Borden-Sancken Co.

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to recognize or bargain with Respondent Union. . ." If so, a violation of Section 8(b) (4) (C) of the Act has been established; otherwise, it has not been proved .5 It is apparent that Respondent's conduct had as an object the securing of rates of pay and other conditions of employment-matters normally sought through col- lective bargaining. However, the mere fact that such matters are normally obtained as a result of collective bargaining does not mean that this is the only avenue avail- able for such purposes and the section of the Act under consideration does not proscribe conduct aimed at securing rates of pay or other conditions of employment. It proscribes forcing or requiring an employer to enter into bargaining relations with or dealings with a particular union despite the fact that another labor organiza- tion is the certified representative for the purposes of collective bargaining. In the instant matter Respondent was not seeking recognition and was not attempting to usurp some or all of the functions of Local 12 (the exclusive bargaining repre- sentative). From the evidence adduced it could be argued that Respondent was attempting to aid rather than infringe upon Local 12's rights. Assuming, however, that the normal, foreseeable result of picketing is to induce a willingness or readiness on the part of an employer to grant recognition such normal, foreseeable consequence is a rebuttable presumption (Radio Broadcast Technicians, etc. (WKRG-TV), 123 NLRB 507) and the evidence adduced herein establishes that the presumption has been rebutted. Throughout the course of this matter, including the prior rep- resentation case, Respondent disclaimed any interest in representing the employees involved and informed the parties, the public, the employees involved, and agencies of the United States Government that it was not seeking recognition or bargaining rights. The only evidence indicative of a desire to meet with and deal with the employer or employers involved herein is the fact of picketing. However, the appeal of the picket sign and the accompanying handbill clearly disclaim any "intent to seek recognition or to start bargaining.' In view of the foregoing, it is believed that the complaint, in its entirety, should be dismissed. [Recommendations omitted from publication.] 6 The sole issue litigated was whether Respondent violated Section 8(b) (4) (C) and there is no issue before the Trial Examiner as to whether the aforementioned conduct was violative of any other section of the Act. Borden-Sancken Company and Milk and Ice Cream Drivers and Dairy Employees, Local Union No. 23, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases Nos. 10-CA-4449, 10-CA-4449-93, and 10-CA- 4477. February 10, 1961 DECISION AND ORDER On October 17, 1960, Trial Examiner Thomas A. Ricci issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices. Exceptions to the Intermediate Report and supporting briefs were filed by the Respondent and the General Counsel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 130 NLRB No. 16. BORDEN-SANCKEN COMPANY 89 rulings are hereby affirmed . The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner , except as indicated below. The Trial Examiner found, inter alia, that Respondent had dis- criminatorily discharged employee Lee Roy Pennington on May 9, 1960, in violation of Section S (a) (3) or the Act. We do not agree with this conclusion. The record shows that Pennington was a truck- driver for the Respondent,, and spent most of his time driving a large trailer from the Augusta plant, here involved, to another of Respond- ent's plants, in Columbia, South Carolina . Prior to his discharge, Pennington was one of a number of Respondent 's employees who had signed authorization cards for the Union, the Charging Party herein, and, like many other employees , had been approached about the Union by Respondent's production manager, Leonard Crouch . During the second or third week in April 1960, Crouch told Pennington , "Well, we like your work, and we think you are a pretty good boy , and all that, and we would like for you to talk to these guys and try to get them to drop the Union ." Pennington replied that "it wouldn't be any use in me talking to them, because I had already signed up." On. Thursday, May 6, 1960, one of Respondent's office employees at the Columbia plant, Mrs. Jeanette Porter, heard a rumor from an- other employee that Pennington was planning to quit Respondent's employ.' Upon hearing this rumor, Mrs. Porter remarked that she was glad Pennington was leaving . Otto Cooper, Mrs. Porter's super- visor, asked her what she meant by this , whereupon Mrs. Porter re- vealed that several months before, in March 1960 , Pennington had come into the office at the end of one of his runs, and had unexpectedly taken hold of her and kissed her, against her will. Mrs . Porter's co- ofliceworker, Mrs. Bradley, was home ill that day, and Mrs. Porter, who was very upset, telephoned Mrs. Bradley to tell her about the incident . Mrs. Porter also told her husband, but did not tell anyone else. She stated that she felt very uncomfortable about this occurrence. As described above, Mrs . Porter related these events to Cooper on Thursday, May 6. The remainder of that day , and the next day, Cooper was away from the Columbia plant on other matters. How- ever, Friday evening, May 7, Cooper called Boatwright, the manager of Respondent's Augusta plant, at his home, and related the afore- mentioned incident to him. According to Boatwright, Cooper stated he was very disturbed about it and that he would like Boatwright to send a substitute driver to make the Columbia run until he had an opportunity to investigate the matter further. That same evening, 'The record does not disclose whether this rumor had any basis in fact. Pennington did work through the following Monday, when he was discharged by Respondent 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boatright called Crouch and arranged for a relief driver pending Cooper's further report. On Monday, Cooper called Boatright again, and stated that he had talked with Mrs. Porter that day. According to Boatright, Cooper said that "from the report that she gave him, . . . Penning- ton had used physical force in approaching her in the office during a time of the day when everyone else was at lunch. That she had re- ported it to her husband, and lie was very much upset, and he felt it would be to the benefit of all concerned if Mr. Pennington would not come back to the plant at Columbia." Mrs. Porter likewise testified that she had discussed this matter with Cooper again on Monday. After receiving Cooper's call, Boatwright instructed Crouch to dis- charge Pennington, which he did. The Trial Examiner credited Mrs. Porter, and found that Penning- ton had in fact kissed her against her will. Nevertheless, he found "significant" inconsistencies between the testimony of various of Re- spondent's witnesses as to the facts surrounding Pennington's dis- charge, and found further that the Porter incident was "revived" only because of Cooper's "unusual" curiosity. The Trial Examiner appeared to place some significance on the fact that Cooper himself was not called to testify, and concluded on the entire record that Pen- nington was not discharged for the reasons stated by Respondent, but rather for his activities in connection with the Union. As noted above, we do not agree with this conclusion. Pennington was but one of many employees who had engaged in union activities,2 and had not, prior to the May 6 to 9 events, been singled out by the Respondent for special treatment because of these activities. On May 6, Respondent learned for the first time that Pennington had kissed an employee in the Columbia office against her will, and that this employee felt quite uncomfortable as a result of the occur- rence. Pennington's main job was making the Columbia run, and Respondent's interest in this incident, at the very least, was under- standable. In our opinion, Cooper's inquiry of Mrs. Porter was not unusual, but was naturally aroused by Mrs. Porter's statement that she was "glad" Pennington was leaving. And, contrary to the Trial Examiner, we find no inconsistency between the accounts of this inci- dent given by Boatwright, Crouch, and Mrs. Porter. We fail to see how any significance can be placed on Cooper's failure to testify, as Respondent's counsel specifically pointed out at the hearing that Cooper would not be called because of his serious heart condition.' 2 In addition to signing a union card and attending several meetings , Pennington had delivered a package of union authorization cards to another employee at the Columbia plant However, there is no evidence that Respondent was aware of this 21n a related case, heard at approximately the same time as this, the same Trial Examiner granted Respondent a continuance because of Cooper's medical condition, and the particular importance of his testimony to that case. BORDEN-SANCKEN COMPANY 91 On the entire record, we are unable to conclude that Pennington's discharge was for union activities. To be sure, Crouch's extensive violations of Section 8 (a) (1), and his proven antiunion animus, arouse some suspicion with respect to the discharge by Respondent of a pro- union adherent. However, Pennington's discharge immediately fol- lowed Respondent's learning of his unwarranted activities in connec- tion with Mrs. Porter, and there is little if any basis in the record for concluding that his discharge was not for the reason advanced by Respondent. In our opinion, the General Counsel has not sustained the burden of proving discriminatory motivation for Pennington's discharge 4 We shall, accordingly, dismiss this allegation of the complaint. ORDER Upon the basis of the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Borden-Sancken Company, Augusta, Georgia, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their membership in and activities on behalf of Milk and Ice Cream Drivers and Dairy Em- ployees, Local Union No. 23, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1). (b) Inviting employees to sign antiunion petitions and to solicit other employees to sign such petitions. (c) Threatening employees with economic disadvantage in their em- ployment in consequence of continued union activities. (d) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to form, join, or assist Milk and Ice Cream Drivers and Dairy Employees, Local Union No. 23, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from engaging in such activities. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : 4 See, e.g., Dit-Mco, Inc., 127 NLRB 269; Laddie Coal R Mining Co., 122 NLRB 553. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its plant in Augusta, Georgia, copies of the notice at- tached hereto and marked "Appendix.'' s Copies of said notice to be furnished by the Regional Director for the Tenth Region, shall, upon being duly signed by Respondent's representative, be posted by Re- spondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places --here 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 any other material. (b) Notify the Regional Director for the Tenth Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that Reginald Wilson and Lee Roy Pen- nington were discharged in violation of the Act. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act as amended, we hereby notify you that : WE WILL NOT interrogate employees concerning their mem- bership in and activities on behalf of Milk and Ice Cream Drivers and Dairy Employees, Local Union No. 23, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, in a manner constitut- ing interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT invite employees to sign antiunion petitions and to solicit other employees to sign such petitions. WE WILL NOT threaten employees with economic disadvantage in their employment in consequence of continued union activities. WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to form, join, or assist Milk and Ice Cream Drivers and Dairy Employees, Local Union No. 23, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- BORDEN-SANCKEN COMPANY 93 tion, as guaranteed in Section 7 of the Act, or to refrain from engaging in such activities. All our employees are free to become or remain members of any labor organization. BORDEN-SANCKEN COMPANY, Employer. Dated----- ----------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Augusta, Georgia, on July 26, 27, and 28, 1960, on separate com- plaints (consolidated for purposes of hearing and decision) of the General Counsel and answers by Borden-Sancken Company, herein called the Company or the Re- spondent. The issues litigated were whether the Respondent has violated Section 8(a)(1) and (3) of the Act. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY Borden-Sancken Company is a New Jersey corporation engaged in various States, including the State of Georgia, in the processing and distribution of dairy products. Among its other locations, it maintains a plant and office at Augusta, Georgia, where it is also engaged in the processing and distribution of dairy products. During the past year, a representative period, the Respondent, in the course and conduct of its business operations at the Georgia plant, purchased and received shipments of goods directly from out of the State of Georgia valued in excess of $50,000. I find that the Company is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The record shows that Milk and Ice Cream Drivers and Dairy Employees, Local Union No. 23, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union or the Charging Party, is an organ- ization existing for the purpose of representing employees of this Company both in Augusta, Georgia, and at its other locations in other States, in collective bargaining with their employer, that it admits employees into membership, that it holds periodic meetings, and that one of its present effective collective-bargaining agreements on behalf of such employee-members is with another plant of this Company in another State. In a recent representation proceeding (Case No 10-RC-4671, not published in NLRB volumes), involving employees of the Augusta plant, the Board found the Charging Union here to be a labor organization Accordingly, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A picture of the case The Augusta plant employs between 150 and 175 employees, depending upon the seasons. Open activities toward joining the Union effectively began after April 1, 1960. As to earlier activities, all the record shows is that Wilson, a machine oper- ator, inquired among employees to learn which of them would be interested in a union and listed their names on a paper of his own. Authorization cards in favor of the Teamsters reached the plant on April. 1 or later; seven or eight union meetings were held, all after the cards had arrived; and many employees signed aut-orization cards and the record shows three or four of them to have been very active in obtain- 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing signatures of others . On April 6, 1960, the Union filed a petition with the Board for an election and the Company learned of it shortly thereafter. During April and May company supervisors discussed the union activities with many employees many times. It is a detailed allegation of the complaint that on a number of occasions these management representatives probed unlawfully into the individual desires or intentions of the employees , and coupled their expressions of opinion on the subject with illegal threats of retaliation for the purposes of dissuading them from their prounion resolve. Reginald Wilson was discharged on March 28 and Lee Roy Pennington was released on May 9. As to each of these the complaint alleges the Respondent was motivated in the discharge by a deter- mination to curb the union activities of the plant employees . In its answer the Respondent denies that any coercive statements were spoken by any of its repre- sentatives, and at the hearing it asserted affirmatively that both employees were discharged for cause entirely divorced from any concern with union activities. B. Interference, restraint, and coercion Leonard Crouch was the production manager over more than half the employees in the plant. He admitted that during the months of April and May he spoke on very many occasions with employees about the union activities that were going on. On behalf of the General Counsel, 11 employees gave their versions of a number of these conversations . Between the testimony of the employees and that of the super- visors, there is presented a direct question of credibility with respect to critical elements of the conversations. On relatively unimportant details of the many talks- such as dates, exact locations in the plant, what persons were present, and other generalities of conversation , there is no significant disagreement . On two most important aspects-those which would primarily support the complaint if the em- ployees testified credibly-Crouch and the other supervisors directly contradicted the testimony of the employees. The essence of the factual issues to be resolved are: (1) whether Crouch himself sought to learn of what the employees were doing about the Union or whether it was they who offered to keep him informed; and (2) whether they requested him to help them reject the Union or whether he, and others on behalf of the Company, undertook to prevail upon the employees to take steps against the Union. To a man, the General Counsel 's employee witnesses swore that it was Crouch, and on occasion lesser supervisors, who interrogated them on what their union sympathies were, whether they had signed authorization cards, why they sought to join the Union, or what they hoped to gain thereby. And some of them testified that Crouch, in addition to expressing his opinion that a union was not desirable, urged them to disaffect, to take steps to withdraw , to sign petitions to that effect, and to urge other employees to reject the union also. Some of these witnesses also said that in advising them to reject the Union, Crouch said they would suffer economic disadvantage if they persisted in their union activities or would gain by rejecting it. The pertinent testimony of the employees is as follows- 1. Herman Arrington Herman Arrington is a freeze operator . In the second week of April Crouch called him to the office and said "he knew what I was doing . He was surprised I taken that attitude." Arrington replied he would do all he could to bring the Union into the plant Crouch then said "it would do us more halm than it would do us good, and wanted to know why I wanted a union." In the third week of April Rossignol , district production manager from the Respondent 's High Point, North Carolina, office, called Arrington into Crouch 's office and wanted to know from him why the employees wanted a union . He told Arrington "I had hurt myself on advancement with the Company , because they didn't take any foremens [sic] or anything, from the Union ." On May 13, Crouch said to Arrington "I had hurt myself for promotion with the Company, because they didn 't take foremens [sic] out of the Union." And at the end of May Crouch told Arrington the Company was moving a cup machine to its Macon plant, and asked if Arrington cared to transfer to Macon to work on the machine there. Crouch also said to Arrington then : "We were going to lose more equipment if we got the Union in the plant, because it will put it in a different category and that they would move some more stuff." 2. Cleo Peterson Cleo Peterson is a Pure Pak operator . In the first week of April Crouch asked: "If I would talk to the boys and men in the plant and ask them not to join the BORDEN-SANCKEN COMPANY 95 Union. And he felt he could do more for us than the Union could.... He told me if I would not-wouldn't join the thing, that he would put me in charge of some- thing." Peterson testified that Crouch talked to him about the Union seven or eight times, always telling him it was a "bad union to get in." Peterson later did join the Union, and, in a later conversation, Crouch asked him to withdraw, and told him to sign some "paper" another employee was carrying about the plant to withdraw from the Union. On cross-examination Peterson effectively resisted the suggestion he had asked Crouch for help to withdraw, and reiterated it was Crouch who had asked him to quit the Union. 3. Margaret Newman Margaret Newman is a clerk technician in an office close to that of the production manager. For weeks during the month of April Crouch talked about the Union to her "day after day." He started in the first week of April, asking would the Union help her, did she want more money, and would she undertake to prevail upon other employees to withdraw from the Union. On May 1, he invited her to lunch and again started to discuss the Union. Here he asked whether she had signed a union card and when she said, "Yes," he asked, "Why." He asked her to speak to Miss Turner, a coworker, and persuade her to leave the Union. During that lunch con- versation he also told Newman she would find a writing on his desk and that she should copy it if she wished and circulate it among the employees. This was a pre- pared statement to the effect that those who signed regretted having joined the Union and no longer wished to be represented by it. 4. Vera Jones Vera Jones is an ice cream packer. She testified she was told she was a super- visor and in her work was responsible to see that four or five girls who worked with her "worked right"; she said she helped them, was paid more than they, and was expected,to report to the Company "anything of interest" about the five who worked with her. In mid-April Crouch "told me that he wasn't supposed to ask if I had signed a union card, and . I . . . told him that I had." She continued he then said: ". . . he was surprised at me, and that I had let him down . . . that he would like for me to talk to the other girls, Elsie, Jessie, and all the girls . ask them about the Union in general." In the second week of May Crouch asked had she "been thinking it over" and had she changed her mind. He told her he knew who was "behind the Union . . . who had started it." In mid-April, Rossignol called Jones into Crouch's office and said, "Was anyone in my family union?" He told her to think it over-to talk to others-that her work was good and well liked, and that others would listen to her. 5. Hazel Turner Hazel Turner is a laboratory technician, her office close to that of the production manager. She testified that "so many times" during April and May Crouch spoke to her about the Union On one occasion he asked "had I seen the letter that was going around the plant . . . had I signed the letter . our conversation was about the same every time we talked." On May 20, in his office, he asked why she had not come in to see him any more, "He said that was going to be my last chance. That whatever happened to me in the next few days, it was out of his hands." Later that same day he called her to his office again and said, "I would have another chance if I would go around the plant and talk to other employees, and tell them I was not for the Union." Crouch then also told Turner, "He would try to help me. Because if I did not, whatever they put me on, I wasn't going to like it." 6. Alonzo Murray Alonzo Murray operates a special ice cream maker. On May 1 Crouch asked what did he think about the Union, asked had he signed " a union card," and said it could not help him; Murray replied he was 100 percent for the Union. Crouch then told Murray to think about his family, and to go to Zack Ware, another em- ployee, who had a petition against the Union, and to sign it. Crouch then also said: "If I signed the union card, if the Union wouldn't come in, that I wouldn't lose my job. If I signed the card against the Union coming in. If the Union didn't come in, I wouldn't lose my job." 7. Thomas Blount Thomas Blount worked 10 years in the ice cream department . On May 16, Crouch asked him had he signed a union card and Blount replied, "Yes." Crouch then spoke of a "letter," and asked Blount ". . . would I sign it ... would I take a 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stand for the Company." He also said "the Company could do more for me than the Union." Crouch did not have any petition in his hand but told Blount he should see Zack Ware, who would let Blount read the letter. 8. Charles Sanders Charles Sanders is a receiving clerk. He testified that toward the end of March Crouch asked him had he signed a union card, and he replied, "Yes"; Crouch then said, "The Union is nothing but a bunch of gangsters." In mid-April Crouch again told Sanders the Union was "only gangsters . he didn't know why we wanted to get them in when we could get what we wanted from the Company. . He said that he couldn't but I could get up a petition saying that we didn't want the Union in the plant, and get the boys to sign it." In mid-May Crouch spoke to Sanders as follows. "He said that there would be no unions come to the Borden plant. If they did come, there would be layoffs, and that he was going to have to get rid of the Borden tanker and that would leave Clark out of a job, and he said the Union would cause a lot of that." 9. Thomas Thigpin Thomas Thigpin is a shipping clerk; he said he was considered an assistant super- visor. Thigpin testified that toward the end of April Crouch asked him "how much influence I had on the boys," and that he should "talk to those boys to get them to vote against the Union." 10. Graham Clark Graham Clark is a milk pickup tank routeman. Sometime in mid-May Crouch said to him: "1 just want you to know no union is coming in our plant if we can help it . . . you have got more to lose than anybody." As stated above, Crouch admitted that he discussed the Union with these employees during this period, indeed that he did so with them on a number of occasions and with other employees also. He also admitted that as to the employees who testified, as well as with respect to others who did not appear at the hearing, he discussed with them the "paper," or "letter," or "petition," which was being circulated about the plant as a document intended to identify those employees who rejected the Union. He even said he advised a number of employees as to the identity of the employee who had it available for others-Zack Ware. And, finally, there is no question on the record as a whole that the production manager unhesitatingly communicated to many employees his belief that this Union would be of no value to them and ought not be brought into the plant Thus, in reply to a question by Respondents counsel on whether Crouch in fact told Sanders that this Union was "a bunch of gangsters," he replied- "He asked me what I knew about the Union, and I informed Charles that what I knew about the Union was very little. All I knew was what I read in the papers. That I had felt that our company did not need a union and particularly not this particular union; since from what I read in the papers it had been disbarred among themselves, the AF of L and CIO had not accepted them, and that was the statement that I made. . . Crouch consistently denied, however, that he ever voiced any threat of any kind to an employee, including specifically each and every one of those who appeared as wit- nesses. He also denied, uniformly and without variation, that he ever asked any one of them whether he had joined the Union or whether he was sympathetic to it. His testimony is that in every instance it was the employee who first broached the subject to him. Thus he said four of them-Arrington, Peterson, Murray, and Sanders- came to him and asked what he thought about the Union As to six witnesses-Peter- son, Newman, Turner, Murray, Blount, and Sanders-Crouch recast their stories into a die-like pattern that each of them came to him and said that he had joined the Union, that he wanted Crouch to know it, that he regretted having done so, that he now wished to undo the act, and that he desired Crouch to assist to this end. He denied in each instance that he suggested they withdraw from the Union, asked them to sign any petition or paper to that effect, or advised them to do so. He did say-and here again his testimony followed a fixed pattern in each instance-that he told them how they could give voice to their change of heart by informing them that an anti- union petition was available. It was here that he admitted having told some of the witnesses which employee they should seek out in order to sign the appropriate "paper." Crouch's only reference, while testifying, to Vera Jones and Thomas Thigpin was that both of them are supervisors; as to Jones, he denied he voiced any threat to her or suggested she pass threats on to others. BORDEN-SANCKEN COMPANY 97 The consistent accord and virtual corroboration in the extended and detailed testimony of the Government witnesses makes their stories persuasive and credible. While saying that Crouch brought up the subject of the Union to them on many occasions during April and May, they also candidly admitted that, quite apart from inquiries, threats, and requests to resign, there was much give and take on the merits of unions generally. It is to be expected, therefore, that their extended testimony of multiple conversations should reveal some hesitancy on minor details, some con- fusion as to the precise dates and specific locations in the plant relating to some of the many conversations, or that cross-examination should reveal slight deviations on details from their direct testimony. The substance of their stories, however, con- sistently held firm; they were clear, direct, and unshaken on the essential burden of their sworn testimony that it was Crouch who continuously broached the subject of a union to them, who urged them to disaffect, to take steps to withdraw, and to attempt to prevail upon fellow workers to do likewise, and who continuously inquired as to how they felt and whether or not they were among those who had taken steps to join the Union. Against all these witnesses, I find Crouch's testimony unreliable and therefore I do, not credit his denials. There is presumptive improbability in his story that each and, every time he spoke of the Union to any employee it was always the workman, who raised the subject for discussion with him. No doubt in a plant this size there are occasions when individual employees-particularly senior men who are more friendly with management-will ask the opinion of a supci visor or an old friend on the question of self-organization Crouch, however, countered the direct testimony of seven employees, each of whom charged him with inquiring and instructing them how to act. He said four of them simply wanted his guidance; he added six of' them asked his help in getting out of the Union. I could believe that some might do this; some might ask his opinion; and some might ask him how to go about implementing a change of mind. But that all could behave exactly alike is too implausible a statement for me to accept against the more natural explanations of- the employees themselves. Among the more disquieting aspects of Crouch's testi- mony are the almost refrain-like phrases with which he mechanically set into a fixed and unvarying pattern the critical portions of his conversations with Peterson, Newman, Turner, Murray, Blount, and Sanders. Careful reading of these paragraphs from the record transcripts strongly suggest well-rehearsed testimony and lack of- full candor Moreover, at certain points in his testimony Crouch virtually admitted that his, interest went beyond merely helping an individual employee who might have come to him for help. It appears quite clear, at least with respect to two of the employee- witnesses, that he did tell them to go out among the others and attempt to prevail upon them to sign the antiunion petition being circulated throughout the plant. "When Hazel [Turner] asked me what she could do to undo what she had done by signing the union card, I told her that I had heard that this petition was circulating. That if she wanted to sign it, that may help; and if she heard of anyone else that was wanting to get out of the Union, that she might [sic] could pass that information on, to them " Again "In discussing it with Thomas Blount, as I did on several occa- sions, about the Union, and after he indicated to me that he wanted to get out of the Union, he felt very strongly against it, I said, `Well, Thomas, you can just convey your thoughts and tell your friends how you feel, if you so desire, for the Union or against the Union. whichever one you feel is the stand that you take."' And in the case of Margaret Newman, the clerk whose work placed her in an office immediately adjacent to his own, Crouch said it was he who first suggested she reduce her new antiunion frame of mind to writing, and that he offered to write "a sentence or two" for her convenience He explained all this at the hearing by saying Boatright, the plant manager over Crouch, had prepared the statement before Crouch took Miss Newman to lunch, and while denying he "asked" Newman to. sign the "paper," he admitted telling her she would find it on his desk and "I told her she could copy it " He described it as a document "simply stating that since signing the union card, I have had an opportunity to think the situation thiough• and feel that I do not wish to participate in any union activities." In view of all of the foregoing, added to my personal observation of the demeanor of all the witnesses, and on the entire record, I find that Crouch's conversations with the employees during the months of April and May occurred substantially as reported by the employee witnesses themselves. He interrogated them systematically in an effort to learn how they felt individually; he told them he desired that they reject the Union and asked them to sign a document saying so. He even asked that they help his antiunion campaign by passing the word along to others. With_ 597254-01-vo1 130-8 '98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this as the underlying framework of his talks with them, I find equally credible their testimony that on occasions he went further, and, in more ways than one, gave them to understand they would gain economically if they followed his advice, and, con- versely, lose if they chose to ignore it. This being the pattern of behavior set by the production manager himself, during the period of intense organizational activi- ties, I also credit the uncontradicted testimony of Arrington that the district pro- duction manager, Rossingnol, said the employee had hurt his chances of advance- dnent with the Company by his union activity. In addition to the testimony of Crouch, directly contradicting the General Coun- sel's employee witness, the Respondent offered the testimony of a number of other plant employees in support of its contention that the Government witnesses ought not to be believed These employees testified generally that no coercive statements had been made to them, that they had heard of no inquiries or threats by any members of management, and that they believed the employees were always free to act at will in their union activities. One of them, however, testified the employ- ees were under the impression that Wilson, discharged on March 28, had lost his job because of his union activities. Apart from negative statements, the testimony of these witnesses generally is a matter of opinion and I have no reason to discredit them. I do not, however, deem their testimony persuasive reason for rejecting the otherwise credible and plausible sworn testimony of the nine employees called by the General Counsel. The test of legality in a Respondent's conduct under this statute is not to be found in evidence of its effect, but arises instead from appraisal of its necessary and natural tendency to restrain and coerce employees in violation of the statutory ban 1 Particularly does this principle apply where it appears that the coercive conduct of the manager was very widespread, and in no sense isolated.2 And logically, of course, lust as the testimony of one employee-to the effect that people believed Wilson to have been unlawfully separated-cannot serve to prove an illegal discharge, nor constitute partial evidentiary indication supporting the inference sought by the General Counsel with respect to him, even so the opinion and negative testimony of some employees cannot offset the positive and direct evidence offered by others. In finding that Crouch committed violations of Section 8(a)(1) attributable to the Respondent, I do not rely upon his conversations with Vera Jones and Thomas Thigpin The Board had occasion to consider the status of shipping clerks employed in this plant in its Decision and Direction of Election issued on July 20, 1960 (Case No 10-RC-4671), and found them to be supervisors within the meaning of the statute. Thomas Thigpin having identified himself as a shipping clerk, I therefore consider statements between him and Crouch to be conversations within manage- ment, not shown to have communicated to rank-and-file employees, and therefore not properly the basis for unfair labor practices findings. Vera Jones also said she -was a supervisor at the time of these events. While the evidence of her supervisory status is not clear and definitive, I believe it sufficient in this case to warrant my excluding from all considerations any of her testimony. The Respondent makes the further contention that no unfair labor practice find- ings may be based upon the testimony of Margaret Newman, the clerk, on the ground that she is a "confidential" employee within the meaning of that word as defined in decisional Board precedent. This argument of the Respondent rests upon two predicates- (1) that Newman is in fact a confidential employee; and (2) that legally an employer cannot violate Section 8(a)(1) of the Act in his conduct toward a confidential employee. I do not reach the second of these propositions because I find, on the total record, that Newman was not shown to be a confidential -worker For proof of Newman's confidential status, the Respondent's counsel points pri- marily to the Board's decision of July 20, 1960, which he asserts, makes such a finding as to her. He misreads the Board's ruling there, which does no more than group Newman with other plant clericals and excludes her from the bargaining unit on that basis alone. As to the evidence in this record concerning Newman's duties, it shows that she works for the most part as a clerk keeping production records. i TLme-O-Matic, Inc v N.L B B., 264 F. 2d 96 (CA. 7), enfg. 121 NLRB 179, where the court said • " . . the test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act " 2 in view of the extensive interrogations and threats voiced by the production manager in this case, the Board citations upon which the Respondent's counsel relies in his brief, all relating to instances of only isolated coercive remarks, are inapposite. BORDEN-SANCKEN COMPANY 99 She works for Crouch who is the production manager; she handles production records on milk and letters from other companies . When Crouch is out of town, she opens his mail for him. In addition she does what Crouch called ".personnel" work; this includes accepting and filing applications for employment, and calling applicants to come in for interviews when Crouch so desires. She also handles company records through Crouch 's office relative to raises , hirings, and discharges. These facts do not suffice to show that Newman "determines, formulates, or effectu- ates management policy in the field of labor relations or assist anyone who does." 3 Accordingly, I find that by Crouch's conduct, and, in one instance, by the statement of Rossignol, the Respondent violated Section 8 (a)( 1 ) of the Act. I find each of the following incidents to constitute separate acts of illegal restraint and coercion: 1. Crouch's interrogation of Newman , Murray, Blount, and Sanders .4 2. The following threats and or promises of benefits : Crouch's statement to Ar- rington that the Union would do him more harm than good and that the employee had hurt himself by favoring the Union because the Company would promote no union employee to a foreman position ; 5 Crouch's statement to Turner that he was giving her a last chance to sign an antiunion petition and that whatever happened" to her in the next few days was out of his hands; his statement to Murray that if the employee signed the antiunion petition he would not lose his job ; his statement to Blount that the Company would do more for him than the Union ; his statement to Sanders that the employees could obtain what they wanted from the Company with- out a union, and that thel would be layoffs if the employees chose a union , Crouch's statement to Clark that he had more to lose than "anybody" if a union came into the plant; and his statement to Arrington that equipment would be removed from the plant if the Union came in. 3. Crouch's request that Peterson, Turner, Murray, and Blount signed the anti- union petitions 4. Crouch's requests to Peterson, Newman, and Turner that they solicit other employees to sign the antiunion petitions.7 5. Rossignol's statement to Arrington that he had hurt himself by joining the Union. C. The discharge of Reginald Wilson Wilson joined the Company in 1959 and worked for 3 years operating a Pure Pak machine, which automatically makes wax containers, fills them with milk, and pre- pares them for delivery . Wilson testified , without contradiction , that sometime dur- ing the first or second week of March 1960 he conceived the notion of bringing the Union into the plant and went among the employees jotting down the names of those who would be interested in doing so. This is the total extent of the union activities among any and all the employees of the plant shown on this record to have occurred before April . There is no direct evidence that Wilson's activity in March came to the attention of any representative of management. He was discharged on the morning of March 28, a Monday . Several days later, at the earliest on or after April 1, he received a supply of authorization cards from the Union for distribution, and proceeded to approach individual employees in large numbers and successfully solicited from 30 to 50 signatures. He delivered other cards to various employees for further distribution , including Pennington, who took them to the Columbia, North Carolina, plant of the Company for use there. The Union held a number of meetings among the employees in a union hall several blocks from the Augusta plant. These meetings started during the first week of April and five or six were held the subsequent weeks. There were no meetings before the first week in April. When Wilson arrived to work on Monday, March 28 , Shelton, his immediate super- visor, told him not to work until his machine could be inspected . With Greene, the 3 Lilliston Implement Company, 121 NLRB 868. 4 Blue Flash Express, Inc., 109 NLRB 591; Spartanburg Sportswear Company, 116 NLRB 1914. 5 The Respondent's argument that the statute accords an employer the privilege of re- quiring its supervisory staff to refrain from union activity, cannot serve to excuse or explain the threat reasonably implicit in the production manager's statement, repeated by the district production manager, to Arrington . It is enough for an employer to tell an employee that the company' would be more favorably disposed toward him in his employ- ment if he abandons the union , to constitute a threat of reprisal prohibited by law. Mautz Paint & Varnish Co., 117 NLRB 496, 506. 0 See, The Juvenile Manufacturing Company, Inc., 117 NLRB 1513. 7 Firedoor Corporation of America, 127 NLRB 1123 ( Alvin Zeleznick). 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant engineer, Shelton then inspected the machine, concluded that it had not been properly cleaned, and reported his opinion to Production Manager Crouch. Together they spoke to Wilson, first at his machine and then in Crouch's office. Crouch said he could no longer trust Wilson on the Pure Pak machine and discharged him. Wilson testified Crouch did not explain what he meant by "trust"; Crouch said he specified Wilson's neglect of duty in not keeping the machine clean. I do not believe the General Counsel has sustained the burden of proving by a preponderance of the affirmative evidence in the record as a whole that the Respond- ent discharged Wilson because of his concerted activities or to implement on overall policy of coercing its employees generally from their resolve to join the Union. On this aspect of the case he urges strictly a pretext theory, that any deficiency in Wil- son's work performance at that time was advanced by the Respondent only as a cloak to hide its real and illegal antiunion motivation. In turn the Respondent, in support of its affirmative defense that Wilson was discharged for just cause, introduced the following evidence in explanation of the discharge. Concededly part of Wilson's responsibility included absolutely clean maintenance of his machine; time for such cleaning up was included in his scheduled paid work. Shelton, the supervisor, testified that he warned Wilson of not cleaning his machine properly several times before March 28. He said one occasion was the beginning of the month, and another a week or so before the discharge. He said he spoke to Wilson on the immediately preceding Thursday and learned Wilson had used the, service of a general cleanup maa about the plant-one Charles Lawrence-and had paid Lawrence to do the cleaning for him. The Respondent also showed that some time early in February there had been trouble with overflow of wax from the various machines in the plant, with the result that a sewer in front of the plant was stopped and the authorities of the city of Augusta complained to the Company. It introduced into evidence a letter, again from the city authorities, dated March 22, also com- plaining about accumulation of waste wax in the building outlet. The company witnesses testified the error in overflow of wax was traced to Wilson's machine, that Wilson had been told it was his duty to clean a wax trap near his machine, and that he had refused to assume that responsibility. Shelton also testified that on the Sunday immediately preceding the discharge, during his usual Sunday morning, inspection of the plant, he found Wilson's machine not in proper, clean condition. Some of this direct testimony about his workmanship Wilson admitted to be true. He conceded that on Thursday before his discharge the supervisor criticized him for using someone else to do his cleaning, and warned him about the condition of the machine. He also admitted that on his machine there is an overhead safety valve to guard against overflow of wax when the machine is closed; he said he knew it was his responsibility to keep it closed, and that it was his failure to shut the valve that on one occasion had caused an overflow. Wilson denied, however, that he was ever told his duties included cleaning the wax trap near his machine; he said this work fell upon the cleanup man, Lawrence, and then added this too no one ever told him but he inferred it from the fact he had on occasion seen Lawrence clean wax traps. He also denied flatly he had ever been warned of failure to clean his machine at any time before the Thursday preceding the discharge. On whether his machine was or was not clean on Monday morning, March 28, Wilson and Shelton disagreed flatly. Wilson said he did a good job cleaning Saturday when he finished his milk run for the day. Shelton said he found it dirty Sunday morning and again Monday before work. As in all cases of this type, the burden is not upon the Respondent to establish to the Board's satisfaction that Wilson was in fact discharged for neglect of duty. Rather, it is the duty of the General Counsel to establish that in fact the man was fired because of his union or concerted activities. Pointing to an inference of illegal, motive, according to the General Counsel, are these facts: Wilson spoke of the Union to a number of employees before his discharge; the Respondent, through the wide- spread activities of the production manager in April and May, revealed an anti- union policy; Crouch said to Margaret Newman, long after March 28, he should have discharged Wilson a month earlier, and to Vera Jones on May 2 that he knew who started the Union. In the light of the total record, I cannot find from these facts that the Respondent knew, before March 28, that Wilson was engaged in union activities at all. By the time Crouch admitted knowing who "started" the union activities, Wilson had embarked upon and was carrying on open and widespread dis- tribution and solicitation of union cards, all after his discharge. A number of union meetings had been held, also beginning only after April 1. Moreover, Crouch's remark that he should have released Wilson sooner contains no reference to union activities and is equally consistent with the Respondent's assertions that Wilson had neglected his duties in the beginning of March and even earlier. All there really BORDEN-SANCKEN COMPANY 101 is here to support the complaint allegation is that Wilson made preliminary inquiries among the employees-conduct about which it does not appear company representa- tives ever learned-and that Crouch was disposed to curb union activities even to the point of resorting to illegal measures. Against this is the fact Wilson was careless to some extent in his work. He neg- lected to close the safety wax valve, a conceded responsibility of his, and he ignored the wax trap on his machine although, as he himself admitted, he had insufficient reason to assume it was someone else's responsibility. Further, right or wrong, he was warned a few days before the discharge about dirt in his machine. I deem it unnecessary to decide the particulars of whether early in March Super- visor Shelton in fact warned Wilson of neglect, which Wilson denied. Considering the fact new valves were attached to the Pure Pak machines that very spring and the Company generally had difficulty with them, I deem it equally unnecessary to re- solve precisely to what extent Wilson may have been responsible for difficulty with wax in the traps or in the sewers. In view of the absence of any substantive evidence to show that the Respondent was aware of Wilson's union activities when it dis- charged him, and the fact of some proof of proper cause having been adduced, I conclude that the record as a whole does not support the complaint allegation of illegal discharge as to Wilson. At best, Crouch's antiunion animus after March 28 might give rise to a suspicion of bad faith earlier. But suspicion is not enough. Even were I to believe Peterson's testimony, which Crouch contradicted, that shortly after the discharge the manager said, "Reginald would play holy hell getting a job in August," I would have to strain unreasonably to hold that a case has been proved "by a preponderance of the evidence." 8 Accordingly, I shall recommend dismissal of this allegation of the complaint. D. The discharge of Lee Roy Pennington Pennington worked for the Respondent for about 2 years as a transport driver; he drove a large trailer with ice cream and other dairy products from the Augusta plant to Columbia, South Carolina, and Savannah, Georgia, making three or four trips weekly to Columbia. No question was raised as to the quality of his work or his desirability as an employee throughout the 2 years. Pennington was one of the first to sign a card in favor of the Union on or about April 1. He attended a number of union meetings during that month, and was used by Wilson to carry authorization cards to the Columbia plant for use by employees there in furtherance of the union campaign. Pennington testified that sometime in the second or third week of April Crouch called him into the office and started to discuss the Union with him. According to Pennington, Crouch "referred to the Union; if I knew anything about it; so I asked him what he meant, and he said, `Well, we like your work, and we think you are a pretty good boy, and all that, and we would like for you to talk to these guys and try to get them to drop the Union,' and then I told him it wouldn't be any use in me talking to them, because I had already signed up." Crouch denied having spoken of the Union with Pennington at all in the conver- sation in his office. He said all they discussed was the possibility of the Company hiring a relative of Pennington. Crouch expressely denied learning about Penning- ton's union activity at that time, or having asked him to appeal to others to dis- continue theirs. Consistent with my credibility resolutions above with respect to the production manager's widespread activities among many employees in his campaign to coerce them out of the Union, I credit Pennington's testimony here and find that Crouch inquired of him concerning the Union, learned he had joined, and attempted to en- list Pennington's aid in his antiunion campaign, only to be confronted with the employee's refusal and determination to continue his union membership. In a real sense Pennington's testimony as to Crouch's attempt to enlist his aid in combatting the union activities of the employees generally is corroborated by the extensive testi- mony of the many other employees who testified in support of the complaint. The clearest thing shown by this record is Crouch's determination to stamp out the Union and to use any employees he could persuade to assist him. On May 9, Pennington was called into Crouch's office and discharged. As Pen- nington recalled, Crouch said the reason was for "abusing a woman in South Caro- lina," and when he asked whether this meant in the office or the town, Crouch said the decision to discharge was final regardless of whether Pennington would say "it is true or not." According to Crouch, he told Pennington of complaints from 8 Glen Raven Silk Mills, Inc., 101 NLRB 239, enfd . as mod. 203 F. 2d 946 (C.A. 4). 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Columbia of an "attack" upon a young lady there; and Pennington replied that the young lady involved had more or less encouraged him to "go home or to lunch with her." Pennington, in turn, denied Crouch said anything about a report from the other plant or that any woman was "very much upset." As in the case of Wilson, the Respondent asserts that Pennington was discharged for cause unrelated to union activities, in this instance an improper gesture of affec- tion toward a Mrs. Porter, an office employee at the Columbia plant. Unlike the question presented by the record with respect to Wilson, however, it would appear that if in fact Pennington is not shown affirmatively to have been discharged for this reason, the evidence as a whole amply warrants a finding that the Respondent discharged him to rid itself of a prounion employee as part of the pattern of Crouch's illegal campaign against the Union generally. Restated, a prima facie case in sup- port of this complaint allegation is made out by the record. He was active on be- half of the Union and Crouch learned of his attitude in mid-April . Crouch asked him to campaign against the Union, to talk to others in an effort to persuade them to "drop" the Union . Pennington refused the manager's request. Nothing occurred between the time of this defiance toward management on May 9 otherwise to ex- plain the sudden discharge; the quality of his work performance is not shown to have changed from what the manager had only recently said was good: "We think you are a pretty good boy." When to all this is added the clearly established anti- union animus of the plant manager during the very period involved , the conclusion of illegal motivation is inescapable. Turning to the incident which the Respondent now contends was its real reason for releasing Pennington , I think the testimony of Mrs. Porter, the Columbia plant employee, must be believed and warrants a finding, which I make, that sometime in March, 2 months before the discharge , Pennington kissed her against her will. He regularly appeared several times weekly at Columbia with a delivery and ordi- narily was checked out at the office before departing with his truck . Mrs. Porter testified that one day in March he came to the office to have his departure papers signed before returning to Augusta. She was alone in the office about 1 p.m. be- cause the other office girl , Mrs. Bradley , had been taken home ill. Pennington entered and said he just had time to kiss her goodby before leaving. Unexpectedly he came near her and she tried to push him away, but, as she said: "He held me and kissed me." Mrs. Porter added Pennington never before or since made any improper advances toward her. She concluded her testimony on this incident by saying she mentioned it to Mrs. Bradley, the other office girl , and to her husband , who "did not like it, naturally." She never thereafter mentioned the incident to anyone, until May 5, when the Columbia plant manager, Cooper, inquired of her. Pennington denied he kissed Mrs. Porter , or ever said anything out of turn in her presence . He even said he did not know who Crouch was talking about on May 9. However, after flatly stating he never did learn what lady was involved, he conceded telling a Board investigator that Mrs. Porter had asked him to lunch. At best his testimony on the subject of Mrs. Porter is confused and cannot serve to discredit her. On this credibility issue, of course, I weigh heavily the fact Mrs. Porter, a married woman, would not likely offer this testimony were it not true. The main issue in this affirmative defense is not whether Pennington kissed a lady 2 months before the discharge , but whether Crouch and Boatright are to be believed when they say he was discharged for that reason . Their assertion of such conclusion apart, the evidence on this critical point leaves much to be desired. Boatright, plant manager at Augusta, testified he received a telephone call at home the evening of Friday, May 6, from Cooper, the Columbia plant manager. Accord- ing to him, Cooper said "he had had a report regarding Mr. Pennington which disturbed him very much," and he did not want Pennington to return to Columbia "until he [Cooper] had an opportunity to investigate the report." Cooper con- cluded this telephone talk, still according to Boatright , with saying "he would call me back as soon as he could make the investigation that he wanted to make." Boatright went to to testify that Cooper called him again the following Monday afternoon and "told me that he had not been able to see the lady on Saturday, but that he had seen her Monday morning and had inquired, and from the report that she gave him , which was to the effect that Pennington had used physical force in approaching her in the office during a time of the day when everyone else was at lunch That she had reported it to her husband, and he was very much upset, and he thought it would be to the benefit of all concerned if Mr. Pennington would not come back to the plant at Columbia." Boatright ended his testimony by saying he thereupon decided to discharge Pennington and called Crouch to inform him of the decision. BORDEN-SANCKEN COMPANY 1 03, It is clearly the Respondent's position that the decision to discharge Pennington was made by Boatright alone. Crouch corroborated the plant manager only by confirming the fact Boatright told him to release Pennington permanently, which he did. There is irreconcilable, and, I believe, highly significant discord between Boat- right's story of what Cooper did at Columbia, and Mrs. Porter's testimony of her conversations with the Columbia manager. After making it quite clear that but for her office mate, she never mentioned the Pennington incident to anyone, Mrs. Porter testified that early in May she heard a rumor that Pennington was about to resign from the Company, and she and Mrs. Bradley expressed the thought they were glad he was leaving. She then said that on Thursday, May 5, Cooper "asked me why-he couldn't understand why we were glad he wasn't coming back, and he had heard something and he asked us about it and I told him . . . that he came in and held me and kissed me." Mrs. Porter also testified that on Friday Cooper told her he was going to call Boatright, and again on Monday told her Pennington had not resigned but was going to be discharged . She concluded her testimony with the definite statement that she added nothing, in her talk with Cooper on Monday, that she had not already told him the previous Thursday. I have no reason to discredit any of Mrs. Porter's testimony, for she was an impartial witness; certainly she evinced less interest in the outcome of the proceeding than did Plant Manager Boatright. But if Cooper learned all he could, or ever did learn from Mrs. Porter about Pennington as early as Thursday, May 5, what possible "investigation" could he have planned Friday evening and completed the following Monday? Boatright quoted Cooper as saying on Monday that he had that very day "seen her" and "from the report that she gave him" concluded Pennington was undeserving. The fact is he learned nothing from Mrs. Porter at all that day, he made no investigation , he was fully informed even before the Friday night call to Boatright. Unless I am to assume Cooper fabricated a complete chain of events and lied outright to Boatright on the telephone, I must conclude he did not say the things Boatright put in his mouth, the things which , according to the Respondent, constituted the very basis for Pennington's discharge. Cooper, in the best position to testify about the Company 's concern with Mrs. Porter's alleged "complaint," and the officer who really-if the Respondent 's true contention be analyzed-set in motion the forces leading to Pennington 's separation, was not called to testify, although he was well enough to carry on his duties as plant manager during the heanng. I cannot discredit a person who did not appear as a witness . Since, on the basis of testimony by the Respondent 's own witness, the things Boatright said he learned from Cooper could not have happened , I do not believe Boatright's testimony of the alleged conversations with the Columbia manager . Moreover, with so serious a doubt cast upon the very report advanced as the basis of the discharge, the entire affirmative contention of "proper cause" in the Respondent's action becomes questionable. But there is more in the record indicating that Respondent was not in fact con- cerned with the March incident as reason for releasing Pennington. To start with, it was not Mrs. Porter who raised the issue at all; she never offered to inform on Pennington . It was Cooper who went probing into her passing expression of satisfaction at Pennington's rumored departure. She even said, about the man- ager's questioning her, "it was unusual . to ask me unless he had heard, I mean, the way that he did." There is no indication, nor is it contended, that any repre- sentative of the Company ever heard anything on the subject except from Mrs. Porter's lips. There was no truth to the rumor , the Respondent does not claim otherwise, and it remains unexplained on the record . Further, Boatright's testimony clearly reveals a studied attempt to magnify the incident entirely out of proportion from what Mrs. Porter's testimony shows she ever conveyed to the Company. She said only the man kissed her against her will. As allegedly reported by Cooper to Boatright, this became a complaint by Mrs. Porter that her husband "was very much upset," and then an accusation by Crouch to Pennington "that he had at- tacked this young lady." It even grew to Crouch's testimony that he told Pennington the Columbia manager was fearful of Pennington's very safety at the other location. Instead, all indications are that so far as Mr. and Mrs. Porter were concerned all this was done and forgotten 2 months earlier and was only revived because of Cooper's "unusual" curiosity. With Boatright's testimony thus shown to be unreliable, I cannot know what really transpired between the two plant managers; if I cannot credit Boatright's testimony relative to these conversations , I cannot believe his conclusionary state- ment as to what he had in mind when he made the decision to discharge. I find, on the total record, that the Respondent has not shown Pennington was released for 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause, as it urged in affirmative defense. I do not credit Boatright's assertion on this score. On this aspect of the case the Respondent's brief is largely a criticism of Penning- ton's conduct toward Mrs. Porter on that day in March and of his credibility as a witness .9 I certainly do not condone this kind of behavior, even assuming, as the entire record does seem to indicate, that in this instance it may have been inno- cently motivated. The issue here, however, does not turn upon the social mores of the times, at least not when there is affirmative and probative evidence of a direct violation of congressional enactment. As the Board has consistently held, with court approval: "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause " 10 On .the entire record I conclude that the Respondent used the March incident of which Mrs. Porter spoke as a pretext to cover its true motive, which I find was to discourage Pennington's union activities and a retalia- tion for his refusal to agree with the plant manager's request that he persuade other employees to discontinue their union activities. By the discharge the Respondent violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that the Respondent discriminated against Lee Roy Pennington with respect to his hire and tenure of employment, I will recommend that it offer him immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to his seniority or other rights and privileges. I will also recommend that it be ordered to make him whole for any loss of earnings he may have suffered because of the discrimination against him by payment of a sum of money equal to the amount he normally would have earned as wages from the date of the discharge to the date of reinstatement, less his net earnings during the said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amount due on this recommended remedy. As the discharge of an employee because of his union activity goes to the very heart of the Act, the commission of similar and other unfair labor practices reasonably may be anticipated, I shall recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Borden-Sancken Company is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2 Milk and Ice Cream Drivers and Dairy Employees, Local Union No. 23, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3 By discharging Lee Roy Pennington the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 9 It is true Pennington held back at the hearing about the March Incident. Just as Mrs Porter's silence for 2 months is no reason to discredit her as to the event, Penning- ton's denial, in the total circumstances, does not require rejection of his testimony that Crouch asked him to help break the Union. I can understand his being ashamed in retrospect In any event, as stated by the court in N L R B v Universal Camera Cor- poration, 179 F. 2d 749: "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all " 10 Solo Cup Company, 114 NLRB 121, enfd 237 F 2d 521 (C A. 8) COLONY MATERIALS, INC. 105 4. By the foregoing conduct, by interrogating employees concerning their mem- bership in and activities on behalf of the Union , by inviting them to sign antiunion petitions and to solicit other employees to sign such petitions, and by threatening employees with economic disadvantage in their employment in consequence of con- tinued union activities, the Respondent has interfered with, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendation omitted from publication ] Colony Materials, Inc. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 492. Case No. 33-CA-635. February 10, 1961 DECISION AND ORDER On September 28, 1960, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions. We find in agreement with the Trial Examiner that the Respondent is the successor employer of the business formerly operated by Ken- neth Pike, d/b/a Ken Pike Ready-Mix Concrete Company, and as such was obligated to bargain with the Union. The Union had been certified as the exclusive representative of Pike's truckdrivers and laborers less than a year before the Respondent purchased the plant, equipment, and good will of Pike's business, and continued its opera- tions. On March 31, 1960, Pike terminated all his employees and turned over his business to Respondent. The next day, the Respond- ent commenced operations. A substantial number of employees ter- minated by Pike were hired by Respondent while other employees were newly hired. Despite the contentions of the Respondent, we find that no substantial changes in operation, supervision, or in the duties of the employees were effected. It is well settled that a Board certification must be honored for a reasonable period, normally 1 year, in the absence of unusual circum- 130 NLRB No. 11.