Allied Chain Link Fence Co.

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes of collective bargaining within the meaning of Section 9(b) of the Act 10 [Text of Direction of Election 20 omitted from publication ] AfRiviBERS RODGERS and JENKINS, dissenting We dissent because in our view the National Labor Relations Board does not have jurisdiction over the Employer in this case. 10 The unit was stipulated by the parties 20 In its brief the Navajo Tribe asserts that ( 1) A direction of election and a re- quirement that the Employee enter into collective bargaining as to its operations on the Navajo reservation would in effect require the Employer to violate the tribal labor rela tions resolution , and (2 ) such a violation of Navajo law would entitle the Navajo Tribe to cancel the Employer's lease and shut down the Employer's operations on the reserva- tion As to (2), the Employer adverts to paragraph 14 of its lease from the Navajo Tribe , which provides The lessee further agrees that it will not use or permit to be used any part of said premises for any unlawful conduct or purposes whatsoever , , and that any violation of this clause by the lessee or with its knowledge , shall render this lease voidable at the option of the lessor In light of these facts , the Employer requests that the Board stay any order directing an election pending a final judicial determination of the Board's jurisdiction herein Whether or not the lease can be terminated by the Navajo Tribe on a theory that "un lawful conduct" was committed by the Employer in violation of the tribal resolutions (which are clearly contrary to statutory law under the Act), is a matter outside the purview of a representation proceeding Whether or not the Board stays its election order would not affect such rights , as exist of the Employer or any of the parties to proceed in the courts concerning any matter directly or indirectly involved herein Since such a stay would be contrary to the Board s consistent practice and would, in our opinion, serve no useful purpose , the Employer 's request is denied Cecil J. Daggett, George Kruft, Joe W. King, Lewis Carriere, William Rote, Paul Ecenia, W. F. Trent, and Roy Kruft d/b/a Allied Chain Link Fence Company and Shopmen's Local 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO Case No. P3-CA-856.1 February 12, 1960 DECISION AND ORDER On August 14, 1959, Trial Examiner Arthur E Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, 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, and supporting briefs 'The original case number-39-CA-856-has been amended to reflect a recent change in the numerical designation of cases from the Board's regional office in Houston, Texas 126 NLRB No 74 ALLIED CHAIN LINK FENCE COMPANY 609 The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, only insofar as consistent with our decision herein. The Trial Examiner found, among other things, that the Respond- ent did not violate Section 8 (a) (1) of the Act. We disagree, as, in our view, the uncontradicted testimony of Gant and Meche establishes such a violation with respect to them. 1. Gant testified that shortly before the Board election in Septem- ber 1958, Hansen, a supervisor, asked him what he thought about the Union and asked him how he was going to vote, and that Gant stated that he intended to vote but did not know how. The Trial Examiner stated that he credited only that part of Gant's testimony as to what he told Hansen about his voting intentions, and he found no interro- gation of Gant. However, Gant testified that his disclosure to Hansen of his voting intentions was in response to a question by Hansen, and we perceive no basis nor is any suggested by the Trial Examiner for crediting only that part of Gant's testimony as to his answer to Han- sen's inquiry, while not crediting that the inquiry was made by Han- sen. We find, therefore, that such inquiry was, in fact, made. Gant further testified that Drummond, another supervisor, told him after the election that they were going to lay him off because he voted for the Union, but the Trial Examiner, without stating a reason, did not credit this evidence. This testimony may have been rejected by the Trial Examiner because (1) it appeared to him inconsistent with Gant's admission that so far as he knew only he and the Union's rep- resentative were aware that he had signed a union card, and (2) the Trial Examiner concluded that Gant was not in fact laid off for union activity but for economic reasons, a conclusion which we have adopted. However, as to (1), the fact that Gant was unaware of the source of Respondent's knowledge of his union activity does not preclude the existence of such knowledge. As to (2), while there is insufficient proof that Gant was, in fact, laid off for union activity, that does not foreclose a finding that Drummond ascribed Gant's layoff to such activity. Accordingly, we find no fatal inconsistency in Gant's testi- mony, nor is the statement attributed by him to Drummond so in- herently improbable as to render Gant unworthy of belief. Accord- ingly, we find, contrary to the Trial Examiner, that the Respondent violated Section 8 (a) (1) of the Act by Hansen's interrogation of 554461-60-vol. 126-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gant and Drummond's statement to Gant that he was being dis- charged for favoring the union 2 2. Meche testified that Drummond talked to him day after day about the Union and at one time told him, "If the Union goes through they would cut the hours down to where we wouldn't make anything"; that Drummond asked him whether he had signed an authorization card, and stated that, "It would be worth $1,000" for him (Drum- mond) "if he knew about the Union and the guys that signed cards"; and that if the employees were represented by a union the Respondent would close its plant. The Trial Examiner did not include Meche in his enumeration of specific witnesses whose testimony he did not credit, and there appears to be no inherent inconsistency in Meche's testimony considered as a whole. In the absence of any indication in the Intermediate Report of any reason for not crediting Meche, and in the absence of any inherent inconsistency in Meche's testimony or of any testimony to the contrary, we credit Meche's testimony and find, contrary to the Trial Examiner, that by the statements of Drum- mond to Meche set forth above the Respondent violated Section 8(a) (1) of the Act 3 Upon the basis of the foregoing findings of fact, and the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Respondent Allied Chain Link Fence Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Shopmen's Local 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor or- ganization within the meaning of Section 2 (5) of the Act. 3. By interrogating employees concerning their union sympathies, and how they intended to vote in an election , urging surveillance of union activities with promises of benefits for so doing , and threatening employees with discharge for voting for the Union , the Respondent interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby engaged a As the Trial Examiner did not base his credibility findings on Gant 's demeanor, and did not otherwise explicate his failure to credit Gant, the rule of Standard Dry Wall Products, Inc, 91 NLRB 544, presents no obstacle to a reversal of such credibility find- ings. See Jackson Maintenance Corporation, 126 NLRB 115 ; M & S Company, Inc., 108 NLRB 1193 3 The General Counsel excepts to the Trial Examiner's failure to credit Gant's testi- mony as to a coercive statement made to him by Merryman However, as Merryman is not shown to be a supervisor, we find no violation of Section 8(a) (1) of the Act in any threat he may have made to Gant While the General Counsel also contends that the Trial Examiner should have credited the testimony of Gurka concerning alleged coercive statements made to him by Borgfeld, we are precluded from relying on such statements as the record does not show that Borgfeld was a supervisor , and the testimony as to Borgfeld ' s report of a conversation with Daggett is, in any event, hearsay as to what Daggett said. ALLIED CHAIN LINK FENCE COMPANY 611 in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in the 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, Cecil J. Daggett, George Kraft, Joe W. King, Lewis Carriere, William Rote, Paul Ecenia, W. F. Trent, and Roy Kraft d/b/a Allied Chain Link Fence Company, Houston, Texas, their agents, successors, and aissigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their union sympathies, or as to how they intend to vote in an election, in a manner constituting interference, coercion, or restraint, urging surveillance of union activi- ties with promises of benefits for so doing, and threatening employees with discharge for voting for the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist Shopmen's Local 694 of the International Asso- ciation of Bridge, Structural and Ornamental Iron Workers, AFL- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its plant in Houston, Texas, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by an authorized representative of .Allied Chain Link Fence Company, be posted by it immediately upon receipt there- of, and maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. * 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." 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violation of Section 8 (a) (3) and (1) of the Act in respects other than those herein found. MEMBER RODGERS took no part in the consideration of the above Decision and Order. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate employees concerning their union sympathies, or how they intend to vote in an election, in a manner constituting interference, coercion, or restraint; urge surveillance of union activities with promises of benefit for so doing; or threaten discharge of employees for voting for a union. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist Shopmen's Local 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become, remain, or refrain from becom- ing or remaining members of the above-named Union or any other labor organization. ALLIED CHAIN LINK FENCE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This case involves alleged violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 163; 29 U.S.C. Supp. I, Sec. 151 et seq.), and arises under Section 10(b) of the Act. The complaint, issued against Allied Chain Link Fence Company, Respondent herein, on March 16, 1959, was amended on April 16 , 1959 . It was further amended in a minor respect on April 29, 1959. It is based upon a charge dated November 14, 1958, a first amended charge dated January 16, 1959 , and a second amended charge dated March 10, 1959 , each filed on behalf of Shopmen 's Local 694 of the inter- national Association of Bridge, Structural and Ornamental Iron Workers , AFL-CIO ALLIED CHAIN LINK FENCE COMPANY 613 (hereinafter sometimes called Local 694 or the Union). The complaint, as amended, and the allegations thereof, are sufficient within the meaning of the 6-month limitation of time provision contained in Section 10(b). Timely answers were filed on behalf of the Respondent to the complaint and the amendment thereto, which effectively deny substantive violations of the Act. The complaint as amended alleges certain discriminatory discharges of employees because they joined or assisted the Union or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection: two on October 7, one on October 15, one on October 18, and two on October 22, 1958 Discrimination against another employee for the same reason is alleged because the Respondent on or about October 1, 1958, refused him a paid vacation. Conduct of the Respondent constituting unfair labor practices in the form of interference, intimidation, and coercion is alleged, including interrogation concerning how certain employees intended to vote in a Board-conducted representation election, and interro- gation of employees after the election as to which of Respondent's employees had voted for union representation, and threats made to employees as to what would happen should the Union become their representative for the purposes of collective bargaining. On the issues drawn by the complaint as amended and the answers, this case came on to be heard before the duly designated Trial Examiner, pursuant to notice, at Houston, Texas, on May 4, 1959, the hearing being closed on May 6. At the hear- ing the General Counsel, the Respondent, and the Charging Party were represented by counsel, and participated in the hearing. Full opportunity was afforded each party to be heard, to introduce evidence relevant to the issues, to argue orally upon the record, and to file proposed findings of fact and conclusions of law and to file briefs. Prior to the hearing, the Chief Trial Examiner referred to the Trial Examiner a motion theretofore filed by the Respondent to dismiss the complaint as amended because of the failure of an officer of Local 694 to file a non^Communist affidavit as required by Section 9(h) of the Act. The motion to dismiss the complaint was denied by an order entered May 1, 1959, on the pleadings and the moving papers, on the ground that the question was one for administrative determination and not one to be decided in an unfair labor practice proceeding, under Compliance Status of International Brotherhood of Boilermakers et al., 123 NLRB 492. At the hear- ing, the Respondent renewed the motion, urging that "the charge should not have been processed and no complaint should have been issued because an officer of Local 694, the charging party, has not complied with Section 9(h). It appeared at the hearing, after examination of certain documents not noticed by the Trial Examiner on prior disposition of the motion, that the question was litigable and outside of 123 NLRB 492. Therefore testimony was taken to determine whether James W. Stamps, a special representative of the International Association ,of Bridge, Structural and Ornamental Iron Workers, during the times material hereto, was an officer of Local 694. Upon consideration of facts adduced at hearing, the Trial Examiner now determines that under the constitution of the parent body of Local 694 Stamps was not an officer of Local 694, although as a special repre- sentative of the parent body he performed duties which might well have been undertaken by a duly elected officer. In making this determination, reliance is placed upon N.L.R.B. v. Highland Park Manufacturing Company, 341 U.S. 322, Shoreline Enterprise of America, Inc. v. N L R.B , 262 F. 2d 933 (C.A. 5), and Shoreline Enterprises of America, Inc., 124 NLRB 158. Upon the entire record in this case, from his observation of the witnesses, and after careful consideration, the Trial Examiner makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT COMPANY Allied Chain Link Fence Company, the Respondent herein, is and has been at all times material hereto, a partnership composed of Cecil J. Daggett, George Kruft, Joe W. King, Lewis Carriere, William Rote. Paul Ecenia, W. F. Trent, and Roy Kruft doing business as Allied Chain Link Fence Company by virtue of the laws of the State of Texas. This partnership, during the times material hereto, maintained its principal office and manufacturing facility at 7001 Cavalcade in the city of Houston, Texas, and now is and has been at all times mentioned herein continuously engaged at said place of business, its plant, in the manufacture of chain link fences and related products; in the course and conduct of its business operations at the aforesaid plant during the 12-month period immediately preceding the filing 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the complaint herein, this period being representative of material times insofar as this case is concerned, has shipped in interstate commerce to points located out- side the State of Texas, chain link fences and related materials valued at more than $50,000; and during the same period of time, the Respondent partnership has pur- chased raw materials, equipment, and supplies, which have been shipped directly to the Respondent partnership from points located outside the State of Texas, valued at more than $500,000. II. THE LABOR ORGANIZATION INVOLVED Shopmen's Local 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES Sometime in the spring of the year 1958, probably in April, the Union undertook an organizational campaign to enlist certain employees of the Respondent as mem- bers of Local 694. On August 22, 1958, a petition for election to determine whether the employees in a designated unit desired to be represented by the Union was filed by the Union. An election was held on September 30, 1958. A majority of the eligible voters, not counting those challenged, voted against the Union. Case No. 39-RC-1291 (unpublished). A. Alleged discriminatory discharges The testimony of each of the individuals alleged to have been discharged for union adherence was so muddled and confused that the Trial Examiner was impelled to state, near the end of the hearing, that except for the requirements of the Act and the Rules of the Board that a written Intermediate Report be filed, he would be inclined to dismiss the complaint in its entirety for lack of proof, and further said that in his Intermediate Report he intended to recommend dismissal of each alleged Section 8(a)(3) violation. Now, having had the benefit of a careful reading of the written transcript of the record, after hearing and observing the several witnesses called by counsel for the General Counsel, he is of the same view. Instead of some of the usual questions of credibility to be considered in this sort of case, testimony in the way of statements and explanations, together with the behavior of witnesses, have had to be considered. Taking into account the fact that the witnesses mentioned are not too well versed in use of language, nevertheless the many con- flicting statements, apparent failure of memory, and obvious lack of understanding of the charges brought on their behalf, impel the Trial Examiner to find, on the evidence summarized below, that the allegations of the complaint are not supported by competent or credible testimony: 1. Alex Gurka Prior to his layoff on October 22, 1958, Gurka had been steadily employed by the Respondent for about 81/z years; his layoff or discharge was attributed by the Respondent to lack of immediate work. Gurka testified that he signed a union authorization card and voted for the Union in the election; that he had been advised by Borgfeld, his foreman, that Daggett, one of the partners, had said that the shop would close down if the Union came in; that Borgfeld told him that they were laying off the whole night shift (where Gurka was working); and that when Gurka asked Borgfeld if it was because of the Union, Borgfeld said "Yes, I think so." Gurka thought that the Company knew he voted for the Union because Meche, another employee, was a union observer and while Meche challenged the vote of another employee he did not challenge Gurka when he appeared to vote. Further, concern- ing the discharge of Gurka and other employees mentioned below, the General Counsel attempted to establish that when production was curtailed because of a steel strike or a seasonal slowdown it was not the policy of the Company to lay off or discharge older employees, but that on the contrary the Company's policy in such situation was to reduce the number of hours worked by these employees. On the other side of the case, Gurka testified that he had not been active in helping the Union before the election and had nothing to do with the union organizing campaign; that no one from the Company knew that he had signed a union authorization card and no one knew how he voted in the election; that no one employed by the Com- pany, so far as he knew, was advised whether he was for or against the Union; that no company representative had talked to him about the Union's efforts to organize the employees; and that he had talked about the Union only to one other employee ALLIED CHAIN LINK FENCE COMPANY 615 who had asked him how he was going to vote in the election . Gurka said that he was laid off, together with other employees on the night crew , and that he was not, he thought, singled out for layoff. 2. Robert Brown With respect to the testimony of Brown, counsel for the General Counsel obviously was surprised at the hearing to responses given by Brown to a number of questions put to that witness. He testified that G. B. (Billy ) Drummond, his foreman, had asked him, prior to the time that Brown is alleged to have been laid off or discharged, if Brown knew anything about the Union and that he (Brown ) had told Drummond that he knew no more than what he had heard; that Drummond had told him, a few days later, that he was for the Union, and that after the election Drummond told him that he wanted to know who the men were that voted for the Union. On cross-examination, Brown became so hopelessly confused that the Trial Examiner refused to hear him further. 3. Lewis Ross Ross was first employed by the Respondent in 1956 . According to his testimony he signed a union authorization card and was in favor of the Union ; subsequent, he said, to the signing of the card Drummond had told Robert Brown that he knew Ross was for the Union ; that Ross had been advised by Drummond prior to the election that he would have to get some "walking shoes," if the Union came in; and that Ross was laid off about a week after the election by Drummond and told that "it was one of those things ." It was shown that two employees with less ex- perience than Ross were retained to operate two wire weaving machines whereas Ross was capable of operating the two machines at the same time and repairing the machines if necessary. On cross-examination, Ross said that he did not remember telling Drummond how he felt about the Union; that Drummond did not know so far as he knew that he had signed a union card or had gone to a union meeting, or that Drummond knew he was interested in the Union; and that no one in a super- visory capacity, so far as he knew, had knowledge of any activity on his part in connection with the organizing campaign of the Union . About a week after the election Drummond advised him that he was being laid off together with other members of the night crew. 4. Charlie Gant Gant, who was laid off on October 7, 1958 , about a week after the election, had been employed by the Company for approximately 41h years; had been regarded as a good worker and had never been laid off during a slack period ; and although he generally worked in the foundry department he, with more or less frequency, had been transferred to work short periods in the unloading of boxcars or other common labor work. On direct examination he testified that he had signed a union authorization card. Gant testified that he was questioned by Carl Hansen, his foreman, as to what he thought about the Union sometime prior to the election ; that Jack Merryman, de- scribed as foreman of the yard gang, told him that he was going to learn how not to sign things he did not know about; that "they" were going to find out who voted for the Union and lay them off; and that after the election Drummond told him that they were going to lay him off because he voted for the Union. Gant also testified that he did not talk to anyone about the Union because he did not want to get involved and that when other employees (Merryman and another) asked him to meet them to talk about the Union he refused so to do; and that so far as he knew Stamps and he were the only ones who had knowledge of his signing the union card. The only credible part of Gant's testimony seems to be that he told Hansen at one time or another that he was going to vote in the election but that he did not know which way he was going to vote . Hansen told him after the election that he was going to be laid off because of lack of work and, according to Gant, Hansen said nothing about the Union at the time of this layoff. As the record showed at the time, Gant was laid off at or near the same time as other employees. In the case of Gant, it may be that the Trial Examiner is mistaken in refusing to accept the inference that his layoff can be charged to his interest in the Union. However, the Trial Examiner cannot in good conscience extend the inference that far. 5. Robert Perry Robert Perry, employed by the Respondent for about 41h years, worked under Borgfeld who directed his work and who had the right to request a raise for Perry 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and others said to have been granted to Perry before his discharge. Perry signed the union authorization card and according to his testimony voted for the Union in the Board election. According to him about 2 days prior to the election Borgfeld asked him about the Union and inquired how he was going to vote and also asked him what he thought about the Union, to which Perry said he replied he thought it was a good thing. At another time, according to Perry, Borgfeld told him that the reason a lot of people would not vote for the Union was that they were afraid that if they did they would not get their Christmas bonus. On his own testimony, Perry had worked with Borgfeld for a number of years; he did not recaill telling Borgfeld that he had signed a union card and that the only thing he did in support of the Union was to sign a union authorization card; and that about a week before the election Borgfeld asked him how he was going to vote and Perry told Borgfeld he did not know but did say that he thought the Union was "a good thing." Perry was laid off with all except three of the employees on the night crew who were transferred to the day crew. According to his testimony, no one to the day of hearing knew he had voted in the election. On the testimony of Perry, both direct examination and cross-examination, it cannot be found as a matter of fact that he was intimidated or coerced or interfered with in connection with his interest in union -activities. 6. Jewel Taylor Taylor was employed by the Respondent in 1958, for approximately 3 years, in the foundry department under Hansen, the foreman. He testified that he signed a union authorization card and was an active union adherent and that several meetings attended by other employees were held at his house. According to him he rode with Hansen from work to home or home to work and that Hansen had discussed the Union with him. Hansen asked him if he thought that he would make as much money when the Union came in as he was then making and advised him that the Company would not be able to pay time and a half if it had to recognize the Union; that when notices of the Board election were received Hansen brought one to Taylor and pointed out to him the place where he should vote on the ballot. The election having been held, according to Taylor, an employee asked him if he knew why he was only making 30 hours a week while the rest were making 60 hours; that on October 15, 1958, when Taylor asked Hansen for a vacation of 1 week, and obtained it, and after he returned, he was told by Hansen that there had been layoffs and that Taylor had no job. In fact, Taylor did not himself sign a union authorization card but it was signed for him by his sister; four or more employees met at his house at that time to discuss whether or not the Union would be of assistance to them; thereafter he told no one that he had signed a union card, and never talked for or against or indicated that he was active in behalf of the Union. On cross-examination he testified that Hansen had never asked him about his interest in the Union except that on one occasion Hansen asked him whether he thought he would make as much money if the Union won the election as he was making at the time. He said that Hansen told him at the time he was laid off that when business picked up he would call Taylor back to work, some other employees also having been laid off from the foundry department. 7. Irvin Joseph Meche The complaint herein alleges that the Respondent "did on or about October 1, 1958, discriminate against I. J. Meche by refusing to him a 2 week paid vacation" in violation of Section 8 (a) (1) and (3) of the Act. Meche was first employed by the Respondent in the year 1955 as a coremaker and subsequently, in about the summer of 1957, became a wire drawing machine operator at which time his immediate supervisor was Foreman Drummond. According to Meche, when he first reported to Drummond, the latter told him that he would give him a 1-week vacation for the first year's work and 2 weeks' vacation after 2 years' service. During his employment between 1955 and 1958, Meche had not received a paid vacation except that he did receive 1 week off with pay at Christmas 1957. Meche was the recipient of a Christmas bonus in December 1958. Accord- ing to the testimony of Meche, he did not know of any other employee who had less than 3 years' employment with the Company who had received a paid vacation; but that he was annoyed because one Lane, who had been with the Company for at least as long as Meche, received a 2-week vacation at about the time Meche received his bonus in December 1958. Meche voluntarily left the employ of Re- spondent in January 1959, without notice. On his failure to report for work, Drummond telephoned him and asked him what had happened and, according to ALLIED CHAIN LINK FENCE COMPANY 617 Meche, "I told him I had another job and he told me to go ahead and work there for a couple of weeks and if I didn't like it to come back and he would give me a job." Meche had signed a union authorization card in June and was apparently in favor of the Union. He served as a union observer at the election in September. He testified that Drummond, who was a working foreman (but who was stipulated at the hearing to have been during the times material hereto a supervisor), worked side by side with Meche repairing machines and performing other duties; that he had day-to-day conversations with Drummond; that Drummond had asked him after the election whether he had signed an authorization card; that he told Drummond that he had not signed the card. Meche said that Drummond talked to him day after day about the Union and at one time told him "if the Union goes through they would cut the hours down to where we wouldn't make anything." Meche said that he had not actively supported the Union, but that he did sign an authorization card, did give the names of persons interested in the Union to Stamps at night, and did act as the union observer at the election. He said that Drummond had told him that he would like to have names of employees who had signed cards for the Union but that he did not supply Drummond with this information. Meche said that Drummond at one time told him it would be worth $1,000 for him (Drummond) "if he knew what I knew about the Union and the guys that signed cards.. . With respect to his request for a paid vacation made to Drummond during December 1958, Meche said that Drummond refused the vacation, stating ". . . no, you tried to mess me up." According to Meche, Drummond had previously said that he was a good worker and therefore he felt that the comment of Drummond about "messing him up" could only refer to the union interest displayed by Meche and his failure to disclose to Drummond the names of other employees who were in favor of the Union. Daggett during these times was a managing partner and Drummond was subordi- nate to him. Although Meche testified, without contradiction, that Drummond had promised him the vacation claimed to have been kept from him, it does not appear anywhere on the record that Drummond had the authority to set or vary company policy with respect to the granting of vacations. Probably because Meche testified that the only employee he knew who obtained a 2-week vacation was Lane, counsel for Respondent did not put in affirmative evidence concerning policy or practice of the Company in regard to vacations, nor did the General Counsel undertake to fill this gap. Consequently, so far as the record herein shows, the claim of Meche for the paid 2-week vacation at Christmas during the year 1958 for such vacation, was on the basis of an oral statement by Drummond and his affirmative statement that he was given a bonus of approximately $200 at that time; that he quit his job without notice in a fit of pique in January, the following month. On the facts dis- closed, the Trial Examiner does not consider them sufficient to sustain the allega- tions of the complaint in respect of denial of a vacation to Meche because of his union activities. B. Alleged independent 8(a) (1) violations In support of the allegations of the complaint that the Respondent partnership interrogated its employees concerning their union affiliation, and threatened and warned some of its employees to refrain from assisting or becoming members of the Union, the General Counsel questioned witnesses, most of whose names have been mentioned above. Gant said that shortly before the union election held in September 1958, Carl Hansen, a foreman in the foundry, inquired of him what he thought about union organizing; that Merryman, the yard foreman, told him that he was going to learn how not to sign things he did not know about; and that the Company was going to find out who voted for the Union and lay them off. Meche testified that Fore- man Drummond asked him whether he had signed a union card, land told him that if the employees were represented by a union Daggett would close the establishment; and that on another occasion Drummond said that if the Union was recognized the Company would cut hours down so that the employees would suffer loss of earnings. Other remarks alleged by Meche to have been made to him by Drummond are mentioned above. Brown testified that prior to the election Drummond asked him what he knew about the Union, and later told Brown that he knew that Brown and Lewis Ross were for .the Union; that after the election Drummond told him that he wanted to know who the 39 men were who had voted for the Union. Ross said that Drummond talked to him and other employees frequently prior to the election; that Drummond asked him if he had signed an authorization card and also told Ross that he should 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD buy "some walking shoes"; that Drummond told him further that if the Union was successful then Daggett would close the establishment. He said that Drummond brought out the official notice of election and indicated that the men should vote for the Company. Gurka said that about 3 weeks before the election, at about 9:30 or 10 p.m., Daggett came out to the plant and while he was there, talked to Walter Borgfeld, the foreman in charge of the galvanizing department, and that thereafter Borgfeld told Gurka that Daggett had asked him if he was ready to walk the picket line and when Borgfeld asked "Why?," Daggett stated that "If the Union gets in I will close the shop." Perry testified that about a week before the election Foreman Borgfeld asked him what he thought about the Union, that Perry told Borgfeld he thought it would be a good thing, and that Borgfeld told Perry that the reason a lot of the people would not vote for the Union would be that they were apprehensive that they would not receive their vacation checks and Christmas bonuses. Gurka, on his own testimony, was not active in assisting the Union before the election, had nothing to do with the union organizing campaign, and no one from the Company knew that he had signed a union authorization card or knew how he had voted in the election; no one from the Company talked to him about the Union's organizing campaign except one Scarborough, a welder, who might have been Borgfeld so far as the witness knew. On cross-examination, Gurka testified that he was laid off with 10 or 11 other men on the night crew, and was not singled out. Apparently this layoff, so far as the record shows, was not an unusual situation during that season (October and November) of the year. The testimony of Brown, Ross, Gurka, Perry, and Taylor was, as pointed out above, conflicting and so unsatisfactory that no real findings of fact can be made on the basis of the testimony of any of these employees. Andrew Lee Adderson was called as a witness for the General Counsel to support an amendment to the complaint alleging that Borgfeld, as agent of the Respondent, inquired substantially: "Are you going to vote for the Union?" On direct examina- tion Adderson said, I was up at the clock and he [Borgfeld] also came up and he asked me, he said, "Well, it looks like it's going to be an election," and I said, "Yes, it does," and he said, "Well, I don't know if it will go but it looks like it might not go through, that's the way I feel." And I said "if it goes through its all right and if it doesn't go through it's all right with me." I said, "One way or the other it doesnt make me no difference," and that's all we said at the present so he turned and walked away and I went back to my department. Under further questioning, Adderson denied that Borgfeld had asked him directly how he was going to vote in the election. The contention of the General Counsel that the Respondent, after the filing of the petition for an election on August 22, 1958, started a campaign of interrogation of its employees to find out which of them were for the Union, and engaged in an effort to discourage the employees from voting for the Union in that election, fails for lack of sufficient proof. As above stated the Trial Examiner has no confidence in the testimony, conflicting, vague, and indefinite, given by the witnesses above named who testified in support of the allegations of the complaint. The interrogation attributed to representatives of the Respondent, standing alone, would indicate on the first relating thereof by witnesses that the General Counsel had made out a prima facie case. With respect to each of these witnesses, the Trial Examiner feels that after their direct testimony (which even at times was confusing) and on cross-examination and redirect examination, and in whole context, the evi- dence presented in support of alleged discrimination, interference, or other acts con- stituting unfair labor practices is insufficient to support the allegations of the complaint. On the basis of the foregoing findings of fact, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Respondent, Allied Chain Link Fence Company, is and at all times material hereto has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Shopmen's Local 694 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, is and during the times material hereto was a labor organization within ,the meaning of Section 2(5) of the Act. REICHHOLD CHEMICALS, INC. 619 3. The Respondent above named has not now and has not been engaged in violation of the National Labor Relations Act, as amended, as alleged in the complaint as amended. The following proposed conclusions of law, submitted on behalf of the Respondent, are accepted by the Trial Examiner, and adopted as his own: (2) That Respondent has not discriminated in regard to the hire, tenure or any term or condition of the employment of Irvin Joseph Meche, Alex Gurka, Robert Brown, Lewis Ross, Charlie Gant, Robert Perry and Jewel Taylor, in violation of Section 8(a) (3) of the Act. (3) That Respondent has not interfered with, restrained or coerced its employees in the exercise of rights, guaranteed to them by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. [Recommendations omitted from publication.] Reichhold Chemicals, Inc. and International Union of Operat- ing Engineers, Local 465, AFL-CIO and International Chemi- cal Workers Union, AFL-CIO and General Drivers, Ware- housemen & Helpers, Local 509, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Petitioners. Cases Nos. 11-RC-1294, 11-RC-1300, and 11-RC-1301. February 12, 1960 DECISION AND DIRECTION OF ELECTIONS Upon separate petitions duly filed under Section 9(c) of the Na- tional Labor Relations Act, a consolidated hearing was held' before James R. Webster, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. The Employer has no bargaining history at its Hampton, South Carolina, plant, involved herein. International Union of Operating Engineers, Local 465, AFL-CIO, herein called Operating Engineers, seeks to represent a unit of all production and maintenance employees of the Employer at its Hampton, South Carolina, plant, including plant operators, helpers, and laborers, but excluding truckdrivers, office clericals, chemists, laboratory employees, guards, watchmen, and 3 The captioned cases were consolidated for bearing by order of the Regional Director dated November 2, 1959. 126 NLRB No. 76.