Douglas Aircraft Co., Inc.

DOUGLAS AIRCRAFT COMPANY, INC. 577 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 thereof. V. THE REMEDY Having found that the Respondent has engaged in a certain unfair labor practice, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent's conduct does not disclose any intent to engage in other conduct proscribed by the Act. I shall recom- mend that Respondent be ordered to cease and desist from interfering with, re- straining, and coercing its employees, and from discriminating against employees to discourage membership in the Union or any other labor organization, by refusing to hire an applicant for employment because of his prior concerted activity, or by like or related conduct. I shall also recommend that Respondent offer to Anthony Kabbaze .the job he applied for on September 18, 1959, or a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respondent's dis- crimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date he would have been placed on Respondent's payroll, absent its unfair conduct, to the date of Respondent's offer to hire him, less his earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. I shall also recommend that Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amount due and other rights under this recommended remedy. Upon the basis of the foregoing findings of fact, and upon the entire record in :the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the the Act, and the American Flint Glass Workers Union of North America, AFL-CIO, and its Local 1007, are labor organizations within the meaning of Section 2(5) of the Act. 2. By refusing to hire Anthony Kabbaze, the Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a) (1) and (3) of the Act. 3. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Douglas Aircraft Company, Inc. and Alfred E. Posner. Case No. $1-CA-3777. November 3, 1960 DECISION AND ORDER On June 14, 1960, Trial Examiner James R. Hemingway 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief. 129 NLRB No. 73. 586439--61-vol. 129---38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board I 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 Intermediate 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 the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Douglas Aircraft Company, Inc., Long Beach, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees or applicants for employment con- cerning their union membership, attitude, sympathies, views, or ac- tivities in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1). (b) Discouraging membership in The Douglas Association of Security Officers, or in any other labor organization of its employees, by discharging or otherwise discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of its employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed by 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 Alfred E. Posner immediate and full reinstatement to his former or substantially equivalent position,' without prejudice to his seniority or other rights and privileges, and make him whole by paying him a sum of money equal to that which, absent discrimina- tion, he would have earned between October 14, 1959, the date of his 1Pursuant 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 Jenkins and Fanning]. 2 See The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch, 65 NLRB 827. DOUGLAS AIRCRAFT COMPANY, INC. 579 discharge, and the date of his reinstatement or of his receipt of the Respondent's offer of reinstatement, if the offer is not accepted by him, less his net earnings elsewhere during said period, the net amount to be computed on a quarterly basis in accordance with the Board's established practice 3 (b) Preserve and, upon request, make available to the Board or its ,agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Long Beach, California, plant, copies of the notice attached hereto marked "Appendix A." 4 Copies of said notice, to be provided by the Regional Director for the Twenty-first Region, shall, after having been duly signed by the Respondent's representa- tive, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to plant protection personnel 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. (d) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 F 1V Woolworth Company, 90 NLRB 289. 4 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 Deciee of the United States Court of Appeals, Enforcing an Order." APPENDIX A 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 you that : WE WILL offer Alfred E. Posner immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges previously enjoyed, and we will make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL NOT interrogate our employees concerning their union membership, attitude, sympathies, views, or activities in any manner constituting interference, restraint, or coercion in viola- tion of Section 8(a) (1). WE WILL NOT discourage membership in The Douglas Asso- ciation of Security Officers, or any other labor organization, by 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharging any of our employees or otherwise discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist The Douglas Association of Security Officers, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose 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 agreement requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8(a) (3) of the Act,_ as modified by the Labor- Management Reporting and Disclosure Act of 1959. DOUGLAS AIRCRAFT COMPANY, INC., 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 The complaint herein, based on alleged violations of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, in substance, alleges that Douglas Aircraft Company, Inc., herein called the Re- spondent, through officers, agents, and employees, made certain alleged statements and interrogated employees concerning union membership or activities of employees, and on or about October 14, 1959, discharged Alfred E. Posner because he joined or assisted The Douglas Association of Security Officers or engaged in other concerted activities for the purposes of collective bargaining or other mutual aid or protection. The Respondent admits that it discharged Posner but alleges that it discharged him for dereliction of duty and not for the reason alleged in the complaint, and it denied all other alleged unfair labor practices. Pursuant to notice, a hearing was conducted in Los Angeles, California, between January 11 and 29, 1960, before the duly designated Trial Examiner. The parties were given full opportunity to examine and cross-examine witnesses and to introduce other evidence bearing on the issues. At the end of the General Counsel's case-in- chief, the General Counsel moved to amend the complaint to add an additional incident of interrogation in conformity with the evidence. The motion was granted over the Respondent's objection. At the same time, the General Counsel pointed out that, because of the unavailability of a witness, he had not offered proof of an- other allegation of a violation of Section 8(a)(1) of the Act and moved to strike that portion of the complaint. That motion was granted without opposition. At the close of the hearing, counsel for each side waived oral argument but requested and were granted time in which to file briefs. Briefs have been received from both the General Counsel and the Respondent and have been duly considered. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and I find that the Respondent is a cor- poration duly organized under and existing by virtue of the laws of the State of DOUGLAS AIRCRAFT COMPANY, INC. 581 Delaware, having a plant and place of business in the city of Long Beach, California, where it is now, and at all times material hereto has been, continuously engaged in the manufacture, sale, and distribution of military and commercial airplanes and aircraft parts. In the course and conduct of its business operations, during the past 12-month period, the Respondent shipped products valued in excess of $50,000 out- side the State of California. The operations of the Respondent have a substantial impact on national defense. It is conceded that the Respondent is engaged in com- merce within the meaning of the Act II. THE ORGANIZATION INVOLVED The Douglas Association of Security Officers, herein called the Union, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The plant security department of the Respondent's Long Beach division is sub- divided into police and fire units. The police work is done by uniformed plant pro- tection officers, about 145 in number in October 1959. At the head of this plant security is Chief Robert Mannagh. His supervisory staff consists of an assistant, Captain Van Cleave (over both police and fire), William Row, captain of the fire department, and various lieutenants and sergeants. Most of the remaining per- sonnel, except for investigators and a security supervisor, are hourly paid employees. Leadmen are hourly paid and are not alleged to be supervisors. The Union commenced organizing hourly paid plant protection personnel in about March 1959, and an election was held on July 30, 1959, which the Union lost. Plant Protection Officer Edison Caldwell testified that in mid-April 1959, his super- visor, Lt. William Denny, drove up to Caldwell's post at gate No. 4A in a company car and asked Caldwell if he had heard "any of the boys" talking about the Union, that he had answered Denny in the negative, and that Denny had asked Caldwell to let him know if he heard anything about the Union or if they approached him. Denny testified that he recalled "part of the conversation" but that, if he remembered it correctly, Caldwell brought up the subject with him. Although Caldwell did not impress one as having a memory remarkable enough to remember word for word a conversation that had taken place months earlier, I am convinced that he was testi- fying to the best of his memory. Denny's testimony was not so convincing. It appeared tailored to an extent that destroyed its effectiveness. I find, therefore, that Denny did question Caldwell substantially as the latter testified and 'attempted through Caldwell,to get information about the union activities of employees On another occasion, on May 12, 1959, at the same place, after exchanging greet- ings with Caldwell, Denny told Caldwell he understood that he had gone to a union meeting. Caldwell said it was -an association meeting at El Segundo rather than a union meeting (referring, I assume, do the use of the word "association" in the Union's name). Denny asked Caldwell if he had joined and Caldwell replied, "Well, I think they sold me on it." Denny said that was not what he wanted to know; that he wanted to know if Caldwell9iad joined. Caldwell, however, merely repeated his answer, and Denny said, "Oh, hell, you won't tell me what I want to know," and left As part of this conversation, Caldwell testified: "Then I believe that that time he says, `We have something going on here that you men may be sorry for.' " Denny denied having spoken the quoted words, but they appeared to form an association in his mind, because, in reference to this part of the conversation, he testified that Caldwell had asked him if he knew of, or could give any information about, some- thing, but he was unable to do so. Denny testified that he inferred that Caldwell was speaking about what he then understood was a social club but dater discovered was not. Neither Caldwell's nor Denny's testimony as to this part of their conversation was very lucid. I infer, from this and other evidence in the record, that it related to some counterunion organization under the guise of a social club. However, because Caldwell apparently did not take the quoted words of Denny as a threat and because neither Caldwell nor Denny related enough to explain the context of the quoted words, I make no finding of any violation of the Act on this portion of Caldwell's testimony. I do find, however, that by Denny's questioning of Caldwell about his union membership in May 1959, the Respondent violated Section 8(a)(1) of the Act. The date of Caldwell's conversation with Denny in April was not fixed closer in that month than mid-April. If this puts it about April 15, 1959, as it well might, the date preceded by more than 6 months the date of the filing of the charge (October 20, 1959) and I therefore make no finding of a violation of the Act based thereon. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In June 1959, Denny had a conversation with Plant Protection Officer Thomas. Cahill. Each gave different versions of the critical part of the conversation. Cahill, according to Denny, had previously been on the second shift, Denny's shift, but, having expressed a desire for more money, had, with Denny's help, transferred to the third shift (10:30 p m. to 6:30 a.m.). On the occasion mentioned, Denny left word with the policewoman, who opened the gate for the third shift that night, to send Cahill to him outside of building No. 7 (the department's offices) when he should arrive. Thereafter Cahill met Denny in front of that building. Denny was in his company car, and he invited Cahill to get in. Cahill did. According to Cahill, Denny opened .the conversation by asking, "What is this I hear, you are agitating for the union on the third shift?" Cahill replied that he had nothing to do with the Union on the third shift and was not agitating for it. Denny then said, according to Cahill, "You were seen talking to Al Posner." Posner was recognized by manage- ment as the principal organizer for the Union at the Long Beach plant. Cahill further quoted Denny as saying, "The Chief was good to you and he gave you a good job when you needed it and he said he always considered you the best man when you came from Santa Monica." (Cahill had, in May 1958, been laid off at the Re- spondent's Santa Monica plant and on June 2, 1958, had been employed at the Long Beach plant.) According to Cahill, Denny asked him to do him a favor-get in touch with Posner and pass along to Denny all the information he could get on the Union. Denny's version of the incident coincided with Cahill's only as to the manner in which they met. According to Denny, he sent for Cahill because there was an opening on the second shift and he told Cahill that if he wanted to get back on that shift he could help him. Cahill declined and then Denny inquired about the health of Cahill's family and generalities until Cahill asked Denny if he had heard the rumor about his having a card or joining the Union. As with all employees who• volunteered information about joining the Union, Denny testified he told Cahill that it did not make any difference to him anyway, and "That's your privilege." Ac- cording to Denny, Cahill acted perturbed about the rumor and was "pretty hot about it." Denny's version is simply not credible. Aside from the fact that he appeared to go out of his way to portray himself as neutral in the matter of employees' senti- ments about the Union, Denny here gives an account that is not even logical If Cahill had expressed indignation about the "rumor," as Denny indicated, Denny would hardly be likely to tell Cahill it was his privilege. Furthermore, if Denny's purpose had been to tell Cahill about an opening in 'the second shift, a clandestine meeting would not have been necessary. He could have passed the news on by note or by word of mouth. Even if Denny had wanted to tell Cahill personally, the occas- sion would hardly call for more than a passing remark much less an invitation to get into Denny's vehicle to converse. Furthermore, Cahill's indignation would appear to be much more consistent with his story of what in effect amounted to an accusation by Denny than with a gratuitous mention of the subject by Cahill It appears more probable that Denny used the accusatorial questions for the purpose of provoking Cahill, the better to learn Cahill's attitude toward the Union, before asking him to learn of, and report on, union activities. On all the evidence, and from my observation of the witnesses, I credit Cahill's versionoof the incident and find that by Denny's questioning of Cahill and his solicitation of espionage or talebearine, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Officer Caldwell, whose testimony has previously been set forth, testified that early in May 1959, before his second related conversation with Denny, Chief Man- nagh, together with Captain Van Cleave, Oliver Hadlock (their security supervisor), and Jim Brady (an investigator who later succeeded to Hadlock's duties), passed through his gate in a car upon leaving the security area. According to Caldwell, when the car was nearly out, Mannagh rolled down the window and asked Caldwell if "they" had gotten around to him to sign a blue card yet. Caldwell testified that he did not understand the significance of the question and stepped closer and said, "I do not follow you, sir," and that Mannagh repeated, "Has anyone got you to sign a blue card yet'" Caldwell testified that he thought he had failed to read some item on the bulletin board "when I was supposed to Sian a card," co he said, "No, sir. am I supposed to?" He testified th, * Man-'-gh h"l ren1-d. ")'(-u sh^rldn'r" or " h-'n't better. That's a union card." Caldwell quoted himself as saying, "I know nothing about that, sir." Mannagh denied having ever been in the building mentioned with the men named by Caldwell He had, he testified, been in the building once with Hadlock a couple of years before The next question asked of Mannagh makes it difficult to reach a clear solution of the issue, because the question asked by Respond- ent's counsel was, "Have you or have you not on that occasion, or any other occasion, DOUGLAS AIRCRAFT COMPANY, INC . 583 asked Officer Caldwell whether or not anyone has asked you to sign a blue card." Mannagh misunderstood the question and answered, "I haven't asked Officer Caldwell or any other officer to sign a blue card. I just wouldn't. You just wouldn't do that." Mannagh was then asked if he had told Caldwell that he "hadn't better sign a blue card," and he emphatically denied having done so. Mannagh testified that if he had gone through gate No. 4A (Caldwell's gate), he would have been alone and that he had never conversed with Caldwell except to exchange greetings. Despite the im- perfect question and the mistaken answer thereto, I am inclined to believe that Cald- well's memory confused two or more incidents. Mannagh's perplexity about such an incident as was alluded to appeared genuine. Had such an incident occurred, I doubt he would have the histrionic ability to give such a convincing performance. Furthermore, I notice that the date, early May before May 12, 1959, was fixed by counsel for the General Counsel and not by Caldwell. Had Caldwell given un- prompted testimony about the date, he might have fixed the incident at a date much earlier. By early May 1959, the Union's organizing drive was more than a month old. Caldwell had already heard Denny speak about the Union as early as mid- April. Although it is not impossible that before about May 10, 1959, when Caldwell apparently joined the Union, Caldwell had not seen or heard of blue union cards, I consider it highly improbable that he had not. With all the foregoing considerations in mind, I find myself unconvinced, despite other convincing evidence that Mannagh was not favorably disposed to the Union, that such an incident involving Mannagh occurred during the time covered by the complaint. In the latter part of July 1959, Officer John Hoskins was called by Mannagh into his office to receive his Douglas 5-year service pin. When Hoskins came in, Man- nagh noticed that he was wearing a gold star pin identifying him as a member of the Union. Mannagh commented on the union pin, saying, according to Hoskins, "I see you have one of those little gadgets." According to Hoskins, Mannagh asked him if he thought the Union was going to do him any good, and he replied that he did not know but expected to find out. Mannagh, according to Hoskins, asked what the Union could get him that Mannagh could not. Hoskins replied that he had been employed almost 51/2 years and that Mannagh had not gotten anything for him yet, that the only thing Hoskins had gotten was a cost-of-living raise which Mannagh had not gotten him i Hoskins said that he did not like the idea of working on weekends for straight-time pay (this did not mean that he worked more than 40 hours a week at straight time pay) and that he thought the Union might be able to get him a little more money, Hoskins, inferring that Mannagh was beginning to get mad, said that there was nothing personal against Mannagh, that he was just trying to better his position, get more money. Mannagh said, according to Hoskins, that he did not "look at it that way; that he took it as a personal affront to him." Then, according to Hos- kins, Mannagh threw Hoskins' 5-year service pin on the desk in front of him and said, "Well, here." Mannagh's version differed mainly in details. He testified that when Hoskins entered his office, he rose and shook hands with Hoskins and told him he called him in to give him his 5-year pin; that he noticed that Hoskings was wearing a gold star pin and said, "Hoskins, I am a little curious. Will you tell me just what advantages that the Union has to offer? I am at a loss to know"; that Hoskins then said that the men on the ramp (presumably the mechanics) were getting double time on Saturday and Sunday and more money than plant protection men and that he thought they could get more money and double time for Saturday and Sunday; that he said to Hos- kins, "Well, that might be a problem, but its possible"; and that she (Mannagh) then said, "Well, I was just curious"; that he took the 5-year pin out of his desk and handed it to Hoskins, shook hands, and congratulated him. Mannagh denied saying that he took union activity or Hoskins' union activity as a personal affront. According to either account, I find no coercive aspect to the questions asked. The principal difference in the accounts was in respect to the attitude displayed by Man- nagh and, as his attitude was not threatening, any evidence thereof is pertinent only in evaluating other testimony. The record as a whole, including Hoskins' testimony, por- trays Mannagh as taking the organization of the Union as a personal indictment. Neither in appearance nor manner was Mannagh a man who rode roughshod over all opposition. On the contrary, I judge him to be a man of a sensitive nature who would feel a sense of injury if he thought his men were turning against him, and be appeared to look upon the organization of the Union as a sign that at least some of his men were turning against shim. I can picture Mannagh as letting Hoskins' 5- year service pin slip from his fingers to the desk in a mood of disappointment under the circumstances related by Hoskins but not as throwing it down in a fit of anger; not 'Hoskins had received progressive ingrade increases and general increases also, 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that I believe Mannagh was incapable of anger, but I believe he would require more provocation than that related to cause him to throw Hoskins' service pin in violence. On July 20, 1959, Chief Mannagh interviewed Kenneth Zink, an applicant for employment in the plant protection department. Zink had been recommended by his uncle, Gary DeWitt, a plant protection employee under Mannagh, and DeWitt was present for all but a couple of minutes during the interview. Zink testified that, in the interview, Mannagh asked him where he had worked previously and that he had an- swered that he had worked at Convair, at Fort Worth, Texas, that at the mention of the name, Mannagh got up from his chair, shook his head, and said, "That sounds like union to me " 2 According to Zink, Mannagh asked him if he had been a union member and Zink answered that he had been but had dropped out because of differ- ences. Zink further testified that Mannagh "wanted to know" what attitude Zink presently held on unions and whether or not he intended to come into the plant and become an organizer and "wanted to be sure I would not try to organize a union in Plant Protection," "wanted to be absolutely sure that I wasn't inclined toward the union," and "wanted to be sure if anyone approached me to joining the union or any- thing about the Union to tell them I was not interested since I was just hired in." I observe that the phrase "he wanted to know" was used here in contrast to other por- tions of Zink's testimony where he testified that Mannagh had "said" or "asked." From answers given on cross-examination, I infer that the testimony regarding what Mannagh "wanted to know" or "be sure" of were conclusions drawn by, or impres- sions receivd by, Zink rather than remembered statements or questions. However, he testified that at the end of the interview, Mannagh had told him that he expected Zink to remember that Mannagh and not the Union had got him the job. Zink was em- ployed by the Respondent on July 28, 1959, after the industrial relations department had approved Mannagh's recommendation. Mannagh and DeWitt (for the time he was in the room) testified that no mention was made of unions. DeWitt was in the room only for a short time when Mannagh requested him to step out because Mannagh had asked Zink if he had ever been arrested, and Zink had commenced to relate some incident (which turned out to be some minor matter). There is no controversy about this, and I infer that, if Zink's testimony is accurate, the portion of the interview to which he testified took place at the time when DeWitt was in the room. DeWitt's memory, however, did not impress me as very good. He either could not or would not give a running account of the interview except in the most summary fashion. He remembered specific topics covered in the interview only when counsel asked whether or not anything was mentioned about those topics, but he testified without hesitation that Mannagh did not say certain things which had been testified to by Zink when counsel for the Respondent inquired whether or not Mannagh had made such statements. Despite the relationship of uncle and nephew between DeWitt and Zink, they were virtual strangers. DeWitt had not met Zink until a week or 10 days before the interview and had not since become much better acquainted with him. As between Zink's or Mannagh's memory of the contents of the interview, I consider it more probable that Zink would remember the details than Mannagh because of the relative importance of the interview to Zink and because he was not likely to confuse it with other interviews as Mannagh might. On cross-examina- tion by Respondent's counsel, Zink was asked if Mannagh had, during the inter- view, explained that there was a division in the department among the men at that time over the issue of whether or not there was to be a union and he was asked whether or not Mannagh had cautioned him that he would find an abnormal and unsettled condition in the department Zink answered affirmatively to both questions, but when asked if Mannagh had said "to give it time, that things would straighten out," he denied that. Although I detect evidences of partisanship in Zink's testimony and, for that reason, have scrutinized it carefully, I am convinced that it was not made of whole cloth. There was a factual basis for his testimony. However, I deduce that Zink may have embellished the remembered facts to conform to his impressions and failed to remember or relate everything that might have made Mannagh's statements appear in a more favorable light. I do not, therefore, find that Mannagh made express statements, for example, such as those introduced in Zink's testimony by the words "wanted to know." or "wanted to be sure." Also, I am skeptical that Mannagh would have asked Zink point-blank if he had been a union member at Convair, sand this part of Zink's testimony appeared to me to have been somewhat modified on cross-examination. His testimony on cross-examination 2 This explanation of the manner in which mention of a union was brought into the interview was given by Zink on cross-examination On direct examination, he had omitted this detail DOUGLAS AIRCRAFT COMPANY, INC . 585. suggests that Mannagh assumed that Zink might have had union connections at Convair and undertook to reassure himself that he was not going to get another union organizer. I note that the counting of ballots in the election on July 30, 1959, took place after the interview of Zink, but that the balloting was by mail and, as Zink testified, "the votes were already in the mail when I was . interviewed." There is no reason to conclude, therefore, that Mannagh was seeking to hire a man who would vote against the Union in that election. On the other hand, Mannagh was admittedly opposed to a union for a police or fire department and appears to have had a disposition, consistent with that revealed in Zink's testimony, to avoid employing one that Mannagh might view as a union zealot. I find, therefore, that Mannagh sought to ascertain Zink's attitude toward union organization before recommending him for employment. Even assuming that Mannagh was sincere in believing that harmony among his men was of paramount importance and that he should sound out applicants' views on unions for the sake of promoting that harmony for the good of his department, the questioning would not be proper. The very fact that an employer raises a question of union membership or sympathy in an employment interview tends to create in the mind of the applicant an impres- sion that the employer is seeking to maintain a status quo and that, if he is to be hired, he must have an approved attitude. The effect of such questioning is, there- fore, to restrain or coerce employees (including applicants) in the exercise of the rights guaranteed in Section 7 of the Act, and I find that, by Mannagh's questions, the Respondent did interfere with, restrain, and coerce employees in the exercise of those rights. On September 14, Mannagh interviewed Elmer Stout, an applicant for employment. Stout testified that in the interview Mannagh asked him his views on the Union, that he replied that he had never been a member of a union and had no desire ever to become a member, and that Mannagh told him there were some members of the force who were for the Union but that the majority were not for the Union. With respect to this interview, Mannagh testified that Stout was a retired serviceman and that when he first came into his office, Stout had asked, "You don't have a Plant Protection Union in your department, do you?" Mannagh testified that he had answered, "No, we don't. We had an election a short time back but it worked' against having the Union." That Stout had then said, "Well, that's good," that he never belonged to a union, that he had no desire to join one, and that that was the only mention about unions in that interview. Stout testified that he knew before he applied for a job that the department was nonunion or he never would have gone out there to apply and he denied that he had brought up the subject himself. If Stout knew that there was no union in the department when he applied for a job, the only possible reason for his raising the subject, himself, of a union, would be because he wanted to inform Mannagh that he was anti-union, hoping thereby to improve his chance of getting a job. However, there is no evidence from which it might be inferred that he entertained a belief that Mannagh would more readily approve his employment if he were antiunion; and if he had raised the subject him- self, he would appear to have no motive for falsifying the fact deliberately in his testimony unless he had become such an avid union supporter that he was willing to perjure himself for his cause. There is no evidence, however, that Stout had ceased to be antiunion. Counsel for the Respondent sought to create such an im- pression by asking Stout if he had not worked on Saturdays and Sundays with Officer Erkes, an active union supporter, for about 6 weeks, and had not discussed the subject of unions with Erkes. Stout readily admitted both. However, this hardly proves that Erkes had persuaded Stout to change his views. For all that appears, Stout may have argued just as vehemently against unions in his discussions with Erkes as Erkes had argued in favor of them. There was nothing in the de- meanor of either Stout or Mannagh in testifying about this incident to indicate that either was deliberately falsifying. The difference in their testimony could be accounted for by the peculiar operations of memory and the difficulty of recon- structine a conversation held even relatively short time past. It could also be accounted for by the fact that Mannagh had a motive to protect his and his em- ployer's interests. I note that Stout was hired just as Alfred Posner, the alleged discriminatee, left on his vacation, and Stout took over certain of Posner' s duties Because of evidence hereinafter related concerning Posner, as well as because I believe that Stout would be more likely than Mannagh to be impressed by what was said at Stout's employment interview and therefore more likely to remember the course of it. I find that it was substantially as testified by Stout. Although Stout, him-elf, does not appear to have been influenced at the time of his employ- ment by Mannagh's questioning, the coercive effect of such questioning can endure long after the initial interview and can be passed on to other employees. There is, 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, no lack of interference, restraint, and coercion in the mere fact that Stout was antiunion when hired. The Respondent adduced evidence to show that an employee is not hired by the department head, that the latter merely makes a recommendation to the employment department of industrial relations, and that the latter do the final act of hiring. It also adduced evidence that it is a long-established practice of the Respondent to read to applicants at their final interview in the employment department the follow- ing statement: The company does not require any employee to join a union. An employee may join or may refuse to join a union as he chooses. In this matter the com- pany has no interest and takes no part, but employment is not dependent upon union membership. Neither Stout nor Zink could remember whether or not this paragraph had been read to them. Their failure to remember may have stemmed from the fact that the final interview appeared to be more or less of a formality; each seemed to feel that Mannagh had hired them subject to the necessary formalities that were taken care of in the employment department. The latter does not appear to exercise an independent judgment on matters of such qualifications as would be decided on by the department head. Its concern is with other matters such as pertain to general plant requirements for employee status rather than departmental requirements. Applicants and employees generally would therefore be justified in believing ,that the department head was primarily responsible for their hire. The department head's recommendation for discharge likewise carries great weight with industrial rela- tions, and employees would thus be subject to constraint in exercising rights guaran- teed in the Act by remembering the questions asked at his employment interview by the department head. I am of the opinion, therefore, that proof of dissipation of the coercive effects of such questioning has not been established. Accordingly, I find that by Chief Mannagh's questioning of Stout (as well as of Zink) about his union views, as hereinbefore related, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. About August 14, 1959, which would be approximately 2 weeks after the union election, Chief Mannagh summoned to his office three of his plant protection offi- cers, Martin Foster, Willard Queen, and Howard Connell. When they came, Mannagh made statements and asked questions There is no dispute that they were called and that Mannagh spoke to them. The testimony of the three officers and of Mannagh differ only as to what was said and how it was put. The testimony of Foster, Queen, and Connell ran parallel to each other but differed both as to extent of memory and as to words quoted sufficiently to justify the impression that they were testifying honestly to the best of their memory. In some respects, Mannagh's testimony was more detailed, but in other respects there appear to be omissions, and in some instances slight embellishments. Taking the testimony of the three officers as a whole, I find their version to be that Mannagh shook hands with them and told them that he had called them in because they were his oldest men in point of service and he wanted to have a little talk with them. He asked why he had failed, what he had done to bring on the union business. He put the question to each of the three in turn as to why they thought the men wanted the Union. Connell said he thought some of the people just wanted to join for the sake of joining and they wanted to belong to the association (the Union) like the Long Beach Police Department or the Los Angeles Police Depart- ment have. Queen said he had heard that the Kaiser Health Insurance Plan had brought it about, that they wanted to join so that they could have that plan. Mannagh said that they need not join the Union for that because any 25 men or more could get group insurance. Mannagh then turned to Foster, and Foster said that he had heard reference made to a salaried man being put in the executive lobby to replace one of the hourly paid plant protection men, Officer Purkiss, and Foster said the men did not think that was fair and that is why some of them wanted to join the Union Mannagh told them he had no control over the replacement of Purkiss by the salaried man, that Donald Douglas himself had sent the man over and told Mannagh to give him a job, and that union or no union he could not have been kept out of the lobby. Mannagh said he had tried to take good care of the men, that he had looked after them when they were sick, and that he had placed them in jobs where they would fit. Connell had earlier had a heart attack and Mannagh told Connell that when he came back to work after that, he (Mannagh) had tried to take care of him. Mannagh then alluded to Officer Beaver, who had also had a heart attack. and who, following it, had returned under restrictions and had been placed in a light job Mannagh made some reference to Beaver's actions in going DOUGLAS AIRCRAFT COMPANY, INC. 587 around the plant whispering about the Union and he said that he had found out that Beaver could ride a bicycle (alluding apparently to the fact that Beaver's health had improved to the point where he could ride a bicycle ) .3 Mannagh also mentioned Officer Noel Head, who had passed retirement age, but who had been retained beyond that date as a result of Mannagh's intercession on his behalf , and after telling Foster, Queen, and Connell what he had done to keep Head despite the fact that the officer at the same job with Head had to do most of the work, Mannagh complained that Head repaid him by wearing one of those union stars and continued to wear it . Mannagh was also quoted by Foster and Queen as making a slighting remark about Officer Posner. Foster quoted Mannagh as saying, "You men are steady and you are not like Posner-here today and gone tomorrow." Queen quoted Mannagh as saying that the Posners of the Company meant nothing to him. Connell made no reference to any statement that Mannagh may have made concern- ing Posner and he was not asked if any such statement had been made . Finally, Foster and Connell testified that Mannagh mentioned the fact that the Union had been voted in at the Tulsa plant and that the men were finding it a lot tougher than before that, whereas before (according to Foster ), if a man was seen reading a newspaper on the post he was given a day off, now he was fired . Connell's testimony, although different in form, related substantially the same statement. Mannagh quoted himself as telling Foster, Queen, and Connell that "they were the foundation and the hub of the main spoke of my department, that I relied on them a great deal and I wanted to assure them that their union activities had no bearing" on his feelings toward them contrary to any rumors that they might have heard. With reference to mention of Officer Beaver , Mannagh quoted himself as saying that in contrast to Foster , Queen, and Connell, who had conducted themselves like gentlemen, Beaver and some of the others had solicited and campaigned during working hours and on occasions had neglected their duties . He mentioned his giving Beaver a job "commensurate with" the medical restrictions imposed on him following his return to work after his heart attack and said that he did not "think he did right by me by his knowingly and flagrantly violating company rules and regulations in his soliciting for members and campaigning during working hours." Mannagh denied having put Beaver on a bicycle or given instructions to any subordinate as to what assignment to give Beaver. He even denied knowledge that any of the medical restrictions on Beaver had or had not been lifted. On the basis of the evidence in the record , I am skeptical that Mannagh told Foster, Queen, and Connell that Beaver had not done right by him because Beaver had flagrantly violated the rules of the Company. It is reasonable to suppose that if Beaver had violated the rules of the Respondent so flagrantly , the violation would have resulted in some form of disciplinary action, yet there is no evidence of it. I am also doubtful that Beaver's assignment was, after this conversation of August 14, 1959, changed by the sergeants without Mannagh 's directions , or at least approval, unless they had received a medical report showing that Beaver's restrictions were removed . Mannagh testified that he was not aware of any such medical report , and it would have to come to him first.4 In Mannagh 's testimony, he described his mention of the Union at the Tulsa plant as being to spike rumors that the union there had got the men an increase in pay. He did not, however, specifically deny having mentioned the ,difference in treatment before and after the advent of the union at the Tulsa plant. Considering the evidence as a whole, I am satisfied and find that Mannagh made reference to Beaver's ability to ride a bicycle . The General Counsel offered this evidence in support of the allegation of the complaint that Mannagh had assigned an employee to duties on a bicycle in reprisal for his union activities Because of this, the Respondent objected to testimony by Foster, Queen, and Connell which went beyond his . I overruled the objection because their testimony as a whole has a bearing not merely on the bicycle matter but also on other evidence in support of allegations of violation of both subsections ( 1) and (3) of Section 8(a). Mannagh appeared to be a man who, if not positively vindictive , would be at least likely to withdraw his favors or support from those who incurred his displeasure , and I sus- pect this may have been true in the case of Beaver. However, Beaver had been 8 Queen testified that Mannagh added that he was putting Beaver on a bicycle the following week, Foster and Connell remembered only the reference to finding out that Beaver could ride a bicycle The evidence indicates that Beaver did not get the job requiring him to ride a bicycle for about a month after this conversation 4 Beaver, himself, although he was, in mid-September, assigned work which involved riding a bicycle , did not complain of having been given more strenuous work He testified that he thought the restrictions were silly and that his own doctor had given him a clean bill of health 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given a clean bill of health by his own doctor and appeared to resent the medical restrictions. If he was well enough to ride a bicycle, I see no reason why he could not be assigned to a job that required its use. I deem the evidence to be insufficient to prove that Beaver was given an assignment in reprisal for his union activities. B. Discrimination 1. Posner's employment history Alfred Posner was hired in the Long Beach plant protection department on March 14, 1955. Among other duties that plant protection officers have is that of checking identification of people entering the plant or some special area of the plant. Posner performed such functions among others. On two occasions he was assigned to act as a security officer in plain clothes at meetings away from the plant. In order to qualify for these jobs, Posner had to get secret security clearance When he filled out the questionnaire for such clearance he was required to give informa- tion regarding his military service record. Posner had not, when he filled in his application for employment, filled in the space for showing such record, but when he came to the question in the questionnaire for secret security clearance, he went to Chief Mannagh and sought his advice, telling him that in 1925, before Posner's 16th birthday, he had enlisted in the U.S. Marine Corps under an assumed name (presumably because he was under age), that while he was in service he came into possession of certain articles of personal property that had been stolen, that he was charged with larceny, and that, because he had entered service under age and under an assumed name (which Posner testified was then illegal) and because he feared disclosure of this fact in an investigation, he listened to the poor advice of one who was implicated and pleaded guilty. The result was a bad conduct discharge from the Marine Corps in 1927 (at which time he was 18 years of age). Mannagh asked Posner if he had stolen the property as alleged and Posner told him he had not. Mannagh said that the incident had happened when Posner was a "kid" and that he could not see any current significance to it, but he advised Posner to make a full disclosure in the questionnaire . Posner did so and received secret security clearance. Mannagh did not report Posner's disclosure to the industrial relations department as is customary and he did not call it to the attention of the director of security Mannagh testified that his sympathy prevailed over his better judgment because Posner pleaded with him for the job and because Posner had a handicapped daughter and was faced with great expense. The evidence discloses other instances of favors or soft treatment of his men when his sympathies were aroused It is evident, how- ever, that he expected the recipient of such favor to reward him with loyalty, which apparently excluded any advocacy of a union in his department From late 1957, when the DC-8 area of the plant was first policed, until some- time in early 1958 (Posner testified that it was about a year earlier, but other evidence in the record indicates that the period was as found), Posner was assigned to duties on the DC-8 side of the plant. His duties there were varied. They included serving as gate guard for three separate periods a day, making four patrols of build- ings and punching clocks, making inspections, acting as escort on tours, and enforcing plant rules and regulations . On one occasion when he was so assigned, his sergeant, Albert Vail, directed him to watch the lunch cart to see that employees did not try to buy food there before the whistle for their lunch period at 11 a.m. During the lunch period, Vail testified, he went to the lunch cart and Posner was not there. He found Posner in the area discussing the boat club, an activity organized by Posner with permission of Chief Mannagh. This incident was related by Vail as an instance of Posner's neglect of duty. As such, Vail's testimony was not very convincing, because Vail testified that he came to the lunch wagon "during the lunch period" and yet, on questioning by the Trial Examiner, Vail testified that Posner was assigned to the lunch wagon only until the lunch period started. Since the lunch period had started, obviously Posner's assignment had been completed. Therefore, Posner would have been free, because he was allowed 20 minutes to eat between 11:40 a in. and 12 noon if he had no other duties that kept him from it. This may have been the occasion when Vail "approached" Posner about the latter's activities on the boat club. By "approached," I infer that Vail meant to enforce a rule against solicitation or distribution of literature without permission. Posner told Vail that he had Mannagh's permission to organize the boat club. Vail told Posner that even with that permission he did not want such activity to interfere with Posner's duties. Posner told Vail it had not been interfering with his duties, and at this time he turned in a schedule of his duties to show how his time was occupied. On another occasion, Vail went to building No. 82 to determine why Posner had not answered an "auto call ." (There are horns outside and chimes or bells inside the DOUGLAS AIRCRAFT COMPANY, INC. 589 buildings used to summon the patrolmen to, I assume , a telephone where he would re- ceive instructions.) Vail testified that he found Posner talking with a group of supervisors and that when he asked Posner why he had not answered the call, Posner said he had not heard it. The evidence was conflicting as to whether or not Posner should have heard the call. If Posner had continued to move in the building, he probably would, at some point, have heard the call, if it was repeated at the proper time, but with such conflicting evidence and without personal experience , I cannot find that Posner intentionally disregarded the call.5 Although there is no proof that Posner was speaking with the supervisors about the boat club and although Vail admitted that Posner might have had occasion , in the course of his duties, to speak with the supervisors, Vail apparently assumed that Posner had been neglecting his duties on this occasion, for on December 3, 1958, Vail wrote a memorandum to Chief Mannagh reading as follows: To: Chief Mannagh C20. Date From: Sgt Vail C201-1. 12-3-57 Subject: Officer Posner, 57022. Copies to: File. The above named officer who has been assigned to the DC-8 area on day shift ever since we took over policing this area is getting very negligent in his duties and does not seem to be satisfied with his assignment. He is spending a lot of time organizing a Douglas Boat Club, I have warned him about this and told him that this is not a part of our duties as members of Plant Protection. On one occasion when he failed to answer the auto call for patrolmen I went over to this area and found him in the office area in bldg. #82 seated at a desk talking with a group of Supervisors , when I questioned him about not answering this call he claimed that he did not hear it. On another occasion when he was supposed to be checking employees at the lunch wagon I found him in this same office area with a group of employees and they had a bunch of boat literature on the table which they were discussing. Another thing too is that he seems to be unhappy with his assignments, one morning recently he stated that, "he didn't see why he had to be the one that had to stand out in the weather and check the cars at gate #814." 6 With this information in mind I think possibly we should bring him back to this side of the street and put him on a clock patrol where we can keep away from this organizing project. (S) Sgt. A. C. VAIL C201-1. Vail's recommendation was apparently not accepted at this time, and on February 18, 1958, he wrote another memorandum to Chief Mannagh as follows: Relative to my memo dated , 12-3-57 concerning the above named officer, as a suggestion I would like to when DC-8 #I is brought over to the flight ramp bring officer Posner over with it and assign him to stand by on it as long as the stand by is needed. If we can do this it will break up the organization activities that we still have in the DC-8 area, as it is now he is still doing very little Plant Protection work, very seldom turns in any 55-40 reports and still does not seem to be able to hear the auto calls, and he is getting to be too friendly with the workers in this area which in our line of work can prove sometimes to be more harm than good. Whether or not as a result of this memorandum , Posner was transferred during 1958. The time of the transfer does not appear. Posner testified that it was in May 1957, but, as he was about a year off in his estimate of the time that he started in the DC-8 area, I infer that his transfer came in about May 1958. At sometime in 1957, whether before or after the incidents resulting in Vail's critical comments in his first memorandum does not appear , the United Plant Guard Union attempted to organize the plant protection personnel and there was an elec- tion. During that time, Posner telephoned Mannagh to tell him that he would be willing to attend union meetings and report to him . Mannagh thanked Posner but declined. After his transfer in 1958, Posner patrolled the west ramp parking lot, stood guard on gates, and replaced men on vacation . After Vail's last critical note about Posner 5 One officer testified that, because of the difficulty in hearing auto calls, he made it a practice to telephone the office periodically to see if any calls had been put out for him. 6 At this time, there was no shed at gate No. 814 In which an officer could stand In rainy weather as there was at other gates. 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in February 1958, no memoranda appear on Posner in the plant protection depart- ment file until after his union activity commenced in 1959. Then a large number of them appeared, most of which are hereinafter detailed. 2. Posner's union activities and further employment history At the instance of several plant protection officers who sought Posner's assistance in getting representation of the Union, which had a unit of plant protection men at the El Segundo plant of the Respondent, Posner, in early March 1959, made contact with representatives of the local union in El Segundo about starting organization of the Long Beach plant. In mid-March, Posner, along with Officers Beaver and McLin- den (the latter in the fire department) of the Long Beach plant protection, met with a representative of the El Segundo local. The latter gave to each of the three, member- ship cards and gave Posner authorization cards to get signed. Posner asked the El Segundo representative to keep their names secret, and he agreed to take charge of the organizing plans. A meeting was held on April 12, attended by about 30 officers from the Long Beach plant. Posner, Beaver, and McLinden wore small gold stars, insignia of the Union. Although Posner signed up no more than half a dozen men, he received all signed authorization cards and distributed about 50 gold stars to those who signed authorization cards on condition that they wear them. Posner also set up meetings and mailed notices thereof, about 10 in all, from his home. Sgt. Ransom Hatch, Posner's immediate supervisor at the time, testified that on one occasion, which could have been April 1959 or earlier, he had a conversation with Posner in the west parking lot, and in the course of the conversation the question of the Union came up (Hatch could not recall who had first mentioned it) and Posner said he was a member of the Union. Hatch asked Posner if the boss (Mannagh) knew what Posner "was talking about, knew what he was thinking." Posner replied that he did not know, and Hatch advised Posner to go in and tell the boss what he was thinking about. About a week later Hatch indicated an interest in seeing the Union's contract (presumably at El Segundo). Posner got a copy of the contract from his car and gave it to Hatch who kept it for a time before returning it. Presumably following the conversation just related, but fixed by Posner as in early April, Hatch, at the direction of Chief Mannagh, summoned Posner to the office. There in Mannagh's private office with just the two of them present, Mannagh talked to Posner for about 15 or 20 minutes. Because I believe that the truth of what transpired lies between the testimony of Posner and of Mannagh, I shall relate both accounts. Posner's version is as follows: Mannagh said, "I thought you were a personal friend of mine and didn't think you would turn against me and organize this union." Posner replied that he was not the only one interested in the Union. Mannagh said that Posner was disloyal to him in "doing this," as Posner knew it was against his wishes, and that, if Pos- ner continued working for the Union, he would find nothing but trouble ahead. Posner said he thought it was his prerogative to join or not to join a union. Mannagh said that there were several reports that had come into his office con- cerning Posner's actions and that one officer, named Paul Cotton, had told Man- nagh that Posner had threatened to tip over his car if he did not sign an authoriza- tion card. Posner denied making such a statement and Mannagh said, "You would lie about that like you would lie about everything else concerning the Union," and, "If this continues and I get any more reports like I got from Cotton, not only will you get fired but I will have you thrown in jail." Posner said he did not use such tactics nor did he intend to in the future. Mannagh took Posner to an adjoining office and showed him a sign hanging on the wall which referred to a man's loyalty to his employer and again said Posner was disloyal to him. While Posner was reading the sign, Mannagh returned to his office. After read- ing the sign, Posner went back to Mannagh's office, told Mannagh that he did not see how he could consider his activities as being disloyal, and turned and walked out of the room. Mannagh's version of this conversation was as follows: Through the sergeant, Mannagh called Posner into his office because he had re- ceived numerous reports that Posner had been soliciting and campaigning during working hours, which was not so much the reason as the fact that he was irked by the beginning of threats against some of the other employees if they did not sign up with the Union. One report was that a policewoman was told that if she did not sign a card, she might find the tire of her car flat after work. Posner denied soliciting on company time and any threatened action against other offi- cers; he denied everything and that was not unusual. In response to a question DOUGLAS AIRCRAFT COMPANY, INC. 591 at the hearing as to whether or not he was accusing Posner personally of solicit- ing and making threats, Mannagh replied , "No, I was accusing him and his cam- paign workers, and it seemed to me more predominant with him than the others " Mannagh testified that his manner was one of irritation and that he told Posner in no uncertain terms that he would not tolerate any threats or violence on either side . It had to stop or he would take some action on it. Mannagh denied saying that he thought Posner was a friend of his or that he did not think Posner would turn against him by becoming an organizer for the Union, denied accusing Posner of disloyalty, but admitted taking Posner into an adjoining office and asking him to read a sign there that quoted Elbert Hubbard, saying, according to Mannagh, "If you work for a man, for heaven sakes work for him." [On cross-examination Mannagh admitted that the quotation also contained a reference to loyalty "and that subject."] I found that Mannagh's memory was often weak on vital matters, and I noticed a disposition on Mannagh 's part to generalize so as to pass over critical matters. He also had a tendency to inject what appeared to me to be a few extra words to make his quoted statements appear more temperate . His account sufficed to show that there was a foundation for Posner's account, even if the latter was not accurate in all details. A majority of witnesses put their testimony in a form to make them- selves appear in the best light and to avoid discreditable appearances. Posner was no exception, and, in his account of the foregoing conversation , I find some evidence of embellishments . However, I find that Posner's account was accurate in the main, although I am not satisfied and do not find, therefore , that Mannagh said he thought Posner would turn against him by becoming a union organizer. On examination by the Trial Examiner, Mannagh testified that his informant of the threat to a policewoman's tire was either that woman herself or an Officer Pantuso or both, and that the threat was supposed to have been made, not by Posner, but by Officer Beaver. Asked whether he had spoken to Beaver, Mannagh answered that he had not, that he had "called Posner in to tell him that I didn't want any of his people making any threats and it was sort of up to him to handle it." It is evident that, to Mannagh, Posner was the symbol of the Union and that whatever anyone did for the advancement of the union cause, right or wrong, was in effect done by Posner. Posner testified that following the foregoing conversation, Mannagh's attitude toward him never again was friendly as it had been before ,7 and that Mannagh would ignore his salutations and turn his back. About the first week of July 1959, as a result of a report by M-annagh to Doddridge Farrell, manager of industrial relations of the Long Beach division of the Respondent, the latter sent for Posner and told him that he had a complaint that Posner had been stopping and talking to, and interfering with, other officers in the performance of their duties and passing out literature on company property and time. The first of these complaints was, specifically , that Posner had been discussing unions in the squad room before clocking out , after he had completed his assignment but while he was waiting for the proper time to punch out (I infer that the men changed into or out of uniform in the squad room ). Posner testified that this referred to a heated discussion between two other officers in which he did not take part. He denied the charge to Farrell and asked that Farrell call in Officers Erkes and Koon to cor- roborate his denial . Farrell told Posner that he was not interested in the truth or falsity of the charges , that nothing would be done about it, and that the Respondent was interested only in Posner's understanding his rights and obligations and what would be expected of him while he was in Respondent's employ, particularly during the time of the election . Posner told Farrell about being called into Mannagh's office and Mannagh's attitude toward him . Farrell said that he had been trying for the past 5 years to convince Mannagh that a man's voting for a union was not a personal affront to him. Posner testified that Farrell told him to discount the actions of others in the heat of the battle during the union campaign . Posner quoted Farrell as saying at the close of the conversation that he found nothing against Posner, that Posner's record had been good , and that he should just be careful to do his job right and he would have nothing to fear. Posner asked Far- rell's protection in the event that anyone tried to frame him. He testified that Farrell promised to do so. 4 There is no need to burden this report with a recitation of all the evidence of the amicable relationship between Mannagh and Posner prior to April 1959 It is enough to say that it was of a character to carry beyond the plant property and involved ex- changes of visits and gifts. ,592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The president of the Union asked Posner to serve as an official observer at the union election on July 30, 1959 .8 A few days in advance, Posner asked his leadman, Owen Lacey, for time off to act as observer. Lacey said he did not think it would be possible because of vacations and the shortage of help. Posner asked Lacey to consult Chief Mannagh about it. Word came back that Mannagh had denied the request Posner telephoned and reported this to the president of the Union at El Segundo. The latter said he would take the matter up with the director of industrial relations in Santa Monica. The following day, the president called Posner and told him he had permission to act as observer. At sometime in late July or early August 1959,9 Posner was informed that, in the performance of his parking lot duties , he would no longer have the use of an auto- mobile but would thereafter ride a bicycle. This evidence was introduced as an in- stance of reprisal by the Respondent against Posner because of his union activities. The Respondent contended that the aforesaid automobile was disposed of pursuant to an austerity program. I am not entirely convinced that such was the case because Mannagh testified that the austerity program started in January 1959, when heads of departments were asked by the general manager to make a list of equipment that was not needed. Mannagh at that time asked for suggestions from his supervisors and investigators, and Sergeant Hatch delivered the report to him within a few days. Among the suggestions so made was one for dispensing with two automobiles, one a station car and another believed by Mannagh to be police car No. 497. But Mannagh testified that the department got nd of those vehicles in March or April and did not thereafter dispose of any more. Hatch testified that the car that Posner had used was removed on July 24 because it was needed elsewhere. However, Hatch was apparently testifying beyond his knowledge for he had been away on his vacation at the time and he testified that he had not been told why the car was removed. Officer Henry Schmidt, who had charge of parking lots, testified that on July 23 or 24, the extra car (he had one himself) was to be salvaged because of the austerity program. He did not testify as to the source of his information. Hatch's testimony suggested that the car in question was one in addition to the two mentioned by Mannagh, because Hatch testified that they had already lost a car or two to salvage or other uses. Although requested to do so, the Respondent was unable to produce any record showing the disposition of the car in question. It was stipulated, however, that an examination of gasoline tickets showed that no gasoline was issued to car No. 497 after about July 23, 1959. Posner testified that after he was put on a bicycle, he saw cars parked at one of the gates and never used. Despite the fact that the Respondent's explanation was not a completely convincing one, evidence of discrimination was just as unsatisfactory. It is not clear how long Posner had been on parking lot detail with use of a police car . Sergeant Hatch testified that there had not been two officers in the parking lots "too long." The first officer in charge of parking lots was Henry Schmidt, who originally had had to cover three or four parking lots 10 and who had a police car in which to do it . So large a number of parking lots was quite as job to handle, however, and he was given the assistance of another officer. The second officer was given the use of a car in the performance of his duties on the west ramp parking area, and Schmidt retained his car but , although still in charge of all the lots, he confined himself mostly to the east ramp. The date when this arrangement was made was not disclosed . It could have been anywhere from a week to a year before the removal of the car used by Posner. In July, Posner was on parking lot duty Wednesdays, Thursdays, and Fridays, and Officer Kurrus had the same duties on Mondays and Tuesdays. When Posner was put on a bicycle for patrolling parking lots, Kurrus was, too. This fact, however, does not alone dispel the suspicion of discrimination , for Kurrus was also a union member. In mid-September, Kurrus was discharged because of a garnishment of his wages. When he left, Beaver, mentioned earlier herein , took Kurrus' place and, for the first time since his heart attack , rode a bicycle on the parking lot. He also was a union member Except for the fact that bicycles had not previously been used in the parking lot patrols, it was not unusual for plant protection officers to ride bicycles in getting around the grounds. Beaver had ridden one before he had his heart attack and Posner had ridden one for a while when he first went to work. On the evidence as presented, I am not thoroughly convinced that the Re- 'As the election was a mail-ballot election, I infer that Posner would merely watch the opening and counting of the ballots 9 Posner on direct examination put the date as after the union election but he conceded on cross-examination that it could have been as early as July 23, 1959 Other evidence indicates that it may have been about July 23 or 24 10 Hatch testified that there were three , Schmidt testified there were four DOUGLAS AIRCRAFT COMPANY, INC. 593 spondent was motivated by Posner 's union membership or activity in requiring him to patrol the parking area on a bicycle and I do not so find. However, Posner's suspicion that he was deprived of a police car and made to ride a bicycle on the parking lot patrol as a reprisal for his union activity could not be said to be entirely unfounded . Understanding his suspicion , we may more readily understand his subsequent conduct. During that part of July 1959, when Officer Schmidt, who had the east ramp parking lot, was on vacation , other officers had to handle his duties . The man who had been trained by Schmidt for that job became ill; so Kurrus and Posner were given the assignment on separate days. Kurrus started and, the day before Posner was to take over, Kurrus told Posner what to do. Posner failed to let down enough chains on his first day on that job. At Mannagh's instructions, Sergeant Rue investigated and then wrote a memorandum to Mannagh which went into Posner's file. In the memorandum, Rue reported what Kurrus had told him but not what Posner had told him . On the basis of Kurrus' statement, Rue stated that he could see no reason why Posner should have been confused regarding his assignment. During the first week or so of August 1959, Posner testified, he was called to Farrell's office for the second time, having been called on the bell system and told to go to Farrell's office. Farrell, however, testified that the meeting had been arranged at Posner's request. Unless Posner visited Farrell's office three times, which no one testified had happened, I find reason for Farrell's belief that the meeting came about as a result of a request. Consistently with a request for an appointment, Posner could have been called on the bell system, as he testified, and notified that the time for the appointment had been set and that he was then to come to Farrell's office. There is, of course, the possibility that Mannagh or some third party had told Farrell or left word at his office to say that Posner wanted (meaning needed) an- other interview with Farrell and that Farrell arranged an appointment thinking that Posner, himself, had made the request through that person. Farrell testified that at this meeting Posner complained to him of the actions of the people in the plant during the election, of the writing of things on bulletin boards, and the calling of names. Farrell told Posner that, as soon as such things were posted, they were taken down by the authorities. Posner complained about a so-called "health fund" and the way it had been ordered handled,ii and Posner told Farrell that he thought "the Plant Protection Group" was out to get him. Farrell testified that he told Posner that the election was over, that the winner had been declared, and that as far as the Company was concerned it was a dead issue. He also said that all Posner had to do to assure himself of his job was to be concerned about his duties as an employee and he would have no problems from then on. Posner testified to new accusations made against him, as mentioned to him by Farrell at this meeting, one being the passing out of literature in the south tunnel, which Posner testified he denied as being ridiculous with the election over nearly a week. Farrell testified that before his first talk with Posner, Chief Mannagh had reported to him that, among other things, Posner had been passing out literature in the south tunnel and that this did not enter their con- versation in August. Farrell's testimony was given in a way that made it appear an honest recitation of his memory. But for one item of evidence, I might assume that Posner had largely confused what was said at the two interviews. This one item is that in August 1959, Posner wrote a letter to Farrell in which he purported to sum- marize instances of what he considered as past abuse and ungrounded charges leveled against him because of his union activities. In this letter, Posner mentioned the "two occasions that I was called into your office to face charges preferred against me by my supervision . . ." and he specifically refers to a charge of "passing out literature in the south tunnel on August 5th between 6:45 and 8 a.m." Although this letter is self-serving, I see no reason why Posner should deliberately have falsi- fied the date of the charge of distributing literature in the south tunnel (he could hardly have anticipated then what Farrell would testify to at the hearing and have deliberately fixed a later date) and in August of 1959 Posner's memory would be expected to have been fresh enough to give the correct date. Posner's testimony, therefore, has that much corroboration. Farrell testified with respect to this letter, which was dated August 21 but bears his date-received stamp on August 27, that he did nothing about it because he thought Posner was just trying to make a record for himself. He also testified that no one, besides himself, had seen this letter before Posner's discharge. It is, however, claimed by the General Counsel to have been a factor in Posner's discharge I doubt that it played any material part in his dis- n I infer that Posner had some idea that this was an attempt to organize a company- dominated labor organization , a belief that was not supported by the evidence 586439-61-vol. 12 9-3 9 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge but because of management's disposition to accept Posner's guilt in some of the instances mentioned therein and its failure to ascertain the truth by investigating the charges, I believe it contributes to evidence of the Respondent's lack of neu- trality and of its disposition to believe the worst of Posner.12 It is, therefore, set forth in full as Appendix A, hereto attached. On Sunday, August 23, 1959, Captain Row of the fire department noticed Posner three times in 3 hours stop his police car in front of station No. 3. On two of these occasions, Fireman Wilhite went out to stand by Posner's car, talking for about 5 minutes (Row's estimate). Each time, Row started in the direction of Posner's car, and each time Posner would drive off. On the third occasion Row approached Posner before Wilhite appeared and Posner left. Wilhite was on standby duty while a plane was being fueled and was not supposed to leave his post. Row dictated a memorandum to Chief Mannagh about this, expressing it as his opinion that Posner was derelict in his duties as security patrol on the ramp and that he was distracting Wilhite's alertness by his frequent stops at station No. 3. Although Wilhite was the one who left his post, Row did not dictate a memorandum for Mannagh which would go in Wilhite's plant protection file. Row had no explanation for his failure to do so, although he admitted that he had written memoranda to Mannagh about his own men on other occasions. On August 26, 1959, Posner telephoned Frank Starr, chief safety engineer (Posner described him as safety director, but I use the title shown on a memorandum written by Starr), and told Starr that he thought he was exposed to a hazard in being re- quired to ride a bicycle in the parking area while he was performing his duties,13 mentioning the fact that he had had several near accidents (meaning was almost hit by automobiles) and recalling the fact that one officer had been injured by an auto- mobile while patrolling the lot in a company jeep. (The officer had had his neck broken.) Posner testified that Starr promised to investigate the matter and asked that Posner keep the conversation confidential. I have as much difficulty as the Re- spondent in believing that a proposal to keep the matter confidential would come from Starr rather than from Posner. It is apparent, however, that Posner believed his name would not be mentioned by Starr when the latter made his investigation. It is equally clear that Starr did not have a similar understanding because Starr told C. Stevens, an investigator in Chief Mannagh's department, of his telephone conver- sation with Posner. Stevens passed the information onto Mannagh.14 On August 27, first, Officer Schmidt, who was in charge of parking lots but who was not, according to the Respondent, a supervisor, and later, Sergeant Hatch spoke to Posner about the Starr report. No one testified what prompted these two to speak to Posner. On the basis of the documentary evidence in the record, I deduce that they were directed by Mannagh to speak .to Posner. I also deduce that Mannagh, and not either Hatch or Schmidt, decided what action would be taken .and .that he decided on this action before either Schmidt or Hatch had spoken with Posner. According to Schmidt's memorandum, he had a conversation about the matter with Mannagh at 8 a.m. and "it was decided" that the only alternative to riding a bicycle would be to patrol the parking lot on foot At 8:45 a.m. Schmidt went to Posner, and, after questioning Posner, he told Posner to turn his bicycle and key into the office and he would bring Posner back so he could continue his patrol on foot. Posner turned in 121 do not, by this statement mean to imply that Posner was necessarily free from blame in all instances where criticism was leveled against him In some instances, I, myself, might have believed him blameworthy, but I believe in other instances the evi- dence was too weak to justify a conclusion that he was to blame, and yet it is evident that Mannagh (and perhaps other representatives of management) chose to believe accu- sations against Posner rather too readily after April of 1959. 18 When Posner had had a car for this work, he not only gave parking warnings and notices for violation of parking rules but was supposed to watch for and apprehend pilferers and thieves, stop speeders, and otherwise maintain order. On a bicycle, he lacked radio communication and was hardly equipped to do anything about speeders who were going away from him and he would have had difficulty apprehending thieves if they had a car in which to escape. is Stevens' memorandum to Mannagh disclosed the way in which a story is built up, a tendency that I noticed more than once in the evidence respecting Posner In Starr's memorandum is the sentence, "The attention of the undersigned was directed [by Posner] to the heavy auto traffic and occasional reckless driving practices of employe personnel which exposed him to several near accidents while on a bicycle " Stevens' memorandum, repeating the above item, stated, "Posner further stated to Mr. Starr that he felt lie was taking his life in his bands every time he rode a bicycle in the lot because of the reckless and speeding driving of the Douglas employes." DOUGLAS AIRCRAFT COMPANY, IN C. 5915 his bicycle and Schmidt picked Posner up in his squad car and took him back to the parking lot.le While Posner was patrolling on foot, Sergeant Hatch came to him and asked if he had seen Starr about the safety of riding a bicycle on the parking lot. Posner denied that he had seen Starr. Posner testified that he denied this because, in the first place, he had not gone to see Starr but bad merely telephoned him, and, in the second place, he did not want Hatch to think that he had gone over Hatch's head. Hatch, however, took Posner's denial to be a lie and so stated in his memorandum of the incident to Mannagh. Posner quoted Hatch as saying that Posner might feel that he was picking on him unnecessarily in giving him these assignments but it was entirely out of his hands, that it had resolved itself into a personal battle between Chief Mannagh and Posner, that Posner knew how to correct the situation, and that, when he asked Hatch how to correct the situation, Hatch had replied, "By going into Mannagh's office, taking your [union] pin off and telling him you are sorry you organized for the union." Posner testified that he said he had no intention of doing that. Hatch denied the foregoing statements attributed to him and I find reason to credit his denial. (From the evidence, I believe that Posner may have confused what Schmidt had said to him earlier with what Hatch said to him at this time. From Schmidt's memorandum, aforementioned, and from his testimony, I find intimations that Schmidt may have been the one who suggested that Posner go to Mannagh and that Posner remove his union pin.) Posner asked Hatch how he felt he was per- forming his work. Hatch told Posner that he thought Posner seemed less interested in his work than he had been because he was not sending in as many 55-40 forms. These are officers' reports of violations of plant rules that come to the attention of officers. Posner said there was no occasion for such reports on the parking lot (a fact which Hatch acknowledged in his testimony) and that he had been turning in an average of 30 traffic citations a day. (He was required to write at least 20 and he did.) I note that when Hatch wrote his memorandum to Mannagh he worded it so as to make it appear that, because Posner was not turning in more forms 55-40, Posner was lacking in diligence. Hatch made no mention of the traffic citations that Posner wrote Until September 10, Posner performed his parking lot duties on foot. Then, on an occasion when Schmidt came to pick up Posner's parking tickets, Posner told Schmidt that his feet were bothering him. Schmidt said that he would talk to Sergeant Hatch about it. Hatch came to Posner a little later and told Posner he could have his bicycle back if he wanted it. Posner said he had only 2 more days of patrolling before he left on his vacation (on September 14) and that he would finish them out on foot. The Respondent adduced evidence to show that during the time that Posner walked his parking lot patrol, Kurrus 16 (previously mentioned as the officer who performed the parking lot duties on Posner's days off and also previously mentioned as a union member) also was put on foot and that when Posner went back on a bicycle, the other officer (Beaver at that time, because Kurrus was discharged before Posner returned from his vacation) performed his duties on a bicycle. Apparently, the Respondent elicited this testimony as evidence of equal treatment and lack of discrimination. I am not sure that it should be so viewed. Because Posner and Beaver were permitted to ride bicycles when Posner returned, I infer that the Respondent did not believe that bicycles on the parking lot were too hazardous to be allowed. If that is the case, one might ask why Kurrus should be deprived of his. There is no evidence that he had complained about riding a bicycle on the parking lot. Just treatment would seem to call for permis- sion on the part of each officer to choose whether he would ride a bicycle or walk. Posner might have, himself, been given such choice, but it does not appear that he was offered it until September 10. From all that appears, Kurrus was offered no choice. Under the circumstances, taking Kurrus' bicycle away from him (without any admissions by the Respondent that bicycles were hazardous on the parking lots) has more the appearance of trying to cause Kurrus to blame Posner for any dis- comfort he, himself, suffered rather than of impartiality. 2. Posner's discharge a. Events following Posner's vacation Posner left on his vacation on September 14, 1959 (September 14 and 15, Monday and Tuesday, were his regular days off, so I infer that officially his vacation started "The lot was large enough for 6,000 to 7,000 automobiles. 'e Kurrus' name is misspelled Cureus and perhaps other improper ways in the record. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on September 16), and returned on Wednesday, September 30. Upon his return, he was assigned to check traffic at gate No. 814 during the time that that gate was open in the morning (6:45 to 8:15 a.m.) to admit employees arriving in cars. The remainder of the day he returned to patrolling the west ramp parking lot on a bicycle, except on Saturdays and Sundays, when he had other duties. On arrival at work on Sunday, October 4, 1959, Posner was assigned the job called "clocks" or gate No. 8-a (if required to be opened to admit a plane). The first chore on the clock job was to make a patrol of the plant perimeter, which involved driving a police car around the entire plant fence (including the DC-8 side) and checking all the gates, other than two gates kept open for Sunday workers, to see that they were locked. Thereafter, the clock detail called for a building inspec- tion. Posner testified that the perimeter inspection takes about an hour. Sgt. Clar- ence Reuse, Posner's Sunday supervisor, testified that it takes about 30 minutes. It is not unlikely that the time could vary from one day to another between those limits. At sometime early in the morning of October 4 Reuse gave Posner orders to open gate No. 8-a. The evidence is conflicting as to how and when these orders were given. Gate No. 8-a is a very wide gate, opening into the west ramp area. It is large enough to admit the largest planes and it is so heavy that it must be opened by attaching a jeep or police car to it to tow it open. There is, however, a center section in this gate which can be opened independently by hand, and this section is large enough to pass fire trucks or other motor trucks. On the third (graveyard) shift on Sunday morning, October 4, employees were working on a DC-8 airplane which was on what is called "compass rose," a turn- table on the airfield where compasses are set. A log is kept by the officer on duty at gate No. 8-a to show the time of entrance or of departure of any plane through that gate. Another log, kept in the fire department, shows various movements of its personnel and trucks as well as the time and locations of planes for which the fire department must give attention. Whether at 6:45 a in. over the police car radio, as Reuse testified, or in front of the squad room about 7:25 a.m., as Posner testified, Reuse, having learned that the plane would be coming in from compass rose that morning, gave Posner orders to open gate No. 8-a and to stand by until ship No. 21 came in. The time when Posner opened the gate was a material matter in the incident of the unauthorized entry of a woman in an automobile that morning. Reuse testified that he heard soon after his arrival at 6 a.m. that the plane would be in from compass rose sometime after 6:30 a.m. Soon after that he went to the flight ramp and inquired if there were any flights that day. None was scheduled. While he was there, employees who were working on the plane asked him to open gate No. 8-a because they were having trouble getting to and from the plant and had to go around through gate No. 6.17 He testified that he went about a block's distance in his car and, between 6:30 and 6:45 a.m., called Posner on the radio and asked him to open gate No. 8-a. His testimony that he told him to open it "right away" was put in question when, in response to a question as to whether he had used those words, "right away," he answered, "I think I probably told him the airplane would be coming in and to open gate 8-a." Reuse did not appear too clear in his mind as to what he told Posner or other details. He testified that he was asked by Captain Van Cleave, Mannagh's next in command, on October 8 if any airplanes had flow on October 4. He answered that there had not been any. And on October 9, he testified, he was asked who was on the gate and what time it was opened.18 Van Cleave testified that he did not question Reuse before Posner was discharged because he had Leadman Lacey's report of what a witness had said. It was not until after Posner's discharge that Reuse was asked any further questions about the incident. The reliability of Reuse's memory is open to question, because he testified that when he made assignments that morning (October 4), he sent Officer Stout to gate No. 813. In this, he must have confused the events of October 4 with those of some other day, because Officer Erkes was on gate No. 813 on October 4. I do not believe that Reuse's memory can be relied on to prove the time that gate No. 8-a was opened on October 4. Posner, himself, was not sure of the time. He testified at one point that it was after 7:30 a.m. when he returned to the squad room and was then and there told to change his squad car for a jeep and to go down and let a ship in. But 17 It does not appear whether this request came from employees who had to drive a truck back In to get materials or from employees who had come in for 7 •30 breakfast or change of shift. is A memorandum made by Captain Van Cleave dated October 8 recited that Posner was on the gate, but he could have taken this information from Lacey's report, which erroneously put Posner at that gate at 6 .30 a.m. DOUGLAS AIRCRAFT COMPANY, INC. 597 later he testified that it was probably 7:25 a.m. when he met Reuse there. He further testified that it was after the 7:30 a.m. whistle (change of shift) that he opened gate No. 8-a. From other testimony of Posner, I am not convinced that he, himself, knew his exact time of arrival at that gate. At approximately 7:25 a.m., on October 4, an employee named Charles Hunt came to work on the first shift, using pedestrian gate No. 10 to enter the premises. As he was walking toward his timeclock on building No. 15, he was stopped by a woman driving from west to east on the ramp. She asked Hunt the way to Lakewood and Spring Street (Lakewood Boulevard bisects the Respondent's property in a north-south direction, while Spring Street lies about a mile to the south of the southern edge of the premises. Hunt asked her how she came in and she said by Lakewood and Carson (Carson bounds the main properties on the north). The nearest open gate for vehicular traffic coming from that direction would have been gate 6 at Lakewood Boulevard opposite the end of Conant Street (which is the southern boundary of the DC-8 side of the plant). However, by curving into the ramp parking lot (which is outside the southern boundary of the main premises) she might, a long distance to the west and thence a shorter distance to the north, have reached the location of gate No. 8-a. The point at which Hunt encountered her was a little to the west of midway between gates Nos. 8-a and 6. Hunt directed the woman to gate No. 6. He did not report the incident that day. Officer Beaver was on gate No. 6 on the first shift on that morning of October 4. When the aforementioned woman, with no badge, drove up to his hut in a car with no decal, he stopped her and asked where she had been. She told him that she had just taken her husband to work on the west ramp and she wanted to get out on Lakewood Boulevard and go home. Without taking her name or license number, Beaver permitted her to leave. After she left, he telephoned Posner at gate No. 8-a and asked if the woman had entered through his gate. Beaver testified that about 20 minutes had elapsed before he made this call to Posner. Posner testified that Beaver had called him between 7:45 and 8 a.m. and that he had not even opened gate No. 8-a when Beaver called him. Beaver did not report the incident as he should have. On October 5 or 6, Hunt mentioned the presence of the unauthorized car to Officer Evans. Evans reported the matter to Owen Lacey, a leadman, and Lacey went out to interview Hunt. Lacey then wrote a report to Mannagh. After relating what Hunt had told him, Lacey wrote that the only entrance to the plant from the west at that time was gate No. 8-a and that that gate was manned by Officer Posner from about 6.30 to 9 a m. This time was obviously not based on firsthand knowledge, since Posner was making his perimeter tour at 6:30 a.m. Lacey also commented on the fact that no report had been received concerning the incident. If one had been called in by Beaver, it would have been made to Lacey. Lacey did not state in his report that Hunt had told him he had asked the woman which way she had come from and her reply, as Hunt testified he told Lacey. Lacey, however, denied that Hunt had told him that. When Mannagh received Lacey's report, he ordered Captain Van Cleave to make an investigation and to get a statement from Lacey, Beaver, and all concerned. On October 7 or 8, Van Cleave questioned and got statements from Beaver and Erkes, the officers on gates Nos. 6 and 813, respectively. He did not question Posner. Both Beaver and Erkes denied having admitted the woman in the incident. Beaver was given a verbal reprimand for not having taken the woman's name and license num- ber and. I infer, for not having reported the incident. At the hearing, Beaver admitted the possibility that the woman could have slipped in through gate No. 6 unobserved by him, and he described his Sunday duties which sometimes took him from the gate to unlock the entrance to an adjoining building. He also testified that he occasionally found the chain down. The gate has a chain that the attendant can put up to hold traffic back until it is removed. Beaver testified that he sometimes found the chain down after he had left to admit someone to the adjoining building, although he was certain he had put the chain up. I infer that someone in a hurry to enter might, himself, let the chain down and leave it down after he entered. The evidence is conflicting as to what time gate No. 8-a was opened on October 4 and what time the ship came in. Posner's log showed that the ship came in at 8:43 a.m. The fire department log showed 7:45 a.m. There is evidence by witnesses that the ship came in before 8 and evidence that it came in after 8. Certain entries in one of the two fire department logs cast some doubt on its accuracy, and the two fire department logs appear at variance in some of the entries . One entry in the main station log of the fire department indicated that the timeclock at station No. 60 was 1 hour late. This was not one of the stations involved in this incident, but if some- 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one had set his watch by it, he might have made a wrong entry. However, even as- suming that the ship came in at 7:45 a.m ., that would not prove that gate No. 8-a was open at, or before, 7.25 a.m., when Hunt saw the strange woman in the grounds. The Respondent made no attempt to pinpoint the time of the opening of gate No. 8-a until it was preparing evidence for this case . An electrician who had worked on ship 21 on compass rose on October 4 testified that his work was finished and he punched out about 7:30 a.m. (his timecard shows 7:31 a.m.), but he had no clear recollection as to whether or not gate No. 8-a was wide open or whether he came through the center section . He testified that it would take about 30 minutes from the time he left the compass rose before the ship would have been ready to come in. I find the evidence to be inconclusive that gate No. 8-a was open before 7:25 a.m. when the unauthorized woman entered . Furthermore, even if gate No. 8-a had been open at that time, there is no certainty that she entered by that gate . The mere fact that she was proceeding east, away from the direction of gate No. 8-a is not very convincing evidence that she entered there. She could have entered through gate No. 6, or possibly, but less probably, through gate No. 813 (the latter entrance would have required that she come through a tunnel under Lakewood Boulevard), pro- ceeded to the west ramp , dropped a passenger, and turned around to return to the exit through which she had entered . Another possibility but not a strong probability is that she entered before the end of the third shift and was on the grounds for an hour or more before leaving. Despite all this, Captain Van Cleave did not question Posner, and Mannagh did not press the investigation any further but chose to believe that Posner was at fault . However, when Mannagh told Farrell about the incident on October 8 at the time that Mannagh proposed to discharge Posner, Farrell properly dismissed the incident of October 4 from consideration as inconclusive. For Wednesday and Thursday , October 7 and 8, at the prior directions of Man- nagh, Van Cleave ordered Sergeants Hatch and Rue to make a secret observation of Posner's work on gate No. 814, where he worked between 6:45 and 8:15 a.m. I infer that these instructions to the sergeants must have been given before October 7 because Rue was not on the same hours as Hatch . Rue normally started at 9 a.m. while Hatch started before 6:30 a.m. and the observation was carried on between 7:33 and 8 a m. on October 7. Rue, therefore, had to arrive early on October 7 and 8. In explaining why he had ordered this observation to be made, Mannagh testified that when he came to work on September 30, 1959, Posner's first day on that gate in more than a year, and his first day back from his vacation, he approached to enter through gate No. 814 "and I was shocked beyond words-I couldn't believe what I was seeing, that Officer Posner was back away from the cars just motioning these cars through at a fast rate of speed " Then he testified that when Posner saw his (Mannagh's ) car, he walked up and checked the two cars preceding his. He did not speak to Posner about his "flagrant" conduct, however, because "he [Posner] would be off duty (on that gate ) in 15 minutes" and he would then call Posner into the office. He did not do so, however, because after he reached his office, he testified, he received an anonymous telephone call from a man who told him he had better check "the Faculty Gate" because the officer was not checking anyone. He testified that he asked who was calling and was told, "Well, I am one of the supervisors." Mannaugh did not testify that he tried any further to get the name of the caller. Because Van Cleave was out of the office, Mannagh testified, he did not get to speak to Van Cleave until after gate No. 814 was closed the next morning, October 1. However, after Friday, October 1, Posner was not scheduled to be on that gate again until the following Wednesday, after his days off. Mannagh testified that he told Van Cleave he wanted to assign Sergeants Rue and Hatch to make a thorough check and submit a report to him of the operations of Posner at gate No. 814. Asked by Respondent's counsel if it occurred to him that, while he was waiting for this to be done, some unauthorized person bent on mischief might come through gate No. 814 while Posner was there, Mannagh gave this answer : "I recognized that and it is a serious problem, but we at that particular time had the case of October 4, where a lady drove in the gate 8-a, and we were taking statements . The captain was taking statements with reference to that incident-statements from the other officers-and it all seemed to jell into one problem centering on Posner , and with our other duties it took time to investigate " This is an attempted excuse and not an answer to the question . Even the excuse is weak. It is difficult to believe that , if Mannagh had observed such a flagrant violation of safety rules by Posner, as he testified, be would not have called Posner to task immediately . This and his failure to identify the alleged anonymous telephone caller the same morning justify serious doubt that the events occurred as testified or that they were the reason for the order to the sergeants to make a check on Posner. When asked , why, if he saw a violation of rules with his own eyes, there was any need for an investigation by the sergeants , Mannagh ex- DOUGLAS AIRCRAFT COMPANY, INC. 599 plained that it was because he wanted his sergeants to learn a lesson, that a thing like that existed without their knowing it. This answer indicates that Mannagh would defer plant safety merely so that the sergeants could receive an education. Mannagh testified that he, himself, does not discipline except in an exaggerated case. In April or May 1958, Mannagh came to work through gate No. 813. It was raining, and water stood high in the gutter and for a distance inside the gate beyond the officer's shack. Mannagh stopped his car to be identified. Officer Morris was in the shack with his back to the closed door. Morris finally turned and saw Mannagh there. He identified and passed him without stepping into the water close to Man- nagh. Morris' failure to see Mannagh was a clear case of neglect of duty. When Mannagh reached his office he told Van Cleave what had happened and told him to do something about it. When Morris was in Van Cleave's office, Mannagh went in and told Morris that there could be a 3- or 5-day layoff or a discharge for his offense, and he asked Morris what he would do in his (Mannagh's) position. Morris sug- gested 5 days. Mannagh gave him a 3-day layoff. There is much in the record to suggest that the check ordered on gate No. 814 when Posner was there was suggested to Mannagh by the incident of October 4 and that Mannagh was more interested in building up a case against Posner for discharge than he was in correcting a violation of security rules. In order to understand the evidence of the sergeants' check of Posner's performance at gate No. 814, one must understand the nature of the operation there. Gate No. 814 is one that is used only for a short time in the morning while gate No. 813 is closed to vehicular traffic in order more expeditiously to take care of pedestrian traffic during the morning. Both gates Nos. 813 and 814 open into the area described as the DC-8 side of the plant. This is a rectangular area bounded on the north by the recrea- tion grounds of the city of Long Beach, on the east by Faculty Avenue, on the south by Conant Street, and on the west by Lakewood Boulevard. The rest of the Long Beach plant, including the buildings occupied by the plant protection department, lies to the west of Lakewood Boulevard for a considerable distance. There are three tunnels under Lakewood Boulevard connecting the properties, the middle one of which is a vehicular tunnel. Gate No. 814 is on Faculty Street, the eastern boundary of the DC-8 area and about 150 feet to the north of gate No. 813, a gate used, except during the morning rushtime, for both pedestrian and vehicular traffic. The latter gate on weekdays is attended by several officers and is equipped with telephone and with facilities for issuing passes. Gate No. 814 has no telephone and is not equipped for the issuance of passes. When anyone without credentials comes to gate No. 814, the officer on that gate is supposed to refer him to gate No. 813. Inside of gates Nos. 813 and 814 is an employee parking lot, but the lot is provided with stalls for visitors, such as vendors or contractors. The latter stalls are those nearest Faculty Street. When a vendor or contractor is recognized by the officer on gate No. 814, he is per- mitted to direct him to the visitors' stalls (inasmuch as they cannot enter gate No. 813 by car while gate No. 814 is open) and then require him to go to gate No. 813 on foot to get a temporary pass. A majority of the automobile passengers entering gate No. 814 are supervisors. Traffic entering gate No. 814 approaches on Faculty Avenue, a two-way street, from both north and south and cars from each lane alternate in entering the gate. Each car that enters is required to have a Douglas-issued decal or permit in the windshield and each driver and passenger is required to have a badge and an identi- fication card before being permitted to enter, with the exception previously men- tioned regarding the use of visitors' stalls. The officer attending a vehicular gate is required to see the vehicle's identification and the badge and identification card, com- monly called ID card, of each person in the entering vehicle. The officer is not ex- pected to read what is on the decal or badge or ID card and he is not required to identify the person with the picture on the ID card-it suffices that he recognizes only an obvious discrepancy, such as in sex or color. The time of heaviest traffic flow is estimated to be about 7:30 to 7:45 a.m., although it continues to be fairly heavy until 8 a.m. The evidence is somewhat conflicting as to the percentages of automo- biles that contain one, two, three, four, five or six passengers. There are also other conflicts regarding the practices on this or other traffic gates. Based on what I con- sider the most reliable testimony, I conclude that during the period of heaviest flow of traffic, cars enter at the rate of about eight per minute, or an average of one car each 71/2 seconds. To maintain this average, an officer would be obliged to pass some of the cars in much less time, and he would be obliged to be alert and quick. Cars with few passengers, if they held their badges and ID cards side by side and in position to be seen quickly by the officer, could be inspected and passed fairly rapidly. From the evidence at hand, I would estimate that a car with only a driver could, from its position in line, proceed to the gate, be inspected, and passed in a matter of 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a couple of seconds, whereas, if the car carried five or six employees , each exhibiting ,his badge and ID card, it would take 12 to 15 seconds from the time it was sum- moned to approach the gate until it was inspected and passed . The Respondent's wit- nesses, for the most part, testified that a car had to come to a complete stop in order to be properly inspected, whether the car contained one or more passengers. Man- nagh alone conceded that if there were only the driver, he would not object to a "rolling stop." However, Mannagh had testified earlier that the post orders require that a car stop before entering the plant. This testimony was not borne out by the post orders introduced in evidence . Officers who testified for the General Counsel testified that there was no requirement that a car come to a complete stop if in- spection could be made without it and that if only one or two or possibly even three persons were in the car , inspection could be made without bringing the car to a com- plete stop provided the occupants of the car were ready to exhibit their badges and ID cards and were holding them in view , because the officer would look for the decal in the windshield as the car approached and be ready to look at the badges and ID cards as the car would roll slowly past him. During the time that Posner was on gate No. 814 and prior to Friday , October 9, no one said anything to him which even intimated to him that he was not performing his duties satisfactorily . Yet, according to Sergeants Hatch and Rue, they observed Posner not only on October 7 but again on October 8 and made reports of unsatis- factory performance . On October 7, Hatch and Rue testified , they parked their squad car in back of some packing boxes upward of 300 feet 19 to the west of gate No. 814 and observed Posner through a 2-foot space between the boxes. They did not testify that they got out of the car. On October 8 , they were 531 feet from gate No. 814. On neither occasion did they use fieldglasses The reports they made were mainly of a conclusionary character . The only factual part is that between 7:33 and 8 a.m. on October 7, approximately 100 cars entered the gate, that Posner stood about 10 feet from the incoming cars,20 that only 5 cars were stopped and that some of the cars had 4 or 5 occupants and passed through the gate without stopping. The report of October 8 stated that between 7:40 and 8:10 a.m. about 120 cars entered gate No. 814, that Posner was standing about 5 feet from the incoming cars "where it would be impossible for him to properly check credentials of cars with more than one occupant ," that "only" 25 cars stopped "of their own accord" for purposes of proper identification , and that some of the cars had from 2 to 6 occupants. ,In the bearing room, witnesses had no difficulty in identifying ID cards and badges from a distance of 8 or 9 feet . From the point at which they were observing Posner, Hatch and Rue were able to see only what I would call generalities . They could not see if the passengers were holding up their badges and ID cards As they were parked, one of them must have been in front of the other and partially blocked his view. On October 8 , they could not tell the number of passengers in the cars, but they knew that some had three or more passengers because many of the cars passed them after entering the premises. They did not count the number of cars with that many passengers, and obviously were not in a position to tell whether or not the 25 cars that stopped were ones with the greater number of passengers . Hatch and Rue did not speak to Posner about his handling of traffic, because (they testified) they were asked to make a written report and were not accustomed to do so in such case. It was not customary to make a 2 -day check, and they did so on gate No. 814. Hatch testified , only to be sure that the situation was as Captain Van Cleave had anticipated might exist. Hatch testified that he expected to find Posner improperly performing his duties on October 7 and 8. He and Rue had been told at the outset to make a 2-day check. I conclude, therefore , that the decision to do so was not made by them Hatch testified that Rue did not usually accompany him in making such checks at the gates , although he had accompanied him in making a 1-day check on gate No 88. In that instance , there were two officers on the gate , one for cars and one for pedestrians. In the early part of October, Posner drafted an anonymous letter to Donald Douglas , Sr., the chairman of the board of directors of the Respondent . Posner testified that he had discussed the writing of such a letter with Officers Bryant and Beaver and had received suggestions from them , and that it was typed by a Mrs. Blackwell, a former plant protection employee. Bryant and Beaver were not ques- tioned about their part in the composition of the letter when they were on the wit- ness stand and Mrs. Blackwell did not testify at all, but the Respondent does not 19 Rue estimated the distance as 300 feet Hatch first estimated 200 to 250 feet. Measurements on a map in evidence indicate it would have been about 320 feet 20 This appears to the Trial Examiner to be a gross exaggeration. DOUGLAS AIRCRAFT COMPANY, INC. 601 dispute Posner's authorship. The letter was dated October 5. Posner testified that he addressed the envelope himself (hand printed) and that he caused it to be mailed. The postmark on the envelope is "Artesia, California, October 8, 1959, 11:30 a.m." The letter, itself, bears Douglas' "received" date stamp of October 8. Superimposed over the "8" is a "9" in ink. The evidence does not disclose who made the alter- ation, and the reason therefor is left to inference. The letter reads as follows: DEAR SIR : We are a group of Plant Protection Officers from the Long Beach Douglas Plant who are writing to you as a last resort, to correct the injustices perpetrated against us by Chief Mannagh. Many of our men have quit, others have either been forced to resign or have been fired . The rest of us are in constant fear that we are next because we openly expressed our desire to join a union. We know you are fair minded in your dealings and that if you could be told the whole sordid truth of the mismanagement of our department, by a man who will go to any length to punish an employee who will not agree with his views on unionism, you would look into the situation. The only ways the truth can be brought out is by secret investigation, by questioning every single Plant Protec- tion employee and guaranteeing these employees that their statements are to be held in confidence. We have been accused of being disloyal, we don't feel that we are because you yourself stated that "a man has a right to belong or not belong to a union as he deems fit." So, if we are going along with Company policy how can we be called disloyal' Or is Plant Protection a separate little Kingdom ruled by a man with a strange set of his own policies? We respect the Company we work for and like our jobs as evidenced by our fine record as a Plant Protection group. For this reason we are willing to fight anyone that would be the direct cause of destroying the morale of our depart- ment. Following are some of the charges that need investigation: 1. Chief Mannagh has permitted an Anti-union association to organize in our midst and both sanctions and directs its activities. This association has a private welfare plan that is against company policy and permits only non-union minded members to join. 2. Newly hired personnel are questioned as to their views on unionism and are hired on the condition that they speak and vote against a union. 3. Chief Mannagh both encourages and takes part in punishing by retaliatory measure all known union sympathizers. This situation is becoming more pro- nounced daily. 4. All informants are encouraged by being given choice assignment by our Chief as a reward for turning in information concerning a fellow employee, most information is false and given only for personal gain by these opportunists. 5. Chief Mannagh is the main cause of our group being divided, all semblance of morale has gone, those too old to move on to a new job dare not express themselves, others will leave when the opportunity presents itself. It's not a pretty picture, Mr. Douglas, but it is a well known story here at Long Beach We know you are a busy man in a huge corporation and be- cause the Douglas Company is so big these situations occur and get out of hand before you know they have ever started. A little quiet investigation will bear out the facts as stated in this letter in addition to many other irregularities now existing in our department. We hope to God that you do something before it is too late for many of us, we want to save our jobs. Respectfully yours, PLANT PROTECTION ANONYMOUS Douglas penciled a note on the top of this letter to Ken Farrar, vice president and the general manager of the Long Beach plant, saying, "If true, Bob M. [Mannagh] is overstepping our policy. What about it?" Mannagh testified that he received this letter from Farrar after lunch on October 13, the day before Posner's discharge, and he testified that before he saw the letter he had not heard of it. The impression given by Mannagh's testimony is that Farrar called Mannagh to his office on October 13, let him read it, questioned him as to whether or not there was any truth in it, and let him retain the letter. A close inspection of the record, however, brings to my at- tention that Mannagh was not specifically asked the date when Farrar called him to his office and questioned him. I do not. therefore, make a definite finding that it was on that date, but, in the absence of evidence that Farrar questioned him before that date, I make no finding that the event occurred earlier. On the evidence in the record it is possible that he could have been questioned about it any time between October 8 and 13. The General Counsel contends that this letter was the basis for 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Posner's discharge. If Mannagh learned of it on October 8 (the date of the date- received stamp), it would be a reasonable inference that it constituted at least a part of his motive for discharging Posner , because Mannagh immediately suspected that Posner was the author of the letter as soon as he read it. If Mannagh did not be- come aware of the letter before October 9, it could only be a factor in motivating Posner's discharge if he had learned of the writing of the letter before it was re- ceived or if, although Posner's discharge was first contemplated after the letter or charges therein were brought to Mannagh's attention, the Respondent's evidence of the discussions regarding Posner's discharge were back dated. As there is no evi- dence that either was the case, I dismiss from consideration any such suggestion. The evidence does disclose that the first date on which Mannagh spoke to Farrell of discharging Posner was on October 8. At that time Farrell was in Mannagh's office for another purpose, and, while he was there, Mannagh showed him the reports of Sergeants Hatch and Rue that Posner was waving traffic in through gate No. 814 without adequately checking identifications and mentioned the incident of Sunday, October 4, of an unidentified car that was suspected to have entered the grounds through the gate Posner was supposed to be tending (gate No. 8-a). Man- nagh testified that he proposed that Posner be discharged. Farrell asked what disciplinary action Mannagh normally took for such dereliction of duty and, according to Farrell, Mannagh said a layoff. Farrell disagreed that discharge was warranted but agreed that a layoff would be proper and left with the understanding that Posner would be given a 2- or 3-day layoff.ai Farrell dismissed the incident of October 4 as cause for any discipline because the entry of the unauthorized car was not definitely traced to Posner. On the morning of October 9, Posner was on duty at gate No. 814 at the customary time. At 7:43 a.m., at about the peak of the morning traffic, a small blue Volks- wagen entered through the gate. Neither the car nor the driver exhibited identifica- tion. It is undisputed that this car was permitted by Posner to enter. The principal issue is whether or not Posner directed the driver to a visitor's stall by pointing toward such stall with his left hand while giving the signal to proceed with his right hand or whether he just waved the car in. Whatever was the case, the driver, ignoring the visitors' stalls, turned right inside the gate, proceeded north about 150 to 160 feet to the end of the parking stalls, turned left and proceeded perhaps 110 feet west past the second double row of stalls, where he again turned left in a lane between rows of parking stalls and returned and parked his car near the gate. Posner came toward him and asked for his identification . The driver asked Posner if he knew who he was. Posner said that he did not. The driver then identified himself as Mr. (Jean Charles) Ingham of the Respondent's office of the director of security (in the general offices of the Respondent at Santa Monica ) and showed his badge. He asked why Posner had not stopped him to identify him. Posner said that he took Ingham for a vendor or salesman until he went beyond the visitors ' stalls, that he had waved him to a visitor's stall but that Ingham had not obeyed his signal. Ingham asked what Posner would have done if he had not returned. Posner said he would have whistled him down. Ingham asked how Posner could have done that at such a distance. Posner said he would have gotten Ingham's license number and reported it. Ingham questioned Posner's ability to do that and continue with his work at the gate.22 Ingham told Posner that he would have to report the incident. During the first part of this incident, an employee was standing at the gate waiting for a ride into the plant, as he had often been accustomed to do. Ingham went directly to Chief Mannagh . Inspector Brady came into the room and Ingham related the incident just described . Mannagh asked Ingham to make a written report. Ingham did so. This report will be found attached hereto marked "Appendix B " An inspection of this report discloses that Ingham grossly over- estimated his distance into the plant and that he failed to state in it that, before he spoke to Posner, Posner asked for Ingham's identification , as I have found (on the basis of Ingham's testimony at the hearing ) that Posner did. Posner continued with his duties at gate No. 814 until 8:15 a.m . when gate No. 813 was opened for vehicular traffic. Apparently Brady must have appeared about this time because Posner testified that lust before he locked gate No. 814 he talked to Brady, his security investigator, and Brady suggested that Posner make a report. Then he closed gate No. 814 and went to gate No. 813 to ask Officer Young, who 21 As previously stated, disciplinary action or discharge bad to be approved by industrial relations , headed by Farrell re In his report of the incident, Posner stated that he would have been obliged to close his gate, go to a telephone at gate No 813, and alert the department. DOUGLAS AIRCRAFT COMPANY, INC. 603 was usually on gate No. 814,23 the name of the employee who was accustomed to wait at gate No 814 for a ride. He was directed to an employee named Gordon Bera. Posner went to see Bera. The evidence is somewhat conflicting as to what was said between them, but Posner testified that he told Bera he thought he was being "framed," that when the driver of the Volkswagen went past the visitors' stalls he had said audibly, "He'd better get back here or else" and that he asked whether Bera, if he had heard the remark, would so state so that he (Posner) could report this in the report he was going to file. Bera testified that he did not remember Posner's asking him to make this statement "if he heard it" but remembered only that Posner has asked if he would (or perhaps could) say it. At first Bera agreed to do so, although he was of the impression that Posner was attempting to get him to fabri- cate, and when Bera gave an oral statement to Chief Mannagh, he reported that Posner had made this statement , but he refused to sign a written statement to that effect. Posner filed a written report in which he quoted himself as making the statement, "He'd better get back or else." In his report, he also gave the license number of the Volkswagen. Posner testified that he had jotted down the license number of the Volkswagen "as it went in, as it had gone beyond." The Respondent obviously did not credit either Posner's testimony of his audible statement or his jotting down of the license number of the car as it first entered, and I, too, am doubtful that either occurred as testified by Posner. If Posner had taken down the license number when the Volkswagen entered, I am satisfied he would have shown the nota- tion to Ingham, or at least mentioned it, when Ingham returned to converse with Posner. Ingham did not so testify, and neither Posner nor Ingham in his report mentioned any such thing. In fact there is no evidence before the hearing in this case that such thing occurred. On the same day, October 9, about 2:30 p.m., Mannagh went to Farrell's office to tell Farrell that there had been a further development in Posner's case. Farrell, in testifying about this, did not say, "Posner's case"; he testified that Mannagh said there had been a further development in the case of the woman who had gotten into the plant several days earlier, the incident previously mentioned. Mannagh then showed Farrell the report made by Ingham and told Farrell that Posner's file contained many other bad reports on Posner. I infer that Mannagh again was seeking Farrell's approval of Posner's discharge. After reading Ingham's report, Farrell this time indicated that Mannagh's recommendation was acceptable. However, Farrell called into his office Joseph Garbett, supervisor of industrial rela- tions, showed him the Ingham memorandum, and then asked Garbett to check the file in Mannagh's office, saying that, if everything there was as he expected it to be, the discharge in his opinion would be proper. In Garbett's presence, Mannagh said .that he thought that Posner ought to be discharged in the light of the Ingham in- cident and others then unknown to Garbett. Farrell left the final approval of the discharge to Garbett after the latter had gone over the file. It was not contemplated that Garbett should examine witnesses or go beyond the file. As this direction was given to him on Friday afternoon, Garbett did not get to the task of going through the plant protection department file on Posner until the following Monday. On that day Garbett went through Posner's file and examined each document (with Mannagh pointing out Posner's bad conduct discharge), and by late Monday morning made his decision that Posner should be discharged. Garbett testified that he was principally influenced by the Ingham report of October 9, the sergeants' reports of October 7 and 8, and the October 4 incident. He noti- fied Mannagh and Van Cleave of his decision. b. The discharge interviews Posner was off duty on Monday and Tuesday, October 12 and 13. On Wednesday, October 14, he was summoned to Van Cleave's office. The time of day is not in evidence. Because some disagreement existed as to what was said, I shall relate first Posner's testimony of what transpired. Van Cleave began, according to Posner, by asking him if on October 4 at 7:25 a.m. he had let a woman into the plant. Posner said he had not and was not at the gate at that time. He asked Van Cleave why the latter thought the woman had come in through his gate, and Van Cleave answered that he had statements from the officers on other gates, that the woman as The reason for the switch of Young from gates Nos 814 to 813 is not shown-per- haps because someone usually at gate No. 813 was on vacation But if this were the cage. one wonders why Young was moved from gate Noa 814 to 813 and why Posner was put on gate No 814 Instead of being put directly on the job of the man on vacation 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not come in those gates ; therefore that it must have been through Posner's. Posner denied it and said that he was not at gate No. 8-a until 7 : 45 a.m. Van Cleave asked if Posner had talked with anyone about this and Posner replied that he had talked only with Beaver who had called him at 8 a.m . on October 4 to ask if Posner had let such a person in and that he had told Beaver he had not because he had not arrived at the gate until after the woman was supposed to have gained admittance . Posner asked why, during Van Cleave's investigation, he, himself, had not been questioned earlier. Van Cleave answered that it was in fairness to Posner, that they wanted to investigate before deciding what to do. Posner said a thorough investigation would have involved a statement from him . Mannagh entered the room as Van Cleave told Posner he had other charges, mentioning the admittance of Ingham on October 9 . Posner asked Van Cleave to refer to his report on the incident . Van Cleave said he had done so but had also read the report made by Ingham. At this point, Mannagh broke in to say, according to Posner, "We also have evidence you attempted to get a man to perjure himself in your behalf in the Ingham incident." Posner denied this, and, still according to Posner , Mannagh said , "You lie about this like you lie about everything else." Mannagh did not testify to having said this , himself, but he did not deny it. He did testify, however, that at this point he pulled from his pocket the anonymous letter addressed to Doug- las, waved it in the air, and said, "I suppose you'll deny this, too." When Posner asked what it was, Mannagh told him it was the letter that Posner had written to Douglas. Posner denied having written it. Posner quoted Mannagh as saying with reference to the Douglas letter, "You thought it was going to do you some good, but now it is my turn." Mannagh denied this statement only by implication in quoting himself, following Posner's denial of having written the letter , as saying that he expected Posner to deny it . Posner quoted Mannagh as then saying, "You can't deny having written to Farrell. You signed that letter." Mannagh denied having referred to the letter to Farrell. Because I do not believe the Farrell letter entered into Pos- ner's discharge, I find it unnecessary to resolve the conflict . Posner also quoted Mannagh as saying, "In spite of all you have done, and if you had your way you would not only cut my throat , you would stab me in the back , I am still going to be fair," and because of Posner's wife and daughter , offering to let him resign. Mannagh denied having offered to let Posner resign , testifying that he did not have that prerogative . It appeared to me that each side attached too much importance to this. The General Counsel apparently theorized that an offer to let Posner resign was an admission of a weak case for a discharge . Since I cannot agree that this is necessarily true, or even that it was such an admission in this case, the conflict is unimportant . Mannagh told Van Cleave to take Posner to industrial relations. He then left the room. Before going to industrial relations with Posner , Van Cleave told Posner of the observation by the sergeants of his performance at gate No. 814 on October 7 and 8 as the remaining causes for his discharge , but he declined to discuss the basis for these reports with Posner. He then took Posner to Garbett in the industrial rela- tions department. Van Cleave told Garbett that he had gone over with Posner the reasons for his discharge. Garbett asked Posner if he were a family man and if he intended to stay in security work. Then he asked Van Cleave if he had any objec- tion to permitting Posner to resign. Van Cleave said he had no objection, and Garbett advised Posner to resign . Garbett testified that he did not always give a choice of resignation, but that it was his opinion that Posner had made some mistakes and that the offer to let him resign was in order . Posner testified (and Garbett denied) that he asked Garbett if he was going to take Mannagh's word and not question him. Posner quoted Garbett as saying that he was satisfied with what he had. I believe that Posner's testimony puts Garbett in the role of a coconspirator in his discharge and, in this, I believe his testimony gives a false picture. According to established procedures , this was not the time for Garbett to review the merits of the discharge. I am not even convinced that Garbett would, from his review of the record, have decided that discharge was the only proper disciplinary action. He had merely been asked to determine if the record would support a discharge, not to determine what discipline he thought would be proper . I gather from all the evidence that, although discipline cannot be taken without going through industrial relations, the role of the latter is one of check rather than initiative . If a supervisor proposed a discharge, when only a layoff would be proper, industrial relations would restrain any greater penalty. But if either would be proper, I judge that industrial relations leaves the matter up to the supervisor. Because of the available grievance procedure, a full-scale investigation by industrial relations, independently of the documents in an employee's file, would not be made until the second step in the grievance pro- DOUGLAS AIRCRAFT COMPANY, IN C. 605. cedure. I find, therefore, that if Garbett made any statement to Posner akin to being satisfied, it was that he had found the record supported the charges. Posner refused to resign and asked if he had an appeal. Garbett explained the grievance procedure. Posner also expressed an intent to proceed through the NLRB. Thereupon Posner was discharged. Subsequently, Posner went unsuccessfully through the first two steps of the griev- ance procedure, but chose not to go on to the third, arbitration. Instead, he filed his charge with the Board. c. Conclusions respecting Posner's discharge It is amply clear that, before he embarked upon the organizational drive for the Union, Posner had enjoyed amicable relations with Chief Mannagh. It is equally clear that after the drive began Posner fell in grace. Mannagh denied that he took it as a personal affront when any of his men sought union representation. This denial loses value in the face of evidence of specific incidents indicating the contrary and of Farrell's testimony that he had told Mannagh that the desire of employees for a union was not a reflection on him. Mannagh not only took apparent affront because of Posner's leadership in the organizational drive, but he angrily blamed Posner for rumored improper conduct of others whom he did not bother to correct. In this, Mannagh exceeded any personal censure Posner might, perhaps, have deserved and vented his emotions on Posner for words or acts of others. Mannagh appeared to be a man who, once crossed, would not readily forgive, certainly not unless the one who offended him came to him with bowed head. Not only did Posner fail to do this but gave signs of continuing his interest in the Union after it lost the election and he also expresed protests against what he considered unfair treatment. In at- tempting, without revelation of his name, to bypass the customary procedure for protest concerning what he regarded as the danger of patrolling a parking lot other than in a squad car (a procedure which he probably anticipated with some reason would produce no satisfactory result ), Posner was, however, guilty of at least an affront to his superiors and, if his evasive denial was not literally a falsehood, it was designed to mislead and he could not blame Hatch for reporting him to be a liar. This, however, was not a basis for Posner's discharge. The first alleged misconduct leading to Posner's discharge was Posner's handling of traffic on gate No. 814 on September 30. The testimony of this is so fantastic as to be unworthy of belief . Actually, there was no memorandum in the file made contemporaneously therewith and it was not one of the incidents listed as a ground of discharge. The incident of October 4 of an unauthorized entry, allegedly through the gate tended by Posner, was not definitely proved to have resulted from any fault of Posner . Mannagh's persistence in using such inconclusive evidence is an indication of a personal animus. The direction of a 2-day check on Posner on gate No. 814 on October 7 and 8, by two sergeants, without even waiting to see the outcome of the first day's report, an unprecedented procedure , has every appearance of having been done to prepare a case for Posner's discharge. It certainly was not done with a view either to tightening plant security or to correcting any known or suspected improper performance on Posner's part, for if either had been the purpose, the correction of the situation would have been made at the earliest possible moment. Van Cleave's explanation of the ordered 2-day check-that, because of reports that Posner was not properly checking people in, "in fairness .to" Posner they made a 2-day check-lacks con- viction. Had a single day's check been ordered and had that resulted in a report of possible impropriety, an order of a second day's check then "in fairness" to Posner (that is, rather than hold the evidence against him on that day's report alone) would be understandable . But such is not the evidence here. It appeared to me that Sergeants Rue and Hatch knew that they were expected to find Posner's per- formance unsatisfactory and that they must have assumed that it would be a reflec- tion on them if they did not do so. Their testimony that only a complete stop by each car would satisfy the rules and provide adequate inspection, without a willing- ness to concede that even a one-occupant car could pass at 1 mile an hour and be properly inspected indicated to me that they felt under constraint, for I am well satisfied from the evidence that this rigidity is not maintained in practice, and if their testimony was so constrained, I am convinced that their memoranda were tailored to what they were led to believe was expected by their superiors. The failure to call Posner to task after the first bad report as well as the order for a 2-day check at the outset are clear evidence of an intent to build a case for discharge rather than to correct Posner or safeguard plant security . On the basis of the 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sergeants' reports and the incident of October 4, Mannagh did, in fact, on October 8, seek Farrell's approval of Posner's discharge. If Mannagh had accepted Farrell's suggestion of a disciplinary layoff, he could have effected it before Posner started his duties on October 9. I am convinced that Mannagh was aiming his sights at a discharge rather than a layoff. The events of the next morning, whether planned or not, could not better have fallen in with Mannagh's expressed desire to discharge Posner. There is much in the Ingham incident that gives rise to the suspicion that his entry through gate No. 814 was more than a strictly chance occurrence-the fact that Ingham worked closely with Mannagh's security supervisor, Brady, and had spoken with him on the tele- phone the day before, the fact that Ingham had never before driven to the Long Beach plant from Santa Monica but had always gone by plane, the fact that Ingham took such a round-about route to get into the plant,24 the fact that, although he had an appointment with Brady for that morning, he went direct to Mannagh's office and that Brady came there, too, among other things, gives rise to the suspicion that Brady had arranged for Ingham to come in by way of Faculty Street for a purpose. However, whether or not the incident was an attempt to entrap Posner, it actually occurred, and Posner's handling of the situation was not, from the point of view of the Respondent, satisfactory. Even if Posner's version be credited, that he pointed to the visitor's stalls as he waved Ingham in (and I believe it probably is correct, in view of the evidence that he asked Ingham for his identification on Ingham's return before Ingham spoke to him), Posner's technique was subject to criticism, for one who had never entered those premises before could easily have misunderstood Posner's hand signals. Even before such person entered the gate, it was the duty of the officer to ascertain that the driver of an unauthorized car had business for which a temporary permit might be issued and he should then explain to such person that, after parking in a visitor's stall, he would have to walk to gate No. 813 to get his credentials. Ingham was not asked why he failed in his report to state that Posner asked for his identification (after Ingham returned) even before Ingham spoke to Posner. It cannot be known, therefore, whether it was an over- sight or an intentional omission. It likewise cannot be known whether or not indus- trial relations would have made the same decision had that statement been in the report, for with that statement included, industrial relations might have concluded, as I have, that the Ingham incident demonstrated poor technique on Posner's part rather than gross inattention to his duties. The fact that Mannagh on October 8 attempted to get Posner discharged on the basis of the sergeants' reports, although he had never been warned, corrected, or laid off for incorrect handling of traffic on a traffic gate, is quite in contrast with other cases of disciplinary action taken for similar derelictions of duty. In the case of Officer Morris, in the spring of 1958, previously related, Mannagh lost no time in meting out punishment for a dereliction of duty. He did not find it necessary to put a check on Morris for even a single day. On the basis of his own observation he had Morris called in and gave him a 2-day layoff. Yet, although admitting to Farrell that the misfeasance disclosed in the sergeants' reports on Posner's handling of traffic at gate No. 814 was of a kind normally punished by a layoff, he sought Pos- ner's discharge therefor. Officer Foreman is another officer who was punished by layoff for having unwittingly admitted an unauthorized car But in the Ingham case, Mannagh did not even consider a layoff for Posner. True, he had the sergeants' reports and that made an apparently cumulative dereliction of duty on Posner's part However, on all evidence, I am firmly convinced that, in the absence of prejudice and predetermination to discharge Posner, Mannagh would not have ordered a 2-day check made on Posner's gate and would not have recommended the discharge of Posner on October 8 and 9, 1959, but would at most have taken some more temperate disciplinary action on the Ingham incident. As I have previously stated, the mere fact that industrial relations approved Posner's discharge does not mean it would have insisted on it if less severe disciplinary action had been recom- mended. No other basis for Mannagh's prejudice against Posner appears except Posner's attempt to organize the Union and his continued interest therein as shown by continuing to wear his union pin and to support the cause of unionism as well as 23 Ingham testified that he had intended to turn south from Carson Into Lakewood Boulevard and enter by gate No 6 but had been unable to do so because he was unable to get into the right-hand lane of traffic. Because Douglas property extends a considerable distance west of Lakewood on Carson, there would have been ample time to work over to the right lane It is difficult to believe that Ingham would not have recognized the Douglas property in adequate time to work over to the right lane DOUGLAS AIRCRAFT COMPANY, INC. 607 by his participation in the anonymous letter to Douglas. Counsel for the Respond- ent conducted his examination of Posner in such a way as to point up Posner's un- favorable character traits. But these traits were not the ground of his discharge. It might be argued that although they were not the ground of discharge they could have led Mannagh to deal with Posner less leniently than with others who had com- mitted similar wrongs; in other words, he could have discriminated against Posner because of them rather than because of his union activity. However, there was no showing that Posner had not had the same character traits throughout the entire period of his employment, and they did not put Posner in Mannagh's disfavor before April 1959.25 It may be asked why, if Mannagh was going to cause the discharge of Posner for union activity, he waited until October to do so and why pick the week of October 4 to 9 in which to do so. In the first place, Mannagh could not discharge. He could only recommend, and industrial relations certainly would not have accepted a recommendation for discharge because of union activity. Therefore, Mannagh had to wait for the occurrence of some incident upon which to base his recom- mendation. This first came with the incident of October 4; but no one in Mannagh's department knew of that incident until October 6. On the very day this was learned of, the two sergeants were ordered by Van Cleave to make a 2-day check on Pos- ner's gate. As I have pointed out previously, the sergeants were given to under- stand in advance that Posner was performing his work improperly, and the 2-day check was ordered, not with a view to correcting Posner but to lay the foundation for discharging him. And, as soon as the sergeants' reports were prepared, Mannagh used them and the October 4 incident to recommend discharge. Even then he had rushed his plans too much, because industrial relations would not go along with his recommendation. It is clear that Mannagh's seizure upon the very first oppor- tunity to recommend Posner's discharge rather than the customary disciplinary action for like dereliction of duty (if, indeed, there was one) indicated that he had just been waiting for a colorable excuse to recommend Posner's discharge, the real reason for which was Posner's union activities and views. There is no evidence to show that Farrell or Garbett were aware of Mannagh's true motivation. This, however, is immaterial. Mannagh initiated the discharge. Without his recommendation there is no reason to believe that Posner would have been discharged. In making his recommendation, Mannagh was acting for the Respondent and the Respondent is, therefore, responsible for Mannagh's motive as well as for his act. Accordingly, I find that by discharging Posner on October 14, 1959, because of his union member- ship and activity, the Respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization. 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. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By questioning employees concerning their membership, activities, attitude, and beliefs, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)( 1 ) of the Act 4. By discriminating in regard to the hire and tenure of employment of Alfred E. Posner, and thereafter failing to reinstate him, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 2S In 1958, for example, Mannagh signed a reference on Posner's application for ad- mittance to a Masonic lodge. This is not consistent with a poor opinion of character. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A AUGUST 21, 1959. D. FARRELL, C-14, Industrial Relations Manager, Douglas Aircraft Co., Inc., 3855 Lakewood Blvd., Long Beach, California. DEAR SIR: First of all [ want to thank you for the courteous treatment and kindly manner in which you received me on the two occasions that I was called into your office to face charges preferred against me by my supervision, based entirely on rumor, unsupported by a single bit of evidence, with the specific purpose of instilling fear and jeopardizing my job. I am proud of my employment record, not only here at Douglas, but in all my past years and I want to keep that record straight. I was first charged with "union solicitation on company time" supposedly occurring on Wednesday, July 5th, at 2.15 p.m. in our Squad room. After discussing the matter with you I called Captain Van Cleave giving him the following names, Officer Koon and Officer Erkes, who were present and would corroborate my state- ment of being innocent. Captain Van Cleave assured me on July 5th that he would call these men in and investigate , to this time this has not been done. It would seem to me that a man is entitled to defend himself against such charges, and if proven innocent, the informant should be punished. In this way informants would be less eager to attempt to make wild statements based on their desire to be- come more popular with their supervision. The second charge was that of passing out union literature in the south tunnel on August 5th between 6:45 and 8:00 a.m. The following plant protection personnel were present during these hours; Officer Menley, Officer Fletcher and Officer Eileen Morgan, with Officer Morgan leaving at 7:30 a.m. In all fairness to me, why can't these employees be questioned, I'll gladly accept punishment if I'm guilty. But again I say, the informant should be punished if found guilty of making false state- ments against a fellow Officer. On Thursday, May 28th, at 10:20 a m. Chief Mannagh accused me of driving my personal car, on my day off Tuesday May 26th, through the DC -8 area gaining entrance through the applicant parking area. I protested my innocence to no avial. Officers Baldwin and Evans were present when I was so charged. To all this was added a series of threatening phone calls and continuous harass- ment. I was called a Commie, filthy literature was posted about me on the police bulletin board and I was called into Chief Mannagh 's office early in the campaign and accused of threatening to tip Officer Cotton's car over if he didn't sign a union card. Unless you were a coward wouldn't you work all the harder for a union? What effect did this all have on the morale of the entire department! You stated in our conversation that I should discount things said in the heat of battle, yet I never lost my temper and held my head high through it all. My record must have been good or more substantial charges would have been preferred against me. You and I both know that if a man is watched somewhere along the line he'll slip and be caught, but I didn't because I realized fully that I was a marked man and acted accordingly. What caused me to become "union minded"? I never belonged to a union before. I guess it all boils down to the fact that I wanted protection to defend myself against false charges that could affect my job and my record. I shall give you several examples: On April 3 , 1958 I had completed an assignment at gate 814 , DC-8 area, directing traffic in a tremendous downpour of rain. I closed said gate and went into the guard shack at gate 813. Officer Morris was on duty. I was filling out my daily traffic analysis report , and was soaked to the skin. I saw Chief Mannagh's black Cadillac approach, Officer Morris opened the door to the shack and waved him on. He couldn't step up to the car as the water was at least 8 inches deep and Sgt. Vail had taken the only pair of boots from this post earlier . In a short time both Officer Morris and myself were releived [sic] and ordered to appear before the Captain. I was told that the order was to "get rid of those two men." I gave Captain Van Cleave my statement, he said I was innocent and that I should return to work. I protested that if I was innocent so was Officer Morris. I was told to be concerned with myself. Officer Morris received two days off. This was a shock to a lot of us and was one of the things that set off the spark for unionism. I was one of the first Officers on the DC-8 project, was given the assignment through Sgt. Vail, "because of my finesse in handling people" he stated , as there had been talk of a strike and work stoppage on the DC-8 building project by the outside DOUGLAS AIRCRAFT COMPANY, INC. 609 contractors. I worked diligently and gained the cooperation of all concerned. I turned in over a hundred pages of reports and recommendations on safety and suggestions in construction that were adopted . Top management of the DC-8 project were in accord with my methods and our association was most cooperative and pleasant. Yet, when I returned from my vacation in June, 1958 I was removed from the DC-8 project without justification and to this day my supervisors will not tell me why even though I have repeatedly questioned them. Shortly after I hired in I was called into Chief Mannagh's office in regards to the enclosed column by Ralph Campbell which appeared in the Memogram. Chief Mannagh stated "That's the last article I want to see about you without it first clearing through my office." I stated that I did not know it had been written there- fore did not feel as though I could go around telling everyone to stop writing about me. From that time on whenever I personally wrote any article for magazines or the daily press I made it my business to clear it through Chief Mannagh even though these articles did not in any way pertain to my department or my duties. To sum up my views on unionism-When you try to deny a man his rights or forbid him to do something that he feels is an intrusion of his privacy that man will seek the only protection available-a union. The desire for unionism will steadily gain strength wherever the personnel are ruled by fear alone. When a union is in its formative stages a Department Head should by all means refrain from panic and counsel his supervisors against any desire for retaliation and forbid any program of harassment at such times. The desire for a union continues to exist in our department to no small degree and it will continue to grow in spite of anything that is done to prevent it by myself or anyone else unless there is an immediate and permanent adoption of an intelligent Human Relations program. Respectfully yours, AEP: m Enclosure (1) ALFRED E. POSNER , 0201-1-57022, 1996 Dawson Ave., Long Beach 6, Calif. GEneva 3-1991 APPENDIX B Date: 9 Oct. 1959. To: R. C. Mannagh, C-20. From: J. C. Ingham, G-20. Subject: Derelicition of duty-A . E. Posner, C201-1-57022. Copies to: A. B. Berry, G-5-20 File On 9 October 1959, the undersigned entered Gate #814 at the Long Beach Division at approximately 7:43 AM without showing badge or identification card and without challenge from the guard on post. It was noted that the guard also "waved through" the occupants of the two cars proceding the undersigned, who also entered the plant without positive identification check. Light traffic was entering past the guard post during this period of time; i.e.-5 to 8 cars per minute. After driving approximately 200 yards into the plant, the undersigned returned to the guard post to question the guard on duty. He identified himself as A. E. Posner, C201-1-57022, Badge #98, and when questioned as to the reason for fail- ing to make proper identification of all incoming personnel , he gave the following reasons: 1. Posner was going to "whistle down" the undersigned if he had proceeded any further into the plant area. 2. He was going to obtain the license number of the car if it returned to view. 3. It was common practice to allow vendors to drive in and park in a specified area adjacent to his guard shack, and he had assumed the undersigned was a vendor. 4. The undersigned was driving too fast as he went past the post for the officer to identify or challenge the undersigned. In regard to the above, it should be stated here that after stopping and then passing through the gate, the undersigned drove towards Building #84, turned left past two rows of parked cars, turned left again, and returned to the guard post area. The speed limit of 15 miles per hour was not exceeded during the course of this route. It would have been impossible for Posner to "whistle down" any car that had penetrated into company area the above distance. Secondly, the license number could not be obtained due to distance and the number of parked cars in the area. Vendors and other visitors are not allowed to 586439-61-vol. 129-40 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enter any company area without establishing positive identification at the perimeter gate. Had the undersigned failed to return to the guard post , it would have been impossible for Posner to halt or identify the car or the occupant. Posner stated that all cars entering through his post must have a special DACO decal, and that his post orders require positive identification of employees by badge and identification card sight check. Posner was advised that his disregard for his post orders would be reported to the Chief of Plant Protection. This report is submitted for your information and any action deemed necessary. [s] J. C. Ingham, J. C. INGHAM, G-20. JCI:mj Donald L. Trettenero and Ruby Trettenero d/b/a Trettenero Sand & Gravel Co. and International Hod Carriers , Building and Common Laborers Union of America, Local No. 1140, AFL-CIO. Case No. 30-CA-7445. November 3, 1960 DECISION AND ORDER On March 11, 1960, Trial Examiner Howard Myers issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report and a brief in support thereof. 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 Intermedi- ate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,2 conclusions, and recommendations 3 1 The Respondent contends that the Trial Examiner 's refusal to exclude from the hear- ing those employees named in the complaint as alleged discriminatees , was an abuse of his discretion and prejudicial to the Respondent . We find no merit in this contention These persons are not mere witnesses ; they occupy the position of complainants and as such are entitled to be present during the taking of the entire testimony . Happ Brothers Company, Inc., 90 NLRB 1513, at 1526. Jaques Power Saw Company, 85 NLRB 440, at 443 The record does not support the allegation of prejudice 2 We do not agree that Respondent's questioning of employees concerning the union activities of other employees constituted illegal surveillance. There is no evidence that the Respondent attempted to infiltrate employee meetings , employed spy techniques, or clandestinely watched employee union activities. The questioning did not attempt to con- vey the impression that the Respondent was aware of the exact nature of individual employees ' union efforts This is not to say that the interrogations were not violations of Section 8(a) (1) ; however , we do not agree they can properly be proscribed under the label of "illegal surveillance." Independent Linen Service Co . of Mississippi, 126 NLRB 463; A t M Haragheusien, Inc, 126 NLRB 104; United Fireworks Mfg. Co , Inc, 118 NLRB 883; Lincoln Brassiere Co., Inc., 117 NLRB 1237 ; Aerosonic Instrument Corp, 116 NLRB 1502; Reeves Brothers, Incorporated, 116 NLRB 422 ; Linn Mills Company, 116 NLRB 96. 3 We cannot agree with our dissenting colleague that jurisdiction should not be asserted in this case on the ground that one of Respondent 's customers arranged for the billing of 129 NLRB No. 66.