American Creosoting Corp.

150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not the least of which is the presumptive appropriateness of single- plant units." Thus, it cannot validly be maintained that "extent of organization" is the controlling factor. To do so subverts, rather than effectuates, the policies of the Act. I would find the merit sought in the petition to be appropriate for purposes of collective bargaining within the meaning of Section 9(c) of the Act, and would direct an election accordingly. CHAIRMAN LEEDOM took no part in the consideration of the above Decision and Order. 12 Thus this case is controlled by Kwikset Locks, Inc., 116 NLRB 1648, and not by the Westinghouse case, cited by the majority. American Creosoting Corporation and Georgia Creosoting Com- pany and Georgia Creosoting Corporation and Local Union Number 2591, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Georgia Creosoting Corporation and Local Union 2591, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases Nos. 10-CA-4409 and 10-CA-4423. February 13, 1961 DECISION AND ORDER On November 1, 1960, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that Respondent Georgia Creosoting Corporation 1 had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the aforementioned Respondent did not discriminate against Lamar L. Bennett in violation of Section 8 (a) (3) of the Act as alleged in the complaint. Thereafter, excep- tions to the Intermediate Report were filed only by the aforementioned Respondent. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions thereto, and the entire record, and 1 The complaint in Case No . 10-CA-4409 was originally issued against three Respond- ents : American Creosoting Corporation , Georgia Creosoting Company, and Georgia Creosot- ing Corporation . On June 10, 1960, prior to the hearing, American Creosoting Corpora- tion and Georgia Creosoting Company entered into a settlement agreement with respect to the charges in the complaint . Therefore, the Trial Examiner's Intermediate Report and this Decision and Order involve only Georgia Creosoting Corporation as Respondent. 130 NLRB No. 4. AMERICAN CREOSOTING CORPORATION, ETC. 151 hereby adopts the findings, conclusions, and recommendations 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 Respondent, Georgia Creosoting Corporation, Brunswick, Georgia, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening or warning employees that it will not operate the Brunswick plant if a union secures collective-bargaining rights in the plant. (b) Interrogating employees regarding union activities or engaging in surveillance of union activities in a manner constituting interfer- ence, restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) Discouraging membership in and activities on behalf of Local Union 2591, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization of its employees, by refusing to rehire or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the right to self-organization, to form labor organiza- tions, to join or assist Local Union 2591, United Brotherhood of Car- penters and Joiners of America, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2 Respondent's exceptions pertain only to certain portions of the Intermediate Report dealing with Alva Lee Shepard. In the absence of exceptions to the Trial Examiner's other findings and recommendations , we adopt them pro forma. With respect to Shepard, we agree with the Trial Examiner's conclusion that Respondent's failure to rehire Shepard was for discriminatory reasons, and in violation of Section 8(a)(3) At the hearing, Respondent contended that It should not in any event be required to offer Shepard a posi- tion, as , in the course of new employment obtained by him , Shepard engaged in unlawful conduct rendering him unfit for reemployment . No evidence of a conviction was offered by Respondent. The Trial Examiner refused to permit evidence of the alleged misconduct on grounds it would not affect his unfair labor practice findings, and would more properly be litigable at the compliance stage. Under the circumstances of this case , we agree with the Trial Examiner's disposition of this matter . Shepard 's alleged misconduct does not relate to the unfair labor practices alleged. In the complaint and found herein, and, at the compliance stage , the facts now urged by the Respondent may be presented as evi- dence in the event of disagreement on the amount of backpay due and the right of re- instatement We expressly reserve the right to modify the baclepay and reinstatement provisions of our Order if such action should be required by facts then proved, or by specific circumstances not now apparent . See Coca-Cola Bottling Company of Louisville, Inc., 108 NLRB 490, 494 , footnote 23, 219 F. 2d 441 ( C.A. 6), 350 U.S. 264 (issue not .considered on review. 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Alva Lee Shepard and Ozie Lee Cooks immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privi- leges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due. (c) Post at its plant in Brunswick, Georgia, copies of the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by an authorized representative of Respondent, be posted by the Respondent thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated against Lamar L. Bennett in violation of Section 8(a) (3). MEMBER RODGERS took no part in the consideration of the above Decision and Order. 3In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, Ave hereby notify our employees that : WE WILL NOT threaten or warn employees that the Brunswick plant will not be operated if a union secures collective-bargaining rights in the plant. WE WILL NOT question employees regarding their union activi- ties, or engage in surveillance of union activities of our employ- AMERICAN CREOSOTING CORPORATION, ETC. 153 ees, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT discourage membership in or activities on behalf of Local Union 2591, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by refusing to rehire or otherwise discriminating against em- ployees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with our employees in their right to self-organization, to form labor organizations, to join or assist Local Union 2591, United Brotherhood of Carpen- ters and Joiners of America , AFL-CIO, or any other labor organization , or to bargain collectively through representatives of their own choosing , or to refrain from any and all such activities. WE WILL offer to the following named employees immediate and full reinstatement to their former or substantially equivalent positions and we will make them whole for any loss of pay they have suffered by reason of the discrimination against them. Alva Lee Shepard Ozie Lee Cooks All our employees are free to become and remain or to refrain from becoming or remaining members of the above-named or any other labor organization. GEORGIA CREOSOTING CORPORATION, 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 STATEMENT OF THE CASE Upon a duly issued consolidated complaint and the answer of Respondent , Georgia Creosoting Corporation, a hearing was held in Brunswick, Georgia, on June 20 and 21, 1960. The complaint alleges that in November 1959, Respondent American Creosoting Corporation, herein called American, and Georgia Creosoting Company, herein called Company, by a named agent , interrogated its employees concerning their union membership and activities; that Respondents American, Company, and Georgia Creosoting Corporation, herein called Georgia Corporation, by named agents, in March 1960, interrogated their employees concerning their union mem- bership and activities ; that Respondents American and Company, by a named agent, in November 1959, did threaten their employees that the new owner-purchaser would close before it would operate with the Union in the plant; that Respondents American, Company, and Georgia Corporation, by named agents, in March 1960, did threaten their employees that the new owner-purchaser would close before it would operate with the Union in the plant; that all Respondents, by named agents, in March 1960, threatened their employees that the new owner-purchaser would 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not rehire them if they were active on behalf of the Union ; that Respondents Ameri- can and Company, by a named agent , in November 1959 , promised the employees economic and other benefits if they refrained from becoming or remaining members of the Union or giving any support to it ; that all Respondents, by a named agent, in March 1960, solicited an employee to engage in surveillance of a union meeting; the aforenamed acts as alleged with regard to the respective Respondents were al- leged to be violations of Section 8(a)(1) of the Act. It was further alleged that since on or about March 21 , 1960, Respondent Georgia Corporation failed and re- fused to reinstate or rehire three employees , Shepard , Cooks, and Bennett, because of their membership in and activities on behalf of the Union and because of their concerted activities , all in violation of Section 8(a)(1) and (3) of the Act. In its answer, Respondent Georgia Corporation in effect denied the commission of any unfair labor practices as alleged. The General Counsel and Respondent Georgia Corporation were represented by counsel and were afforded full opportunity to be heard , to examine and cross- examine witnesses , to argue orally upon the record, and to file briefs. No oral argument was made but both of the aforenamed parties filed briefs with the Trial Examiner. Based on the entire record in the case, and from observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Board asserted jurisdiction over Respondent Company in 1960.1 A settle- ment agreement in Case No. 10-CA-4409, involving the instant complaint allega- tions insofar as they had references to American Creosoting Corporation and Georgia Creosoting Company, was approved by the Regional Director for the Tenth Region of the Board on June 14, 1960. The business operations of the two aforenamed are referred to hereinafter insofar as they are relevant to the instant proceeding. Georgia Creosoting Corporation, a subsidiary of Escambia Treating Company, of Pensacola, Florida, a Florida corporation, and of Lewis Wood Preserving Company, of Camellia, Georgia, a Georgia corporation, is engaged in the treating of poles by creosoting at its plant in Brunswick, Georgia, which was acquired by purchase on March 22, 1960.2 From the date of the purchase to the date of the close of the hear- ing, June 21, 1960, Georgia Creosoting Corporation had net sales amounting to $210,798.51, of which sales 50 percent were made to purchasers in States other than Georgia. Since the corporation was continuing to operate through the time of the hearing, it is the Trial Examiner's opinion that a projection of the sales for a 12-month period would substantially exceed the amount of sales that had been made in a 3-month period. It is found that Respondent, Georgia Creosoting Corporation, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Local Union 2591, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The relationship between American Creosoting Corporation, Georgia Creosoting Company, and Georgia Creosoting Corporation The background and the general situation at the Brunswick plant The creosoting plant in Brunswick, Georgia, commenced operations in 1914, as Georgia Creosoting Company which became a subsidiary of American Creosoting Corporation. The latter in turn was acquired by Union Bag Paper Company. In 1959, Georgia Creosoting Company, which had continued to operate the plant, was not operating profitably and terminated its operations about January 1, 1960. The Case No 10-RC-4571 (not published in NLRB volumes). 2 The personnel, local management and rank-and-file employees, remained substantially the same under the purchaser as was the case under the predecessor-seller The physical property and the general nature of the processing operation remain the same. This aspect is discussed in more detail hereinafter. AMERICAN CREOSOTING CORPORATION, ETC. 155 plant however did not cease its operations and the operations were carried on di- rectly by American.3 Escambia Treating Company and Lewis Wood Preserving Company operate creo- soting plants in Pensacola, Florida, and Camilla, Georgia. Two individuals, Soule and Noonan, own more than 90 percent of the stock of Escambia and 100 percent of the stock of Lewis Wood. There is no financial, individual, or corporate rela- tionship between any of the foregoing companies and individuals and the Union Bag-American complex previously described. Soule, president of Escambia, had heard that Union Bag was interested in dis- posing of some of its pole plants .4 After being in touch with Union Bag on January 15, 1960, Soule thereafter was referred to Lucas, vice president of American. By February 15, a tentative agreement for the purchase of the Brunswick plant had been reached by Soule and Lucas. On March 3, an agreement to purchase was signed by Soule. The purchase price was $551,000, plus the value of inventories of materials on hand in the plant on the date of closing. All real and personal prop- erty at the plant was purchased. Records, forms, and accounts receivable were not sold and no liabilities were assumed. Although Georgia Creosoting Company had ceased operations in December 1959, Escambia, the purchaser on March 3, was given the right to use the Georgia Creosoting Company name if it chose to do so. The purchaser assumed no obligation regarding contracts or orders on hands Ac- cording to Soule, American was to continue at the plant until March 22, 1960, the sale closing date. Soule testified that on February 3, 1960, while talking to Lucas about various matters, he had asked Lucas whether or not the Brunswick plant was organized. Lucas had stated that it was not. Union organizational activity among employees at the Brunswick plant com- menced about November 1959. A petition for ceitification was filed with the Board on December 8, 1959. A hearing was held on December 22. The Board's Decision and Direction of Election issued on February 29, 1960. By the terms of the afore- mentioned decision an election was to be held within 30 days of the date thereof. On March 3, the date when Lucas and Soule met to execute the purchase agree- ment, the latter learned for the first time that there was union activity at the Brunswick plant. Lucas said to Soule, "I think it's only fair to tell you that we have just received a notice, that came as quite a surprise to us, that there was some question about an election that's supposed to be held within 30 days; and, under these circumstances, if you want to drop the proceedings, well, it's all right, because this is something I didn't know and had not told you. In all fairness to you, I want to tell you before we sign this agreement and take this money." Soule and Noonan then discussed this aspect and Soule testified that the "first reaction" was that: "This is no headache of ours. This is American Creosoting Corporation's election and it's nothing to us whatsoever." However, on further thought, it was decided "We had better hire or talk to some lawyer and find out about it." After March 3, Soule and Noonan went to New York and "made inquiries . . . made arrangements to get Mr. Bacheller [counsel for Georgia Creosoting Corporation in the instant case]. . " On March 8, 1960, a meeting was held in the Brunswick plant at which were present Soule, president of Escambia, Lucas, vice president of American, Kuhlman, general superintendent of American, Brownley, manager and superintendent of the Brunswick plant, and Weathers, assistant superintendent of the Brunswick plant.° Soule testified that at the meeting Lucas told Brownley and the staff that the plant had been sold. Soule then announced that his company did not intend to close the plant and planned to continue operations. He said "for the time being" the super- visory staff would remain intact .7 Soule remarked that after the new company began 'There is some indication in the record that Union Bag had acquired American prin- cipally because of valuable timber pulpwood holdings of American and that Union Bag was not primarily interested in operating a creosoting plant * Pole plants are those in which telephone poles are treated for use by utility companies e The purchaser's principal customer at its other plants was the Western Electric Company The purchaser arranged with the latter to assume the contracts which Western had with American at the Brunswick plant. Other than this no irrang'ment was made with respect to American's contracts 9 Soule testified that six or eight of the supervisors were present. Bi-ownley testified that he and Weathers were there but he was not sure about other supervisors 7 He testified that although he did not know the local management "we presumed they were able to handle the job." 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operating any changes that were necessary would be made. It was apparently understood that American would terminate all its employees, including the Bruns- wick plant supervisors, shortly prior to the closing date of the sale. Brownley was the manager or superintendent of the Brunswick plant. He first held this position under Georgia Creosoting Company in 1948 and continued in the same capacity under American and under the 1960 purchaser, Georgia Creosoting Corporation.8 Brownley was and is the top official at the Brunswick plant .9 Although not binding himself as to the future, Soule, as we have seen, informed Brownley on March 8, that he would retain him and his supervisory staff. Other than the general announcement of the foregoing nature, Soule gave no instructions to Brownley on March 8. Brownley, in fact, did seek to speak with Soule in private on March 8 in order to secure some information concerning the new company's policies and his own exact status. Soule told Brownley that he did not have time to talk with him that day.10 Later, on the same day, following the meeting with Brownley and the others Soule conferred in Brunswick with his newly retained counsel, Bacheller. Other than Soule's testimony that he told Bacheller "the situa- tion . . . I turned it over to him and I went about my business," the record furnishes no details on this aspect. Having seen the picture at the Brunswick plant up to and including March 8, we proceed to subsequent developments. Sometime between about March 12 and 15, Soule directed Brownley to insert an advertisement in the local Brunswick paper.ii Brownley followed these instructions and the advertisement ran for 3 days.12 McLeod was sent to the Brunswick plant from Escambia's Florida plant on March 18.13 He testified that he was office manager of Georgia Creosoting Corporation and was also an officer, secretary, of that corporation. He had worked in Escambia's Florida office -prior to coming to Brunswick. On March 18, McLeod was the only person working at the Brunswick plant who was not on American's payroll. It was on March 18 that American, through Brownley, issued notices of termination to all its employees at the Brunswick plant.14 The terminated 8 Escambia, the parent corporation, was the actual purchaser of the plant from American Georgia Creosoting Corporation is a subsidiary of Escambia. The latter buys poles and pays Georgia so much per cubic foot to do the processing Georgia pays rent to another Escambia subsidiary, Brunswick Creosoting Corporation, which in turn is mak- ing payments for the plant to Union Bag. As far as appears, Brunswick, an Escambia subsidiary, has no operating function. 9 The equipment and general nature of the operation of the plant has remained substan- tially the same under Georgia Creosoting Corporation as it was under the preceding companies. Soule stated that there was some difference in that he regarded American's operations as that of a wood-preserving company while his company was a pole-treating company. American would take orders to treat railroad ties, poles, or other products, and then would buy poles in order to fill the order. Georgia Creosoting Corporation kept poles on hand and would supply them to its customers who were principally utility com- panies Brownley testified, "We make the same product today that we made during all of 1959" Brownley has enjoyed more autonomy and has somewhat wider authority under Georgia Creosoting Corporation than under the prior companies 10 According to Brownley, Soule also said that a man from one of his other plants would be in Brunswick the following day and Brownley could ask him as many questions as he wished. Neither Brownley nor anyone else testified that the aforementioned man ever appeared or who he was or whether Brownley spoke to him. 11 While the record is not entirely clear that Soule personally issued the instructions, he was aware of them and was in accord therewith. In any event, the instructions came either from Soule or from someone acting for the management of the purchaser. 12 The advertisement stated • "Need approximately 50 men to operate creosoting plant in Brunswick. Will hire qualified laborers, switchmen, pole mill operators, crane operators, motormen, maintenance men, retort operators, firemen and watchmen. Apply in person to Mr. McLeod who will take applications at Georgia Creosoting Co. plant, Pyles Marsh, between 1 and 5 p.m. on Friday, March 18." 13 Soule testified that he sent McLeod to Brunswick. He stated that McLeod "was familiar with our policies and office routines." 14 The notices read This is to advise you that your employment with the American Creosoting Corpora- tion-Georgia Creosoting Company-is terminated, effective at the end of the work- day March 21, 1960 On that date you will be paid all wages then owing. You are being terminated, along with all other employees, because your employer will perma- nently close the plant on that date and cease business AMERICAN CREOSOTING CORPORATION. AMERICAN CREOSOTING CORPORATION, ETC. 157 American employees were also told on March 18, through Brownley and the other supervisors, that they should file applications for employment in the new company. Soule was in Brunswick from March 19 through 22, the closing date of the purchase. During this period, about March 21, Soule went over the policies of the new corporation with Brownley. He told the latter that he was starting from scratch; that American had laid off all the employees and Brownley was to employ the most capable men he could find, whether they had or had not worked at the plant- Soule said that he did not tell Brownley to hire or to discharge people because of union activity. He did tell Brownley that "we felt that the company would probably operate better as a nonunion operation. It had been our experience that it was better for the men and better for us. . . Soule said he gave Brownley no specific instructions about whom to hire or fire. He was asked: Q. Then, you left it to his decision, what to do? A. When I put a man in charge of a plant, I hold them responsible for the dollars and cents. Therefore, I have to give them the opportunity to exercise their best judgment. Brownley was to be and was the judge on all applications for employment.15 McLeod could not hire or fire but he could bring to Brownley's attention any particular application that McLeod considered worthy of attention. Assistant Superintendent Weathers testified that on March 19 or 20, Soule told him that if the plant per- sonnel wanted to bargain that he, Soule, would be willing but that he would rather bargain with the men themselves instead of a third party. Applications for employment with Georgia Creosoting Corporation were received in the plant office at Brunswick on March 18 and 19, Friday and Saturday. McLeod received the applications and interviewed the applicants. On Monday, March 21, when the former American employees reported to the plant office for their final paychecks, Brownley announced that those who had a white slip attached to their paycheck would be rehired by the new company and that those who did not have a white slip were not rehired. Of approximately 50 American employees all were rehired except 8 or 10. The balance of the complement of 50 of the new company was made up of persons from outside the former personnel. Among those not rehired were the three alleged discriminatees, Shepard, Cooks, and Bennett. B. The alleged violations of Section 8(a) (1) of the Act James Armstrong was called as a witness by the General Counsel and later by the Respondent. He had been employed by American and had been terminated with the others on March 18. He had then been rehired by the new company and was so employed at the time of the hearing.is I have carefully considered the demeanor of the witness on the stand, the content of the testimony, the circumstances under which original affidavits were procured, and other factors. James impressed me as less than an eager witness. It was my impression that he would have much preferred to be almost any place else but on the witness stand. His memory for dates was poor and his experience and background had not been in the general area of the preciseness desirable in a legal proceeding. His testimony was considered in the light of all these elements as well as in conjunction with that of opposing witnesses. James testified that in the latter part of November 1959, Assistant Superintendent Weathers approached him on the job at the plant and said that James did not have to discuss the matter with him but Weathers could not run the plant unless he knew what was going on. Weathers told James to let him know if he wanted anything and Weathers would try to get it for him. Weathers asked James who started the Union at the plant. James did not know. The Trial Examiner credits the foregoing testimony of James. Whatever his deficiencies as a witness, James impressed me as truthful. It is found that Weathers' interrogation of James as to who started the Union in the plant was violative of Section 8(a)(1) of the Act. This of course brings us to the General Counsel's theory in his complaint that Georgia Creosoting Corporation is responsible for events antedating its purchase of is Although the final word rested with Brownley he consulted Weathers, his assistant superintendent, Kuykendall, supervisor of retort and maintenance operations, and McVeigh, also a supervisor. 19 Hereinafter James Armstrong is referred to as "James" rather than as Armstrong since his father, Jefferson Armstrong, was also a witness. The latter will be referred to as "Jefferson." 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Brunswick plant when that operation was owned and conducted by American Creosoting Corporation and Georgia Creosoting Company. The latter two or- ganizations entered into a settlement agreement with the Regional Director for the Tenth Region of the Board on June 10, 1960, which was prior to the instant hearing. The instant complaint names the three companies on the theory, as I understand it, that Georgia Creosoting Corporation, hereinafter called Corporation, took over the plant intact, with substantially the same employees, produced virtually the same product, and was therefore a successor bound to remedy the unfair labor practices of its predecessors. The Corporation, according to the General Counsel "is bound to remedy the unfair labor practices . . . under the `continuity of the employing industry' doctrine." The Trial Examiner is convinced, in accordance with the facts heretofore set forth regarding the sale and purchase of the Brunswick plant, and the General Counsel concedes, that the matter "was a bona fide business transaction." From this point on, the Trial Examiner is unable to agree with the General Counsel's theory. Admittedly, as the cases cited by the General Counsel illustrate, there are areas and circumstances whereby successors or the employing industry may be subjected to liability.17 An alter ego situation is perhaps the clearest type of per- vading liability and, in general, successors and assigns are reached where they are `-instrumentalities through which defendants seek to evade an order or [where they] may come within the description of persons in active concert or participation with them in the violation.. " 18 This is not the instant situation. As the Board has stated "no provision of the Act authorizes the Board to impose the responsibility for remedying unfair labor practices on persons who did not engage therein." 19 I find no basis for holding Georgia Creosoting Corporation liable for events in the Brunswick plant in November 1959, or prior to the time when supervisors at the Brunswick plant became agents of the Corporation, and shall recommend dismissal of the complaint allegations with respect to that period of time.'° James testified that on Thursday evening, March 17, 1960, Weathers, the assistant plant superintendent, came to his home and asked him to work that night in em- ployee Bailey's place. Weathers said he wanted Bailey to take inventory the next day. James stated that on this occasion Weathers had a list of names, which James referred to as a company roster, with him. Weathers said, "I've got your daddy [Jefferson Armstrong, an employee] marked down with a question mark." Weathers handed James the list and told him to look it over. Weathers said he had a meeting with the company lawyer at the Sands Motel. James testified that the list was marked off as to how the employees might vote on the Union; his father's name had the only question mark. Weather asked, How do you think he's going to vote')" James said he did not know. Weathers asked James, ". . . do you think I ought to take the question mark away from his name before I go down and talk to this lawyer?" Weathers said, "James, I hope you boys will vote this union out because this new company will not operate under a union." In his testimony Weathers admitted that he had gone to James' house and had spoken to him about relieving Bailey. He said there was conversation about the Union but it had been initiated by James who told him that he and his father had signed union cards and he wanted to know what was going to happen. Weathers was not sure whether or not he had a list of employees with him but he believed that he did not. Weathers did not ad- mit or deny that he had a meeting scheduled with a company attorney at the Sands Motel As previously indicated by Trial Examiner believed that James was a credible witness and credits the foregoing testimony. It is found that by interro- gation and by the statement that the new company would not operate under a union, Section 8(a) (1) of the Act was violated. On Wednesday or Thursday, March 16 or 17, James heard Brownley sepaking to employee Shepard in the plant. Shepard asked Brownley who was going to have jurisdiction "over us being hired back; was he going to have anything to do with it." In the Trial Examiner's opinion the cases cited by the General Counsel are quite dis- tinguishable on their facts from the instant case 18 Regal Knitwear Company v N L R B, 324 U S 9, 14. 19 Symn8 Grocer Co and Idaho Wholesale Grocery Co., 109 NLRB 346, 348 29 Georgia Creosoting Company and American Creosoting Corporation of course would be responsible for acts or statements of their agents in the period prior to the advent of Georgia Creosoting Corporation, as described above. The settlement agreement, however, has removed the Georgia Company and American, as Respondents, from our present con- sideration. As explained later in this report the November 1959 and subsequent events do have relevance to the issues in the case now before us which relates to Respondent Corporation. AMERICAN CREOSOTING CORPORATION, ETC. 159 Brownley said he was one of them that would have the say-so over who would be hired back. Brownley said, the Company has only three major contracts and "if you boys vote this union in, all they'll do is shut this plant down and move these three contracts up to the other two plants and take care of them from there." 21 The Trial Examiner credits James' foregoing testimony and finds the last-mentioned statement of Brownley to be violative of Section 8(a)( I) of the Act. James testified that on March 18, Foreman Kuykendall brought him his termina- tion notice; "He just told me that this new company was taking over and we was all terminated, but we would be hired back." Kuykendall said, "This new company will not operate under a union ." The foregoing testimony is credited 22 It is found that the statement violated Section 8(a)(1) of the Act. During the week of the terminations (Friday, March 18) Kuykendall spoke to James, his father Jefferson, and Bailey, another employee. The four persons were in the plant at the time. James testified that Kuykendall said, "I guess you all know I've got my neck stuck out for you fellows. If you let me down I'm going to get my neck cut off, and I'm going to shoot y'all." Kuykendall said to the men that he had told the officials in the office how the men were going to vote in regard to the Union. Jefferson testified that Kuykendall said, "Now, you boys have got to help me out. The Union's coming in or trying to come in. I've got my neck stuck out- away out. I told the Company that I thought you all would be for us. If the Union comes in, I'll get my neck chopped off. Then I'll have to shoot you boys." Bailey did not testify. Kuykendall was questioned about his remarks by Respond- ent's counsel 23 While admitting that he made a remark to the effect that he was sticking his neck out for "you men" and that he would shoot them, Kuykendall placed the remarks in a different context. He said that the men had told him that they were scared that they were going to lose their jobs because of the Union. Kuykendall had talked about the men to Weathers and the latter had asked if they were good employees and told Kuykendall to reassure the men about not losing their jobs because of the Union. Kuykendall then did so. After careful considera- tion the Trial Examiner credits the testimony of the two Armstrongs regarding the incident and the remarks. In regard to the foregoing, the testimony of Kuykendall and the Armstrongs is that the reference to shooting the men was not intended and was not taken seriously. The Trial Examiner's opinion is that none of the participants believed that, literally, n At this point James had something else to do and he left Shepard's testimony, below, is substantially to the same effect regarding the conversation. 22Kuykendall denied generally that he had told any employees that the purchaser of the plant would close it if the Union came in He stated that he gave termination notices to 2 of the 11 men in his section and the other notices he gave to James to distribute. He said that be told the men about the sale of the plant and that he did not know about the future but that it took experienced men to run the plant He told the men to check the local newspaper and on one of the notices of termination he wrote, "check with me Check with the Brunswick News We'll take applications on March 18 " Kuykendall testified that he told the men that the taking of applications was "just a formality " On another occasion Kuykendall testified that he had told an employee, who was dis- puting a report made about him to Kuykendall by James Armstrong, that ". .. I don't believe that James would tell a lie" In this connection, there are indications in the record that James was perhaps closer to some of the supervisors than were other em- ployees, e g , he distributed nine termination notices for Kuykendall ; Weathers testified that James had originally been opposed to the Union and according to Weathers he evi- dently learned for the first time when he came to James' home on the evening of March 17 that James had signed a union card ; this perhaps may explain why Weathers had come to James with a list of employees reflecting their union attitude; it may also explain why James happened to be the recipient of various items of intelligence from the supervisors and why the Charging Party made a distinct effort to secure an affidavit from James. Finally, Kuykendall evidently regarded James as a reliable and truthful person Respond- ent, it may be noted called James as its own witness and secured testimony that was, if anything, helpful to Respondent's position. x'The question put to Kuykendall was whether he recalled a conversation be had with "Armstrong and Reddick" in which he was supposed to have said something about shoot- ing them. Reddick was another Georgia Creosoting employee witness but he did not testify to participation in the incident aforedescribed nor did anyone else so testify. While the question was apparently phrased inadvertently there is some reason to expect that Kuykendall , who knew his men, would, if he recalled the incident accurately and was describing it accurately, have set the record straight as to the persons involved On the other hand it was quite possibly a simple human error not in itself determinative. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kuykendall expected or would have had his neck cut off by the Company or that Kuy- kendall was going to take a gun and shoot anyone. However, it is my opinion, that the minimal reasonable construction is that a foreman was telling employees under his supervision that he would be prejudiced or would suffer a detriment in his rela- tionship with his superiors if the men voted for the Union and that this would be the fault of the employees in question and the foreman would be displeased at being placed in such a position by his subordinates. With due allowance for banter or the particular phraseology used, the relationship of a foreman to his subordinates is such, particularly on union matters at a time such as was here involved, that there was a detriment, express or implied, forecast and conveyed to the employees if they placed their foreman "on the spot" by voting for the Union. The displeasure of the foreman, however congenial he may be, is not likely to be ignored by employees. This was no mere expression of opinion by Kuykendall on union affairs and, in my view, it was not protected by Section 8(c) of the Act. The remarks constituted interference with the rights of employees in that they clearly indicated that the fore- man presumed to be aware or was aware of the employees' position regarding the Union and had told his superiors as much and had assured his superiors that these men could be counted on to vote against the Union and that he expected the men to act in accordance with his predictions. This was a form of pressure to either firmly bind the employees to one position regarding the Union and to foreclose the possibility of change or it was calculated to change the union position of the em- ployees if it was otherwise than predicted by the foreman. As previously explained, the statement also constituted a threat of reprisal, expressly or impliedly, albeit not by means of firearms. The Trial Examiner finds the statement to be violative of Sec- tion 8 (a) (1) of the Act. James testified that after he received his termination on March 18 he returned to the plant on Monday, March 21, and was interviewed by McLeod. In the course of the interview, McLeod said, "Mr. Armstrong, you understand that if you're hired back that this new company will not operate under a union." James replied, "Yes, sir, I've heard something to that effect." McLeod testified that he had interviewed a large number of applicants. He said that the only mention of a union occurred in the case of one or two applicants whose names he did not recall. The union matter, according to McLeod, was raised by the applicant and occurred "if an applicant when I was giving him a resume or history of our company, and the benefits and all that we give to our employees; if they asked me as to the union with the other plants, I told them, 'no,' that the other plants were not unionized." It is apparent that McLeod admittedly made it a practice to furnish the applicants a resume or history of the new company. The aspect of such history that would be most pertinent to employees would be the history of working conditions, and any- thing reflective of employer-employee relations. It seems unlikely under the cir- cumstances that the fact that the new company did not have a union in any of its plants would not be considered a part of relevant history to be mentioned to appli- cants for employment. McLeod admits mentioning this fact but testified that he did so only when the question was asked by an applicant 24 The Trial Examiner is persuaded and finds that not only did McLeod mention the matter of a union to James but that he initiated the subject and made the statement attributed to him by James 25 While it is true that McLeod did not have authority to hire or discharge, he was the office manager and an officer of Georgia Creosoting Corporation. He was con- ducting the interviews as a representative of that corporation. In my opinion Mc- Leod was quite clearly identified with management and the latter is legally respon- sible for his statements This conclusion is not altered by the fact that, at the time of the interview with McLeod, James and apparently some other employees, did not 24 Commonly, employees, particularly when applying for a job, do not initiate the sub- ject of unions with employer or management representatives. If an employee does initiate a discussion with management about unions it is more likely to be with a supervisor whom he has known for some period of time and not with a representative of management whom he has never seen before or whom he does not know Further, James had no reason to raise such a subject with McLeod because he had previously been advised by various supervisors of the new company's position on the matter When McLeod told James that the new company would not operate under a union he said, "Yes, sir, I've heard something to that effect " 2" Reddick, another employee, who was present when McLeod spoke to James, corrobo- rates the testimony of Armstrong regarding McLeod's remark that the new company would not operate under a union. AMERICAN CREOSOTING CORPORATION, ETC. 161 know McLeod's exact status. They believed McLeod was the new company's lawyer. In any event, at the time, they identified him with management and later learned his title. Andrew Reddick was a former employee of American who was terminated with the others and who was rehired and was working for the new company at the time of hearing. He credibly testified Shat in November 1959 Weathers spoke to him in the plant. Another employee, Braswell, was also present. Weathers said, he had heard that "a bunch of us fellows were getting a union"; he said that "the Company was going to give us vacations, holidays, insurance benefits, and a raise in pay if the Union did not come in, but if the Union came in, the plant would be closed." On March 18, 1960, Kuykendall came to Reddick's home and spoke to him about working in the place of another employee. On that occasion Reddick asked Kuy- kendall what the chances were of being rehired Kuykendall said the employees would be rehired "if everything went right " 26 With the exception of Kuykendall's remarks to him in November 1959, Reddick had no direct frame of reference through which Kuykendall's rather ambiguous remark of March 18 could be interpreted. Reddick may have reasonably under- stood on March 18 what the same foreman, Kuykendall, who had spoken to him in November, meant by "things going right." Statements made to other employees by supervisors may also have reached employees, such as Reddick, who were not the immediate recipients of the statements. However, I find it unnecessary to make a finding regarding the legality of Kuykendall's March 18 statement when originally made to Reddick and I incline to the view that because of its ambiguity at the time when made it was not then illegal. However, the statement did remain in the employee's mind, as might reasonably be expected and the more so because of its cryptic and ambiguous nature. Any ambiguity that may have existed on March 18 was removed, in my opinion, on March 21 when Reddick heard McLeod tell James Armstrong that the new company would not operate under a union. Under all the circumstances we have, by March 21, an objective standard, known to Reddick, by which he could construe Kuykendall's remark of March 18. We need not rely upon some purely subjective interpretation by an employee as to what his foreman may have meant. The Trial Examiner concludes that Kuykendall's statement to Red- dick, "if everything went all right," was reasonably subject to the construction that the employees would be rehired and the new company would operate if there was no union in the plant. Such a statement was violative of Section 8(a)(1) of the Act Jefferson Armstrong testified credibly that Kuykendall spoke to him in the boiler- room of the plant one day. Kuykendall said, "a company is fixing to buy us out and they did not know anything about the employees getting up a union until they had gotten into the transaction and the Company did not want a union. Kuykendall asked Jefferson to help "knock down" the Union. When Jefferson said the matter of a union was immaterial to him because the Union would not do him much good anyhow, Kuykendall said, "Well, it won't do you any good. It'll only hurt you " Jefferson testified that this conversation took place about the middle of March 1960, a day or two before the conversation, previously described, in which Kuykendall spoke to the two Armstrongs and Bailey. The Trial Examiner therefore finds that the conversation took place about March 15, 1960. C. Other evidence with reference to the supervisors and their attitude toward union activity Plant Manager Brownley testified that he was aware of union activity among the employees in the latter part of November or early December 1959. During this period he asked employees, individually or in groups, how the Union was doing. He instructed his supervisors "to find out whatever they could about it [the Union]." Assistant Superintendent Weathers testified that he was aware in the period from November 1959 to March 1960, that various employees were attempting to organize the Union in the plant. He talked to many employees about the Union and the employees talked to him on the subject. Sometimes employees initiated such con- 26 In the course of cross-examination, Reddick was asked Q. Now then, the conversation with Mr Kuykendall on March 18, in which you claim that he said everybody would be rehired if everything went right, I believe- you said that there was no discussion of the Union in connection with that- conversation? A Well, no; the Union wasn't mentioned , but I could figure it out for myself. 597254-61-vol. 130-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD versation but at other times Weathers said that he instituted discussion of the sub- ject. Weathers admitted that actually he was "quite interested in the union activity" at the plant and he "definitely" preferred that a union did not come into the plant. On March 19 or 20, while talking with Soule at the plant, the latter told Weathers that if the plant personnel wanted to bargain he would be willing but he would rather bargain with the men themselves instead of a third party. Soule, as previously mentioned, testified that while speaking to Brownley around March 21, "I told him that, generally speaking, we felt that the Company would probably operate better as a nonunion operation. It had been our experience that it was better for the men and better for us; but I was not too worried about the general outcome, because after they found out how we were going to operate, why there wouldn't be anybody that would want to pay dues to the Union anyway." 27 Shepard was hired as a fireman in the plant in September 1959. Kuykendall had come to him and offered him the job when Shepard was working elsewhere as a mechanic. Shepard signed a union card in November 1959. He attended the first union meeting which was in December . The next union meeting was March 17, 1960, which Shepard did not attend because he was on the night shift, 3 to 11 p.m. On March 10 or 11 Shepard was going through the plant boilerroom on his way to his car. Kuykendall said to Shepard that he wanted to see him. Because it was raining they sat in Shepard's car. Kuykendall said, "I didn't get a chance to tell you here awhile back but the company's sold out. Now, let me tell you before you jump up and blow your stack. Now, it's sold out, but everybody's going to be fired but we're going to be hired back provided that we kill the union." Shepard replied, "Ed, we done got this thing started and we are pretty well on our way with it. Once I start anything like that, I'm going to stick it out. If I'm the only one that ever votes for a union, they'll get one vote." Kuykendall said, "Well, I'm just trying to warn you for your own'benefit. . In appraising Shepard as a witness the Trial Examiner's impression was that he had an alert mind, that he was an aggressive and outspoken personality , and that his testimony on some matters was credible but that it raised serious doubts in my mind regarding other incidents. In testifying regarding the aforedescribed conversation with Kuykendall, which the latter denied, I believed that Shepard was testifying truthfully and it is so found. It is also found that Kuykendall's warning that rehiring was conditioned upon killing the Union was violative of Section 8(a) (1) of the Act. Shepard testified that on Wednesday, March 16, he spoke to Brownley in the plant. Shepard said that he had heard about the Company having sold out and about a new company taking over and he would like to know the truth. Brownley replied that the Company had sold out and everyone would be fired and they would have to fill out application blanks for rehiring. Shepard asked what changes would be made. Brownley replied that there would be a hospitalization policy and a retirement plan. Shepard also asked who would be the judges of the application blanks, and Brownley said he would. When Shepard asked about the Union, Brownley replied that the new company would not operate under a union and that they only had three con- tracts and the new owner would move the contracts to his other plants. James Arm- strong overheard part of this testimony, the portion about not operating under a union and having only three contracts which would be moved to the other plants in the advent of a union. The testimony of Shepard as set forth above is credited. The statement that the new company would not operate under a union and would move its contracts to other plants was violative of Section 8(a)(1) of the Act. On March 17 or 18 Shepard testified that he spoke to Kuykendall in the plant.28 Shepard said, "Ed, how's chances of being rehired?" Kuykendall replied, "Well, your chances are slim." Shepard asked, "How do you get that" and was told, "You got a phone call from Mr. Parker in Mississippi and the Company knows it. Your chances for rehiring is gone " 29 Shepard testified that he had received a telephone call from Parker. When asked when he received the call, he said, "I believe it was in March." According to Shepard he had placed a call to Parker in Atlanta, Georgia, in the morning before he went to work He placed this call from his sister's home. Parker was not available at the time and Shepard informed his secretary, in the event that "-T The reference to how the new company was going to operate apparently was a refer- ence to the fact that the new company had hospitalization and other benefits that American did not have and that it paid $1 05 per hour as compared with American's rate of +1 I do not believe that Some's statement should he construed as meaning that when the employees learned how we were going to operate regarding the Union and union adherents they would not want to pay dues to the Union ^ This and the following is Shepard's testimony m Parker was the union representative AMERICAN CREOSOTING CORPORATION, ETC. 163 she contacted Parker, that Shepard went to work at 3 p .m. and Parker could call him at the plant after 5 p.m. Apparently Parker was located and he called Shepard at the plant about 4 p.m. Kuykendall had come to Shepard in the plant and had informed the latter that he had a call from Parker. When Shepard answered , he told Parker that he could not talk to him "like I want to on the phone because we are being listened in from the office ." Parker is alleged to have asked, "How are things going" and Shepard said, "it's pretty rough at the time being." Parker said he would see Shepard in a day or so and Shepard said , "all right." When cross-examined on the foregoing incident Shepard said that he knew the Company was listening in because "I could hear them when they picked up the phone.. . He also mentioned for the first time on cross-examination that Kuy- kendall told him he would not be rehired because Brownley was listening in on the telephone call. Kuykendall denied that he knew that Shepard had received a telephone call from a man named Parker . He also said that he never listened in nor did he hear of any- one listening in on such a conversation . Brownley testified that he first learned of Shepard's receipt of a call from Parker when he heard Shepard so testify. He said he knew nothing of such a call, did not listen in on such a call, and had never listened in on a call of any employee. He added that such an incident had never been reported to him. While in some respects the Trial Examiner did not have complete confidence in Kuykendall and Brownley as witnesses, I have grave doubts about Shepard's testi- mony regarding the telephone call. It is to be noted that while the whole incident was sharply controverted by Respondent's witnesses and the very fact of the tele- phone call was placed in issue, there was no corroborating evidence regarding this telephone call. Lack of corroboration in itself is of course not determinative and depending upon circumstances may not even be important. Here, however, in my view, establishing the fact of the telephone call would have corroborated Shepard ,on a basic fact in his testimony and would have added considerable weight thereto. By the same token, if the fact of the telephone call was established by convincing corroborative evidence, it would be entirely plausible that since such a call would have come through the company office the company might well have been aware ,of the fact that a party named Parker was calling Shepard by long-distance tele- phone.30 We do not have here a situation where the lack of availability or the lack of cooperativeness of corroborating witnesses on an important point is apparent or possible Shepard testified that he placed the call to Parker at his sister's home. Presumably his sister or a member of her family could so testify or the telephone bill of his sister would have reflected that aspect of the call. Parker, the union repre- sentative, who appeared at the instant hearing and who was the alleged recipient of Shepard's call and who allegedly called Shepard at the plant and spoke to Shepard on that occasion, could have presumably testified to the fact. But no such testimony was offered.31 The Trial Examiner also noted Shepard's relative vagueness about the time of the telephone call 32 This factor perhaps would be unnoticed in other employee wit- nesses whose minds did not appear particularly precise with respect to such matters. Shepard, however, in my opinion, was an alert and knowledgeable witness. I was convinced that he was fully aware of the significance of all parts of his testimony. He was very precise regarding dates with respect to other events to which he testi- fied, e.g., the March 10 or 11 conversation with Kuykendall; the Wednesday before the terminations (March 18) conversation with Brownley; the March 17 or 18 conversation with Kuykendall when the latter allegedly referred to the telephone call, aforedescribed. that Shepard had received from Parker. Not only did Shepard not fix the date or the approximate date of the telephone call but he was even not too sure about the month-he believed it was in March. It is my view that such a call would have been both unusual and significant and would have registered rather definitely as to time with a person like Shepard. After careful consideration the Trial Examiner is unable to credit Shepard's testi- mony regarding the telephone call from Parker and Kuykendall's alleged statements to Shepard regarding the call. The state of the evidence leaves too much doubt in 90 Parker had represented the Union at the representation hearing held on December 22 and the name would probably be recognized by the Company. 81 Since Shepard testified that Parker did not call him collect, the Company's telephone bill would not have reflected this long-distance telephone call. The telephone company at the point of origin of the call, Shepard's sister's home or the station in Mississippi from which Parker called, would presumably have a record of a noncollect call. Shepard , supra, "I believe it was in March." 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD my mind to resolve the matter in the General Counsel 's favor, particularly in view of the fact that Brownley, in this matter, impressed me as credible 33 On March 17, 1960, a union meeting was held in the union hall. Shepard testi- fied that on that date John Bailey, a retort operator, with whom Shepard, a fireman,, was working, came to him about 5:30 p.m . and said he was ill and had to go home. Shepard stated that Bailey was shaking and trembling at the time . Assistant Superin- tendent Weathers called the plant about 5:45 p .m. and Shepard answered the tele- phone. Weathers said he was sending in James Armstrong to relieve Bailey because "we've got to use him [ Bailey] for inventory in the morning . We've got to inventory the yard and everything. We're selling out, you know." James Armstrong came in. at 6 p m. and Bailey walked out Shepard testified that when Bailey walked out Shepard noticed that Kuykendall was still there at the plant . Shepard testified that he considered it to be "a little unusual" for Kuykendall to be around the plant at that time of night. Shepard asked Armstrong to watch the boiler for a- minute and Shepard hurried to the plant office. Kuykendall and Bailey went into the office, the door of which remained slightly ajar. Shepard testified that he heard the former say, "Now, John , you understand what you're supposed to do tonight. When you go to the union hall, all these men that appear up there at that meeting, get their names and turn them in to us in the morning when you come out there."- Bailey said something to the effect that he knew what he was supposed to do. Shepard then returned to his place of work On cross-examination Shepard adhered to his testimony Under questioning, he stated that Kuykendall was rarely at the plant in the evening and then it would be on occasions when equipment broke down and the employees called him to come to the plant. Shepard stated that Kuykendall would not be in the plant in the evening one night in the week As is indicated by Shepard's testimony, Kuykendall's presence in the plant when Bailey was relieved from his shift and Shepard 's knowl- edge of a scheduled union meeting led to Shepard 's suspicion of what might be going on or, as he stated to Respondent's counsel on cross-examination , "I happened. to smell a rat, if you want to know." Kuykendall testified that although he did not remember the exact date he remem- bered the occasion when Bailey was relieved . He stated that Bailey was relieved so that he could take inventory . Kuykendall then said it was around the end of Febru- ary or the first of March . He denied that he met Bailey in the office or that he instructed him to attend the union meeting . Kuykendall did not deny that he was at the plant of that evening nor did he state that his presence at such a time was customary or not unusual . He did not state that Bailey did in fact take inventory, on the following day Weathers testified that he had gone to James Armstrong's home one evening to• have Armstrong relieve Bailey so the latter could help take inventory. Weathers believed this occurred in January or February and then said , ". . . it could have been in March." James Armstrong , as we have seen, testified regarding the occa- sion when Weathers came to his home to have him go in and relieve Bailey so the. latter could take inventory. Armstrong did relieve Bailey that night and worked with Shepard . Armstrong testified this occurred on Thursday, March 17. Weathers did not testify that Bailey did in fact take inventory. Bailey was not called as a witness by either party although there was no indication that he was not still employed by Respondent at the time of hearing . Shepard testi- fied that Bailey did not take inventory the day following the evening when he was relieved for such asserted purpose. Brownley testified that the last day worked as An interesting and somewhat puzzling item of testimony was that of James Armstrong who originally was called as a witness by the General Counsel . James was called later by Respondent as part of its case. Respondent sought to elicit testimony from James regarding Shepard's drinking on the job James mentioned an occasion when Shepard's eyes looked red and he did not look normal . He was asked . "Q When was this Mr. Armstrong ? A The date? I can't remember the date. It was the date that he called Mr. Parker on the company phone " There was no development of this latter aspect and it is noted that it was a call by Shepard to Parker on the company telephone at a time, date unspecified , when Armstrong thought Shepard looked as if he might have been drink- ing This was not a 'call from Parker to Shepard Perhaps there was a call from Shepard to Parker on the company telephone and Shepard suspected that the Company became aware of the fact Perhaps such was the fact or perhaps Shepard's version at the hearing was the correct one In any event, the Trial Examiner has resolved the matter as indicated above and as he viewed the evidence before him I have given careful consideration to this as well as other aspects of Shepard's testimony and the effect of one- matter on other matters to which he testified. AMERICAN CREOSOTING CORPORATION, ETC. 165 by American was Friday , March 18 , and that the new company opened officially on March 23, Wednesday . Brownley testified that on March 19 and 20, Saturday and Sunday, inventory was taken. He was asked , "How many employees did you use to help you with that inventory" and answered , "three," McVeigh, Logue, and Weathers. In its brief Respondent points to testimony of James Armstrong in which no refer- ence was made to Shepard 's leaving his job on the evening of March 17 when Shepard allegedly went to the office and overheard Bailey and Kuykendall. The Trial Examiner is of the opinion that this fact is not significant . Armstrong was not questioned at the hearing whether or not Shepard had absented himself 34 Shepard had simply asked Armstrong to watch the boiler for a minute. This was not a noteworthy event . Such occurrences in the course of a work shift would not be too rare since Shepard may have wished to go to the restroom or to go outside for a smoke or any number of things. Shepard was gone for only a brief period ,of time. Armstrong did testify that about 10 p.m. while he was busy the telephone rang and Shepard answered it. Shepard, when Armstrong was free, then said , "Did you know John Bailey went to a union meeting?" Armstrong said, "Well , he wasn't supposed to. He was supposed to go home so he could be off tomorrow to take inventory." Shepard replied, "Well, he didn't. He went to that union meeting." Respondent asserts that the foregoing "news" of Bailey's attendance at the union meeting "excitingly relayed, obviously coming as a surprise, is totally inconsistent with his [Shepard's] claim that he already knew it was to happen (at the instigation of a supervisor ), a far more exciting piece of news he entirely neglected to relay to Armstrong." The Trial Examiner has given careful consideration to credibility and to all other aspects of this case. I have appraised the witnesses and have con- sidered their testimony . I do not agree that the news was excitingly relayed. It was relayed to Armstrong when he was free from the particular task that prevented him from answering the telephone in the first place or when Shepard returned from answering the telephone . I find nothing to justify the adverb "excitingly." It may have been regarded as important information since it was confirmatory of what Shepard had reason to believe would happen . If Shepard did not learn that Bailey had in fact gone to the meeting he may have believed that his eaves- dropping had not been entirely accurate . The foregoing observation is also appli- cable to the contention that the news came as a surprise to Shepard . There is nothing to show that it came as a surprise to Shepard although Armstrong may have been surprised. As to why Shepard had not mentioned to Armstrong , either when he returned from the vicinity of the office or later , the fact that he had overheard Kuykendall speaking to Bailey about reporting on the union meeting, no absolute answer can be given from the record . Respondent asserts that this factor impugns Shepard's testimony. The Trial Examiner has considered Respondent 's contention and he is not prepared to agree with Respondent. It is my opinion that Shepard did not tell Armstrong of his trip to the office and of what he had learned about their mutual foreman, Kuykendall, because it was my definite impression that the two men were not close or good friends and that Armstrong was by no means a confidant of Shepard on matters affecting the Union. Shepard , by absenting himself briefly from his job and having Armstrong take over his duties , had gone on a venture of his own and that venture involved eavesdropping on a foreman in the office. The venture had disclosed a fairly "hot " matter of intelligence and it is doubted whether that night, at least, Shepard knew just what he should do with it or to what fellow workers, if any, he should confide it. Weathers testified that Armstrong had orig- inally been opposed to the Union, and, judging by Weather's action of consulting Armstrong about a list regarding the various employees ' sentiments toward the Union , on March 17, he apparently did not regard Armstrong as a union loyalist. Kuykendall had told Armstrong and his father and Bailey that he had stuck his neck out for them by telling the Company how they stood or would vote on the Union and he did not expect them to let him down . The affidavit that the Charging Party originally secured from Armstrong was at a time after the March 18 termina- tions and before Armstrong was rehired . He subsequently sought to get back the affidavit from the attorney for the General Counsel although it was not on any asserted ground of the falsity of the affidavit . He had in fact agreed that the contents were correct . As previously indicated , I believed that Armstrong was a truthful witness but he did not impress me as a witness partcularly eager to support as Armstrong and Shepard had both testified as witnesses for the General Counsel. Respondent, later, as a part of its case, called Armstrong as a witness. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union's or the General Counsel's position or to assist Shepard.35 This im- pression in fact was one of the factors that led me to credit much of Armstrong's testimony. Although Armstrong had signed a union card, there is no evidence that he attended a union meeting or otherwise was active in the Union . He did not know whether or not there was a union meeting scheduled for March 17. In all the conversations that various supervisors had with him regarding the Union there is no testimony that Armstrong ever expressed disagreement with the antiunion senti- ments or indcated that he was for the Union. These facts are not said in criticism of Armstrong and I am not concerned with his motivation or views in themselves. These facts are mentioned to illustrate that Armstrong was either not prounion or was at best lukewarm on the subject and I consider it not unlikely that a man of Shepard's type had a fairly good estimation of where Armstrong stood on the union matter. At best, from Shepard's standpoint, Armstrong was probably regarded as a somewhat uncertain quality and by no means a strong union protagonist to whom information on a matter of eavesdropping on a foreman could be entrusted, particularly when the circumstances might redound to the eavesdropper's detriment. Aside from the fact that the attitudes of Armstrong and Shepard regarding the Union were importantly different, a factor probably known to each, there is no indi- cation of anything approaching a close personal relationship between the two. Armstrong was the retort operator. Shepard as the fireman had the duty of keep- ing the boiler in the state considered desirable by the operator. The operator was higher paid than the fireman. Armstrong had at one time reported to Foreman Kuykendall that Shepard was sleeping while at work. Shepard was aware of this fact because Kuykendall told him of the report and who had made it. While the operator was not a supervisor he was in charge of the boiler operation. Kuykendall, when asked who had reported Shepard, said, "His-well, I don't know whether we call them foremen or not-but the retort operator or treatment engineer . . James Armstrong." In short, there was nothing in the personal or official rela- tionship between Shepard and Armstrong that would render it natural or normal for Shepard to tell Armstrong that he had left his work, gone to the office, and listened in on a confidential conversation by the foreman. Reporting the tele- phone call to the effect that Bailey had gone to the union meeting was on a different plane It was simply something that someone had told Shepard. Armstrong knew there had been a telephone call and he knew Shepard had answered. It was quite natural for Shepard to tell Armstrong what the call was about. The information and the circumstances did not involve Shepard as a participant in any act like listening in on a foreman nor did it reveal anything that in itself was particularly significant. The significance to Armstrong was simply that employee Bailey had gone to a union meeting whereas Armstrong had relieved him so he could take in- ventory. Shepard apparently was not prepared to share the full story with, Armstrong.36 Employees Cooks and Bennett testified that they attended a union meeting a few days before the time when all the employees of the old company were termi- nated. Neither witness could remember the date but on the basis of prior credited testimony the date is found to be March 17. Both Cooks and Bennett testified that in addition to themselves there was one other employee present at the meeting, Bailey.37 The Trial Examiner found Cooks to be, on the whole, a credible witness. 35 Such an attitude is commendable in a witness since only the truth is sought and it should be given objectively and without bias for or against any party. 36 At one point in his testimony Armstrong referred to a remark by Shepard to the effect that John Bailey had "some kind" of a sheet of paper and Shepard got it and made a copy. This segment of testimony was far from clear and it seems possible that Shepard may have said he was going to make a copy of some paper Bailey had Armstrong. in testifying on this matter said, "I forget now Just how he [Shepard] put it r can't just remember exactly how he put it." This particular testimony was objected to by Respondent as hearsay on hearsay and the Trial Examiner allowed the testimony, not to establish the fact reported, but only as a statement allegedly made by Shepard The testimony on this one aspect is so unclear that it has not been made the basis of a finding or used in making a finding I" As one of them put it, " . . there was two of us and a white fellow called John Bailey, he came up there ' The record does not show the proportion of white and Negro employees at the plant but all the employee witnesses and supervisors were white with the exception of Cooks and Bennett It therefore appears that at the March 17 meeting there were three employees, one white and two Negroes. At the other union meeting, held in December. the record shows that there were 27 present of a total of approximately 50 employees AMERICAN CREOSOTING CORPORATION, ETC. 167 While, as explained below, I was not impressed by Bennett's credibility, I do find the uncontroverted facts to be as stated above regarding the March 17 union meeting. It is the Trial Examiner's opinion and he finds that the evidence with respect to Kuykendall's having procured Bailey to engage in surveillance of the union meeting on March 17 is supported by substantial evidence . Weathers, Kuykendall , Shepard, and James Armstrong all testify that Weathers , after Bailey had been at work for several hours, announced that Armstrong would replace Bailey. The reason given was so that Bailey would assist in taking inventory in the following day. Armstrong did replace Bailey but the latter, according to Brownley's and Shepard's testimony, did not take inventory . Inventory was not taken on the day following Bailey's re- lief from his shift and when it was taken Bailey was not a participant . Respondent offered no explanation in the record for these facts. It is also unclear why Re- spondent would have decided, as asserted , on the participants in the inventory at the last minute. Since at least March 8, management was aware that the closing date of the sale of the plant was March 22. An inventory just before closing would be entirely normal and if Bailey was to be a participant it is difficult to understand why he would be taken off his shift at the last minute after he had worked for almost 3 hours and both he and his replacement would be hastily relieved and sent to work respectively . The facts, including the attendance of Bailey at the union meet- ing, impressed me as corroborative of Shepard's testimony regarding the conversa- tion between Kuykendall and Bailey in the office 38 It is found that Respondent, by soliciting employee Bailey to attend the union meeting for the purpose of reporting to Respondent the names of those in attendance , engaged in conduct violative of Section 8 (a)( I) of the Act. D. Conclusions regarding hostility toward the union; Respondent's responsibility Evidence previously described establishes, in the Trial Examiner' s opinion, a strong and articulate hostility on the part of management toward the advent of the Union in the Brunswick plant. With the exception of a few statements in November 1959, the antiunion campaign was concentrated in the period following the Board's direction of an election among the employees of the plant and shortly prior to the proposed date of the election.39 Briefly recapitulated, there was Assistant Super- intendent Weathers' visit to James Armstrong at his home on March 17; on this occasion Weathers had a list of employees with markings showing whether they were for or against the Union; he asked Jamse Armstrong about his father's union sentiments since there was a question mark next to the father's name; Weathers told James Armstrong that the new company would not operate under a union; on March 16 or 17 Plant Manager Brownley told Shepard that, if the Union was voted in, the Company would close down and move its contracts to its other plants; March 18 Foreman Kuykendall told James Armstrong that the new company would not op- erate under a union; sometime in the week of March 18 Kuykendall told employees Bailey, James Armstrong, and Jefferson Armstrong that Kuykendall had stuck his neck out for them by telling his superiors that they would vote against the Union and Kuykendall admonished the men not to let him down; March 18 Kuykendall told employee Reddick he would be rehired if things went right; Reddick heard office manager McLeod, on March 21, tell James Armstrong that the new company would not operate under a union, so, by that time at least, if not earlier, Reddick knew what the phrase, "if things went right," meant with respect to the employer; March 10 or 11 Kuykendall told Shepard that the employees would be rehired by the new company if they killed the Union and Kuykendall said he was warning Shepard for his own good; March 17 Weathers arranged for employee Bailey to be released from his shift for the ostensible purpose of taking inventory on the following day; in- stead of preparing for or taking inventory Bailey was told by Kuykendall that he 88 Bailey, as we have seen, was one of the employees for whom Kuvkendall had "stuck his neck out" by vouching to his superiors that Bailey and the Armstrongs would vote against the Union It is also to be borne in mind that Brownley testified that he had instructed his super- visors to find out what they could about the Union 9e As mentioned, the Direction of Election was issued February 29, 1960, and directed an election within 30 days ; March 25, 1960, was the proposed date of the election, a fact apparently known to the parties sometime prior to March 18: the election was not held and on March 29, 1960. the Board issued an order amending its prior direction of an election, pending disposition of the unfair labor practice charges, by directing an election "at such time as the Regional Director deems that an election may appropriately be conducted." 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should attend the union meeting that night and report the names of employees who -attended the meeting.40 The same individual supervisors , from the plant manager to the foremen, of whose antiunion animus we have seen ample evidence , were the persons who made the de- cision as to which employees would be rehired and which would not be rehired.41 On March 21 , the employees were notified whether or not they were rehired by the new company, Respondent Georgia Creosoting Corporation . The hiring or rehiring for the new company or the failure to hire or rehire was quite clearly the act of and the responsibility of Respondent, Georgia Creosoting Corporation. The former employer had terminated all its employees on March 18 and ceased operations; it clearly had no interest in or participation in the new company 's hiring. In the Trial Examiner's opinion it is not essential to determine whether the super- visors in the Brunswick plant were agents of the predecessor company, American, or of the purchaser, Respondent Georgia Creosoting Corporation , or of both, at various dates prior to March 21, 1960. The important thing is that the decision not to rehire certain persons , and specifically Shepard, Cooks , and Bennett, was made by Brownley in consultation with the same supervisors who with Brownley were participants in the antiunion campaign . Brownley and his staff were agents for Respondent in regard to hiring or not rehiring on March 21 , and in evaluating the reason why Shepard, Cooks, and Bennett were not rehired , the antiunion attitude of the local management must be considered together with the other reasons advanced in support of the action taken by management .42 Brownley and his staff were the same men on March 21 as they had been during the entire period from November 1959 to March 21, 1960. There was no disavowal of any prior antiunion state- ments and as a matter of fact practically all the statements in the period March 10 to 18 were statements in which the plant management was speaking of the new company's attitude toward a union , i e., the new company will not operate under a union. McLeod, a direct import of the new company onto the local plant scene, confirmed the foregoing policy statement. Although the Trial Examiner is of the opinion , as stated heretofore, that in eval- uating the failure to rehire certain persons on March 21, the prior manifestations "Whether the drop in attendance , from 27 at the first union meeting , on December 23, 1959, to 2 and 1 informer on March 17, can be attributed wholly to the antiunion cam- paign of management and fear of management surveillance, it is not necessary to deter- mine Perhaps the simple chronology of events was in itself a factor , aside from any unfair labor practices , e g., November 1959 , union organizing commences ; December 11, union files petition for certification with Board ; December 22, Board conducts hearing on union petition ; January 1 , American Creosoting Corporation, a subsidiary of Union Bag Company, takes over operation of the plant from Georgia Creosoting Company which is a subsidiary of American , also about January 1 , work slackens at the Brunswick plant and employees , or some of them , work fewer hours, about January 15, Escambia Treating Company learns that Union Bag may be interested in selling the Brunswick plant and negotiations for sale and purchase of plant commence, February 29, Board issues order directing election at Brunswick plant ; March 8 , sale of plant is announced to local plant management and thereafter employees receive word of sale and the fact that everyone will be terminated but will be rehired ( some variations regarding the latter aspect) ; and March 18 , all employees are terminated ¢i The decision was made by Plant Manager Brownley who had full and final authority. He talked to his supervisors about the applicants for hiring or rehiring , but he made the ultimate determination 42 There is nothing in the record to indicate that Soule did anything that could, be con- strued as an alteration of the attitude of the Brunswick plant management toward the Union About March 21, Soule told Brownley that the new company would , in his opinion, operate better as a nonunion operation . On March 19 or 20 , Soule told Assistant Super- intendent Weathers that he would be willing to bargain if the plant personnel wished to do so but he would rather bargain with the employees themselves and not a third party. The 'Trial Examiner has previously stated his conclusion that Respondent, Georgia Creosoting Corporation , is not obligated to remedy unfair labor practices committed in November 1959 and prior to the time when the Brunswick plant supervisors became agents of Respondent As is explained hereinafter, the Trial Examiner is of the opinion that the precise cutoff date is March 12 or 13 , 1960, and that Respondent is not required to remedy conduct prior to that date. Remedy, however, is to be distinguished from evidence The past threats, statements, and manifestations of hostility toward union activities by the local plant management is quite germane and can and should be considered in evaluating the terminations of employees by the same management on March 21 , 1960, in terms of possible motivation. AMERICAN CREOSOTING CORPORATION, ETC. 169 of antiunion animus on the part of the plant management can be and must be taken into consideration regardless of whether Brownley was an agent of Respond- ent prior to March 21, it is also his opinion that there was in fact a prior agency relationship. Brownley in the period from March 12 or 13 to 18 was in effect a dual agent 43 He had been advised on March 8 that the plant had been sold by American to Respondent. The latter company had advised Brownley that there would be no change in the plant management at least initially. Although Brownley and his staff were still on American's payroll and were agents of American, Respond- ent instructed Brownley to insert an advertisement in the newspaper to secure employees for the Respondent. Applications were to be made on March 18 which was prior to the closing date of the sale on March 22. Brownley received his instructions about the advertisement 5 or 6 days prior to the time when the adver- tisement was run. The advertisement ran for 3 days, apparently March 15, 16, 17, or March 16, 17, 18, since the advertisement stated that applications were to be made at the plant on March 18. During this period of approximately March 12 or 15 to 18, the latter being the predetermined date when American was to and did terminate all its employees, including Brownley and his staff, Brownley and his staff were still agents for American. While this relationship existed legally, it was, in terms of the realities, little more than a caretaker-type agency during which the demise of American at the plant was presided over by the plant management. Respondent and the plant management during this same period had also entered into an agency relationship with respect to advertising for and recruiting employees. Brownley was vested with authority not only to solicit applicants for employment but he was the man who was to and did make the determinations as to who would be hired or rehired. By vesting Brownley with the hiring program of securing suitable employees for Respondent, the latter, in my opinion, gave Brownley as plant manager such incidental authority as might be implied therefrom A grant of authority need not spell out every detail thereof and is not necessarily exclusive of the normal details. The statements to employees by the plant management staff that manifested management opposition to the union and expounded the policy of the new company not to operate with a union, during the period March 12 or 15 to 18 and thereafter, were within the agency created by Respondent with the plant management. In view of the time when the statements were made and the ref- erences therein to the new company, it is doubtful that it was the fact or that the employees believed that their supervisors were speaking on behalf of American. However, the supervisors were still on American's payroll and legally they were American's agents. But, in my view, for the reasons given, local management was also, in matters pertaining to employment and employment policies, including atti- tude toward the Union, acting within the scope of an agency relationship with Respondent, whether or not the acts and statements were expressly authorized. Brownley and the local management were not strangers comparable to a local businessman or community leader who engages in an antiunion campaign that benefits some company in the community Brownley was the plant manager who had been told that he was being retained by Respondent in the same capacity. He launched a hiring program at Respondent's direction. He was responsive to Re- spondent's direction, not only in fact, because he did act as directed, but also because Brownley knew that American was, in effect, as far as he was concerned, expiring or dead with respect to the local plant. Respondent, aside from the fact that it undertook to direct and exercise control over Brownley, had a very realistic control over Brownley and his staff since their future employment by Respondent, fructify- ing within a few days, was dependent upon their acting in Respondent's interest on the matter of suitable employees. Whether local management, in acting as it did during this period, had correctly divined Respondent's policy regarding the Union is not determinative on the question of agency since the acts were within the scope of the agency relationship. Other evidence, previously referred to, indicates, how- ever, that Respondent, as Soule stated, preferred its plants to be nonunion rather than union and McLeod stated that Respondent would not operate with a union. E. The failure to rehire Shepard Brownley, who terminated Shepard, testified that there were two reasons for his action: Shepard's inefficiency as a fireman and his conduct. The plant manager 43Dual agency is not a novel concept in the law and it is also to be found in the field of labor law, e.g., a foreman who is a union member may he an agent for both the em- ployer and the union and his discrimination against a nonunion employee may render both the employer and the union liable for the illegal discrimination. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,did not have firsthand knowledge of Shepard's deficiencies, aforementioned, but he -stated that he learned of these faults through Shepard's foreman, Kuykendall, and -James Armstrong, a treating operator. Brownley testified that "there was some -drinking in the plant" and he said this statement applied to Shepard. When asked by Respondent's counsel for some specificity of this point, Brownley said, "Well, there was a lot of big talk. He was not looking after his job, and some drinking." The allusion to drinking was later made somewhat clearer by Brownley's statement, "I wouldn't say he was drinking on the job but under the influence." Brownley's testimony therefore was no more specific than the assertion that he had been told by James Armstrong and Kuydendall that Shepard was engaging in "a lot of big talk," was not performing his duties efficiently in tending the boilers, and had been under the influence on the job.44 Since Brownley's information was based upon what Kuykendall and James Arm- strong told him about Shepard, the testimony of these two individuals will be considered. James stated that he never saw Shepard drink on the job but he testified to one occasion when he believed that Shepard looked as if he had been drinking. James said he based this conclusion on the fact that Shepard was talking more, that his eyes were "red or something like that," and that he did not act his usual self. He stated that he had seen other employees at the plant that looked as if they had been drinking and he specifically named Bailey, one of the treating operators in Kuykendall's and Shepard's department, as coming within that category. Later in his testimony, 'although he had previously been able to name only one occasion when Shepard looked as if he was under the influence, James said that he thought that Shepard looked as if he was under the influence, more than other em- ployees. James did not testify that he had ever advised Brownley that Shepard was under the influence. Foreman Kuykendall testified to one occasion in February when Shepard came to work under the influence. Kuykendall reported the foregoing to Brownley at the time but no disciplinary action was taken. Kuykendall did not testify to other drinking incidents by Shepard either from his own observation or from what any other employee had reported nor did he mention any other report of drinking to Brownley. It is also noted Brownley was asked: Q What was your policy about drinking. Suppose a man drank but could do his work all right? A. We do not want them to work under the influence of whiskey. We send them home until they get straightened out. The aforementioned policy does not appear to be particularly drastic, but in any event there is no instance or assertion in the record that Shepard was ever sent home to "get straightened out." While the Trial Examiner believes that Shepard drank, the evidence is that Kuykendall, in February, reported to Brownley one instance of Shepard being at work under the influence. James Armstrong did not testify that he reported to Brownley the one instance when he believed Shepard was under the influence but, assuming that he did, this like the other incident was not deemed serious enough to warrant sending Shepard home or to require disciplinary action. Another item referred to by some of Respondent' s witnesses was Shepard's sleep- ing. Although not specifically mentioned by Brownley in his testimony, the latter did state that Shepard was inefficient as a fireman with respect to his duties on the boilers. If we assume that Brownley was aware of Shepard's sleeping then his aware- ness was admittedly not based on personal observation. Although James Armstrong testified that Shepard slept on the job he admitted that he had seen other employees sleeping at the plant but believed that Shepard slept more. The only mention that James Armstrong said he had made to another person about Shepard's sleeping was 44 The only evidence in the record that would explain Brownley's reference to a "lot of big talk" by Shepard Is Jefferson Armstrong's testimony when he was called as a witness by Respondent. He stated that Shepard "always was talking to him [Kuykendall] about things ; more so, the union coming in and what he was going to do when it did come in." Also, there is Shepard's credited testimony that he spoke openly in the plant that he was prounion and he told Kuykendall, after the latter warned him that rehiring for the new company was dependent on the Union being killed, that be would still support the Union and that he would vote for it even if his was the only vote. This probably came under the heading of "big talk" by an employee in the face of his supervisors' strong activities against the Union. As appears above, Brownley mentioned Shepard's "big talk" as the first item when asked to be specific about Shepard's misconduct. Weathers also testified that Shepard "talked very much." There was no rule about talking in the plant and it is difficult to conclude that anyone would be concerned about employees talking in a creosot- ing plant unless it was concern about the subject matter. AMERICAN CREOSOTING CORPORATION, ETC. 171 to Bailey, who was another employee and not a supervisor. Armstrong said that "maybe" he had mentioned such information to Kuykendall but he "wouldn't swear" that he did. James Armstrong did not testify that he had reported this matter to Brownley. Reddick, who was also a fireman in Kuykendall's department, testi- fied, when called by Respondent, that Shepard had worked with him 2 nights and that Shepard "snoozed" "a couple of times maybe." Reddick said that work was slack at the plant, a fact admitted by Brownley, and he believed that everybody, including himself, snoozed occasionally. Reddick stated that Kuykendall also snoozed. Although Reddick worked with Shepard only 2 nights and said that Shepard had snoozed "a couple of times, maybe," he opined that snoozing was more common with Shepard than with others. Jefferson Armstrong, who worked on the shift following Shepard's, testified that he had seen Shepard sitting in a chair with his hands on the table and the witness believed he was asleep on that occasion. Jefferson stated that Shepard did a lot of "cussing" although he admitted that others, including himself, also used profanity on occasion. When asked whether he had reported to any supervisor about Shepard using profanity, he said, "No, I didn't report that." Later, the witness was asked whether he had heard Shepard use profanity with Fore- man Kuykendall and he said, "Yes." When asked what Shepard said to Kuykendall, Jefferson replied, "I don't know what all. He was talking to him about things; more so the Union coming in and what he was going to do when it did. . . I don't recall the words he was saying or nothing." He said he had spoken to Kuyken- dall several times about Shepard; he stated he had complained to Kuykendall about Shepard's profanity. When asked for details about his complaints to the foreman about Shepard, Jefferson said, "I just told him-when I did complain to Mr. Kuy- kendall, I told him he should have let him go, because he had a million opportuni- ties; and, if he had of, well, there wouldn't have been so much stir-up about this." 45 Jefferson said that the foregoing occurred "between the period of the time of closing down until we rehired back in," about "the 18th or 19th of March." The conversation, described above, between Jefferson and Kuykendall, occurring on March 18 or 19, raises some questions. The word "stir-up" I take to mean some sort of reaction, agitation, or unusual condition of affairs. Jefferson was not pre- dicting a "stir-up," he was speaking of something in being, ". . . there wouldn't have been so much stir-up about this." This "stir-up," in Jefferson's mind, would have been prevented or alleviated if Shepard had been discharged in the past. The witness did not explain his words, "so much stir-up about this." The Trial Examiner does not believe that the "stir-up" referred to had reference to the plant closing and the terminations because there is no reason to conclude that Shepard's discharge in the past would have had any effect on either of these events. The "stir-up" could not be a reference to any existing employee or union reaction to the new company's failure to hire some of the old employees because that action did not occur until March 21. No company supervisor had told Shepard that he would not be rehired prior to March 21 so the "stir-up" could not refer to any reaction to such intelligence. The only condition in the plant, as far as the record shows, that might merit the term "stir-up" (that conceivably could have been averted by discharging Shepard in the past), at the time and under the circumstances when the phrase was used, was the impending Board election and the Company's campaign against the Union in the period immediately prior to March 18 and 19. The Board's order directing an elec- tion within 30 days was issued February 29, 1960. The record contains the credited testimony of Cooks that prior to the shutdown on March 18 Weathers was posting an election notice in the plant and remarked that there would be a little voting, and that the Union was trying to come in but that he did not want a union in the plant. Weathers admitted that he was posting a notice when Cooks was present. Weathers did not say what kind of a notice it was although he said that he told the employees present not to worry about their jobs. The foregoing indicates that an election was imminent or potentially imminent at the time. Also, information in the Board's for- mal file in the representation case tends to indicate that the scheduled or proposed date of the election was March 25. In this context, including the antiunion state- ments of supervisors to employees in the period March 10 to 18 and Weathers' action on March 17 in going to James Armstrong's home with a list of employees, with the employees' probable voting sentiments marked thereon, and questioning James about his father's (Jefferson) attitude toward the Union, the "stir-up," re- ferred to by Jefferson Armstrong in his testimony may be explainable. It is a reasonable inference that the Company's campaign against the Union and the effect At another point in his testimony Jefferson also mentioned that h e had told Kuykendall, while Shepard was still employed, that "there wouldn't be so much stir-up if ,he'd just let him [Shepard] go sometime ago." 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on, and the reaction of, the employees may have been the "stir-up" that Jefferson had in mind. Jefferson may well have believed, as he testified, that "there wouldn't have been so much stir-up" if Kuykendall had discharged Shepard, a strong union advo- cate, in the past. Such action could have had a dampening effiect on union activity and interest. Jefferson was well aware and he testified that he had heard Shepard talking to Kuykendall about the Union in the past, telling Kuykendall of what would be done when the Union came in. Jefferson, as we have seen, was also well aware of the Company's position on the matter of a union. Jefferson's own sentiments toward the Union are not in conflict with the foregoing implications of his statements to Kuykendall. Jefferson had been asked by Kuykendall on about March 15, 1960, to help "knock down" the Union Jefferson, on that occasion informed Kuykendall that the advent of a union in the plant was of no interest to him since a union would not do him much good in any event. Weathers testified that the two Armstrongs were originally opposed to the Union and as late as March 17 the Company did not consider Jefferson to be a union advocate. There was a question mark next to his name on Weathers' list aforementioned. Jefferson had signed a union card but he was one of the employees for whom Kuykendall had vouched as being a voter against the Union. Since Respondent called Jefferson as its witness and elicited testimony concerning his statements to Kuykendall about Shepard, it has appeared appropriate to analyze these statements not only as an employee's estimate of and recommenda- tion regarding Shepard but as an estimate and recommendation of how the union "stir-up" in the plant could have been obviated, i.e., by the earlier discharge of Shepard. This is some indication of Shepard's role in the union activity in the plant. Jefferson Armstrong and Weathers testified that as a fireman Shepard ran high water in the boilers. Jefferson said Shepard did this "all the time." Both witnesses explained when water gets "too high" or if you have an "excess amount of water" it runs wet steam on the materials being processed in the retort and causes a wet charge. A wet charge in turn necessitates a 7- or 8-hour re-treating of the materials. While it is apparent that the water should not be allowed to run too high so that an excess amount would necessitate a re-treating, neither Weathers nor Armstrong testi- fied that Shepard was responsible for materials having to be re-treated. Since re- treating was a 7- or 8-hour operation, and by that very fact a serious loss, it is my opinion that such events would be noteworthy and would have been mentioned by these two witnesses called by Respondent. Moreover, if Shepard ran high water customarily or all the time, as the testimony sought to show, and if high water is to be deemed the same as excess water or excessively high water that necessitated a re-treating of the materials, it would seem to indicate that for substantially the entire period of his employment Shepard was causing a more or less continuous or regular re-treating of each batch of material In my opinion such a situation would have been so intolerable from the employer's standpoint that Shepard would have been terminated long since. The employer could not have operated under such con- ditions. The failure of Respondent's witnesses to mention the very obvious fact and, to my mind, a very cogent fact, if it were so, that Shepard had been responsible for causing the operator to re-treat one or more batches of material, persuades me that if Shepard ran high water it did not apparently reach the point where a re-treating was necessitated. According to Weathers there were two marks on the water column and the water was to average between these marks This reference to aver- age would indicate that sometimes the water might be higher than the middle and sometimes lower. It is the Trial Examiner's opinion that the evidence shows that Shepard did at times run high water but there is no evidence that the water on such occasions ran so high or averaged so high that it resulted in a single re-treating. Nor is there any evidence that Respondent was turning out inferior products or that it had received complaints from customers regarding the quality of its products while Shepard was employed 46 The Trial Examiner has observed that the testimony about Shepard running high water came from Weathers who was not Shepard's immediate supervisor. and from Jefferson Armstrong, who worked on the opposite shift from Shepard. If the high water runs of Shepard were as frequent and as serious as depicted, it would seem that In short, if there were no instances where Shepard's work as a fireman resulted in re-treating of products, it would mean that either Shepard had not run excessively high water or that the Company was turning out inferior products that had received a wet charge and should have been, but were not, re-treated There is no evidence of the latter situation. While some other employee may have intervened on occasion to avert a wet charge it does not impress me as reasonable to conclude that this would explain a total absence of wet charges during the entire period of Shepard's employment. AMERICAN CREOSOTING CORPORATION, ETC. 17 3 Brownley would have mentioned this specifically, as one of the reasons why he termi- nated Shepard. Although Kuykendall testified to various acts of misconduct on the part of Shepard he made no reference to Shepard running high water in the boilers, let alone that Shepard ever caused a wet charge 47 The foregoing observations are not diapositive of this matter but on all the evidence pertaining to high water on the part of Shepard it is my opinion and I find that Shepard did at times run high water but he did not allow it to reach the point of excess water in the sense that it required a re-treating of materials. The undesirability of high water was due to the danger of a wet charge resulting therefrom and this in turn would require a re-treating. I find that Shepard did not run high water all the time or most of the time as Weathers and Jefferson Armstrong stated and implied. I do find that he did run high water on oc- casion but did not do so frequently enough or under such circumstances that his foreman reported it to Brownley or that it resulted in any disciplinary action by any supervisor. Foreman Kuykendall testified that in January James Armstrong told him that one night he had to wake Shepard several times. In February, Kuykendall testified, there was one occasion when Shepard came to work under the influence of liquor and did some sleeping on the job. Kuykendall stated that he reported both incidents to Brownley but no action was taken except that Kuykendall told Shepard that he would have to do better and that "we" cannot put up with this. Regarding the &mking incident, Kuykendall said he told Shepard that if it happened again "we would probably have to let him go." There is no testimony by Kuykendall that the foregoing offenses were thereafter repeated. Kuykendall and Weathers both testified to an incident which Weathers said oc- curred in February. Shepard was doing some repair work with a welder on top of an incinerator under Weathers' direction. Weathers said that during the course of the work a problem arose regarding a phase of the work and Shepard wanted to ask Weathers how it should be done. Weathers was not available at the time, having returned to the office, and as the janitor was walking by, half way between the in- cinerator and the office, Shepard shouted to him48 According to Weathers, Shepard said to the janitor, "When you go down to the office tell Jack Weathers to get his Goddam ass up here, we need him." Kuykendall, who was just outside the office at the time, testified that Shepard's words were, "If he wants this Goddam job done he'd better get his damn ass down here." In the light of the circumstances it is clear that Shepard was talking to the janitor, a fellow manual worker. By customary standards the language was vulgar and profane. It was not the language of the draw- ing room. But in a pole treating plant occupying a large area, in relative isolation, on the outskirts or in the environs of town, I find it difficult to conclude that the language used was unique, among the employees. Indeed, aside from the testimony of wit- nesses, including Kuykendall and Weathers, that they had heard profanity at the plant, it would be unusual (whether deplorable or not) if such were not'the fact.49 It is also my opinion that customarily, in giving this earthy message to the janitor, Shepard or any other employee, including the immediate recipient, the janitor, would expect and would know that when the janitor went into the office to relay the message to Assistant Superintendent Weathers, the message would be simply, that Shepard wants you to come out to the incinerator right away, and would not be a literal transcription of the original. In any event, as aforementioned, Shepard was speaking to the janitor and not to Weathers.so Kuykendall testified that when he heard Shepard's remark, aforedescribed, he spoke to Weathers and said he believed that they should talk to Shepard. Weathers told Kuykendall to handle it and Kuykendall told Shepard "we" could not stand for that and "It means nothing to me but if it had been one of the ladies in the office walking out, instead of -me, they would have heard it." In their testimony Kuykendall and Weathers also said that the assistant to the vice president of American Creosoting Corporation was in the plant on that day and they thought he might have heard 47 Kuykendali's testimony about Shepard is considered in detail hereinafter 48 The distance from the incinerator, on which Shepard was working, to the office was 500 yards 48 Kuykendall testified that "you might hear it [profanity] every day" at the plant co Even the language itself, without approving it, was not exceptional in the particular circumstances. It was probably as common for some men to say, "get your G D over here, Joe," as to say, "come on over here. Joe" or to refer to some- thing as a "G D something" as to leave out that phrase Nor does the language necessarily connote any animosity or disrespect. The same man might refer to his favorite baseball player in similar fashion, e g , "I hope that Jones gets an- other home run today in that series." 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shepard 51 No disciplinary action was taken against Shepard in February when the incident occurred and he continued to work until the plant closed on March 18. Thi& incinerator incident was not referred to by Brownley in his testimony and in any event the Trial Examiner is not persuaded that management considered it to be a cause for termination or that it was a factor therein. About March 1, according to Kuykendall, Shepard and a helper were doing some maintenance work for him. When Kuykendall checked the work and then spoke to Shepard about the incompleteness of the job, Shepard told Kuykendall to do it himself if he could do it any better. Kuykendall was asked by Respondent's counsel: Q. Did you report this to anyone? A. No, sir. Other than to direct Shepard to finish the job Kuykendall took no disciplinary action. Kuykendall had given testimony consuming 24 pages of the record on direct examination and cross-examination and both direct and cross-examination had then concluded. He had testified extensively, concerning Shepard and what he, Kuyken- dall, did in regard to Shepard, including reports and discussions with Brownley and Weathers. Kuykendall did not refer to any recommendations he had made to his superiors that Shepard should be punished or disciplined or that he had recom- mended Shepard's discharge or that Shepard should not be rehired. At that junc- ture, the completion of direct and cross-examination, the Trial Examiner asked Kuykendall whether he had ever recommended to his superior that Shepard be terminated. The witness said that he did so in March at some time after the incident when Shepard had shouted from the top of the incinerator, above, and after the incident, last described, when Shepard was insubordinate to him. The Trial Ex- aminer was not impressed by Kuykendall's credibility on a number of matters and I do not believe that he recommended Shepard's termination as a result of the in- cinerator incident or the insubordination incident or the other incidents of mis- conduct to which he testified. The incinerator has been previously discussed. Suffice- to say at this point that all Kuykendall told Shepard on that occasion was that, in effect, the remarks should not be repeated, and although the language did not bother Kuykendall it might happen that one of the ladies would overhear such boisterous and vulgar language. I do not believe the Kuykendall recommended dis- charge because of the foregoing. The insubordination on maintenance work incident was handled by Kuykendall without even reporting it to his superiors although he allegedly reported other infractions by Shepard. Brownley, in his testimony. as to why he refused to rehire Shepard did not mention the incinerator or insubor- dination affairs and the inefficiency and misconduct to which he confined his testi- mony related to drinking and Shepard's work as a fireman on the boilers. Nor did Brownley state that Kuykendall, Shepard's immediate foreman, had recommended the employee's termination, a factor of some significance to Respondent's position, if in fact Kuykendall had so recommended.52 11 There is no evidence that any woman heard Shepard's statement or that the assistant to the vice president heard it or that anyone complained about the matter. In niy opinion when Kuykendall spoke to Shepard at the time of the incident lie. in effect, told Shepard to watch his language or the volume or decibel level at which he uttered it. 52 Kuykendall's testimony about his recommendation may simply mean that he did, sometime in March, recommend Shepard's termination. He did not state the basis of his recommendation and his reference to the incinerator and insubordination incidents was actually in response to a question directed to fixing the geneial time of his recmnnienda- tion and not the exact time or the cause or basis of the recommendation. If Kuykendall' did make a recommendation about Shepard it probably occurred in the period in March 1960, when the events with which this report has been concerned were taking place. Although Kuykendall did not state the basis of his recommendation it is reasonable to assume that he would have asserted if he had been asked that the recommendation was based on the derelictions of Shepard that he described: sleeping on his shift on one occa- sion in January, under the influence and sleeping on one occasion in February, shouting from the top of the incinerator in February , insubordination about March 1. I do not interpret Kuykendall's testimony as stating or implying that promptly after the last in- cident he recommended Shepard's discharge Kuykendall did not in fact even report that incident. If his testimony is taken to mean that immediately after either the incinerator incident or the insubordination he recommended discharge, the Trial Examiner does not credit such testimony. Nor do I believe that in January or February Kuykendall had recommended Shepard's termination. For reasons hereinafter stated, the evidence per- suades me that any supervisory recommendation regarding Shepard's termination had: reference to union activity. AMERICAN CREOSOTING CORPORATION, ETC. 17 In the course of testimony about Shepard, both Brownley and Kuykendall, as we have seen, stated that no disciplinary action had been taken at the time of the reported incidents. Thus, Brownley was asked, "Did you take any disciplinary action at those times?" He answered, "No, sir." When asked, "Why not," Brown- ley said, "let me explain it this way: We were trying to make an operator out of him, treating operator. . " He then said he, Brownley, "cut him [Shepard] back to a fireman ." because of his conduct and "another reason was that we had too many men and we were cutting back-cut some off." This action was about 2 weeks prior to March 22, 1960. The evidence shows that a treating operator was a higher paid job than that of fireman; it also involved more responsibility since the operator, for whom the fire- man maintained steam in the boilers , was the man who conducted the treating op- eration. It is difficult to understand why Brownley or Kuykendall would in effect, have selected and promoted an inefficient and unreliable fireman to train for a higher- paying and more responsible job 53 Evidence, which I credit, convinces me that Shepard was assigned to the job of apprentice treating operator for only a few days, during which he was doing plumbing and other maintenance tasks, and, because he did not feel that he was learning much about being a treating operator, he asked to return to his job as fireman.54 The Trial Examiner does not credit Brownley's testimony that Shepard was cut back from operator to fireman as a punishment for his misconduct. Nor do I credit Kuykendall, who also sought to convey the impression that Shepard was cut back as a punishment albeit with a slightly different emphasis from that of Brownley. Kuykendall said that Shepard was not working out as an operator, that he was not learning the work. As stated, the Trial Examiner credits Shepard that he worked as an apprentice operator 4 days and then asked to go back as a fireman because he was not being given much opportunity to learn the new skill . Shepard's regular job was that of a fireman. Respondent's counsel asked James Armstrong about Shepard's "performance as this retort operator." Armstrong's reply was: "You mean could he run it? He could not operate a retort, if that's what you mean He wasn't there long enough . In other words, as an apprentice , he wasn't there long enough It takes time to operate a retort." The Trial Examiner is per- suaded that the reason management acceded to Shepard's return to his job was, as- Brownley stated , the fact that there were too many employees , and management was reducing its personnel.55 About the time of Shepard's return to the fireman job, Brownley reduced his per- sonnel and one fireman was terminated. Although there was a lack of work during this entire period, and an oversupply of employees, beginning as early as January 1, Shepard was not laid off. In his department another fireman was let go instead of Shepard This fact is of some significance since at a time of layoff for lack of work it would be expected that an inefficient and low caliber employee, as Shepard was alleged to be, would be terminated Uncontroverted and credited evidence also shows that the fireman, who was laid off at the above period in March when Shepard was retained, was subsequently rehired after Shepard had been terminated with all other employees on March 18 Also relevant to Shepard's inefficiency and con- duct as a fireman is the uncontroverted and admitted evidence that during March 1960 Shepard had been selected to train and did train a new employee in the work of a fireman. If Shepard was as inefficient in the performance of his work and as lax in his conduct as he is sought to be portrayed, his selection as a teacher and" an indoctrinator of a new employee in March is quite incredible , and, in my opinion, it is inconsistent with Respondent's position. The Trial Examiner does not credit Brownley's generalized testimony that Shep- ard's alleged inefficiency and misconduct continued to the time of his termination. He admittedly took no disciplinary action on such conduct. Brownley testified to no firsthand knowledge of Shepard's work or of his conduct Shepard's foreman, Kuykendall , reported to Brownley at the time, as we have seen , that on one shift- in January , James Armstrong told him he had to awaken Shepard several times. 63 This observation is not affected by Brownley's testimony that he wished to train another operator or operators because of a desire to eliminate overtime among the existing operators 64 James Armstrong testified that Shepard worked with him 2 nights as an apprentice operator m Brownley gave this as one of the reasons for Shepard's return to his fireman job- although also stating that it was because of Shepard's conduct The latter assertion has been rejected by the Trial Examiner in the light of the evidence aforementioned. That work was slack in the plant during this period is admitted and is undisputed. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The other occasion on which Kuykendall had reported was in February when Shepard came to work under the influence and was sleeping . No disciplinary meas- ures had been taken on either occasion. The incinerator incident was in February and it does not appear that Brownley was aware of that but if he was, the Trial Examiner's appraisal of that affair has been previously stated. The insubordination incident about March 1 was not reported by Kuykendall. The delineation of Shepard, as highly inefficient and as a repository of misconduct and bad habits, both before and after the time and the fact that he was assigned to train a new fireman and was retained in a period of layoff in preference to another fireman, who appar- ently had no such deficiencies and who was subsequently rehired after March 18, is, in my opinion, unconvincing. If Brownley knew, both before and after the fac- tors referred to in the preceding sentence, that Shepard was and continued as noth- ing but a wholly undesirable employee, the failure to terminate him or even to discipline him in a period of slack business is very difficult to understand.56 Membership or activity in a union affords an employee no immunity from ter- mination. The Trial Examiner is cognizant that an inefficient employee may seek to protect himself from his just deserts by recourse to unionism . It is also apparent that the existence of a legitimate reason for terminating an employee is not disposi- tive of the issue of the reason why he was actually terminated. The Trial Examiner is of the opinion that Shepard was not a paragon as an em- ployee. While some of the testimony about Shepard was delivered with a broader brush than the specific details were shown to warrant, it is my opinion that Shepard on several occasion did come to work under the influence. I do not find that he commonly did this. When he was under the influence his condition did not require that he be sent home or disciplined although it was stated that it was management policy to send home a man whenever he was under the influence . I also find that Shepard slept on the job although here again not as frequently as some witnesses indicated. There is no showing that Shepard 's sleeping resulted in any damage or loss of materials or necessitated a retreating . This fact may explain why Shepard was not disciplined for his derelictions. But, in my opinion , neither Shepard nor any of the other employees who worked under the influence or who slept during hours, was acting properly. Such actions clearly could have provided reasons for discharge . The important consideration , in my opinion, is that the plant manage- ment did not consider that Shepard's conduct warranted either discipline or discharge in the entire period during which his inefficiency and misconduct occurred. He was in fact not laid off although work was slack and another fireman was terminated and Shepard was retained . Shepard also was selected to instruct and did instruct a new employee in the very duties of a fireman for which he was, according to Respondent's position, so poorly qualified in all respects . The Trial Examiner is not persuaded that the desire to secure the best available complement of employees for the operation of the plant after March 22 explains the reversal that the local plant management made in its attitude toward Shepard. I believe that management was always interested in having efficient employees, including the period prior to the shutdown. This is particularly true because during that period work was slack, the plant was admittedly losing money , and there was no reason for retaining Shepard if the plant would have been better off without him and if better firemen were available. The advertisement that Brownley placed in the local Brunswick paper on March 18 was addressed and drew upon the same local labor market that was always available to Brownley and from which he had drawn his employees both before and after March 18. Moreover, after Shepard was terminated Respondent did not replace him with a new and demonstrably superior fireman The fireman, who had previously been laid off when Shepard was retained and who was the fireman who had been trained by Shepard, was rehired after March 18 while Shepard was terminated. The reason for the reversal of management's attitude toward Shepard is to be found in the fact that during the period of March 10 to 18, the plant man- agement, as we have seen, engaged in a very strong antiunion campaign . While there had been some antiunionism prior to this period, the tempo and intensity was stepped up during this period shortly before the anticipated Board election. Shepard had spoken openly of his belief in the union cause. On March 10 or 11 Shepard's foreman, Kuykendall, pointedly warned him that rehiring after the sale of the plant was dependent upon the union being killed among the plant employees. Shepard made his position very clear on that occasion when he told Kuykendall that he would stick with the Union and that the Union would get one vote even if his was the only ee The Trial Examiner perceives no room for ascribing this inaction to any sentimentality that an employer might feel toward an employee of many years' service. Shepard had only worked for the employer for about 8 months. AMERICAN CREOSOTING CORPORATION, ETC. 177 vote. Kuykendall then said , "I'm just trying to warn you for your own benefit.. ." If Shepard had heeded his foreman and had foresworn the Union, it is my opinion that he would not have been terminated . Such was the import of Kuykendall's statement but 'Shepard ignored the warning and made his prounion sentiments manifest 5'+ The Trial Examiner does not credit Brownley's testimony that he did not know about the union activity of any individual employee. Brownley stated that although he had told his supervisors to find out whatever they could about the Union at the plant and although he received several reports, no report referred ,to any individual employee. The Trial Examiner is not persuaded that the reports received by Brownley were general reports that the Union is doing well or is not doing so well. It is my opinion that Shepard was known by Brownley to be active in the Union; it is also my opinion that Kuykendall gave Shepard a final warning that rehiring was dependent on killing the Union and Shepard rejected the warning and affirmed his unionism. I find that Shepard was terminated for the foregoing reasons and that the local management of Respondent did so because it was opposed to union activity among the employees and opposed to the possibility of union organization of the plant. The termination of Shepard is accordingly found to be violative of Section 8 (a)( 1 ) and (3) of the Act. F. The failure to rehire Cooks Cooks had worked at the plant since 1946. He testified credibly, when asked what type of work he did, that he worked anywhere in the plant, "retort, motorman, switchman, changed the valves, railroad, pole yard, on cranes, anywhere." He signed a union card in November 1959, and passed out some union cards away from the plant. There is no evidence that his supervisors were aware of the aforementioned activity. Cooks attended the first union meeting in December 1959, and he attended the union meeting on March 17, 1960. He stated that there were three employees present at the last mentioned meeting, himself, Bennett, and Bailey. The Trial Examiner has previously found that on March 17 Weathers and Kuykendall relieved Bailey from his shift and replaced him with James Armstrong. Weathers informed Armstrong and Shepard, who was working as fireman with Bailey and later with Armstrong, that Bailey was being relieved from his night shift in order that he could take inventory the following day. In fact, Bailey did not take inventory the following day. He had been instructed by Kuykendall to attend the union meeting on March 17 and to report to management the names of those employees who attended the meeting. Having received the foregoing instructions from his super- visor and having stated to his supervisor that he, Bailey, understood what he was supposed to do, and there being credible evidence that Bailey did attend the union 64 Weathers had testified that whenever he was near Shepard in the plant the latter hastened to assure Weathers that he was not active in the Union and that he, Shepard, could not furnish any information about the Union. Weathers was asked Q. How did this come up? A Well, I think he had a guilt complex more than anything else He felt that I realized that he was active in the union work and that he had a fright of it for some reason, of course he shouldn't have. I don't think I ever questioned him about his connection with the Union. He volunteered the information. He wanted me to have faith in him as a company worker and not working with the Union in any way. Although Respondent's knowledge of Shepard's unionism is clear enough through Kuyken- dall, Weathers' foregoing testimony indicates that Weathers realized that Shepard was active in the Union Weathers testified that Shepard has no reason to be apprehensive about Weathers' knowledge. Even if Weathers had not otherwise known of Shepard's union activity, it would seem that Shepard's protestations of innocence would have been a case of protesting too much and was unconvincing to Weathers Weathers' diagnosis of Shepard as having a guilt complex about his unionism and being apprehensive on that score is of some interest It is to be noted that the ascribed feeling of guilt and the attendant apprehension related solely to union activity There was no guilt complex or apprehension about being an inefficient employee. If, as Weathers Indicates, Shepard was trying to save his job by giving Weathers assurances about himself, it is noted th-t the assurances were in terms of playing down his union activity and not in terms of telling Weathers that he would improve his job performance An employee trying to protect himself gives his employer assurances or excuses relating to the particular area in which he is vulnerable. Under these circumstances the employee has no reason to ignore any area in which he has any reason to believe himself vulnerable. 597254-,61-vol. 130--13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting a few hours after he received his instructions , there is a presumption , albeit rebuttable, that Bailey did report that Cooks and Bennett attended the meeting. The Trial Examiner finds no evidence to rebut the aforementioned presumption and therefore finds that Bailey attended the meeting and reported the names of those present pursuant to his supervisor's instructions 58 Brownley testified that the reason Cooks was not rehired was because he could not get along with people, including Brownley, and his foreman had complained about Cooks "being inefficient and not wanting to work, talking so much . . ., he didn't do the work and there was an exceptionally lot of talk . . ., insubordina- tion. " Cooks' foreman, McVeigh, did not testify nor did any other supervisor except Brownley testify about Cooks' work or conduct. There is no evidence that Cooks received any warnings or was disciplined other than the fact that, according to Brownley, 3 or 4 months before the terminations in March Cooks was taken off his work as switchman on a motor because "he was fussing with the other employ- ees" and placed on track work and yard work. Brownley said Cooks' foreman still complained that he "couldn't get the work done." On cross-examination Cooks was asked whether he did not have some trouble with an employee named McDowell as a result of which Cooks was transferred. Cooks denied having trouble with McDowell. He said he was transferred when Kuykendall said to him, "Cooks, you know more about the railroad than anybody else, you and Pee Wee-you will be assigned to the railroad to maintain this work because we're going to keep someone on that railroad at all times, because we can't go on the track for wrecking and jacking up all night long." The foregoing was not controverted by Kuykendall in his testimony. It also appears that Cooks had had about 11 years of experience on the railroad, a fact consistent with the foregoing reasons for his transfer. Cooks testified that he had no trouble with anyone in the plant. He denied that he argued with his supervisors or that Brownley had ever told him to stop talking back to his supervisors. There is no testimony of Brownley that he had reprimanded Cooks or warned him. The Trial Examiner credits Cook as to the reason for his transfer as described above. Also, as mentioned previously, neither his foreman nor any other supervisor, who was presumably closer than Brownley to Cooks' work and conduct on the job, testified to any trouble with him.59 It is my opinion that Brownley, the plant manager, would not have tolerated any insubordination or trouble directed to himself from one in Cooks' position, as Brownley stated and implied.60 I believe that Cooks would have been discharged long since if such had been the fact since neither his job status nor the ethnological factor would indicate otherwise. Aside from Brownley's generalized statement that Cooks did not get along with Brownley and others, the only convincing evidence that the record discloses that might be the "failure to get along" was the fact that Cooks testified that the equipmen on the railroad was inadequate. Cooks said, "Hit a spike and it'd keep right on through the tie, but we did the best we could." Cooks said he had told Brownley, Weathers, McDowell, and Kuykendall about the problem. Cooks had had 11 years' railroad experience and as a 14-year employee he evidently realized the problem and was conscientious enough to mention it to his superiors to try to correct it. Cooks was told on these occasions to make do with the equipment provided. He stated credibly, I believe, that he did not argue and simply told them about the needs, "See something need to be done, I had to ask for the material. I couldn't get the material. Well, I'd go ahead." 61 The Trial Examiner fails to see why Cooks, after calling a deficiency to his superiors' attention and thereby putting himself in the clear, would have had any reason to argue with his superiors or why he would have wished to jeopardize his job thereby. A man who has been 14 years 68 "Every rule of presumption is based on experience in the probative value of some one fact or set of facts Inducing belief in the other fact." Wigmore's Code of Evidence, 3d ed , ¢ 2882, p. 505. The Trial Examiner is also of the opinion that 'his aforementioned conclusion is a valid one whether the set of facts described is used in terms of presumption or of inference 69 Both as to Shepard and Bennett, the other two alleged discriminatees,i Respondent offered specific testimony of immediate foremen or other supervisors. 60 Neither Shepard nor Bennett had any direct or personal trouble with Brownley him- self and there is no indication that such would have been tolerated. 61 The then owner of the plant, according to Brownley, had been losing money during the latter period of its operation and Brownley believed that the parent company was not too interested in operating a creosoting plant, being primarily interested in the timber holdings that it had acquired with the plant The then owner was interested in cutting down expenses including the elimination of overtime, and it is not unlikely that it was not anxious to invest in new equipment for the railroad segment of the plant operation. AMERICAN CREOSOTING CORPORATION, ETC. 179 with an employer is presumably interested in holding his job and knows enough to realize that insubordination to the plant manager and other superiors is a very unwise course of action. This is particularly true when the subject matter involves no personal advantage to the employee; it was probably as easy, perhaps easier, for Cooks to drive a spike into a rotted railroad tie as into a good one.62 In assessing Cooks as a witness the Trial Examiner believed him to be honest and candid. Aside from his demeanor I also found that in his testimony he did not seek to build a case for himself by ascribing illegal statements or conduct to the Company although he of course was in the position of one claiming to have been illegally terminated. It was my impression that he told the facts as he knew them. The occasion to which he testified that any supervisor mentioned the Union to him was when Weathers was posting an election notice in or near the colored restroom in the plant. Weathers said there was going to be a vote, the Union was trying to come in but he did not want a union in the plant. Weathers said that everyone was going to be discharged but that they would all be rehired by the new company. Weathers testified that he was posting a notice in the restroom and that he told Cooks and another employee who were present and who had expressed concern about their jobs that they had nothing to worry about. In crediting Cooks about the foregoing the Trial Examiner found no basic conflict in the two versions. Also, Weathers had admitted in his testimony that he did not want a union in the plant and I believe Cooks, that Weathers so stated in referring to the notice and the election. There was, in my opinion, nothing illegal in this expression of opinion or point of view by Weathers to Cooks and although Cooks was questioned several times about this conversation he did not seek to exaggerate the situation or to ascribe a stronger remark about the Union to Weathers. Regarding his interview for rehiring by Respondent on March 21 or 22, Cooks testified several times that McLeod told him that the Company had two other plants and that they did not have a union Cooks did not seek to say that McLeod made a stronger remark about not operating with a union and the Trial Examiner credits him.63 Although the General Counsel, by amendment at the hearing, alleged that McLeod's statement to Cooks was violative of Section 8(a) (1) of the Act, the Trial Examiner does not agree and recommends dismissal of this allegation. A further indication of Cooks' truthful and factual testimony was his account of the March 17 union meeting. In sum, he simply testi- fied that the meeting was attended by three employees, Bailey, Cooks, and Bennett. There was no effort to embroider this incident with facts that might appear helpful to himself in the light of Bailey's role at the meeting. While Cooks did not know at the time of the meeting that Bailey was present as an informer for management, it seems unlikely that by the time of the hearing Cooks was wholly unaware of what at least was attributed to or suspected about Bailey. In any event, Cooks did not seek to say that Bailey acted suspiciously or had a notebook or made notes or did anything out of the ordinary, all of which might have tempted an unscrupulous wit- ness if he was in Cooks' position. Although Cooks testified that he had passed out union cards to other employees he stated that he did this in town, away from the plant. He did not say that any supervisor was present during the aforementioned activity nor did he seek to show that any supervisor was aware of such activity. Telling the truth under oath may merit no particular accolade but at least the Trial Examiner was impressed that Cooks was an honest witness. Cooks was absent from work from March 14 to the time of the shutdown. He testified that he had pneumonia and was under a doctor 's care. Brownley under- stood that Cooks was absent because of illness. Cooks was well enough to attend the union meeting of March 17 and to visit several employees at their homes just prior to that meeting. He came to the plant the following day, March 18, to pick up his 1 day's pay for the week. Cooks' absence had nothing to do with Respond- ent's failure to rehire him. Brownley said that as to Cooks' absence , "I did not consider it any differently than I would any other man who is staying out. I considered Cooks' application for employment." When Cooks came to the plant on March 18, Brownley told him to come back and fill out an application for the new company . Cooks returned Monday or Tues- 62 Contrast a situation where an employer assigns a man to an unfamiliar job that is highly disagreeable. Employees under such circumstances may manifest an insubordinate attitude. But Cooks was an experienced railroad hand of 11 years and there appears to have been to him nothing difficult or disagreeable about such work. es Cooks' testimony was carefully considered in evaluating the testimony of other wit- nesses as to what McLeod said during the course of the interviews The Trial Examiner i` ut the opinion that McLeod's statements were not identical to all applicants, and credi- bility was resolved as it appeared to the Trial Examiner with regard to the respective witnesses 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day and was interviewed by McLeod who filled out Cooks' applicaton. Cooks' uncontroverted testimony is that McLeod told him, did he know he was being employed for a 30-day trial period. McLeod also, as described above, told Cooks that the Company had two other plants and that those plants did not operate with a union. Cooks reported for work the first day of the new company's operation, Wednesday, March 23. As he was passing the office, Brownley saw him and said to Weathers and McLeod, "Have y'all approved Cooks' application?" and they said, "No." This was the terminaton of Cooks. The Trial Examiner has considered the reasons advanced by Respondent for the termination of Cooks and the evidence relating thereto. The alleged inefficiency and misconduct that Respondent attributed to Cooks, an employee of 14 years' service, was unconvincing to the Trial Examiner both from the standpoint of proof and also from the standpoint of it being the real reason for Cooks' termination. The Trial Examiner is persuaded and finds that management's surveillance of the March 17 union meeting by means of an informer is indicative of management's hostility toward the union movement in the plant and of management's concern with ascer- taining the identity of the union nucleus among the employees. While Cooks and Bennett may not have been the core of union loyalists in the plant and while man- agement may not previously have known of their unionism, their presence at the last union meeting before the shutdown and shortly before the time when an election would have been held pursuant to the Board's order of February 29, could not fail to impress management of their strong union adherence. On the eve of the discharge of all employees of the old company and the inevitable uncertainty of rehiring by the new employer, those employees who attended the meeting would certainly appear to be outstandingly loyal to the Union. This the more so since management had previously made known its attitude toward union organization of the plant. Weathers, the assistant plant superintendent, and Foreman Kuykendall were directly involved in the surveillance of the aforesaid union meeting. Weathers, as the evidence shows, played an important if not a decisive role in the matter of not rehiring Cooks. On March 21 or 22, when McLeod interviewed Cooks and took his application, there was no indication that Cooks would not be rehired.64 Consistent with what had occurred, Cooks reported for work on March 23, the first day of the new operation. When Brownley saw Cooks he asked Weathers and McLeod if they had approved Cooks' application and they said no. While Brownley as plant manager had the final word on rehiring, it is apparent from the foregoing that in the case of Cooks, at least, Weathers made the real if not the formal decision.65 The Trial Examiner is convinced and finds on all the evidence that Cooks was terminated because the fact of his attendance at the March 17 union meeting showed, or was believed by Respondent to show, that his loyalty to the Union was very strong and that his sentiments were diametrically opposite to those that Respondent was seeking to inculcate in its employees se The Re- spondent's failure to rehire Cooks is found to have violated Section 8(a) (1) and (3) of the Act. G. The failure to rehire Bennett Bennett had worked at the Brunswick plant since 1956. He performed general labor work although he described his work in the yard as skilled since it involved hooking poles to a crane preliminary to the crane operator's hoisting the material. In the latter part of his employment, Bennett while working in the black pole yard had an argument with the crane operator. According to Bennett, while they were 04 In the case of other employees, they were told on March 21 or 22 that if they did not receive a white slip with their paycheck on March 21 or 22, this would mean they were not rehired. This announcement took place subsequent to interviews and processing of applications by McLeod Cooks had received his pay the preceding Friday, apparently because he had been absent because of illness for most of the week 65WVeathers of course knew the old employee applicants such as Cooks He probably also knew of Cooks' attendance at the union meeting McLeod as a new man was not familiar with individual employees McLeod was familiar with the new company's policies, including at least the fact that the new company did not operate with a union at any of its plants and believed that it was better for all concerned to operate a plant without a union. ea The paucity of attendance at the meeting made Cooks' attendance the more outstand- ing. Whether the small attendance indicated that the union movement was thwarted by management, or that it was dormant, or that the employees had had a change of senti- ment, Cooks and Bennett would appear to be the apple or apples that might potentially contaminate the whole barrel by the time of an election. Shepard, of course, as manage- ment knew, was working on the night shift on the night of the union meeting. AMERICAN CREOSOTING CORPORATION, ETC. 181 in the process of stacking poles, the crane operator held the poles too high and Bennett could not steady them. The crane operator wanted Bennett to stand on the truck in order to manage the poles and Bennett refused. The crane operator reported the matter to the foreman and Bennett was transferred to the white pole yard. Bennett said that the foregoing was the only dispute he had while employed by the Company. Bennett testified that he had signed a union card and had distributed about 20 such cards. There is no evidence that any supervisor was aware of this activity. Bennett attended the union meeting on March 17 at which Cooks and Bailey were present. He testified that the only supervisor who spoke to him about the Union was his foreman, Logue. Logue, according to Bennett, asked him, what did he think about the Union. Bennett said it was "all right, because if all, because if all the fellows would go for it." This conversation, as the Trial Examiner under- stands his testimony, was after the March 17 meeting.67 After his termination on March 18, Bennett applied for rehiring. On March 21, when he received his pay- check, Brownley announced to all those present that those who had received a white slip with their check were rehired and the others could leave. Bennett did not receive a white slip. Brownley testified that Bennett was not rehired because he could not get along with people. He said that Bennett had been transferred from the black pole yard to the white pole yard because of this. In the white pole yard, Logue, his foreman, complained to Brownley that he could not get the work out of Bennett. Logue, who impressed the Trial Examiner as a credible witness, testified that he was in charge of running the yard from November 1959 to March 1960. He stated that during the last 6 or 8 weeks Bennett was under his direct supervision. Logue said that Bennett had been transferred to his supervision because the people in the black pole yard could not get along with him. Logue said that personally he did not have any trouble with Bennett and that as long as Logue was immediately present when Bennett was working he performed his work satisfactorily. The trouble arose when Logue was not right on the spot and at such times Bennett would not do what the crane operator or anybody else would tell him. Logue said he had had many com- plaints from Bennett's crane operator, such as, if the operator asked Bennett to straighten a pole or anything of that kind, Bennett just cursed him out. Logue said he had told Bennett that he would have to listen to the crane operator and that Logue could not stay around working with him personally. Logue testified that the only occasion when any employee mentioned the Union to him was when employees Newkirk and Wasone referred to the subject. Logue said he told them he knew nothing about it adding, when testifying, "In fact, I just knew nothing about it." Logue said he never had a discussion with Bennett about the Union and never heard him mention the subject. As stated, the Trial Examiner believed Logue to be a credible witness and credits his aforementioned testimony. iI find that Bennett, as he admitted, and as Brownley and Logue testified, was transferred from the black pole yard to the white pole yard because of refusal to follow the crane operator's instructions and because of Bennett's argument with the operator. It is also found that the same type of uncooperative- ness continued in the white pole yard except when Foreman Logue was personally directing Bennett. The Trial Examiner views Bennett's transfer as disciplinary action taken by Brownley. The Trial Examiner is of the opinion that there is convincing evidence that Bennett persisted in his uncooperative attitude during the latter period of his employment although it is apparent that his work required him, in the Em- ployer's view, to work with and in cooperation with the crane operator. The personal presence of Foreman Logue at all times could not reasonably be expected and an employee who worked satisfactorily only under the foreman's eye could reasonably be regarded as expendable. It is my opinion that Bennett was so regarded by Brownley. Bennett's presence at the March 17 union meeting was, as I have found, known to management. The animus of management toward union activity has been de- scribed previously and in connection with Cooks the Trial Examiner has set forth his view that the two employees, Cooks and Bennett, who attended the meeting, were thereby marked as hard core union adherents and thus undesirable employees from the standpoint of management. While Bennett might well have been terminated because of his attendance at the meeting, even absent serious faults as an employee, I find that management's prior disciplinary action and the convincing proof of e7 The conversation is as follows : Q Do you recall when he asked you that' A. Yes, sir. That was at the same meeting-I went to the Union Hall, the last union meeting. He asked me what did I think about it. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bennett's continuing derelictions known to management and reported by Logue to Brownley, as Brownley credibly testified, was the reason for Bennett's termination.68 It is my view that Bennett's inability or unwillingness to work cooperatively with either the crane operator in the black pole yard or with the crane operator in the white pole yard so seriously impaired his usefulness as an employee that he would have been terminated at the time the plant was being restaffed irrespective of his attendance at the union meeting. The Trial Examiner is unable to conclude that but for Bennett's attendance at the meeting he would not have been terminated. The evidence convinces me otherwise. It is therefore recommended that the allegation of the complaint with respect to Bennett be dismissed.69 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its business operations described in section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In connection with the case of employee Shepard, Respondent at the hearing proposed to develop evidence relating to Shepard's employment subsequent to his termination at the Brunswick plant, "the same going to his honesty in the handling of funds and truck repair orders for the Seven-Up Bottling Company, the same which would show that Mr. Shepard has embezzled some money from the company, and that because of said embezzlement the Trial Examiner would not be justified in ordering any employer to reinstate this man to his employment." There was no assertion that there had been an indictment or conviction of Shepard for embezzle- ment. The General Counsel stated that it was his knowledge that Shepard was presently employed by the Seven-Up Bottling Company and was able to testify only by securing a substitute to temporarily take his place The Trial Examiner excluded such a proposed line of evidence on the ground that it would unduly enlarge the scope of the hearing and stated that the proposed matter could be raised more appropriately at some compliance stage of the pro- ceeding. It was and is the Trial Examiner' s opinion that the issue before him was the termination of Shepard on March 21, 1960. Shepard's alleged embezzlement at a subsequent date and while working for another employer would involve a collateral proceeding of a criminal nature that potentially would entail the exam- ination and cross-examination of officials or supervisors of another employer, as well as testimony of rank-and-file employees, customers, and others. There was no indication from Respondent that an admission of embezzlement was expected from Shepard and the Trial Examiner discerned nothing in the General Counsel's asser- tion that indicated that the proposed matter would be conceded or that it would be established by anything but full litigation of the matter, which of course would be necessary as a matter of right to all concerned. The Trial Examiner observed the reaction of Shepard, who was at the time still on the witness stand, to the state- es Brownley, as we have seen, stated, inter ilia, that Bennett's foreman could not get the work out of him This was,the import of Logue's testimony-that Bennett could not work harmoniously with the crane operator and refused to cooperate with the operator. Such a condition resulted in a situation where the only way Logue could get the work out of Bennett was to stand over him constantly, an intolerable situation 00 Without recounting it at this point the Trial Examiner has considered the evidence of events between Bennett's termination and the time of the hearing. This evidence has not altered my conclusion The Trial Examiner in connection with his consideration of the entire case was cog- nizant that five or seven other former employees had not been rehired by Respondent. Aside from Brownley's testimony that his action was prompted by efficiency considerations there was no basis of comparison between the reasons for such terminations and the terminations alleged in the complaint When asked, the only example given by Brownley was that of an employee whose wages were garnisheed so many times that Brownley personally was tired of going to the courthouse so frequently in connection therewith. Whether or not these other employees were members of the Union, or active in the Union, ni hether management knew such facts, -n hether their deficiencies as employees were greater or less than those of the instant complaints, the record does not show AMERICAN CREOSOTING CORPORATION, ETC. 183 ment of Respondent's counsel and was confirmed in his appraisal that extensive litigation of the issue would be involved. Although the record reflects Shepard's re- action in a very limited way, it was necessary for the Trial Examiner to restrain the witness from launching into the subject with some feeling. In sum, it was the Trial Examiner's judgment that the essentially collateral matter of embezzlement might well have led to an extensive and protracted litigation of its own at a time when no determination had been made either tentatively or otherwise on the question of whether reinstatement of Shepard would be involved. The question of remedy is properly cognizable at the hearing in chief. But, as stated, the Trial Examiner was not prepared to litigate the allegation of embezzle- ment under the circumstances described. There are instances where misconduct, including misconduct that may involve a civil or criminal offense, e.g., assault and battery, is litigated at a Board hearing even though the misconduct may have taken place subsequent to the alleged illegal discharge of the employee. Thus, in a strike situation, a striker may have been discharged for participation in a valid strike but may be denied reinstatement because it was established at the hearing that he sub- sequently engaged in misconduct as a striker that disqualified him for reinstate- ment. A slight variation of the foregoing would be found where, upon termination of a valid strike, a striker not previously discharged, is denied reinstatement by reason of proof that he had disqualified himself by misconduct during the course of the strike. The distinction between the foregoing situations and that which was presented in the instant case is that the strike and all its circumstances, including misconduct on the picket line as related to the strike, was part of the res gestae principally litigated at the Board hearing and involving the same employer. In some situations the post discharge conduct relating to the strike may be the principal issue although the issue may have been framed within terms of the original discharge that precipitated the strike. The res gestae involved in the present proceeding was the legality of Shepard's termination and Respondent's failure to rehire him on March 21, 1960. It is my opinion that what Shepard may have done at a later date, when working for a different employer, on a matter unrelated to the unfair labor practice litigated, was not part of the res gestae or issue before the Trial Examiner and to have made it such under the circumstances would not have effectuated the purposes of the Act. The Trial Examiner recommends the customary remedial action of an offer of reinstatement and backpay with respect to Shepard. Such action is necessary in order to wipe the slate clean and to place the discriminatee in the position he would have occupied but for discrimination against him. The Act is concerned with public rights and in my opinion the right of reinstatement of Shepard at Respondent's plant, arising as it does out of Respondent's illegal discrimination, should not be affected by any alleged subsequent misconduct by Shepard when working for a different employer under circumstances wholly unrelated to the events and issues at Re- spondent's plant The purposes of the Act to protect and to vindicate the free exercise of employee rights to engage in or to refrain from engaging in union activity without reprisal should not be made subject to defeasance by some sub- sequent act of unrelated misconduct by the particular employee involved. To do so, in my opinion, would place undue emphasis on the individual's private interest in and right to reinstatement and would subordinate and leave wholly unremedied the public rights with which the Act is primarily concerned. Although the Trial Examiner recommends the aforedescribed remedial action by Respondent with respect to Shepard,70 it is recognized that an employer is not pre- cluded from discharging or otherwise disciplining employees for reasons other than their union or concerted activities. After having remedied its unfair labor practices in the recommended manner and the policies of the Act having thus been effectuated, Respondent would be free to take such action as it deemed appropriate for reasons other than the protected union activity of the employee. The time sequence, in my opinion, would not be determinative. The important aspect is that the customary offer of reinstatement with backpay be made in the usual manner. This would in- clude offering the discriminatee a reasonable opportunity to accept or to decline the offer, with such backpay as might be due, to be computed from the date of the original discrimination to the date of the aforesaid offer. Having-remedied the unfair labor practice, the Respondent, if it thereupon or thereafter discharged the one-time discriminatee on the asserted ground that sub- sequent to the original discharge the individual in question had elsewhere committed "Cooks has not been referred to since his case involves none of the aspects that Re- spondent has raised regarding Shepard The customary remedial action as to Cooks is recommended 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an embezzlement or some other act disqualifying him as an acceptable employee, would be in the position of any respondent claiming that it had complied with the recommended order of the Trial Examiner or the order of the Board. Presumably, if the General Counsel was satisfied that there had been compliance that would be the end of the matter. On the other hand, if the General Counsel was of the opinion that the evidence showed that in fact the employee in question had not committed the alleged embezzlement or other disqualifying act he could take the position that there had been no compliance. Such a position would be comparable to any situa- tion where an employer offers reinstatement and then straightway discharges the employee under circumstances that might convince the General Counsel that the reinstatement was no more than a sham and was not the bona fide remedial action required.71 In any event, any issue as to whether or not there had been compliance by Respondent with the recommended order or order would be litigable in a com- pliance proceeding. Briefly summarized, it is the Trial Examiner's opinion that, procedurally, the issue of whether or not Shepard, after his termination by Respondent, subsequently, while working for another employer under circumstances wholly unrelated to the events or actions of himself and Respondent at the latter's plant, committed an embezzle- ment, was a collateral issue and not properly or appropriately litigable at the hearing in chief before the Trial Examiner; the policies of the Act and the rights of the em- ployer would both be effectuated and protected by confining the issue of the alleged subsequent embezzlement to the compliance stage, if such might occur. Upon the basis of the foregoing findings of fact and conclusions, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Through threats, interrogation, and surveillance, as found in section III, above, in the period commencing on March 13, 1960, and thereafter, Respondent Georgia Creosoting Corporation has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By refusing to hire or rehire employees Alva Lee Shepard and Ozie Lee Cooks on or about March 21, and 23, 1960, respectively, for the employment period com- mencing March 23, 1960, Respondent has discriminated in regard to their hire and tenure and conditions of employment, thereby discouraging membership in a labor organization or in concerted activity, and has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. Respondent has not engaged in unfair labor practices by its refusal to hire or rehire employee Lamar L. Bennett. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] n The Issue of guilt or innocence of the alleged embezzlement would not necessarily be the sole compliance issue, e.g, there might be evidence that other employees with known records of offenses were employed. Combustion Engineering, Inc. and Norman Markus, Thomas M. O'Connor, Andrew Findley International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local No. 83, AFL-CIO and Thomas M. O'Connor, Norman Markus, Andrew Findley. Cases Nos. 17-CA-1426, 17-CA-1147, 17-CA-1428, 17-CB-?16T 17-CB-217, and 17-CB-9218. February 13, 1961 DECISION AND ORDER On November 10, 1959, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the 130 NLRB No. 24.