Gray, Rogers Graham & Osborne

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CIO, and International Union of Operating Engineers, Local Union No. 12, AFL- CIO, are labor organizations within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of employment of its em- ployees, thereby discouraging membership in the above labor organization, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of the Act. [Recommendations omitted from publication.] Gray, Rogers, Graham & Osborne and Madison Earl Carrithers and Albert Ellis Hartley, Jr. and Local No. 189, American Federation of Technical Engineers , AFL-CIO. Cases Nos. 19-CA-1799, 19-CA-1800, and 19-CA-1799-2. October 25, 1960 DECISION AND ORDER On March 31, 1960, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in these cases and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations, except as modified herein. 1. We agree with the Trial Examiner that the Respondents are engaged in a business affecting commerce within the meaning of the Act and that the assertion of jurisdiction thereof is warranted. The Respondents are engaged in the business of architecture, engineering, and land surveying at Fairbanks, Alaska. During 1959, they per- formed services valued at $35,482 for the U.S. Corps of Engineers, Ladd Air Force Base, and Eielson Air Force Base. In addition, serv- ices connected with airstrips were performed for Alaska's Interna- tional Airport and the Alaska Department of Aviation, which were valued in excess of $18,000 and $26,000, respectively. Upon the entire record, we find that the Respondents' operations exert a sufficient impact on national defense to justify our exercising jurisdiction in these cases.' 1 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]. a Ready Mixed Concrete & Materials, Inc., 122 NLRB 318. 129 NLRB No. 52. GRAY, ROGERS, GRAHAM & OSBORNE 451 2. We agree with the Trial Examiner that the Respondents dis- charged employees Hartley and Carrithers because of their member- ship in the Union and thereby violated Section 8(a) (3) of the Act. 3. We do not agree with the Trial Examiner that the Respondents violated Section 8(a) (5) of the Act by their refusal to bargain with the Union. The Union's request for bargaining on May 30, 1959, was for a unit of full-time field survey employees. At that time, the Trial Ex- aminer has found, there were three such employees, two of whom were members of the Union. The latter two employees, who are the com- plainants in this case, were hired on May 9, 1959, and they spent most of their May employment, as did Tampke, the third of the afore- mentioned employees, in field survey work. However, none of Re- spondents' employees are in fact full-time field survey crew members. The amount of field survey work depends to a large extent on climatic conditions, little, if any, being possible during the cold winter months. During the season when field survey crews function, such work is not assigned exclusively to any particular individuals. The Respondents' employees are capable of performing field surveys or drafting and other related duties and, as conditions demand, they may be as- signed to one or the other type of work. For example, a total of seven employees performed some surveying work during May 1959. Clearly, therefore, the interests of the three employees requested by the Union are indistinguishable from those of the other employees in the group performing dual functions. Consequently, a unit confined to them is inappropriate for purposes of collective bargaining. And as the Union, with its representation of only two employees, cannot be found to have represented a majority of employees in the appro- priate unit at any time, we conclude that the Respondent did not vio- late Section 8 (a) (5) of the Act.' ORDER Upon the entire record in this proceeding, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Bob P. Gray, Leslie Rogers, Jennings Graham, and Edward Osborne, a co- partnership d/b/a Gray, Rogers, Graham & Osborne, Fairbanks, Alaska, their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Local No. 189, American Feder- ation of Technical Engineers, AFL-CIO, or in any other labor or- ganization, by discriminating against their employees in regard to their hire or tenure of employment, or any term or condition of their employment, except to the extent that such right may be affected by 3 See E. R. Goddard & Company, Inc., 105 NLRB 849, 856-858. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any manner interfering with, restraining, or coercing their employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Local No. 189, American Feder- ation of Technical Engineers, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, 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 Albert Ellis Hartley, Jr., and Madison Earl Carrithers immediate and full reinstatement to their former or substantially equivalent jobs, without prejudice to any rights and privileges pre- viously enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of Respondents' discrimination against them, 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 security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due and the right of reinstatement under the terms of the Order herein. (c) Post at its establishment at Fairbanks, Alaska, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by Respondents' authorized representa- tive, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondents have 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." GRAY, ROGERS, GRAHAM & OSBORNE 453 IT IS FURTHER ORDERED that the consolidated complaint herein be, and it hereby is, dismissed, insofar as it alleges that the Respondents violated the Act otherwise than as found above. MEMBER RODGERS, dissenting : I do not think that Respondent's operations have a sufficient impact on national defense to warrant the assertion of jurisdiction in this case. Ready Mixed Concrete & Materials, Inc., 122 NLRB 318. Ac- cordingly, I would dismiss the complaint. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relation=. Board, and in order to effectuate the policies of the National Laboi Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Local No. 189, Amer- ican Federation of Technical Engineers, AFL-CIO, or in any other labor organization of our employees, by discriminating against our employees in regard to their hire or tenure of employ- ment, or any term or condition of employment, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to assist Local No. 189, American Federation of Technical Engineers, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and 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 National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Albert Ellis Hartley, Jr., and to Madison Earl Carrithers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any rights and privileges previously enjoyed by them, and we will make them whole for any loss of wages suffered as a result of our discrimina- tion against them. All our employees are free to become, remain, or refrain from be- coming or remaining members of the above-named Union, or any 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other labor organization , except to the extent that this right may be affected by a lawful 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. GRAY, ROGERS, GRAHAM & OSBORNE, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed on June 12 , 1959, by Madison E. Carrithers, upon a charge duly filed on June 15, 1959, by Albert E. Hartley, Jr., and upon a charge duly filed on November 11, 1959, by Local No. 189, American Federation of Technical Engineers , AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel i and the Board, respectively, through the Regional Director for the Nineteenth Region (Seattle, Washington), issued an amended consolidated complaint, dated January 6, 1960, against the firm of Gray, Rogers, Graham & Osborne, Fairbanks, Alaska, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1),(3), and (5 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges , amended consolidated complaint, and notice of hearing thereon were duly served upon Respondent , Hartley, Carrithers , and the Union. Specifically, the amended consolidated complaint alleged that (1) since May 30, 1959, Respondent has refused to bargain collectively with the Union although the Union was then, and still is, the selected and designated collective -bargaining repre- sentative of Respondent's employees in a certain appropriate unit; and (2) Re- spondent discharged Hartley and Carrithers on June 1, 1959, and thereafter has refused to reinstate either of them, because each had signed cards authorizing the Union to represent them for the purposes of collective bargaining. On January 14, 1960, Respondent duly filed an answer to the amended con- solidated complaint denying the commission of the unfair labor practices alleged. As for an affirmative defense said answer averred that the Board "does not have jurisdiction in the cause " Pursuant to due notice , a hearing was held on February 1 and 2, 1960 , at Fair- banks, Alaska, before the duly designated Trial Examiner . The General Counsel and Respondent were represented by counsel . Full opportunity was afforded all parties to be heard , to examine and cross-examine witnesses , to introduce evidence perti- nent to the issues, to argue orally at the conclusion of the taking of the evidence, and to file briefs on or before February 26, 1960 The Respondent filed a brief on March 1 , 1960. The Trial Examiner has carefully considered said brief although it was not timely filed. After the close of the hearing, Respondent's counsel and the General Counsel entered into a written stipulation providing for the taking of the testimony of Leslie Rogers, a Respondent partner, by written interrogatories. The said stipulation is hereby received in evidence and marked "Trial Examiner's Exhibit No. 1." Said testimony was taken and sworn to before Respondent 's counsel at Fairbanks , Alaska, on March 4, 1960. Said testimony was received by the Trial Examiner on March 7, 1960. The interrogatories are hereby received in evidence and marked "Trial Examiner's Exhibit No. 2." Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: I This term specifically includes counsel for the General Counsel appearing at the hearing. GRAY, ROGERS, GRAHAM & OSBORNE 455 FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS Respondent, a copartnership consisting of Bob P. Gray, Leslie Rogers, Edward Osborne, and Jennings Graham, is engaged in the business of architecture, engineer- ing, and land surveying, at Fairbanks, Alaska. Respondent rendered services to the Federal Government and to the Territory of Alaska during 1958-59 as follows: Worked, 1958 Paid, 1958 Worked, 1959 Paid, 1959 U S Corps of Engineers_______________________________ $50000 0 $10,482 00 $10,98200 State Department of highways________________________ 15,700 00 $15,000 00 980 00 1, 680 00 University Geophysical Institution 2___________________ 1,000 00 1,000 00 956 00 956 00 State Department of Agriculture_______________________ 0 0 531 00 531 00 Ladd Air Force Base, Fairbanks_______________________ 3.726 00 3,726 00 13,000 00 9,445 00 Eielson Air Force Base, Fairbanks_____________________ 11,250 00 11.250 00 12,000 00 Alaska Department of Aviation________________________ 4,645 00 4,645 00 26,, 300 00 23,300 00 '$2,250-1958 work In addition to the above, Respondent, during 1959, rendered services to the Inter- national Airport in the amount of $18,660. This airport is the largest commercial airport in Fairbanks and is used by the major airlines, such as Pan-American. During 1959, Respondent also rendered services to the Fairbanks school district in the sum of approximately $55,000; and in 1958-59, rendered services, amounting to between $14,000 and $15,000, to a Fairbanks bowling alley and designed a dress shop for Gladys Morris. In 1959, it rendered services, amounting to approxi- mately $2,000, to the Golden Valley Electric Association, a rural electric association which supplies power to communities located outside of the area served by Fairbanks Municipal Utility Company. On the basis of the foregoing facts, the Trial Examiner finds, in line with estab- lished Board authority and contrary to Respondent's contentions, that Respondent is engaged in, and during all times material was engaged in, business affecting commerce within the meaning of the Act and that its operations meet the standards fixed by the Board for the assertion of jurisdiction. If. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Repondent. III. THE UNFAIR LABOR PRACTICES INVOLVED A. The refusal to bargain collectively with the Union 1. The appropriate unit The amended consolidated complaint alleged that, during all times material, all Respondent's full-time field survey personnel, excluding all other personnel, consti- tuted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. Respondent's answer to the amended consolidated complaint denied the aforesaid allegation. Upon the entire record in the case, the Trial Examiner is of the opinion, and finds, that all Respondent's field survey personnel, excluding all other personnel, constituted, and now constitute, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment. The Trial Examiner further finds that said unit insures to said employees the full benefit of their right to self-organization, to collective bargaining, and otherwise effectuates the policies of the Act. 2. The Union's majority status in the appropriate unit As of May 30, 1959,3 the date when the Union made its initial demand for recog- nition, there were three persons 4 in the unit hereinabove found appropriate. Ac- 2 A branch of the University of Alaska 3 Unless otherwise noted, all dates hereinafter mentioned refer to 1959 4 Namely, Hartley, Carrithers, and Fred Tampke. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to the credible testimony of Hartley, he and Carrithers went to the Union's hall, sometime between May 15 and 30, and there, in the presence of each other and in the presence of Union Business Manager Ronald Labe, signed union membership application cards expressly authorizing the Union to represent them for collective bargaining; and that after they had signed said cards they handed them to Labe. Upon the basis of the entire record, the Trial Examiner finds that the Union was, sometime between May 15 and 30, at all times thereafter has been, and still is the duly selected and designated representative of the majority of the employees in the appropriate unit, and, by virtue of Section 9(a) of the Act, was, prior to May 30, and since that date has been, the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to grievances, labor dis- putes, rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain a. The pertinent facts Union Recording Secretary Dietrich T. Strohmaier credibly testified 5 that about 5 p.m. on May 30, he and Labe went to Respondent's offices and met with Rogers; that after introducing himself to Rogers, Labe asked whether Respondent "would be willing to commence negotiations" looking toward a collective-bargaining contract "covering the field survey personnel"; that Labe then handed Rogers the membership application cards which Hartley and Carrithers had signed; that after Rogers had examined said cards, he remarked, "This will cost them their job [sic]"; that Labe then stated that it would be illegal for Rogers to take such action; and that Rogers then asked what the union wage scale was and when he was told what it was, he said: "The union scale was too high because, number one, the company could not afford to pay it, and number two, the experience and quality of the working force available was not such that it was worth this type of pay," adding that he "was quite dissatisfied with the Union help he had had." Discussion was also had about the pay Hartley and Carrithers were receiving. Rogers then said that Re- spondent was doing Hartley and Carrithers each a favor by employing them because they were receiving valuable experience while being paid. When Strohmaier questioned the wisdom of sending two purportedly inexperienced men to the job without direct supervision, Rogers remarked. "Well, anybody can run a pole line." The above-referred-to meeting ended after Rogers had suggested that perhaps "the union might work out an apprenticeship program" and Labe and Strohmaier stating that was "a fit subject matter for negotiations if and when the company would desire to commence negotiations [they] again asked if the firm would be willing to open negotiations, and Mr. Rogers said he couldn't say." Strohmaier testified further, and the Trial Examiner finds, that Rogers contended at the May 30 meeting, referred to immediately above, that certain part-time field survey employees should be included in the unit. However, the record discloses, and the Trial Examiner finds, that on May 30, the only full-time field survey em- ployees in Respondent's employ were Hartley, Carrithers, and Tampke; that during the month of May, Tampke worked surveying 1761/2 hours, Charles Morgan 3 hours, Jerry Hook 8 hours, Hartley 142 hours, Carrithers 138 hours, John Whitaker 121/2 hours, and Roy Wright 241/2 hours. On June 3, Respondent received a letter from Labe again requesting that Respond- ent bargain collectively with the Union for the field survey personnel. On June 4, Rogers wrote the union: This is to acknowledge your letter received June 3, 1959, and to advise you that we are willing to discuss with you the question of your representation of men in our employ and any other pertinent matters. It is understood, as per your agreement with our attorney, Mr. Merdes, that you will, upon receipt of the letter withdraw your picketing operation. 5In the light of the entire record in the case, the Trial Examiner has accepted as sub- stantially correct the testimony of Strohmaier and has rejected Rogers' testimony respect- ing what transpired in Respondent's offices on May 30 between Rogers, Labe, and Strohmaier, mainly on (1) his observation of the conduct and deportment at the hearing of Strohmaier; (2) a very careful scrutiny of the record, including Rogers' deposition, all of which has been carefully read, and parts of which have been reread and rechecked several times : (3) the candor with which Strohmaier testified ; and (4) the fact that Strohmaier impressed the Trial Examiner as being a person who is meticulous in not enlarging his testimony beyond his actual memory of what occurred. GRAY, ROGERS, GRAHAM & OSBORNE 457 B. Concluding findings The right of employees under Section 7 of the Act "to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing [and] to refrain from any or all such activities " is effectively implemented by Section 8(a)(1) and (5). These provisions forbid an employer to "interfere with, restrain, or coerce employees in the rights guaranteed in Section 7," and likewise pro- hibit an employer from refusing to recognize or bargain collectively with the majority representative of his employees in the appropriate unit. The employer's economic hold over his employees , which inheres in their relationship , is thereby neutralized in matters of organization and representation , which are particularly the concern of the employees . Interdiction against tmployer intrusion in such matters is essential if employees are to be free from the coercive influence of their employer , for employees are, as the courts have repeatedly and uniformly held, not insensitive to the advan- tages in their employment that they consider are likely to flow from their employer, nor to the disadvantages which may attend their choice of representative opposed by their employer. And for the same reason , employees cannot be expected to derive the full benefit from their protected right of self -organization and to the selection of a representative of their own choosing if they believe , "from circumstances which their employer created or for which he was fairly responsible ," 6 that their representative, however chosen, is subject to the employer's approval or disapproval. In open disregard to its duty under the Act, Respondent embarked upon a cam- paign to defeat the unionization of its employees as soon as it was apprised that they had selected the Union as their collective-bargaining representative . Thus, as found below, the very next workday after Labe and Strohmaier had requested recognition of the Union as the exclusive collective-bargaining representative of the field survey personnel and had exhibited to Rogers the union membership application cards Hart- ley and Caruthers had signed , Respondent discriminatorily discharged those two employees. On May 30, when the Union demanded to be recognized and dealt with on behalf of the employees in the appropriate unit, the Union , in fact, was the duly designated collective-bargaining representative of the majority of said employees . Respondent's refusal to recognize and deal with the Union was a clear violation of Section 8(a) (5) of the Act, unless at that time Respondent had a bona fide doubt that the Union represented a majority. Respondent's conduct and activities , following the Union 's demand for recogni- tion, reveal Respondent's want of good faith . Normally, the Board does not hold an employer in violation of the Act , if he in good faith questions the union's majority status. But here Respondent, upon learning of the majority status, immediately resorted to serious unfair labor practices thereby transgressing the bounds of permis- sible conduct to a sufficient extent to warrant a conclusion that its refusal to recog- nize and deal with the Union was as ill-intentioned as its other actions.? Upon the record as a whole, the Trial Examiner finds that on May 30, 1959, and at all times thereafter , Respondent, in violation of Section 8(a) (5) of the Act, failed and refused to bargain collectively with the Union as the duly designated and selected representative of the majority of the employees in the unit hereinabove found appro- priate, thereby interfering with, restraining , and coercing its employees in the exercise of the right guaranteed in Section 7 of the Act. B. The discriminatory discharges of Hartley and Carrithers Hartley and Carrithers were hired on May 9 by Rogers. Hartley credibly testified 8 that after they had been hired, Rogers came to where he and Carrithers were working and asked them if they were members of the Union; B N L R B v Linh-Belt Company, 311 U S 584, 588 7 Joy Silk Mills, Inc. v. N L.R B., 185 F. 2d 732 (C A.D.C ; Franks Bros Company v XL R.B, 321 U S. 702 ; N L.R B. v. Federbush Company, Inc, 121 F. 2d 954 (C A 2) ; NLRB. v. Louisville Refining Co , 102 F. 2d 654 (C. A. 6) ; Dahlstrom Metallic Door Company v N,L R B., 112 F. 2d 756 ( C.A 2) ; Solvay Process Company v N L R B , 117 F. 2d 83 (C.A. 5) ; AT L R.B. v. Inter-City Advertising Co of Charlotte , N C, Inc, et al, 190 F 2d 420 (C A. 4 ) ; N.L R B v W. T Grant Company, 199 F 2d 711 (CA. 9) , NL R.B v. Motorola, Inc., 199 F. 2d 82 (C.A. 9) ; N.L R IS v Poultry Enter- prises, Inc., 207 F. 2d 522 (C.A. 5). 8 The Trial Examiner accepts Hartley's testimony as substantially in accord with the facts, and rejects Rogers' testimony with respect to the incidents about which Hartley testified mainly on (1) his observation of the conduct and deportment at the hearing of Hartley; ( 2) a careful scrutiny of the entire record in the case , including Rogers' deposi- 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that when they replied in the negative , Rogers said, in words or substance, "Well, that is fine, we are non-union here, we don't recognize the union"; and that Rogers indi- cated that he and Carrithers were not expected to join the Union. After doing odd jobs .for about a week, Hartley and Carrithers with Tampke were .issigned to the Golden Valley Electric survey job; Hartley as the instrument man and the other two as chainmen . Hartley and Carrithers remained on that job until they were discharged on June 1, except that Hartley worked on a subdivision job near the airport for 1 day during that period. About a week after the Golden Valley job had commenced, Labe went to the jobsite and asked the three above -named persons to join the Union. At quitting time, the day of Labe's aforesaid visit, Carrithers and Hartley returned to Respondent's offices and told Rogers, in the presence of one of his partners, Bob P. Gray, of Labe's visit and of his invitation to join the Union. They also told Rogers that they were seeking his advice about the Union because they were "undecided as to what to do" and because they were "new in Alaska." Rogers, according to Hart- ley's credible testimony, gave them "no particular reply" but "turned to Gray and he seemed to think it a big joke." As found above, Hartley and Carrithers joined the Union sometime between May 15 and 30; that about 5 p.m. on the latter date, Labe and Strohmaier informed Rogers, at the time they demanded recognition of the Union as the collective- bargaining representative of the field survey personnel , that Carrithers and Hartley were union members; and that Rogers replied to the announcement, "This will cost them their job [sic]." Hartley credibly testified that when he and Carrithers reported for work on June 1, the next workday after the May 30 Rogers -Labe-Strohmaier meeting, Carrithers and he saw a new employee in the office with Gray ; that Rogers arrived about 30 minutes after they had reported and shortly thereafter Rogers "started ," to quote from Hartley's testimony , "explaining to [Charles Bonner , the new employee] the opera- tion of this instrument we were using on the job, and explained to him some of the details of the job"; and . . . Mr. Rogers came over to us and just immediately started complaining that we were incompetent and incapable and inexperienced and that they knew that we were inexperienced when they hired us but they felt that we could handle this pole line job, which they later decided we couldn 't, Mr. Rogers and the company decided that we couldn't. * * * * * * * . . . he stated that when they came out there the preceding week , I believe it was Tuesday, he and Mr. Gray came out to the job with the intention of dismiss- ing us, but that upon examination of the job decided we were doing accurate enough work but that we were too slow and that so far that the partnership not made any money on the pole line job and that they had had to charge the people for only half the time that we had taken to do the lot subdivision. So they explained that, consequently, they felt they needed a more experienced man, and I asked Mr. Rogers at that time, "this being the case then you are just replacing me and not Bud ?" and Mr. Rogers said , "Well, it wouldn't have had to be either one of us as they had a job coming up sometime in the near future," which I believe he said would have required a four-man crew and Bud and I could have been two of them and they would have hired two others to fill the crew out; but the situation now was changed and he then told us, Mr. Labe and Mr. Strohmaier from the union had contacted him Saturday and that they had had to get more experienced men, so then. .. . * * * * * * * Mr. Rogers turned to Mr. Gray and asked Mr. Gray if he had had any diffi- culty contacting Mr. Bonner, so Mr . Gray replied "No," that he had contacted him Sunday evening and and had gotten in touch with Mr. Bonner. Well, let me see now, he said that the union had contacted them and that they had to find Mr. Bonner ... . * * * * * * * tion, all of which has been carefully read, and parts of which have been reread and re- checked several times, (3) the candor with which Hartley admitted that he could not be certain as to the dates or the exact words used by Rogers and others ; and (4) the fact that Hartley particularly impressed the Trial Examiner as being a person who is careful with the truth and meticulous in not enlarging his testimony beyond his actual memory of what occurred or what was said GRAY, ROGERS, GRAHAM & OSBORNE 459 ... Mr. Rogers just turned and walked away from us, so we waited; he started explaining the new instrument at that time to this Mr. Bonner fellow and we waited ten or fifteen minutes and were more or less ignored and I went up to Mr. Rogers and asked him "if we were no longer working for you, can we pick up our checks today," and he says "Yes, you may, you can pick them up at 11:00 o'clock," so we left. This case presents the comparatively rare situation where the recitation of the facts leading up to the discharges vividly reveals their discriminatory character.9 Immediately upon being informed by Labe and Strohmaier that Hartley and Carrithers were union members, Rogers stated that such memberships would cost them their jobs. The very sequence of events surrounding the discharges renders immediate suspect Respondent's proffered explanation in justification of its conduct. Thus, in the face of the convincing credited evidence that the discharges were plainly attributable to Respondent's animosity to the union memberships of the complainants herein, Respondent urges that the true reason for the discharges was that they were "incompetent and incapable and inexperienced." The Trial Examiner is convinced that Hartley's and Carrithers' shortcomings only became insupportable in their em- ployer's eyes when they joined the Union which their employer opposed 10 and that the advanced reasons for the discharges were merely a pretext." Upon the record as a whole, which clearly reveals Respondent's unconcealed union animosity, the Trial Examiner finds that Carrithers and Hartley were discharged because of their union membership and not for the reason advanced by Respondent.13 In N.L.R.B. v. May Department Stores Company, 154 F. 2d 533 (C.A. 8), the court said, at page 538, regarding a situation similar to the one presented here, that there is a "broad scope of inference open . . . on questions of motive and discrimination, where the evidence indicates a desire to thwart or nullify unionizing efforts, either generally or as to a particular employee-organization." And where, as here, the employer has shown strong opposition of its employees' unionization, "a very con- vincing case of discharge for cause would have to be made to make unreasonable a conclusion that [the] discharge was because of union affiliation." 13 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent discriminated in regard to the hire and tenure of employment of Albert Ellis Hartley, Jr., and Madison Earl Carrithers by discharging them on June 1, 1959, the Trial Examiner will recommend that the Respondent offer them immediate and full reinstatement to their former or sub- ° Compare the oft-quoted observation of Chief Judge Parker in Hartsell Mills Company v N.L R B., 111 F 2d 291, 293 (CA. 4), ". . . direct evidence of a purpose to violate the statute is rarely obtainable" Accord : N.L R B. v. Bird Machine Company, 161 F 2d 589, 592 (CA. 1). 10 Cf. NLRB. v. Wells, Incorporated, 162 F. 2d 457 (C.A. 9) ; D. W. Onan & Sons v. N L.R.B , 139 F 2d 728 (C A. '8) ; Edward G Budd Manufacturing Co. v. N.L R B., 138 F 2d 86 (CA 3) ; Agwilines, Inc v. N.LR.B., 87 F. 2d 146 (C.A. 5) 11 Of course, disbelief of the reasons advanced by Respondent does not itself make out a violation The burden is on the General Counsel to establish discriminatory motive, not on Respondent to disprove it But here, the General Counsel more than amply met that burden. 12 It goes without saying, as the Fifth Circuit pointed out in N.L R B v T. A. McGahey, Sr ; et al., d/b/e Columbus Marble Works, 233 F. 2d 406, "Management can discharge for good cause or bad cause, or no cause at all" provided the discharge was not moti- vated by any purpose progeribed by the Act. But, the court, however, pointed out that where the evidence reveals that the real and dominant purpose for the discharge was discriminatory, as here, then a finding of a violation of Section 8(a) (3) of the Act is clearly warranted. 13 Dannen Grain and Milling Company v. N L R B., 130 F. 2d 321, 328 (C.A. 8). 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of said discrimination by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination against them to the date of the offer of reinstatement, less their net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289. Having found that Respondent, on May 30, 1959, and at all times thereafter, has refused to bargain collectively with the Union as the representative of the employees in an appropriate unit, the Trial Examiner will recommend that Respondent, upon request, bargain collectively with that organization as the exclusive representative of all the employees in the unit heretofore found appropriate, and, if an agreement is reached, embody such understanding in a signed agreement. In the opinion of the Trial Examiner, the unfair labor practices committed by the Respondent in the instant case are such as to indicate an attitude of opposition to the purposes of the Act generally. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local No. 189, American Federation of Technical Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All Respondent's full-time field survey personnel, excluding all other per- sonnel, constitute, and at all times material constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. Local No. 189, American Federation of Technical Engineers, AFL-CIO, was, on May 30, 1959, at all times thereafter has been, and now is the exclusive repre- sentative of all the employees in the above-described unit for the purposes of collec- tive bargaining within the meaning of Section 9(a) of the Act. 4. By failing and refusing on May 30, 1959, and at all times thereafter, to bargain with the Union, as the exclusive representative of all the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Albert Ellis Hartley, Jr., and Madison Earl Carrithers, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. ^6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Jackson Manufacturing Company and International Association of Machinists, AFL-CIO and Local Lodge 2009, International Association of Machinists, AFL-CIO Kershaw Manufacturing Company and International Associa- tion of Machinists, AFL-CIO and Local Lodge 2009, Inter- national Association of Machinists, AFL-CIO. Cases Nos. 15-CA-1097, 15-CA-1412, 15-CA-1098, and 15-CA-1413. Octo- ber 28, 1960 DECISION AND ORDER On February 23, 1960, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the 129 NLRB No 55.