Abrasive Salvage Co., Inc.

ABRASIVE SALVAGE COMPANY, INC. 381 WE WILL make Richard Logan whole for any loss of pay he may have suffered by reason of the discrimination against him. INTERNATIONAL HOD CARRIERS, BUILDING & COMMON LABORERS OF AMERICA , LOCAL 310, AFL-CIO, Labor Organization. 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. Abrasive Salvage Company, Inc. and Lodge No. 360, Interna- tional Association of Machinists, AFL-CIO. Case No. 13-CA- 3225. April 05, 1960 DECISION AND ORDER On January 29, 1960, Trial Examiner Owsley Vose issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a support- ing brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Bean, and Fanning]. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 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 Abrasive Salvage Company, Inc., Peoria, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Lodge No . 360, International Association of Machinists, AFL-CIO, or in any other labor organiza- tion, by discharging any of its employees or otherwise discriminat- ing in regard to their hire or tenure of employment or any other term or condition of employment. 127 NLRB No. 48. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Interrogating employees concerning their membership in, or activities in behalf of, the said Union or any other labor organization, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8(a) (1), or threatening reprisals if employees engage in such union activities. (c) Refusing to bargain collectively with the said Union as the exclusive bargaining representative of all production and maintenance employees at the Respondent's Peoria, Illinois, plant, excluding office and pl ant clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Lodge No. 360, International Association of Machinists, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of 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 to James V. Knowles immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary or appropriate to an analysis of the amounts of backpay due and the rights of reemployment under this Order. (c) Upon request, bargain collectively with the above-named Union as the exclusive representative of its employees in the unit herein found to be appropriate, and embody any agreement reached in a signed document. (d) Post at its plant in Peoria, Illinois, copies of the notice attached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted '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." ABRASIVE SALVAGE COMPANY, INC. 383 by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply therewith. 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, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Lodge No. 360, Inter- national Association of Machinists, AFL-CIO, or any other labor organization by discharging any of our employees or by otherwise discriminating in regard to their hire or tenure of employment or any other term or condition of employment. WE WILL NOT interrogate our employees concerning their mem- bership in, or activities in behalf of, Lodge No. 360, International Association of Machinists, AFL-CIO, or any other labor organi- zation, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1), or threaten reprisals if employees engage in such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist Lodge No. 360, International Association of Machinists, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer James V. Knowles immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to any seniority or other rights and privileges previ- 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of his discharge. WE WILL, upon request, bargain collectively with Lodge No. 360, International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of our production and main- tenance employees, and embody any agreement reached in a signed document. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with the Act. ABRASIVE SALVAGE COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, in which the parties were represented by counsel , was heard before the Trial Examiner in Peoria, Illinois , on September 29-30, 1959 , upon the complaint of the General Counsel and answer of Abrasive Salvage Company, Inc., herein called the Respondent. The issues litigated at the hearing were whether the Respondent has discharged James V. Knowles in violation of Section 8(a)(3) of the National Labor Relations Act, has interfered with, restrained , and coerced its employees in violation of Section 8(a)(1), and has refused to bargain collectively with Lodge No. 360, International Association of Machinists, AFL-CIO, herein called the Union, in violation of Section 8(a)(5) of the Act. During the hearing ruling was withheld on various motions of both the General Counsel and the Respondent . They are disposed of in accordance with my findings and conclusions herein. A stipulation of the parties to correct page 257 of the official transcript of the proceedings dated October 21 and 22 , 1959 , is hereby approved . Counsel for the General Counsel has filed a brief which has been helpful to me in my consideration of the issues. Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent an Illinois corporation, operates a small machine shop in Peoria, Illinois, where it is engaged in the recutting of grinding wheels and the manufacture of tractor parts. During the calendar year 1958 , the Respondent sold approximately $80,000 worth of products. Almost its entire output was sold to the plant of Caterpillar Tractor Company at Peoria, Illinois. At this plant, the Caterpillar Tractor Company receives and ships millions of dollars' worth of raw materials and finished products across State lines each year.' Upon these facts, I find that the Respondent's operations affect commerce within the meaning of Section 2(6) and (7) of the Act, and that it is appropriate for the Board to assert jurisdiction. 'The Board has so found. See Caterpillar Tractor Co, 77 NLRB 457, 458. ABRASIVE SALVAGE COMPANY, INC. 385 II. THE LABOR ORGANIZATION INVOLVED Lodge No. 360, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 2 A. The employees authorize the Union to represent them for bargaining purposes On Saturday, February 21, 1959, dissatisfaction with pressure for greater produc- tion placed upon them by Hylee Kemp, vice president of the Respondent, came to a head, when the Respondent's employees decided to seek information about joining the Union .3 James V. Knowles, one of the Respondent's five nonsupervisory em- ployees, called James McGee, a former neighbor who was a business representative of the Union, explained that the employees were interested in obtaining information about the Union, and made an appointment for the group to visit McGee's office the following Monday after work. All five of the Respondent's nonsupervisory employees met with McGee in his office on Monday, February 23, 1959, about 4:45 p.m. Ed Felder and James V. Knowles were the spokesmen for the employees. McGee was informed that the employees wanted some protection in the event, as a result of speeding up production pursuant to Hylee's orders, the employees turned out an excessive number of defec- tive pieces. McGee, after first inquiring about the men's wages and working condi- tions, explained the steps usually taken in organizing small groups. McGee also referred to the difficulties commonly encountered in obtaining recognition from the employer, and discussed the Board's election procedures. McGee mentioned, among other things, that there might be problems involved in getting the Board to conduct an election because the volume of the Respondent's business might be insufficient to meet the Board's discretionary standards for asserting jurisdiction. McGee fur- ther informed the men that if the Union was not successful in obtaining a Board election, he personally would come out and help the men picket the shop in an effort to obtain recognition .4 In the course of the conversation, McGee explained that there were two kinds of cards which the employees could sign, one being an application for membership in the Union, and the other, an authorization card. The latter card is headed in large letters, "Authorization for Representation." McGee testified that he informed the men that it was not an application for membership, but "an authorization for me to ask their boss to recognize us." Several of the men testified in effect that McGee told them that the card merely authorized the Union to seek a Board election, at which they could accept or reject the Union. McGee denied making any such representation, and the conflicting testimony in this regard is considered in greater detail in part E 3, below. During the lengthy discussion which followed, McGee pointed out the benefits of organizing, but said he could not promise "any big returns right to start with." The men asked questions as to whether they would be called out on strike. McGee replied that it was for them to decide. After the discussion had continued for over an hour, all five men signed the authorization cards 5 2 The findings of fact which follow are based on the credited testimony of one or more witnesses at the hearing Whenever the testimony on material issues was in conflict, I have attempted to mention and resolve such conflicts s Hylee Fred Kemp is the son of Fred Kemp, the Respondent's president, who nor- mally was in charge of the Respondent's operations. On February 21, however, Fred Kemp was vacationing in Florida. During Fred Kemp's absence, which had commenced about the second week in January 1959, his son, Hylee, was in charge of the shop. Hylee was attending college at the time and he devoted such hours as he could to supervising the operation of the business. James Kemp, a nephew of Fred Kemp, was the foreman of the shop and the Respondent's only full-time supervisor. 4 Both Howard Cooley and Knowles testified to this effect. I credit their testimony. E The full text of the authorization card is as follows : Authorization for Representation I, the undersigned, employee df--------------------------------------------- classified as -------------------------------------------- Clock No. -------- City --------------------------------------------------- Dept. ------------ Home Address ------------------------------------------ Tel. N. --------- --------------------------------------------------------------------------- hereby authorize the International Association of Machinists or any District or Local Lodge thereof to represent me for purposes of Collective Bargaining and, in my be- 560940-61-vol. 12 7-2 6 386 DECISION S OF NATIONAL LABOR RELATIONS BOARD B. The discharge of James V. Knowles Fred Kemp, the Respondent's president, returned to Peoria from Florida late in the afternoon on February 24, 1959, after receiving two phone calls from his son, Hylee, on the preceding evening. As stated below, both of the Kemps testified that they did not hear about the men meeting with Union Representative McGee until several days later. While, as found below, I have not credited their testimony in this regard insofar as they deny knowledge of the union meeting prior to Fred Kemp's decision to discharge Knowles, I am not satisfied on the record as a whole that Hylee had knowledge of the union meeting at the time of his telephone calls to his father in Florida on the night of February 23. Accordingly, I credit Hylee Kemp's testimony that business considerations prompted his telephone calls to his father, and also his father's decision to return home.6 Fred Kemp did not go to the shop on February 25, the day after his return, but spent the entire day doing "paper work" in the Respondent's office which is located in the basement of the Kemp home, a short drive from the Respondent's shop. During the day, according to his credited testimony, he received a telephone call from Bill Gordon of the research department of the Caterpillar Tractor Company, the Respondent's principal customer, informing him that the inspector's report on a shipment of track-links received on the 22d "was not very encouraging." That evening, February 25, 1959, Fred Kemp summoned Foreman James Kemp to the office. Hylee Kemp was present. Fred Kemp, according to his credited testimony, called the foreman's attention to the "scrap problem," and complained that the payroll was up and production was down. In response, according to Fred Kemp's testimony, Foreman James Kemp brought out, among other things, that "he couldn't do anything with Knowles, . he [Knowles] don't pay any attention to him, got smart answers and everything." Foreman James Kemp was not called as a witness and consequently the record does not contain his version of the con- versation.7 Fred Kemp further testified that because of the foreman's report on Knowles and the unfavotable report which he had received over the telephone con- cerning the recent shipment of track-links to Caterpillar, he decided to discharge Knowles, and instructed the foreman to do so the first thing the next morning.8 half, to negotiate and conclude all agreements as to hours of labor, wages and other conditions of employment. The full power and authority to act for the undersigned as described herein super- sedes any power or authority heretofore given to any person or organization to represent me. ---------------------------------- (Witness ) --------------------------------------- ( Signature of Employee) Date ----------------------------- --------------------------------------- (Please Print Name) Fred Kemp placed the two telephone calls as having occurred on Thursday or Friday, February 19 or 20. Fred Kemp 's testimony conflicts in various other details with that of his son, Hylee. I believe , however, that Hylee's recollection is more accurate in this instance. T The Respondent did not call any witnesses in its behalf . The testimony of President Kemp and Vice President Hylee Kemp , above referred to, was brought out during their examination by both parties when called by the General Counsel as adverse witnesses under rule 43(b) of the Rules of Civil Procedure. 8 Fred Kemp further testified that at the time he decided to discharge Knowles he was aware that Knowles had "buried" some defective track-link pieces in a load going to Caterpillar, contrary to the Respondent 's rules which require that defective pieces be placed on the floor and not in the tubs containing good pieces . Knowles testified that he was aware of having run six pieces for Caterpillar which he had to "scrap" and that he was told to mark them with a tag telling the extent to which they did not meet specifica- tions , which he did before including them in the shipment . As to others which were slightly off specifications , Knowles testified that James Kemp, the foreman , said 'sthey weren't far enough off . . . to keep Caterpillar from buying them," consequently, pur- suant to the foreman's instructions, he put them in the tub with other pieces. Knowles further testified that nothing was ever said to him about burying "scrap" in With good pieces. Under all the circumstances, and bearing in mind that the first time Fred Kemp received any information from Caterpillar concerning defective track-links was the tele- phone conversation the day before Knowles' discharge, and that full knowledge of the "scrap" Incident was presumably not acquired until later when a written report was received, I do not credit Fred Kemp's testimony that the "scrap" incident was a factor in Knowles' discharge. ABRASIVE SALVAGE COMPANY, INC. 387 Knowles arrived at the plant at 7:25 a.m. on Thursday, February 26. According to Knowles' credited and uncontradicted testimony, the following occurred: Jim Kemp met me at the door, said no use bringing your dinner bucket in, you are fired. I said what? He heard about this, already. Jim Kemp said yes, he heard about it; but he said that ain't reason we're firing you, we're firing you for cutting your machine down too slow. Under all the circumstances of the case, I infer and find that Knowles, in his question to the foreman, had reference to President Fred Kemp's hearing about the men's union activity. Felder, Scranton, and Cooley arrived at the shop a few minutes later. Cooley questioned Foreman Kemp as to why Knowles had been discharged. The foreman's reply was, "you guys know why," and he ordered Cooley to "either go to work or get out with Mr. Knowles." Cooley said to Felder and Scranton, "This thing has happened-we all joined together, we should all stay together." But Felder and Scranton said that they could not afford to go out on strike. Whereupon Knowles and Cooley moved their cars across the street, and there they decided to call Union Representative McGee. Knowles called McGee and told him that he had been fired, and stated that he felt it was because of the Union. He added that there was some question as to whether the others were going to work. McGee advised Knowles to tell the others to go back to work, and said that he would call Fred Kemp immediately on the telephone. This he did. The facts concerning this telephone conversation are set forth in part D, below. In the meantime, President Kemp had called both Cart and Cooley to the office where he had separate discussions with each employee concerning the advantages and disadvantages of affiliating with a union. After these discussions, with President Kemp's permission, the five men, including Knowles, had a meeting in the plant, at which Cooley decided that he would return to work. The facts concerning these discussions and the subsequent meeting in the plant are related in part C, below. Upon leaving this meeting, Knowles went to a, telephone booth a few blocks from the plant, called President Kemp, and asked him why he had been fired. Kemp informed him that he had been cutting down the speeds on his machine too much. Knowles, among other things, inquired whether Kemp would give him a good letter of recommendation. Kemp agreed. Knowles also asked Kemp, referring to his union activities, "How did Eddie [Ed Felder] tell you so fast." Kemp replied that Felder had not told him, that Knowles would have to ask Hylee Kemp, and added "Hy is the one who told me. . how Hy found out . . . I don't know." 9 In view of the foregoing, I infer that both Knowles' question as to how and when Fred Kemp learned about the union activities and Kemp's answer related to the period prior to Kemp's decision to discharge Knowles. While Fred Kemp was not questioned about this particular part of the conversation, and consequently there is no denial of Knowles' testimony in this regard, be did testify elsewhere that he did not learn about the union activities of the men until Cooley told him in the course of a conversation with him after Knowles' discharge. For the reasons more fully set forth in part E 1, below, I do not credit Fred Kemp's testimony in this regard and find that the conversation with Knowles occurred at the time and in the manner stated by Knowles, as above stated. Knowles had been in the Respondent's employ for 8 years and was its oldest employee. He had never been laid off during this entire period, although others had been. President Kemp in effect admitted that Knowles' work had been satis- factory up until the Caterpillar strike ended in December 1958, which was about a month before Kemp left for Florida. Then, according to Kemp, he began to notice that Knowles "wasn't working too hard." He testified that he commented to Knowles on one occasion during this period that he was making too slight a cut on his machine, that he would have to speed up his work and earn his day's pay. Kemp testified that he had no complaints concerning the quality of Knowles' work during this period. I find that up until the time Kemp left for Florida he had no complaints about the quality of Knowles' work. During the last 3 months of Knowles' employment, with the exception of the last week or two, Knowles had worked exclusively on track-links for Caterpillar. There do not appear to have been any complaints about his speed on this operation. The only specific complaints about Knowles' speed in the period immediately preceding his discharge relate to his work on bearing cages. Hylee Kemp sought g Fred Kemp placed his conversation as having occurred 2 or 3 days later. I believe Kemp was in error in this respect. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to have Knowles increase his production from 11 to 14 per hour. Knowles felt that he could not produce this many pieces and turn out good work, and resisted Hylee's efforts in this respect.1° As stated above, Foreman James Kemp, Knowles' immediate supervisor, was not called as a witness; consequently there is no firsthand evidence as to his views concerning Knowles' speed. As stated below, Kemp in his conversation with Cart at the time of Knowles' discharge commented that "every- body was letting down" on production. I find that while the Respondent may have had grounds for complaint against Knowles on this score , the complaint was appli- cable to other employees , as well, against whom no action was taken. C. President Kemp's interference, restraint, and coercion 1. Kemp's conversation with Cart On the morning of Knowles' discharge, February 26, 1959, Kenneth Cart had arrived at the plant at 7:20 a.m. He was immediately instructed by Foreman Kemp to go to the office.ll As he was leaving in his car he saw Knowles drive up to the shop in his. Upon arrival at the office, Cart was invited into the living room of the Kemp home. Fred Kemp served coffee and the two men talked for about an hour and a half. After a few pleasantries about the weather in Florida and his trip back, President Kemp said, "I hear that you fellows want a union out there." Cart said "Yes." Kemp continued, according to Cart's credited testimony, "Well you know that I've told you if you want a union you can go join it, I don't care." However, Kemp added that before Cart joined he "should look into some of the advantages and disadvantages of having a union." 12 As an example, Kemp mentioned that "if [they] had a union, there probably would be a question as to [his] seniority," in view of the fact that Cart had quit his job the previous year and had only recently returned.13 Kemp also said that "he doubted if there would be a cut in my wages, but that the chances are they might be frozen," and added that Cart "would still be classed as an apprentice." 14 Kemp further pointed out that in union shops it was customary, when a machine broke down, for the operators to lose time while the machine was being repaired . 15 Kemp also stated that "if things got too bad that he could move the plant to Florida because he had an offer on a building there." 16 During the conversation Kemp mentioned that "everybody was letting down" on production. Kemp further stated that he had asked the foreman the night before "if Knowles was still dogging it," and when the foreman answered "yes," he had instructed him to fire Knowles.17 This was the first Cart heard that Knowles had been fired. 10 Knowles testified that Fred Kemp had always taught him to run good pieces, that Kemp was always more concerned with quality than quantity. u As stated more fully below, I do not credit Fred Kemp's testimony to the effect that Cart was sent to Kemp 's office after Knowles' discharge. 22 Fred Kemp denied recalling saying anything to Cart on this occasion about the men wanting a union or mentioning the advantages or disadvantages of joining. I do not credit Kemp's testimony in this regard. U° Kemp in effect admitted making some such statement about seniority in response to a question from Cart. a Kemp testified that he did not recall making any such statements . As noted below, Cooley testified that, in a subsequent interview with him that morning, Kemp commented that he would be classified as an apprentice if a union came in. While Cart and Cooley were called by the General Counsel, their testimony reveals no hostility toward Kemp (they were still in the Respondent's employ), and I find their testimony generally credible. Under all the circumstances I credit Cart's testimony set forth above and find that Kemp, by alluding to Cart's status as an apprentice if a union came in, intended to suggest that he would be in the lower ranges of the union wage scale under any union contract. 15 While Kemp testified that he did not recall making any such statement, Cooley's testimony concerning a similar remark made to him by Kemp during a subsequent inter- view tends to corroborate Cart's testimony, which I credit. 1° There is no denial of this statement as Kemp was not questioned about it. However, Kemp did deny making such a statement to Cooley. For the reasons set forth in the discussion of Cooley's testimony, I credit Cart's testimony. "Kemp testified that he told Cart that "I knew and he knew that he [Knowles] had been engaging in slowdown tactics and not working to his best effort and that quality of his work had suffered." ABRASIVE SALVAGE COMPANY, INC. 389 At one point, the conversation was interrupted when Kemp left the room to answer the telephone. When Kemp returned he stated that Union Representative McGee had called him.18 This occasion was the first time Cart had ever had such a conversation with President Kemp. He was paid for the time he was at the Kemp home. Kemp testified that he called Cart to the office because he understood the foreman to say over the telephone that Cart had walked off the job with Cooley in protest against Knowles' discharge. I do not credit this testimony. Cart had been instructed by the foreman to go to the office before Knowles arrived at work that morning. This appears not only in Cart's testimony to this effect which is credited, but also in Cooley's testimony that the first time he saw Cart that morning was when Cart returned from the office, which was about 9 o'clock. When cart arrived back at the shop he passed Knowles and Cooley sitting in Cooley's car parked across the street. Cooley stated that he had walked out with Knowles, and asked whether Cart was going to join them. Cart told the two men that he could not afford to go out on strike. About this time the foreman called Cooley to the telephone in the shop. When Cooley returned to the car he informed Knowles that President Kemp wanted him to come to his office. Whereupon Cooley left for the office. 2. Kemp's conversation with Cooley Upon his arrival at the office, Kemp invited Cooley to go up to the living room. As he walked in the door, President Kemp said, "You guys had a little trouble this morning." When Cooley agreed, Kemp asked him if he had a union card, and also how many employees had signed. Cooley informed Kemp that all of the employees had slgned.19 In response to Kemp's inquiry as to why he had walked out, Cooley explained that he thought Kemp had discharged Knowles because of the Union. Kemp stated "that he had not fired Mr. Knowles because of union activities, that he had fired him for being lazy and laying down on the job and cutting down production and using his knowledge to slow us down." 20 Cooley asked Kemp how he had found out about the Union and Kemp stated that he had no knowledge of the Union prior to the day before. President Kemp continued that "he didn't care about the Union," that he "had an honorary withdrawal card from the Union," and that if Cooley wanted to, he could "go join the Union and go back to work." Kemp stated, however, that if a union came in the men would be classified as drill operators, lathe operators, and millwrights and that whenever there was no work in their particular specialty, they would be sent home. Kemp further stated that under a union Cooley could not be classified as a machinist, since be had only been on the job 2 years. Kemp also said that if the Union came in and he could not afford to meet their terms that "he would close the plant and move to Florida," that he had "had an offer of a building in a town where they were . . . crying for a machine shop." 21 As Cooley was leaving, he requested and received permission from Kemp to have a meeting of the five men, including Knowles, in the shop. Kemp called the foreman on the telephone and asked him to step outside while the five men discussed the matter 22 The foreman complied. During the discussion among the five men, the possibility of having to take a cut in wages was mentioned. It was also brought out that "if we had a union in there we would be put on a machine and if there's nothing Is Kemp denied receiving any call during the conversation with Cart, and testified that the call came in later, even after his conversation with Cooley, discussed below. McGee testified that he called Kemp immediately after his 8.15 a.m, conversation with Knowles, which would place the call during the time Cart was at the Kemp home I credit Cart's testimony in this regard and find that Kemp was mistaken in his recollection. 19 Kemp denied asking Cooley how many of the employees had signed cards. I credit Cooley's testimony above set forth. 70 On this point the testimony of Cooley and Kemp is substantially in accord. z' Kemp denied making either of the statements above set forth. As indicated above, Cart's testimony about Kemp's making similar remarks to him tends to corroborate Cooley. Both Cart and Cooley impressed me as credible witnesses. Accordingly, I credit Cooley. nThis is Cooley's testimony. Kemp denied having called the foreman and instructed him to step outside That such a meeting was held in the plant, with the foreman out- side, is uncontradicted. Kemp's denial is thus inconsistent with the probabilities of the situation. I credit Cooley's testimony. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to do on that machine . . they would be laid off until that machine went back to work." 23 Cooley said that he felt that Knowles was not fired for union activities and that he was going back to work. The four men returned to work, and were still working for the Respondent as of the time of the hearing. Later that day Felder called Union Representative McGee and said, "I just wanted to tell you that we want to withdraw our cards that we signed, we don't want the Union any more." Two days later Felder called Cooley on the telephone, stated that Mr. Cassidy (the Respondent's attorney) had suggested that the employees sign a letter withdrawing from the Union, and asked his advice about drafting such a letter. The following Monday morning Felder had a document on the desk near the front door of the shop which he asked the men to sign as they reported for work. The document stated, in part, that we "hereby withdraw our petition authorizing Local 360, International Association of Machinists, to represent us as bargaining agent at the Abrasive Salvage Company." All four men remaining in the Re- spondent's employ signed. Union Representative McGee received the document in the mail a day or two later. D. The Respondent's refusal to recognize the Union As stated above, during President Kemp's conversation with Cart on the morning of Knowles' discharge he received a telephone call from Union Representative McGee. According to McGee, the following conversation with Fred Kemp occurred: Fred answered the phone, I said Fred I've just had a call from Knowles, he said you fired him; he said yes that's right, Jim. I said any particular reason for firing him; he said well he was goofing off, slowed down couple weeks, last couple weeks he slowed down, just goofing off, Jim. I said well Fred as a matter of information these fellows were in my office, Jim was one of them, and they signed authorization cards and we're well on the way to petitioning for an election in your shop. Fred says well, he says, I have no objection to a Union, you know how I've always been, Jim, I belonged to 360 years ago and I said well Fred if it's that easy I said all you've got to do is agree to an election, I said agree to recognize us. I said will you recognize us without an election? He hesitated. I asked him the second time, will you agree to recognize us without an election; he said no, I won't. I said Fred, well just between you and I now this situation can be very complicated, I said after all I've got these authorization cards, I'm going to file them with the Board and you have fired a fellow; I said why don't you just put him back to work ... . Fred Kemp was questioned concerning this conversation. Although he was asked to give the complete conversation, his version omits any reference to a request for recognition. Kemp was not asked specifically about this point. Kemp, however, did specifically deny having knowledge at that time that the Union represented the workers. As noted above, Cart testified that when he first got to the Kemp home (which was about 7:30 a.m. ), Kemp said to him, after a few pleasantries about his Florida trip, "I hear that you fellows want a Union out there" and that he had said "yes." In view of this testimony and the further fact, as stated below, that Kemp apparently never did reply to the Union's letter requesting a bargaining meeting, which was sent the same day, I do not credit Kemp's testimony, and find that Kemp refused McGee's oral request for recognition without an election. Later that day Union Representative McGee mailed President Kemp a letter in which he stated that the Union represented a majority of the Respondent's production workers and requested him to set a date for a bargaining meeting. It does not ap- pear that the Respondent ever replied to this letter. On March 27, 1959, the Union filed charges with the Board alleging a refusal to bargain collectively in violation of Section 8(a) (5) of the Act commencing on February 26, 1959. E. Conclusions concerning the Respondent's unfair labor practices 1. The Respondent's discharge of James V. Knowles in violation of Section 8(a)(3) of the Act Knowles was an employee of 8 years' standing and was the Respondent's oldest employee. He had never been laid off during this entire period, although others had, which I find indicates that, in general, Knowles was regarded by the Respondent 23 This is the credited testimony of Knowles. ABRASIVE SALVAGE COMPANY, INC. 391 as a valued employee. According to President Kemp's own testimony, he had no complaints about the quality of Knowles' work up until the time he left for Florida. which was the last occasion on which he had any personal opportunity to observe Knowles' work. And it was only in approximately the last month before Kemp left for Florida that he had observed that Knowles was slowing down in his work. Kemp so testified. At that time Kemp-according to his own testimony, he assumed a tolerant attitude towards Knowles-thought Knowles was "griped" about the manner in which work had been distributed at the time of the layoffs in the fall of 1958, and "hoped he would get over his gripe and go back to work." Then, during Kemp's absence in Florida, all five of the Respondent's employees, at the urging of Knowles and one other employee, signed union authorization cards. Kemp cut short his vacation and returned from Florida late on February 24. On the evening of February 25, Kemp, after consulting with Foreman James Kemp, decided to discharge Knowles the first thing the next morning, February 26. Prior to Knowles' arrival at the shop on the 26th, Kemp summoned Kenneth Cart to his home and upon his arrival stated, "I hear you fellows want a union." During the long conversation which followed, Kemp warned Cart, in effect, that under a union he might suffer because of his low seniority and apprentice status, threatened that he would be in a position to lose time during machine breakdowns if a union came in, and suggested that possibility of moving the plant to Florida. Immediately after this conversation with Cart, Kemp had Cooley come to his home where he repeated substantially the same threats and warnings. Upon Cooley's return all five men met and discussed Kemp's remarks, which they interpreted as threatening a wage cut and a loss of working hours if the shop were organized. As a result of this discussion Cooley decided to return to work. And one of the five men, that same day, notified the Union that they were withdrawing their bargaining authorizations. In the meantime, when Knowles arrived at the plant at 7:25 that morning, Foreman James Kemp notified him of his discharge. The only explanation given at the time was that he was too slow in his work, a shortcoming (accepting the Respondent's contention in this regard) of which Kemp was tolerant until the Union appeared on the scene. Knowles immediately asked the foreman whether Kemp had heard about the Union. The foreman admitted that Kemp had heard about it, but quickly disclaimed this as the reason for Knowles' discharge, adding that it was Knowles' slow work which was the reason. These circumstances in combination, assuming that Kemp had knowledge of Knowles' union activities at the time he decided to discharge him, strongly suggest that it was Knowles' union activity which was the real reason for his discharge, and that the assigned reason , Knowles' alleged slow work, was just a pretext. With regard to the question of Kemp's knowledge, as noted above. Kemp himself testified that the first time he heard about the union meeting was "when the men walked off the job and [he] asked Mr. Cooley why." His testimony in this regard, however, does not square with the credited testimony of the men concerning the sequence of events in this case. That Kemp had knowledge of the Union prior to his conversation with Cooley is demonstrated by the fact that the first thing that morning, over 11/2 hours before his conversation with Cooley, he commented to Cart about the men "wanting" a union and went on to point out the adverse con- sequences of the shop's becoming organized. And Kemp had summoned Cart to his office even before Knowles' arrival at the shop that morning,24 which, of course, was before Cart even had an opportunity to walk out in protest against Knowles' discharge Kemp therefore was in error in testifying that he first learned of the Union when he asked Cooley, after Knowles' discharge, why the men had walked out. That Kemp had heard about the Union even prior to Knowles' discharge is indicated in Cooley's testimony that Kemp had told him, when he asked Kemp how he had found out about the Union, that he had not heard about it until the day before, after his return to Peoria. This conclusion is further supported by Knowles' credited testimony, above referred to, that he had asked Kemp how he learned about the union meeting "so fast" and that Kemp had replied that "Hylee is the one who told me." In view of the foregoing, I find that President Fred Kemp had knowledge of the union meetine in which Knowles and the others had participated before he decided to discharge Knowles. Under all the circumstances of the case and upon the entire record I conclude that the abrupt dismissal of Knowles, an old and valued employee, for a shortcoming that Kemp had viewed with tolerance until the Union appeared on the scene, was 24 This is clearly established by the uncontradicted testimony of Cart and Cooley 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attributable to the Respondent 's aversion to having a union in the shop, and was therefore violative of Section 8(a)(3) and (1) of the Act 25 2. The Respondent's interference, restraint, and coercion in violation of Section 8(a)(1) of the Act As stated above, Fred Kemp, the Respondent's president, in rapid sequence dis- charged Knowles and summoned two other employees to his office for interviews. The affected employees constituted a majority of the Respondent's five nonsupervisory employees. Kemp questioned both Cart and Cooley about their union adherence, and asked Cooley how many had signed. Then he reminded both men that they would be apprentices under the Union's procedures, thereby suggesting that they would be among the lowest paid employees if the Union came in. And Kemp warned Cart that the chances were that his wages would be "frozen" under a union. In his conversations with both men Kemp also brought out that under a union they probably would lose time during machine breakdowns because, unlike the Respond- ent's practice, it was not customary in union shops for men to be transferred from one machine to another. Finally, Kemp suggested that bringing a union in might result in the shop's being moved to Florida. While Kemp in his remarks purported only to be discussing the possibilities if a union came in, actually it was Kemp alone who could translate these possibilities into realities, witness particularly his comments about wages being "frozen" and the employees losing time because of machine breakdown. I find that the natural tendency of President Kemp's remarks, above summarized, in the context of the events in which they were made, was to interfere with, restrain, and coerce the employees in the exercise of the rights guaranteed in Section 7 of the Act, and that Kemp's remarks in this regard, therefore, constituted a violation of Section 8(a) (1) of the Act.26 I find further that Kemp's interrogation of Cart and Cooley about the Union, in the circumstances of this case, constituted a further violation of Section 8 (a) (1) of the Act. The record, in my opinion, does not adequately sustain the allegations of the complaint concerning the Respondent' s solicitation of employees to withdraw from the Union and, accordingly, these allegations will be dismissed. 3. The Respondent's refusal to recognize and bargain with the Union in violation of Section 8 (a) (5) of the Act All five of the Respondent's nonsupervisory machine shop production employees, who I find constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, signed cards authorizing the Union to represent them for the purposes of collective bargaining on January 23, 1959. As found above, sometime prior to the evening of January 25, 1959, Fred Kemp, the Respondent's president, acquired knowledge that Knowles and some of the other employees had become interested in the Union. On that night Kemp decided to dis- charge Knowles, in order to discourage membership in the Union, as I have found. The next morning Kemp interrogated and warned two other employees about the adverse consequences of bringing a union into the shop. Kemp's threats had their intended and foreseeable effect. On the afternoon of February 26, one of the men notified the Union that the four remaining employees were withdrawing their bar- gaining authorizations. In the meantime, during Kemp's interview with Cart, Union Representative McGee informed Kemp of the Union's representaitve status and requested Kemp to recognize the Union without an election. Kemp refused, and he thereafter failed to answer 25 In reaching this conclusion I have not overlooked President Kemp's testimony that he was an old union man himself, and that he had told the men on various occasions that they could discuss the Union treely in the shop and that they could do whatever they liked about joining. Kemp's actions when first confronted with the necessity of dealing with the Union speak louder than his words , and they belie his professions of indifference to the employees' decision in the matter. 20 Compare N.L R.B. v. W. C. Nabors d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 (C.A. 5), cert denied 344 U.S. 865, in which the Court stated : "When statements such as these are made by one who is a part of the company management, and who has the power to change prophecies into realities, such statements, whether couched in language of probability or certainty, tend to impede and coerce employees in their right of self- organization , and therefore constitute unfair labor practices." ABRASIVE SALVAGE COMPANY, INC. 393 McGee's letter dated January 26, 1959, requesting the Respondent to set a date for a bargaining meeting. Under all the circumstances of the case, I find that the Respondent's refusal to recognize and bargain collectively with the Union was not motivated by any good- faith doubt as to the Union's representative status, but rather by a desire to avoid bargaining entirely. The Respondent's conduct herein, I find, in accordance with the General Counsel's contention, brings the case within the rule stated in Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732, 741, cert. denied 341 U.S. 914, as follows: It has been held that an employer may refuse recognition to a union when motivated by a good faith doubt as to that union's majority status. North Electric Mfg. Co. v. N.L.R.B., 123 F. 2d 887 (C.A. 6); N.L.R.B. v. Chicago Apparatus Co., 116 F. 2d 753 (C.A. 7). When, however, such refusal is due to a desire to gain time and to take action to dissipate the union's majority, the refusal is no longer justifiable sand constitutes a violation of the duty to bargain set forth in section 8(a) (5) of the Act. N.L.R.B. v. Federbush Co., 121 F. 2d 954, 956 (C.A. 2); N.L.R.B. v. Remington Rand, Inc., 94 F. 2d 862, 868-869 (C.A.2). Accordingly, I conclude that the Respondent has violated Section 8(a)(5) and (1) of the Act. In reaching this conclusion I have considered Respondent's contention that the employees signed authorization cards merely to enable the Union to obtain an elec- tion, and did not intend to make the Union their bargaining representative unless the Union later won a Board-conducted election. The General Counsel argues in effect that such testimony is without probative value in determining the Union's repre- sentative status in view of the men's overt action in signing the authorization cards. I conclude, however, that had Union Representative McGee obtained the signatures of the five men on the authorization cards with the representations that they would be used solely to obtain a Board election and that they would not become effective unless a majority of the employees first voted for the Union in the election, and had the men signed with this understanding, then their testimony as to McGee's repre- sentations, in my opinion, would be relevant. Since,the Respondent in effect con- tends that this is the factual situation in this case, it is necessary for me to consider in detail the testimony concerning McGee's representations to the men at the time they signed authorization cards. As is often the case, the testimony is conflicting. The testimony of Cart, Cooley, and Knowles, discussed above, indicates that sometime during the lengthy discussion McGee made remarks which they construed as representations that the authorization cards would be used to obtain a Board election. However, the issue on this aspect of the case is whether McGee's remarks as a whole, as the discussion progressed, reasonably tended to lead the men to conclude that this was the only purpose for which the authorization cards were intended to be used, and that they were not to be effective at that time for their stated purpose. If McGee's remarks in their entirety were such, then they might be regarded as vitiating the employees' action in signing the authorization cards. On the other hand, if McGee's actual remarks were not of such a character, then the authorization cards remain fully effective as a present delegation of bargaining authority to the Union. For the reasons set forth below, I conclude that McGee did not actually repre- sent to the men that the cards would be used only for the purpose of obtaining an election. In the first place, the authorization cards on their face constitute a simple and readily understandable present delegation of bargaining authority to the Union. They were signed at the end of a lengthy discussion of the pros and cons of representation by the Union. The men who signed them all appeared to be intelligent adults able to comprehend the significance of their actions in signing the cards. I doubt that, after such a thorough discussion of the matter, these men would have signed cards clearly empowering the Union to represent them as of that time, if they intended only to put the question of representation to a vote at some later date. Another thing, both Cooley and Knowles testified that McGee had said that if the Board refused to conduct an election, he personally would come out and help them picket the plant in an effort to obtain recognition Such testimony, I believe, is inconsistent with the view that the men were not conferring present bargaining authority upon the Union when they signed authorization cards. Finally, McGee denied making any representation to the men that the authoriza- tion cards were intended only to be used to obtain an election. He affirmatively testi- fied, to the contrary, that he told the men that the cards authorized him "to ask their boss for recognition." While McGee discussed obtaining a Board election and mentioned the possibility of the employees voting against the Union at that .394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, as I have found, there was no misrepresentation involved. Such a statement is in accord with the realities of such situations. McGee at that time contemplated that an election would be necessary in order to obtain recognition from the Respond- ent, and his statement to the men at that time, made before any unfair labor prac- tices had been committed, that they would have the right to reject the Union at the time of the election, if they saw fit, was a truthful representation upon his then understanding of the situation. Under all the circumstances I credit McGee's testimony above summarized, and find that McGee did not represent to the men that they were signing cards only to enable the Union to have an election. Hence, as indicated above, the testimony of Cart and Cooley concerning McGee's remarks about an election, upon which the Respondent relies, cannot be treated as vitiating the authorization cards freely signed by the men. Consolidated Machine Tool Corporation, 67 NLRB 737, 752; Nubone Company, Inc, 62 NLRB 322, 343, 344. In any event, the record clearly shows that both Felder and Knowles were strongly in favor of the Union and intended, by signing the authorization cards, to have the Union act as their bargaining representative, whether or not any election were held. As Cooley credibly testified, Felder and Knowles indicated at the union meeting that they wanted to loin the Union right then and there. And there is no evidence that Scranton signed the authorization card because of representations by McGee that the cards would become effective only in the event that the Union later won an election. Absent such evidence, Scranton must be deemed bound by the authorization card which he signed. Thus even if the cards of Cooley and Cart be disregarded on the theory that they were not intended to constitute present dele- gations of bargaining authority, the Union still had a majority. Accordingly, the Respondent's contention that a majority of the employees had not designated the Union as their bargaining representative must be rejected. IV. THE REMEDY Having found that the Respondent has engaged in unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer James V. Knowles immediate and full reinstatement to his former or substantially equivalent position, without loss of seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of the discrimination to the date of the Respondent's offer of reinstatement, less his net earnings during said period, and in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. I shall recommend also that the Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back- pay due under the terms of these recommendations. Having found that the Union represented a majority of the employees in the appropriate unit and that the Respondent refused to bargain collectively, I shall recommend that the Respondent, upon request, bargain with the Union as the exclusive representative of the employees in the appropriate unit. The Respondent's unfair labor practices are such as to indicate an attitude of opposition to the purposes of the Act generally, and accordingly the commission of these and other unfair labor practices in the future is reasonably to be anticipated from the Respondent's past conduct. In these circumstances, the preventive purposes of the Act may be thwarted unless the remedy is coextensive with the threat. To effectuate the policies of the Act, therefore, it will be recommended that the Respond- ent cease and desist from infringing in any manner upon the rights guaranteed employees by the Act. Upon the foregoing findings of fact, and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of James V Knowles, thereby discouraging membership in the Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. MAX FRANCIS TRUCKING 395 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. All the nonsupervisory production employees in the Respondent's machine shop constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. The Union on February 23, 1959, was, and all times thereafter has been, the exclusive bargaining representative of all employees in such unit for the purposes of collective bargaining. 6. By refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in an appropriate unit on and after February 26, 1959, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not violated Section 8(a)(1) of the Act by soliciting employees to withdraw from the Union or by aiding them in effecting such withdrawals. [Recommendations omitted from publication.] Max Francis, d/b/a Max Francis Trucking and Teamsters Local 886, International Brotherhood of Teamsters, Chauffeurs; Warehousemen and Helpers of America. Case No. 16-CA-1237. April 25, 1960 DECISION AND ORDER On January 25, 1960, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that said complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions, and a supporting brief. 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 [Chairman Leedom and Members Rodgers and Jenkins]. 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 Interme- diate Report, the exceptions and brief, and the entire record in the cafse, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Enid, Oklahoma, on August 5 and 6, 127 NLRB No. 52.