it was easy for it to slip his mind, in other words. Q. Did you ever personally find the truck to be in a condition indicating that it needed lubrication? A. Yes, sir, several times. Q. Did you ever talk to him about that? A. Yes, sir. Q. Within your knowledge did he [Davis] ever fail to carry out instructions from you or one of your sons about taking proper care of this lift truck? A. No, but I'had the opinion that he neglected it when it wasn't called to his attention. Q. Why did you have that opinion, Mr. Sutton? A. From the appearance of the truck. I. C. SUTTON HANDLE FACTORY 1123 Q. Did you examine it? A. Yes. Q. Did you find it needed greasing and oiling? A. Quite often, especially during rainy weather when it needed special at- tention, and I would talk it over with Mr. Davis, but I didn't ball him out. Q. Did these instances of the truck appearing not to have been properly greased and oiled cause you to be irritated? A. Yes. [Emphasis supplied.] It is noted that, while some of the more general of the foregoing answers seem otherwise, Sutton does plainly say that he had no personal knowledge that Davis ever failed "to carry out" the instructions given him "about taking proper care of this lift truck," but because "lots of times" in looking at the truck he did not see "any signs" that it had been lubricated, and merely "from the appearance of the truck," 34 he formed the opinion that Davis was neglecting to take proper care of the truck "when it was not called to his attention." The only time Sutton, Sr., men- tioned a specific instance concerning the fork truck was this statement, distantly removed f: om the foregoing series of questions and answers: "I come up there one time, and I remember he [Davis] only had a quart of oil left in the little fork truck." There is nothing to indicate when this occurred. Sutton, Sr., further said, "I didn't pay so much attention to it [the fork truck] . in dry weather, but I have been out so much for repairs that I would take particular notice of it in wet weather." There is no evidence that while Davis was operating the fork truck it sustained any damage necessitating repairs by reason of the lack of proper lubrication, or for that matter any other reason for which Davis was respon- sible. The fork truck "was a 1946 model . . . it was a floor truck, and was never meant for a yard truck . a new engine was put in it from time . .. and a spare engine was kept on hand." Juston B. Berntson, the Sutton mechanic, who "has worked for Mr. Sutton 15 or 16 years," said that he had changed "the motor on the lift truck . . . about twice . the last time was in the winter" of 1957, that "the reason the motor burned out did not have anything to do with it not being properly greased or oiled," that he had worked (as a mechanic) on that lift truck,. and "as far as I know the oil was kept to the proper level in that truck . . . and it was kept properly greased." Harry Sutton said he "examined the lift truck from time to time . to see .how it was being maintained . if I found it needed attention, I called Mr. Davis' attention to it and normally he immediately took care of it . I wouldn't say he [Davis] was negligent about lubricating the lift truck." Harry Sutton further stated that his father "asked Mr. Davis to grease that truck every morning in rainy weather, and he asked me also to see that he did it." Presumably this direction was given back in 1956, when Davis was assigned to the fork truck and there being nothing to the contrary I presume that Harry Sutton complied with his father's order to him and did check to see that the truck was greased "every morning in rainy weather," and that there was not, in fact, any continuing and persistent failure on the part of Davis in that respect else Harry Sutton would undoubtedly have so stated. Davis' testimony, which I credit, and little, if anything is to be found in the evi- dence relating to this matter tending in anywise to impeach him, was that "back when I first went to driving the fork truck Mr. Sutton told me to grease it every other day. . . . In the year and half I drove it, I let it [the greasing] go over to the third day three or four times otherwise I greased it every other day . . . and I greased it lots of times when it didn't need it . the reason I missed greasing it those times on the second day was I didn't have time to get to it, and on the third day I just took the time off to do it . the longest I ever missed was to go to the third day [3 or 4 times in the year and half]. . In the year and -a half I was driving that truck Mr. Sutton came around . . . four or five times . . . and asked me when I greased it last, and reminded me to be sure and grease it . the last time he came around . . was three or four months before my discharge." Davis further testified, and this is not denied, and is credited,. that none of the Suttons or General Foreman Clayborn ever "reprimanded" or "criticized me" for the "man- ner in which I was taking care of the lift truck." None of the Suttons, nor Clayborn, denied Virnig's testimony that he was "more or less a straw boss" over the yard, and that the men working there, Davis and Manes regularly, "worked under" him, and that he was supposed to "kinda keep" ' 84 Sutton, Sr., stated at other places that he daily observed this truck working there in the yard-when he went late In the mornings through the yard to his office, occasionally in walking about the yard, and from his office windows. 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his "eyes on the boys" working in the yard. About this accusation against Davis, Virnig said that "ever so often" Davis "would announce he was taking off to grease the truck," and "sometimes" because they (the men working in the yard) "had so much to do" they would "beg him to hold off," and that Davis "might hold off an hour or so," but no longer, and then take off, telling them, "I have got to tie this thing up and grease it." Vimig further stated that Davis would "never move" that truck at the beginning of work in the morning "until he checked the oil in it," and that was the case "every morning." In summing up this matter Virnig said: "Can't anybody tell me he [Davis] didn't grease and oil that truck," and that he had never heard of anyone connected with management ever criticizing or reprimanding Davis "about not greasing the truck or putting oil in it," and that he had "never heard" Sutton, Sr., "say anything about that." That Davis did in fact properly and regularly lubricate the fork truck was estab- lished, and if indeed Sutton, Sr., ever really had any doubt about that, such doubt was not factually or reasonably based. Davis started working for the Suttons when he "lacked a little of being 17" years of age. He worked for them altogether 10 years, and 4 years continuously next before his discharge, the last year and a half of that on the fork truck. Davis' wage of $1.10 an hour was slightly more than that paid the other yard workers. Between the last time Sutton, Sr., so much as inquired of Davis as to when he had last greased the fork truck, and reminded him to be sure and grease it, and the discharge of Davis, a period of about 4 months intervened. It is inconceivable to me, the facts being as they are about the lubrication of the truck, that Sutton, Sr., without ever having complained to Davis, or reprimanded or warned him, about his purported dereliction in lubricating the truck, although Sutton, Sr., claimed it had continued for 18 months, suddenly, about 11 a.m. on January 13, 1958, after reviewing "some correspondence" appertaining to the November 5, 1957, charge, called Davis in and discharged him because he did not properly lubricate the truck, and I am unable to credit and accept such an ex- planation as being the or a reason or cause of the discharge. It is, in my opinion, no more than a weak alibi advanced in a last minute effort to camouflage the real reason he discharged Davis, and also Manes, so strongly and definitely indicated by the facts and circumstances heretofore set out, that is, the continued union affiliation and adherence of Davis and Manes, and the professed belief that they had instigated and were responsible for the filing of the November 5, 1957, charge. I consider next the second of the two reasons assigned in the answer for the discharge of Davis, that is, that in placing the loaded pallets in the yard he would set them "in the aisles between the stacks thereby blocking the aisles and creating bottlenecks . and he persisted in doing so in spite of the remonstrances made to him on several occasions by respondent." It became apparent that as this allega- tion is worded in the answer, that is, that Davis would set the loaded pallets in the aisles so as to block the aisles, insofar as it may have been meant to imply that thereby the subsequent movement of the pallets was interfered with, it was without merit, for while occasionally in a very busy time, with the cramped and limited space available, it was necessary for Davis to set a loaded pallet in an aisle tem- porarily until he could, with the fork truck, rearrange or "straighten up" other stacks in order to make space for it, there was no proof that by reason of that the sub- sequent convenient movement of the stored pallets was in any way interfered with. Therefore, Sutton, Sr., again the only witness who gave testimony purporting to support this allegation, attempted to enlarge the allegation so as to include and cover the whole movement and placement, by Davis, of the loaded pallets on the storage area. Sutton, Sr., generalized that throughout the whole period of a year and a half, "the entire time" Davis worked on the fork truck, "despite remonstrances made to him" by Sutton, Sr., Davis "on several occasions," placed or spotted these loaded pallets in such a manner as to result in "confusion," a term which Sutton, Sr., fell back on and overworked throughout his testimony. What he meant by "confusion," in this connection, was never made very clear. As Sutton; -Sr., told it, the way Davis placed the loaded pallets on the storage area, and the way Manes placed the pallets, on which he stacked the squares, as he sorted them, resulted in "confusion," whatever that means. However, it is noted that the work went along in the same routine way, this so-called "confusion" and all, day after day, and month after month, and there is not a word of testimony, or any instance cited, by anyone, that this so-called confusion delayed, slowed, or impaired the effec- tive handing by Davis of the pallets, or the timely and adequate delivery and supply of material by him to the machines, or that it, in any way, or in any particular, adversely affected the work or productivity of the plant. I. C. SUTTON HANDLE FACTORY 1125 In support of the claim that he discharged Davis because of the way he handled the loaded pallets or stacks and placed them in the yard, Sutton , Sr., said, in his usual vague way, "I had talked to him [Davis ] a number of times to keep confusion out of the yard and out of the aisles when he handled materials," and that on the morn- ing of January 13, 1958, after thinking "it over an hour or two," he came to a deci- sion that Davis "had reached the point of no return ," so "I discharged him." In answer to a question by his attorney , whether Davis handled those stacks of squares to his satisfaction , Sutton, Sr., said "not all the time," and that he ( Sutton, Sr.) spoke to Davis "about it . quite often, I don't mean every day, I mean every week or two . I would try to counsel him, and tell him to put those stacks down so they would be parallel with one another , but instead of that he would come in and put one down on a diagonal and several on a diagonal . . will take up as much room as ten or twelve that are put down in rows . he would let them work out to take up his room . . . and they would get out into the aisles." Asked by his attorney if he ever criticized Davis for the way he handled the pallets, Sutton said: I don't know whether you would call it criticism or not ; I instructed him to take more room instead of congesting the grading and stacking area . . . the pallets were placed in such a position that they were not parallel or convenient to pick up 35 after other pallets were put alongside of them or in front of them.36 Sutton , Sr., said he went to Davis from time to time and sought "to instruct him as to how" he (Sutton , Sr.) "wanted that work done from the time he (Davis), started handling the lift truck," which was about mid -1956. He then said that "the. confusion" and "disorder" resulting from the "haphazard" manner in which Davis placed the pallets "was not an every day occurrence . . . it was occasional . . once a week and sometimes longer . . . Sometimes if everything was going good I would not say anything to him once a month." Davis testified he "never blocked any aisles ," that in placing the pallets "after" he "picked them up and took them where" he "was to take them" he "always put them down in the manner," and in the order "they were supposed to be placed" or- arranged, also that he was never reprimanded , or criticized at any time, during the, year and a half he worked on that job, by Sutton, Sr., or either of the Sutton sons, or General Foreman Clayborn about the manner in which he placed or arranged the. pallets on the yard. Davis further said that Sutton, Sr ., had at times "come around and told him to. keep the stuff setting straight and get more room in the spot of ground there used for storing the stacks," but that within the 6-month period •next preceding his. discharge although Sutton , Sr., "several times came by" where he (Davis) was' working in the yard and "stopped" and observed his work, Sutton , Sr., had never at such times said anything about how he was placing the pallets on the yard. Virnig, to whose testimony, for reasons heretofore stated, I accord credit and weight, was asked, "How did Davis place the pallets," his answer was in substance that, "If he [Davis] could get them" 37 where they were supposed to go "he was one guy that could do it right for us . I have had a number of other boys drive that truck," and "I would say that Davis was better than the average ." Foreman Breedlove works "on a lathe turning out bats," and it was a part of Davis' job to bring the materials into the building with the fork truck, and supply the machines. with materials . Breedlove had worked for Sutton, Sr., about 20 years. He said: "In my opinion Mr. Davis was the best hand they ever had on the fork truck . during the time d have been working there." Breedlove further said that he had heard it said in this hearing that Davis "blocked the inside aisles," but that "he [Davis] did not block the aisles at any time." Foreman Breedlove further testified that he had never had occasion to reprimand or criticize Davis for the way he did his work nor had he ever known or heard of any other foreman or supervisor, including the three Suttons, doing so. 35 Davis as the sole operator of the fork truck was the only person who picked them up. 101 do not understand how, in the very limited space allotted for this purpose, the stacks , during busy times, as described by Virnig, Wells, Davis, Manes , and other wit- nesses , could be arranged so that there would not be any other stacks "along side" or, in "front" or back of any others. 87 This 'has reference to the difficulties encountered with the fork truck , in wet weather; when the ground was wet and muddy. 535828-60-vol. 125-72 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am wholly unable to credit this claim that the or a reason for the discharge of Davis was that for a year and a half he had persistently disregarded and flouted Sutton, Sr.'s instructions concerning the placing or arrangement of the pallets. Instead I credit the testimony of Davis and Virnig that, so far as possible, under the existing conditions, Davis did spot or place the pallets in a proper arrangement, and I cred t too the testimony of Davis and Foreman Breedlove that Davis did not block the aisles. I do not accept as credible the explanation that although during this year and a half Sutton, Sr., made no complaint that Virnig, Breedlove, Wells, Davis, or Manes ever heard of, about Davis' work, and did not reprimand or warn Davis because of this alleged continuing dereliction, nonetheless, suddenly on the morning of January 13, 1958, alone in his office, after thinking over for "an hour or two" this continued tendency of Davis to place the pallets in a "disorderly" manner, resulting in "confusion" in the yard, he came to a decision that Davis "had reached the point of no return," and discharged him. As before pointed out, during this period he says he spent in this thought process, he admittedly was giving thought to reviewing some files, or "correspondence" as he called it, relating to the Novem- ber 5, 1957, charge against him for which he held .Davis and Manes responsible. In my opinion Sutton, Sr., not only never made any complaint about the way Davis handled and placed the pallets, but he never had any real grounds for such a complaint, and this accusation made for the first time when he submitted his amended answer in November 1958, is but another example of the grasping in this case at one straw after another in the effort to avoid the consequences of a discrimi- natory discharge. Only because Sutton, Sr., as a witness, assigned it as another reason, or one of the reasons, he discharged Davis, I mention here his claim that Davis disregarded his instructions concerning the placing of the loaded pallets in the dry kiln.38 Sutton, Sr., did not mention this in his answer, nor did he include it among the reasons he enumerated for the discharge of Davis, in his direct examination, under the rule, by the attorney for the General Counsel, at the conclusion of which he declared he had given all of his reasons for discharging Davis; however, later as a witness, he produced this additional reason. The total evidence relating to this accusation against Davis consists of the testimony of Sutton, Sr., and that of Davis. Davis, by means of the lift truck, moved the pallets, loaded with squares, from the yard storage area into. the dry kiln. Some of the pallets in the dry kiln, loaded with material to be dried, were put there by "fellows who worked in the factory." It was required that in placing these pallets in the dry kiln that they be lined up "about 20 to 24 inches from the wall, ." and a "white line was painted" on the floor "to keep them that distance from the wall," thus providing "an air passage" permitting the "circulation of air"; there was "a fan on each side." Sutton, Sr., said, "Sometimes . . . I would come in there [the dry kiln] and find . pallets . . . blocking the air passage . . . I found them [the pallets] in all kinds of shapes sometimes." At this point, although questioned by his attorney as to who was responsible for placing the pallets which he said he sometimes found blocking the air passages, whether Davis or "the fellows who worked in the factory" and also placed material stacked on pallets there for drying, Sutton, Sr., never did squarely say which. He said that "commonly" the men from the factory used "pallets that were different from that Mr. Davis handled," and stopped at that. 'T,lien pressed about this, Sutton, Sr., said "occasionally he [Davis] would come in there and put them [the pallets] in that way and I don't see how it ever happened." Asked by his attorney, if he ever "said anything to" Davis "about it," Sutton, Sr., answered: "Yes, and he would tell me that he didn't have time to change them," adding the comment, "and it was a matter of only a minute or so to make the change," but a moment later he said, "whenever they [the pallets] were placed there was nothing we could do about it, we couldn't change them without moving the ivi-mle bunch of them, which would have taken a whole lot of time," and "he (Davis] claimed he didn't have time to change the whole bunch." Though he had here implied, by the word "would," that Davis had frequently made the excuse that he did not have the time to rearrange the pallets, Sutton, Sr., finally said that he could remember, "only one time [in a year and half] that he [Davis] said he didn't have time, just once." He did not say when this occurred. Davis testified that, when he went to work on the fork truck, he "was given orders how to put the stacks down in the dry kiln . . . to keep them in lines . . . straight sa The pallets on which the graders, Virnig and Manes, with Wells and the other men who worked in the yard from time to time assisting Virnig and Manes with the stacking, had stacked the squares. I. C. SUTTON HANDLE FACTORY 1127 with one another . so as not to obstruct the air passages," and that he knew "of no time," and his "attention was never called to any time" when he ever "put the pallets in the dry kiln" so that they "obstructed the air passages." He further said that, "Maybe three or four times," in the year and a half he was on that job, "Mr. Sutton walked by the dry kiln when I was working there, and would say, `Be sure and keep those pallets back out of the air space,' but he never told me that I had ever failed to do so." I largely credit Davis' testimony about this matter. There may well have been the one occasion sometime during the year and a half Davis was on that job, when Sutton, Sr., finding that some pallets had been placed, by someone , so that they extended over or across the white line, suggested that Davis move or rearrange "the whole bunch," and because that "would have taken a whole lot of time ," as Sutton, Sr., stated, Davis, who was most of the time hard pressed, as Virnig, Wells, Davis, and Manes all testified, to keep up with all the demands on the fork truck, may have said he did not then have time to do so. From my observation of both Sutton, Sr., and Davis, it seems highly improbable to me that had Sutton , Sr., on such an occasion , ordered Davis to rearrange the stacks in the dry kiln , that Davis would not have done so unless there was a good reason, known and recognized by Sutton, Sr., for the immediate use of the fork truck at some other place. According to Sutton, Sr., this one time he mentions is the only time the ever said anything to Davis about pallets obstructing the air passage. That this accusation is inconsequential is confirmed by Sutton , Sr.'s own admission , that the matter of the "dry kiln was rather minor." It does serve, however, to illustrate how Sutton, Sr., overreached in his effort to bolster his belated claim that Davis was discharged because he persisted in not properly performing his work. Sutton, Sr., as a witness , produced as still another last minute reason for dis- charging Manes and Davis, not mentioned in his answer , that throughout the entire time Manes ( 15 months ) and Davis ( 18 months ) worked in the yard , it from time to time, sometimes as often as once a week , got into "confusion" and "dis- order" because of the negligent, careless, and indifferent manner in which they performed their work , and that at such times they did not "straighten up" or "clean up" the yard, as it was their duty to do, unless or until they were specifically directed and required to do so, and this persistent negligent manner of performing their work, in these respects , so irritated him that in the interest of his health Sutton, Sr., had to discharge them. This accusation holding Manes and Davis, and Sutton , Sr.'s testimony is directed principally to Manes, solely responsible for the purported periodic "confusion" and "disorder" in the yard , and the yard not being cleaned up at such times, absolves Virnig and Wells and the other men who from time to time assisted Virnig and Manes in stacking , from any and all responsibility , fault, or blame, if any there really was, for these purported conditions of the yard . The testimony supposed to support this accusation was again largely that of Sutton , Sr., although Irving (Sutton, Jr.) made some slight contribution along this line. In describing these periodic conditions in the yard the Suttons interchangeably used such general terms as "confusion," "disorderly," "inorderly,",and "cluttered up." The testimony of the two Suttons about this alleged "confusion" was at best in and of itself confusing. Sutton, Sr., testified that throughout the time Manes and Davis worked in the yard that "the yard would get in an uncalled for disorderly condition, I will say occa- sionally once a week, and sometimes every two weeks, he [Manes ] needed special instructions." By this Sutton, Sr., apparently meant to say that Manes personally and individually was given instructions to clean up the yard sometimes as often as once a week and at other times every 2 weeks, which it was his (Manes') individual duty to do, and which he should have done without repeated instructions being necessary. Here Sutton, Sr., used the term disorderly, at other places he generally said the yard would get in "confusion." Asked what he meant by the term "confusion," as he used it in this connection, Sutton, Sr., said that "pallets were disarranged out there and sometimes there were culled squares (cast aside) until you couldn't walk through or use the fork truck 39 and if they 40 had been orderly 39 This is undoubtedly one of Sutton, Sr.'s many overstatements. No other witness ever saw such a condition, or if he did lie did not mention it, nor anything indicating such, neither of the Sutton sons, nor General Foreman Clayborn, Foreman Breedlove, Virnig, Wells, nor any other witness. Also, so far as the evidence shows, the only time that the fork truck ever had any difficulty getting around the yard was in wet weather when the ground was wet and muddy. 40 Here, by the term "they" he seems to include as -being at fault, which is the fact, if fault there was, all the men working on the yard in connection with the grading and 1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those [culled squares] would have been stacked on either a wood pallet or a cut off pallet. . . . Mr. Manes was more or less responsible for the policing of the bat stacking area . . . I consider I had to give him too many instructions in order to keep the yard in orderly condition ." Presumably by the same token Virnig would be more or less responsible for policing" the handle grading and stacking area. This so-called "confusion" and "disorder" was described as being general , and was. not limited to the area where Manes worked. Sutton, Sr., further said that when be arrived at the yard in "the middle of the tnorning" and "middle of the afternoon" on the way to his office "I would always notice the yard . you can let things get so cluttered up, if you understand what I mean, until it is difficult to carry on the work efficiently . I would notice that the yard was cluttered up . . . It got cluttered up very fast ; some men are born to be in order; and some are not." Asked what he meant by "cluttered up," Sutton,. Sr., said: "Squares would be laying around, discards would be laying down cross- wise and every other way, and stacking strips would be scattered in there and broken,. they are minor things but inconvenient when you have to run over them with a small. diameter wheel." Thus it appears that "confusion" and "cluttered up," as he. defined those terms were one and same condition. Immediately following his definition of what he meant by "cluttered up" and. that it referred to "minor things," Sutton was asked, "who was responsible for that";. he answered , "Mr. Manes was one of them" (emphasis supplied ), whereupon he was asked, "what other man was responsible" for that; his answer was "we had an- other man there named Virnig." Clearly when all the facts about the grading and stacking and the areas in which it was done are recalled, the responsibility for these minor things, such as scattered stacking strips and culled squares or discards, was. that of Virnig and Manes alike , as well as of the men who for varying periods. assisted them. Although, as pointed out, Sutton, Sr ., said, in effect, at one place, that all the men working in the yard in connection with grading and stacking were responsible for' the alleged confusion , and the disorderly and cluttered up conditions in the yard, which he talked about, and that Manes was merely "one of them " so responsible,. he, at another place in his testimony , undertook to place such responsibility largely, and indeed altogether , on Manes. In that connection he said: "A majority of the times the yard was in confusion . . . it was due to the negligence of Mr. Manes,"' and immediately after that : "When there was anything wrong out there [referring. to the yard being in a disorderly condition] . it was the fault of Mr. Manes."' The testimony of Irving C. Sutton, Jr ., about the so-called confusion in the yard, is fragmentary and disconnected . For instance, he starts out on this subject matter with the statement , "I had a lot of other things on my mind , and it was brought to my attention by my dad .. . . that the yard needed to be kept in better shape."' Apparently he is saying that he himself had not observed any unusual disorder in the yard requiring attention. Here it is recalled that Virnig, who had the immediate supervision of the men working in the yard, testified, without contradiction, that Irving, Jr., was the member of management most directly in charge of the yard, that Irving was the representative of management whom he "consulted about . the work in the yard," and that after "Mr. Sutton got sick," Irving gave "practically all" the orders concerning the yard. Continuing, Irving said that when his father called to his attention that the yard needed to be kept in better shape he then noticed that "a lot of times the stuff was stacked in there in an inorderly manner . . . and we would have to move the stuff 4i . occasionally the weather . . . caused it . . and lots of times it never . . . They [Virnig , and Manes ] worked out into the roadway, and he [Manes] would have to be reminded to scoot them back." 42 Further on this subject Irving said that sometimes his father "did not come to the office every day, but I will say he did come every other day at least," and that he stacking, Virnig, Manes, and Wells along with others who like Wells from time to time assisted Virnig and Manes with stacking. 41 This may have been meant as a reference to the manner in which Davis placed the pallets, or again , speculating , perhaps to Virnig and Manes working their stacks, in wet weather, when the ground was muddy, out onto the edge of the main roadway or drive- way through the yard which Irving next mentions. " This is in a pattern with the attempt of Sutton , Sr., to attribute to Manes alone and altogether the yard conditions which at the hearing he got around to claiming was a reason for the discharge of Manes. Virnig's testimony about this has been set out and will here be recalled without repeating . It is explanatory and demonstrates how innocu- ous is this matter of Virnig and Manes working out onto the edge of the hard surfaced roadway in wet weather when the ground was wet and muddy. I. C. SUTTON HANDLE FACTORY 1129 (Sutton, Sr.) would come through the yard on his way to the office. Irving testified that his father complained to him about "the disorder it [the yard] was in"; he does not say when this occurred, and "asked me several times . to see if I could do something about . . . these two men" (Manes and Davis), the reference appar- ently being to the disorder in the yard. Here again it is undertaken to pick out Manes and Davis and attribute to them and them only responsibility for what the Suttons as witnesses called disorder and "confusion" in the yard. Irving said that in conformity with his father's request, "I would go out and tell the boy to police it up," but he did not "criticize them for the way they were doing [or not doing] their work." This part of the testimony is so disconnected and the meaning so elusive that it is just as reasonable to infer from such context as there is, that by "the boys" he referred to all the men in the yard as it is that he refers to just Manes and Davis. It seems strange that he would go out in the yard and ignoring Virnig, who himself testified, in effect, that he had primary responsibility for the policing of the yard, and any others working there temporarily assisting Virnig and Manes, all of whom were jointly responsible for whatever conditions existed, and address his directions to just Manes and Davis. Irving does not say what occurred on this or these occasions, but, assuming this happened as Irving related it, pre- sumably the policing was done satisfactorily. Irving was asked what he meant by the term "disorder," his answer was: "Well, we didn't have too much order any place through the factory, but this [the so-called disorder in the yard] came to his [Sutton, Sr.'s] attention, . it didn't suit him .. . it would suit him better . . . to have it [the yard] in better shape." It was ordinarily and normally incident to the kind of work carried on in the yard that pieces of timber, squares, culls, discards, and stacking strips would some- times get scattered about. These things were unavoidable, and occurred more frequently during the "rush" or "busy" periods, when although a helper or helpers might be assigned to assist Virnig and Manes, they were, nonetheless, as Virnig put it, still "short handed," and in keeping the work moving they did not have time, under the circumstances, to stop and pick up and clean up the yard. In moving the loaded pallets with the fork truck, it was a common occurrence for some squares and stacking strips to fall off the stacks. It was alleged in the answer that this was due alone to the manner in which Manes stacked the squares on the pallets, but this allegation was withdrawn and abandoned. As to the so-called disorder of pallets or stacks, Davis attributed these temporary occurrences, as did Virnig, Wells, Manes, and other witnesses, to weather conditions, when during rainy periods, because the ground was wet and muddy, Davis could not always maneuver the fork truck so as to get the pallets where they were to go, and was sometimes compelled, at such times, to leave them temporarily out of position, but "when it would get dry" he would "straighten them around." Davis said in these wet periods the yard sometimes "got in a mess." Virnig said the only time in dry weather that the yard got in what might be called disorder, so far as the pallets or stacks were concerned, was during some of the very busy times "when we would have fifteen or twenty" loaded pallets "standing around . . . that more or less caused disorder," but "it wasn't our fault," and that at most of these times "they were doing some building . over by the road," "and had the road torn up between where we had the stuff and where it was to go." As will be recalled, Virnig, whom management contacted and gave orders, concerning the yard operations, testified, without contradiction, that he was "more or less a straw boss" over the yard, and that he "was out there in the yard all the time . . . and was familiar with the condition of the yard from day to day." According to Virnig, who worked on that job for 31/2 years, the conditions which from time to time existed in the yard, and which Sutton, Sr., referred to as "con- fusion," "disorder," or "cluttered up" were not due to, or the result of, any negligence or carelessness on the part of the men, or any of them, working in the yard, but were the ordinary, normal, and unavoidable accompaniments of the work, and a minor matter not detrimentally affecting the work of the yard. In view of this opinion on the part of Virnig, the attorney for Respondent asked Virnig if in his opinion Sutton, Sr., "could have honestly held an opinion different from yours as to why the yard was in a disorderly condition," Virnig's answer was: "Well, if he was reasonable, I would say no." Virnig, to whose testimony, for the reasons heretofore stated, I accord credit and weight, testified that he had standing orders to clean up the yard when needed and they had time, and that "once in awhile" he directed Manes and Davis that "when they had time to pick it up," and he joined them in doing so, but he "did not tell them . every time . . . and many times they voluntarily and on their own cleaned up the yard" as and when they could take time off from their regular work 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to do so. Virnig said that when he first went on the yard job Sutton, Sr., gave him orders to see that the yard was cleaned up when it was needed, and time off from the regular work of the yard would allow, and that Sutton, Sr., "used to drill" him "regularly" about it "at first" but "later on, I don't think he mentioned it over once or twice in six months" and that at the times Sutton, Sr., did speak to him about cleaning up the yard he merely said, "When you get the time clean up a little, and we [the men working in the yard] did lots of times but other times, we didn't have the time . . . we had to wait until we had time to get at these . . . nonessential jobs." Virnig said he could not recall Sutton, Sr., having said anything to him about conditions in the yard in the 6 months prior to the discharge of Manes and Davis but "could not say positively he did not," and that he did not know of any occasion when Sutton, Sr., or Irving "ever came down in the yard and said anything to these men [Manes and Davis], or either of them, about the condition of the yard," further than he [Virnig] had never been reprimanded or criticized by any of the Suttons about conditions in the yard, and that he had never heard, or heard of, any of the Suttons ever reprimanding or criticizing either Manes or Davis about such conditions. No witness was in a better position to know the yard situation than was Virnig. Asked about Davis in respect to keeping the yard in order, Virnig said: "•Mr. Davis was the best man we had while I worked for Mr. Sutton in keeping the yard in order. . . . He kept it in order as much as he could when he had time . he would keep the pallets and stuff stacked up, and picked up better than anybody they had before or after . . They were mighty short of space [in the yard] in the busy season . . and no human being could do better than Davis did in keeping the thing in order." Another reliable witness concerning yard conditions was Foreman Breedlove, who had worked for Sutton, Sr., about 20 years and was still working there, in a supervisory position, at the time of the hearing. Foreman Breedlove certainly could not have been considered biased in favor of Manes and Davis. He testified: I passed across the yard two to three times every day . I never did see it in a condition that could be called confused or torn up when it could be helped . of course I have seen the yard what they call, I guess, confused up, but at such times it couldn't be helped. Even a cursory examination of the testimony bearing on it discloses that the claim that the conditions in the yard which Sutton, Sr., denominated as confusion, disorder, and cluttered up was caused or occasioned by the negligent and careless manner in which Manes, or Manes and Davis, performed the work, is wholly lacking in factual merit or substance. It was obviously just another eleventh hour, last minute, on the spur of the moment, attempt to bolster Sutton, Sr.'s delayed claim that throughout their period of employment in the yard, 15 and 18 months, respectively, the work of Manes and Davis had been unsatisfactory. I do not credit that Sutton, Sr., had or had any real basis for, the complaint he, in this instance, attempted to advance, or that the purported complaint had anything whatever, even remotely, to do with the discharge of Manes and Davis. The last, and as Sutton, Sr., posed it, the overriding reason he discharged Manes and Davis was that they harbored and manifested a continuing resentment against him. He theorized that this purported resentment against him affected their atti- tude toward their work, and claimed that it became a source of such constant and increasing irritation to him that the preservation of his health necessitated the discharge of Manes and Davis. Sutton, Sr., stands alone in the alleged discernment of this alleged resentment. No confirmation, or corroboration, whatever of Sutton, Sr., in this respect is found in testimony of other witnesses, and such of their testi- mony as there was having any bearing on this accusation refuted such implications. As has heretofore been related, sometime in November or December 1956, because of claimed financial inability, Sutton, Sr., declined the purchase of a tract of land which Manes was offering for sale, and he [Sutton, Sr.] claimed that from and after that time Manes harbored and manifested an unabating resentment against him. I have before pointed out that this accusation is wholly baseless and without support in the evidence, and further, that it was refuted by credible testimony, however, I observe here that it is inconceivable to me that Sutton, Sr., presumably a reasonable man, and on that premise, did really believe the accusation which he so lightly interposed into his testimony to that effect. The Hulsey hearing was held June 18, 1957. Manes and Davis were among the employees called as witnesses by the General Counsel, who gave testimony adverse I. C. SUTTON HANDLE FACTORY 1131 to Sutton, Sr. In his testimony in this case Sutton, Sr., claimed that immediately following and as a result of the hearing in the Hulsey case, Manes and Davis became "resentful toward" him, and that that attitude on their part thereafter. continued. However, according to Manes and Davis, and they were more specific, it was the other way around; that before the Hulsey hearing the three Suttons had always been friendly with them, as well as the other employees, that they and other em- ployees "would frequently be in the office before work time or at the noon hour talking and joking," in which the Suttons would join, and that "once in awhile they" "(the Suttons), one or another, "would come around" where they (Manes and Davis) were working and stop for just a friendly chat, not related to their work, but after the Hulsey hearing the Suttons ceased fraternizing with them altogether, and "would not talk to" them at all, except "just in the line of business," or when they "would go" to one of the Suttons and "ask something" about the work. Sutton, Sr., said that while he was "disgusted" with Davis because of the testimony he gave at the Hulsey hearing he "didn't fire him [Davis] on that." Next came the August 1957 layoff. Both Manes and Davis were laid off, and according to Sutton, Sr., that added to their resentment against him. In this con- nection Sutton, Sr., was not specific as to Manes, but he claimed Davis' resentful attitude was greatly intensified by reason of being laid off. He said that although Davis' work on the fork truck had been "unsatisfactory and displeasing for possibly a year" before the August 1957 layoff, nonetheless, he recalled Davis and returned him to the same job, but after Davis came back to work he (Davis) continued "the same kind" of unsatisfactory work "he had done before the layoff, but the difference in the way he did his work after the layoff" and "the way he had done it before," which moved him (Sutton, Sr.) finally "to discharge him," was that he (Davis) "apparently was independent . . . and thought that he had a job regardless of how he done it . . . he resented me being on the job in there . and thought I was not necessary around there . . . I could not get away very well myself, so Mr. Davis had to be eliminated." At no time or place in all his testimony about this alleged resentment against him, on the part of Manes and Davis, and in that connection that they thought this or that, which theme, he repeated and reiterated all through his testimony purporting to explain why he discharged them, does he refer to, mention, or cite anything ever said to him, or about him, or about their jobs, by either Manes or Davis which even remotely tended to evidence or indicate resentment, disrespect, arrogance, or even complaint, nor any act, conduct, language, or expression of any kind even remotely so evidencing or indicating, nor does any witness do so. The only approach attempted by Sutton, Sr., to giving a reason for this professed belief was that Manes and Davis were, he claimed, "indifferent" and "neglectful" in performing their work, and "if they hadn't had resentment against me I believe they could have done their work as well as anyone." So far as the evidence shows, this professed belief, on the part of Sutton, Sr., about resentment against him is a figment of his own mind, if not indeed of his imagination, assuming, as I do not, that he ever really had such 'a belief. Manes testified, and his testimony concerning this is corroborated and is credited, that after he was recalled from the layoff "there was no change" in his attitude toward his work or his "employer," nor was there then or thereafter any change in the way he did his work. Davis said, and this testimony is in general corroborated and is credited, that both before he was laid off and after he returned to work he did his work "according to instructions given" him "as to how it should be done, and there was no change" whatever in his "attitude toward," or in the way he did, his work after he was called back from the layoff, and that at no time was he ever "resentful of Mr. Sutton, or his presence in the yard." Virnig testified that Davis "was never resentful when given orders. I never saw him resentful to anybody," and, further, "after the lay-off" and the return of Manes and Davis to work, "I did not notice any difference in their attitude toward their work or the way they did their work, nor did I ever hear either express any resentment for being laid off." It is recalled that on November 5, 1957, the Union filed a charge against Sutton, Sr., and Manes and Davis were two of the seven employees named therein as dis- criminatees. Sutton, Sr., asserted that "after they [Manes and Davis] signed affidavits making injust accusations against me . . in order to file charges [of November 5, 1957] against me 43 . . . they had a noticeably . . . different . . . 43 As heretofore stated there is not a scintilla of proof in this record that either Manes or Davis ever signed an affidavit or affidavits for such a purpose, or that they had any- thing whatever to do with the initiation of the charge, or that prior to or at the time it 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attitude toward their work. . . . They were more neglectful after that." Sutton, Sr., further said that the action of Manes and Davis in "signing the affidavits" and initiating the charge of November 5, 1957, "caused me to pay more attention to them," and "apparently there was more confusion that I noticed after the charges came to light than before that time . . . and they [Manes and Davis] seemed to disregard my . instructions more often than they had before." He was asked if he "too" had "a different attitude" toward Manes and Davis after this new charge was filed against him, his answer was: "Not until I had. cause to watch them." Although he had previously said that resentment against him on the part of Manes dated from the land negotiations, in 1956, and that during the entire time Davis worked on the fork truck (18 months) "he [Davis] acted very resentful any time I talked to him about keeping order in his work," and that after he called Davis back to work from the August 1957 layoff, Davis was "independent . . . thought he had a job regardless of how he done it," and "resented me being on the job there," Sutton, Sr., later said: "After they [Manes and Davis] signed the affi- davits that we had laid them off unjustly . . his [Davis'] attitude seemed to change, he was independent, and apparently had the attitude that he didn't have to pay any attention to what I had to say. . . . He seemed to resent me giving any instructions to him," and then further, "It was only the last few months [before he discharged them] that they [Manes and Davis] had the appearance . . . that they had a right to be there, and that they resented me, and before that they didn't have that attitude." [Emphasis supplied.] The foregoing resume of the testimony bearing on his accusation -about resent- ment against him, by Manes and Davis, furnishes another illustration of how Sutton, Sr., alone, and uncorroborated, floundered about as he pressed to explain the discharge of Manes and Davis in his effort to avoid the facts and circumstances de- veloped by the General Counsel so sharply indicating that the discharges were made in violation of the Act. These alleged numerous and varied faults in the work of Manes and Davis, in- cluding the alleged resentment against him, which he disclosed some 7 or 8 months after he discharged them, as reasons for doing so, existed, according to Sutton, Sr.'s testimony for the entire time they worked in the yard, or at least from and after the Hulsey hearing in June 1957. Taking Sutton, Sr.'s own version, he apparently winds up saying, however, that the manner in which Manes and Davis did their work was not a source of irritation to him affecting his health, until after the filing of the November 5, 1957, charge, which he said caused him thereafter "to pay more attention to them," and "to watch them," and from that time on Manes and Davis became and were a constant and increasing source of irritation to him, and that this irritation built up to the point where the preservation of his health made it necessary for him to discharge them. In that connection Sutton, Sr., conceded that from time to time "other employees" had also "irritated" him, but he avowed they did not irritate him "to the point of causing" his "blood pressure to rise to the extent that" Manes and Davis did, adding, "I didn't see most of the others enough" while Davis and Manes "were in my view or vicinity more than any other men that worked in the plant, and I suppose I noticed them more than I did the others, I could not help seeing them every morning and every afternoon when I come to work." For the same reason he could not help, at such times, seeing Virnig too, and Virnig was just as much or more in his "view or vicinity" as were Manes and Davis. It is noteworthy that Virnig was not only not an adherent of the Union, as were Manes and Davis, but had opposed the Union at every stage. It seems that Virnig was in nowise a source of irritation to Sutton, Sr. Before closing this phase of the case having to do with the way Manes and Davis performed their work, and as further corroboration of the conclusive facts already set out refuting the belated claims and complaints advanced by Sutton, Sr., in that respect, I cite the testimony of certain witnesses who were in a position to evaluate the work of Manes and Davis. Virnig said Davis' work on the fork truck was "much better than that of anyone else I ever knew out there on that job. . There have been maybe a half dozen men . . . on that fork truck during the time I have worked there." Concerning was filed they so much as had knowledge thereof. While, so far as the evidence herein discloses, Sutton, Sr., could not have had any more than a suspicion that Manes and Davis may have had something to do with the initiation of the charge, he persisted in stating, as if it were an established fact, that they initiated the charge. I. C. SUTTON HANDLE FACTORY 1133 Manes, Virnig said: "Mr. Manes was a lot better [grader and stacker] than the average." Boyd Davis had worked for Sutton, Sr., "off and on for 13 years," and was em- ployed there at the time of the hearing, and at all times material herein; he was a fourth or fifth cousin of Walter Davis. He said that "Walter [Davis] was good with that truck. . He is the best hand they have had there [on the fork truck] in the past 5 years," the time the Company had been located at Harrison. Boyd Davis further said he had never heard or heard of "any of the Suttons, or any fore- man ever reprimanding Walter [Davis] because of his work .. . and never heard of any criticism at all about Walter around there." Foreman Grover Breedlove, who had worked for Sutton, Sr., about 20 years, said about Davis: "In my opinion Mr. Davis was the best hand they ever had on the fork truck . . . during the time I have been working there." He further said that he had never had "occasion to reprimand" Davis, and had never heard, or heard of, any other foreman, or any of the Suttons, or General Foreman Clayborn, ever reprimanding Davis "in any manner." About Manes, Foreman Breedlove said that he "never heard of any complaint against Grayson Manes' work," 'and that he [Breedlove] had done grading and stacking and considered himself "competent by experience . to judge what is good stacking and what is poor stacking," that he had occasion daily, in passing through the yard, to observe Manes at his work, and "in my opinion Manes was a good grader and stacker." Wells who frequently assisted in the yard said: "I thought Mr. Manes was a good grader and stacker, he did more work than any two guys that stacked after he was there." On questioning by the attorney for Respondent, the worst Irving Sutton, when asked if, in his work, Manes followed instructions, could say was, "He followed instructions . . . up to a point . . . but to the letter he did not," whatever that means. Conclusion About the Discharges of Manes and Davis As has been shown, this defense which Sutton, Sr., attempted to raise against the overwhelming current of facts and circumstances so compellingly indicating that the discharge of Manes and Davis was discriminatorily motivated, when some 8 months after their discharge he claimed, for the first time, so far as the evidence herein discloses, that he had discharged them solely for cause, that is, because of the improper, inefficient, and negligent manner in which they performed their work, wholly collapsed, and the reasons he advanced in support thereof were revealed as not only mere, but sheer, pretexts. Thus Sutton, Sr., is left to face the full force, meaning, and effect of a set of facts and circumstances, established by the evidence, and set out and found, supra, which give rise to not only a reasonable but also a conclusive and inescapable inference and conclusion that he discharged Manes and Davis because of their union memberships and connections, their continued and continuing support and adherence to the Union, and their union activities, suspected as well as actual, and that said discharges were made for the purpose, and with the hope and intention of discouraging union membership and organization, and the continuance thereof, in the plant. It follows that I must find that the discharges of Manes and Davis were dis- criminatorily motivated, and that they were, therefore, in violation of Section 8(a)(3) and (1) oftheAct. The Alleged Discriminatory Refusal to Employ Herrel McAlister The complaint alleges that on or about July 15, 1957, Respondent "refused to employ or reemploy Herrel McAlister and thereafter failed and refused and con- tinued to fail and refuse to employ" him "because of his membership in and activi- ties on behalf of said Union, and because he gave testimony under the Act in the hearing" in the Hulsey case. McAlister went to work for Sutton, Sr., in May 1956. "During the union cam- paign at the Sutton plant," McAlister "signed a union card . . . and attended union meetings." In the last half of March 1957, he gave "a two weeks notice" that he intended to quit as of April 6 and at the time he gave the notice, he advised Sutton, Sr., that he had found "a considerably better job." Admittedly, McAlister voluntarily quit, "of his own accord," on the date specified, April 6. 1957, to take 11 a much better paying job in Iowa." He -testified that when he quit, "Harry and 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Irving [Sutton] and Clayborn, the mill foremen" told him that he "had made a good hand, and that they were well satisfied," and that "whenever" he "wanted a job to come back." Harry Sutton said that, "when Mr. McAlister left our employ- ment . he told me he had a place where he could make more money . I expressed the opinion that he had made us a good hand, but I did not tell him we would rehire him if he ever came back seeking employment." Neither Irving Sutton nor Clayborn gave any testimony concerning McAlister. However, as I view it, what may have been said by management at the time McAlister quit has little if any bearing on the issue here involved. Concededly, McAlister's work while there was satisfactory. During the investigation of the charge filed in the Hulsey case (No. 32-CA-560) 44 McAlister "gave an affidavit to a representative of the Labor Board." The date of this affidavit was not given. Although subpenaed by the General Counsel to appear as a witness at the hearing in the Hulsey case, for some reason, not stated of record, McAlister was not available as a witness when that hearing was held at Harrison, Arkansas, on June 18, 1957, whereupon, the General Counsel read into the record in that case, "in open hearing," the affidavit which McAlister had given to the "rep- resentative of the Labor Board" in the course of the investigation of the charge initiating that case, and proposed a stipulation that if present McAlister would so testify and that the affidavit be received in evidence. It is not clear, on this record, whether the attorney for Respondent agreed to the proposed stipulation in its en- tirety,45 but whatever happened, in that regard, the Trial Examiner rejected, and refused to receive or consider, the affidavit as evidence in the case. The testimony concerning the alleged discriminatory refusal to employ McAlister is limited to that of two witnesses, McAlister, himself, and Harry Sutton. After McAlister left, and while he was still employed, elsewhere, he visited the employees at the plant on two occasions prior to his visit there on July 15, 1957, when it is claimed the discriminatory refusal to employ or reemploy him occurred. Nothing is said about the first of these two visits other than it occurred. Concerning the second occasion, Harry Sutton, said, and there is no contradiction of his testi- mony in this respect, that, "I walked in the door [of the factory building] which is directly in front of the machine row line where we make handles," and saw McAlister going "down through the plant talking with each employee as he went along, he would slap one on the back and talk with him a few minutes, and pat an- other on the back and talk to him a few minutes, and go on down the line that way . what he said to them I don't know, but I did notice that after he passed on by, these boys . seemed to kinda get in a group there and what they talked about I don't know, but it was my presumption that they were reviewing or going over the union activities that had been going on since Mr. McAlister had been away. . This occurred during working hours." Sometime during the morning of July 15, 1957, McAlister again went to the Sut- ton plant to visit the employees. He was at that time still employed elsewhere, and there is no testimony, either direct or from which it might be reasonably inferred, that he went to the Sutton plant, on this occasion, for the purpose, or with the thought or intention, of applying for or seeking work there. When he arrived at the plant premises but before he got to where he was bound, that is, the work areas where the employees were at the time about their various tasks, as it was during working hours, he by mere chance encountered Harry Sutton. McAlister's brief testimony as to the conversation which then ensued between him and Harry Sutton is apparently offered by the General Counsel as embracing the essential elements of an application by McAlister for employment, and a discriminatory refusal by Harry Sutton to employ him. That conversation, in McAlister's own words, follows: We just talked there 'a minute and I asked him [Harry Sutton] if he needed any hands, and he said, "No, we do not need any right now, but even if we did we would not hire you because of the way you lied in your statements at :the hear- 4.4 This charge was filed on October 29, 1956, and complaint based thereon issued May 22, 1957. 451 get the impression that the attorney for Respondent did perhaps stipulate that if McAlister were present be would so testify, but nevertheless objected to the admission of the affidavit in evidence. I. C. SUTTON HANDLE FACTORY 1135 ing... . I told him if I lied the whole mill full lied. . . . I asked him if it would be all right to go in and visit the boys . he said I was welcome to come back before work time, or after work time, but that the union business was about settled and he did not want it stirred up any more. This -testimony by McAlister constitutes the whole of the evidence offered by the General Counsel to sustain the allegation that McAlister was discriminatorily refused employment. Harry Sutton testified that when he met McAlister that day they entered into a conversation in which they talked about "various things . how he [McAlister] was doing on his job" and then about the work and conditions at the Sutton plant, and in that connection and at that point he told McAlister their work at the factory was "beginning to get slack as it always does at that time of the year," that "we do not have much work now," and that they would soon have. to start laying off employees. Continuing, Harry Sutton said that he was on his way to the factory "to see about something there" when he met McAlister, and their conversation was carried on as McAlister walked along with him toward the factory and that, "as we got near the factory door . Mr. McAlister says, you know I would kinda like to have my job back, and I told him that I heard his testimony read at the [Hulsey] hearing, and that it was surprising to me that he would even want a job here after he . had made liars out of us [the Suttonsl . the way he did . he did not make any comment on that, and then Mr. McAlister asked me if it would be all right to go in and talk to some of the hands; I said no, that as far as I knew we were not having any union activity amongst our men during working hours, and I do not want you in there [during working hours] stirring it up. I said if you want to talk to the hands you can come back and see them at noon, or you can see them downtown." Harry Sutton further said, in effect, that if McAlister had made an outright appli- cation to him for a job and there had been a job available, a job opening, as there was not at the time involved, instead they were then contemplating a layoff, he "per- sonally" would not have hired him because, "he made liars out of us . . . and if I cannot put any confidence in a man , I do not want him around," but if McAlister had applied for a job at a time when a job was available, he probably would "have been hired through the office . . . although I would not have hired him personally." There is no proof whatever, and the facts and circumstances in evidence are to the contrary, that there was a job available, or a job opening of any kind, or even that any hiring was done at the plant, at about the time of what the General Counsel denominates as an application for a job was made by McAlister.46 Further, it seems most doubtful to me that it can be held that McAlister made any outright, un- equivocal, or bona fide application for a job. It must be remembered that at that time he was still employed elsewhere, and that he did not go to the Sutton plant that morning to seek employment there, or with that intention. The most that McAlister himself said, which the General Counsel calls an application for a job, was that he inquired of Harry Sutton "if he needed any hands." Apparently, as McAlister re- lated it, he did not say anything about quitting his present job, or obtaining a job for himself there at the Sutton plant. Perhaps I am supposed to infer that had Harry Sutton said they needed hands or a hand, that McAlister would then have asked for a job for himself. As Harry Sutton puts it, he and McAlister walked along together toward the factory, where Harry Sutton was going when he met McAlister, and talked about various things including how McAlister was getting along on his job, and also about the current work situation at the Sutton plant, as set out above, and as they "got near the factory door" McAlister observed, "you know I would kinda like to have my job back." I do not know what degree of certainty or of the definite "kinda" indicates or represents, and I am too doubtful, to so hold, that this musing aloud, such as it was, constituted an application for a job. As before noted there was no job available, no job opening, and certainly the Employer was under no duty con- tractually, statutory, or otherwise, to provide a job for McAlister even had he made a bona fide and unequivocal application for a job. 40 The only evidence concerning any hiring within many months of this time was that during the following September and October the employees who had been laid off in August and who wanted to return to work were recalled. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to McAlister when he made the general inquiry of Harry Sutton, "if he needed any hands," Harry Sutton replied that they did not, and then posed the hypothetical case that "if we did [need hands] we would not hire you because of the way you lied in your statement at the hearing." As Harry Sutton put it, when Mc- Alister said "I would kinda like to have my job back," he (Harry Sutton) expressed surprise that McAlister would even think of working there "after he . . . had made liars out of" the Suttons "the way he did in his statement which was read at the hearing." Conclusion About the Alleged Discriminatory Refusal to Hire McAlister Crediting either version or piecing together parts of one with parts of the other to make a whole, I am of the opinion that the proof is not of the quality, clarity, and character sufficient to make out the violation alleged and require the remedial order sought, and I shall, therefore, recommend that the allegation of the complaint relat- ing to McAlister be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of 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 Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that is take certain af- firmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated in regard to the hire and tenure of employment of Grayson Manes and Walter Davis by discharging them on January 13, 1958, 1 will recommend that Respondent offer to each of them immediate and full reinstatement to his former or substantially equivalent position without prejudice to his original seniority, if any, or other rights and privileges and make each of them whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of the offer of reinstatement in accordance with the formula set forth in F. W. Wool- worth Company, 90 NLRB 289. In my opinion, the unfair labor practices committed by Respondent in the in- stant case are such as to indicate an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guarantees in Section 7 of the Act, thereby minimizing industrial strife which burdens and ob- structs commerce, and thus effectuate the policies of the Act, I will recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Brotherhood of Carpenters and Joiners of America, AFL-CIO, Local Union 2746, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Grayson Manes and Walter Davis, thereby discouraging membership in the labor organization named next above, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a) (3) and (1) of the Act. 4. The evidence is insufficient to sustain the allegations of the complaint that Re- spondent discriminatorily refused to employ or reemploy Herrel McAlister. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]