Ainsworth Manufacturing Co.

AINSWORTH MANUFACTURING COMPANY, ETC. 273 Ainsworth Manufacturing Company, Springfield Division of Precasco Corporation and International .Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO. Case No. 26-CA-964 (formerly 10-CA-4403). April 26, 1961 DECISION AND ORDER On September 19, 1960, Trial Examiner Leo F. Lightner 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. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed as to such allegations. These findings, conclusions, and recommendations are more fully set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Charging Party and the Respondent filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. 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 entire record in this case, including the Intermediate Report, the exceptions and the briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner except as modified herein.' 1. The Trial Examiner found that about January 3, 1960, Plant Comptroller William L. Coleman asked employee Dorris if she had signed a union membership application card, and that she -said she had. He also found that Coleman mentioned to Dorris "some of the things that had been going on about the union" and told her who had been attending meetings. However, he recommended dismissal of allegations respecting the Respondent's creation of an impression of surveillance in violation of Section 8(a) (1) of the Act. 1 The Charging Party contends that the Trial Examiner should have found that the Respondent violated the Act because it refused to bargain with the Union for timekeepers. either in a separate appropriate unit, or as a part of the production and maintenance unit. However, the only bargaining demand which the Charging Party made on the Respondent with respect to the timekeepers was that they be bargained for as part of the office clerical unit, and, as stated by the Trial Examiner, Board policy requires the exclusion of plant clericals from office clerical units when, as here, any party objects. Accordingly, we find no merit in this contention. 131 NLRB No. 48. 599198-62-vol. 131-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner reasoned that, inasmuch as he had found that the Respondent was not responsible for the conduct of its predecessor, and as the union meeting which was apparently observed by the Re- spondent occurred prior to the sale of the plant, the Respondent could not be found to have engaged in surveillance, and therefore it could not be found to have created an impression of surveillance at a time prior to its acquisition of the plant. We do not agree with the Trial Examiner's recommendation or his reasoning. While the Respondent is not responsible for the conduct of its predecessor,' the discussion between Coleman and employee Dorris occurred after the Respondent's assignor had purchased the plant of the Respondent's predecessor. We find that the Respondent created an impression of surveillance when Plant Comptroller Wil- liam L. Coleman discussed union activities with employee Dorris on or about January 3, 1960. Accordingly, we hold that the Respondent violated Section 8(a) (1) of the Act by engaging in such conduct.' ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ainsworth Man- ufacturing Company, Springfield Division of Precasco Corporation, its officers, agents, successors, and assigns shal] : 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, or any other labor organization of its 2 The Trial Examiner found that the Respondent was not responsible for alleged inter- rogations of employees which occurred prior to the Respondent's purchase of its prede- cessor's -plant even though it retained substantially all the supervisory personnel of its predecessor and continued to operate the plant we agree, because the Respondent's assignor and the Respondent are separate , distinct enterprises from the Respondent's predecessor, and the General Counsel does not dispute the fact that the sale was an arm's length transaction. The charges , moreover, were not filed until March 7, 1960, which was over 2 months after the Respondent's assignor purchased the plant and assigned the lease of the plant's premises to the Respondent and there is no evidence which indicates that the Respondent knew of its predecessor's interrogations of employees when the plant was purchased or assigned . See Symns Grocer Co. and Idaho Wholesale Grocery Co., 109 NLRB 346; ef. Washington Suburban Lanes, 114 NLRB 808, and J. W. Rex Company, 115 NLRB 775. s We do not agree with the Trial Examiner 's view that "interrogation ( of employees) is presumptively unlawful," Insofar as it implies that once the General Counsel has established the fact of interrogation , the burden is upon the Respondent to establish that the interrogation was not unlawful . As the Board stated in Blue Flash Express, Inc, 109 NLRB 591, at page 593, "the test is whether , under all the circumstances , the Interro- gation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act " The Board still adheres to that test , as well as the propo- sition that the burden at all times remains upon the General Counsel to establish an alleged unfair labor practice by a preponderance of the evidence including, with respect to interrogation , the existence of circumstances from which a reasonable tendency to restrain or interfere can be inferred. We are satisfied that the- General Counsel has sustained that burden in this case. AINSWORTH MANUFACTURING COMPANY, ETC. 275 employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment. (b) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive bargaining repre- sentative of all office clerical employees at its Springfield, Tennessee, plant, excluding engineers, timestudy engineers, watchmen, guards, and supervisors as defined in the Act. (c) Interrogating any of its employees concerning their organiza- tional activities, or threatening economic retaliation by removal of the office to Atlanta, Georgia, or elsewhere, if the Union is successful in its campaign to organize the Respondent's employees. (d) Creating an impression of surveillance of union activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collectivebargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America. UAW-AFL-CIO, as the exclusive representative of all office employees in the aforesaid appropriate unit, and if an under- standing is reached embody such understanding in a signed agreement. (b) Offer to Ray D. Osborne and Ruth Doss immediate and full reinstatement to the former or substantially equivalent position of each without prejudice to their seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in the Section of the attached Intermediate Report entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its akents, for inspection and reproduction, all payroll records, social- security reports, timecards, personnel files, and all other records nec- essary to analyze, compute, and determine the amount of backpay and rights of employment to which the discriminatees herein may be en- titled under the terms of this Order. (d) Post at its plant in Springfield, Tennessee, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be 4In 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." 276 DECISIONS OF`NATIONAL LABOR RELATIONS BOARD furnished by the Regional Director for the Twenty-sixth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent and maintained by it for 60 consecutive days there- after, in conspicuous places including each of Respondent's bulletin boards. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed with respect to the allegations contained in paragraph 6, con- cerning conduct of supervisors which antedates the Respondent's acquisition, and paragraph 9 in toto. 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, we hereby notify our employees that : WE WILL bargain collectively in good faith with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive repre- sentative of all office employees in the bargaining unit described below with respect to rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed contract. The bargaining unit is: All office clerical employees at the Springfield, Tennessee, plant, excluding engineers, time-study engineers, watchmen, guards, and supervisors as defined in the Act. WE WILL offer to Ray D. Osborne and Ruth Doss immediate and full reinstatement to the former or substantially equivalent posi- tion of each without prejudice to their seniority or other rights and privileges previously enjoyed, and we will make them whole for any loss of salary or pay suffered as a result of the discrimina- tion against them. WE WILL NOT interrogate our employees concerning their or- ganizational activities, or threaten economic retaliation, by re- moval of the office to Atlanta, Georgia, or elsewhere, if the Union is successful in its campaign to organize our office employees. WE WILL NOT do anything to create an impression of surveillance of union activities. AINSWORTH MANUFACTURING COMPANY, ETC. 277 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Inter- national Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other con- certed activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any and all such activities. AINSWORTH MANUFACTURING COMPANY, SPRINGFIELD DIvISION OF PRECASCO 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before the duly designated Trial Examiner in Spring- field, Tennessee, on May 24, 1960, on the complaint of General Counsel and the answer, as amended, of Ainsworth Manufacturing Company, Springfield Division of Precasco Corporation, herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Labor-Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel, Charging Party, and Respondent have been carefully considered. Upon the entire record I and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Delaware corporation maintaining its principal office and place of business in Springfield, Tennessee, engaging in the manufacture and fabrication of automobile assembly parts and related materials. During the calendar year ending December 31, 1959, Respondent sold and shipped products valued in excess of $50,000 to points located outside the State of Tennessee. Respondent's predecessor was Ainsworth-Precision Castings Co., a division of Harsco Corp. Respondent was sold by the Harsco Company to Fulton Bag and Cotton Mills 2 on December 28, 1959, and the premises occupied by the Ainsworth plant were leased by the seller to the buyer. On December 30, 1959, Fulton Bag and Cotton Mills assigned the lease to Precasco Corporation, a subsidiary or division of the assignor. On March 14, 1960, the Harsco Company conveyed the premises, by deed, to the Precasco Company. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. lI hereby note and correct the following Inconsequential but obvious typographical errors in the transcript: on page 11, line 7, "102.35(a)" is corrected to read "102.35(h)"; on page 11, lines 17 and 18, "Section 1 and 2 (a)" is corrected to read "Section 102.8" ; on page 35, lines 7 and 8, "Norris" is corrected to read "Dorris"; on page 35, line 10, "Marene Hammbet" is corrected to read "Maurene Lamberth " 2 Harsco Corp. is identified as having its principal office in Detroit, Michigan. Fulton Bag and Cotton Mills is a separate corporation with principal offices in Atlanta, Georgia. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR PRACTICES A. Background and sequence of events 1. Issues The principal issues raised by the pleadings and litigated at the hearing are (1) .whether Respondent, as more fully set forth in the complaint, engaged in activity in contravention of the provisions of Section 8(a),(1) of the Act; (2) whether, on January 25, 1960, Ray D. Osborne and, on February 5, 1960 Ruth Doss were, as alleged in the complaint, discharged by the Respondent, who thereafter failed and refused to reinstate said employees, because of their (membership in, and activities on behalf of, the Union, or for other reasons proscribed by the Act; and (3) whether Respondent on or about January 22, 1960, and at all times since, refused to recog- nize and bargain with the Union which represented a majority of the employees of Respondent in a specified appropriate unit in contravention of the provisions of Section 8 (a) (5) and (1) of the Act. 2. Motion to amend Counsel for the Charging Party moved to amend paragraphs 10 and 11 of the complaint by the addition of the names of nine individuals allegedly discrimina- torily discharged by the Respondent at various times between December 17, 1959, and February 7, 1960. Specifications alleging discriminatory discharges of these individuals are included in the original charge (General Counsel's Exhibit No. IA). General Counsel opposed the motion to amend. General Counsel further advised the action of the Regional Director in not issuing a complaint encompassing the remaining alleged discriminatory discharges was pending on appeal to the General Counsel at the time of the hearing. The motion was denied. Counsel for the Charg- ing Party, in his brief, pursues his "motion to amend the complaint" as a matter of right, albeit addressed to the discretion of the Trial Examiner. I am not persuaded, after review of the cited authorities, and others, that my ruling, denying the motion, should be modified.3 3. Allegations antedating sale-conduct of predecessor The Union herein represented the production and maintenance workers of Re- spondent's predecessor. The Union undertook the organization of the office employ- ees of Respondent's predecessor, in the plant located in Springfield, Tennessee, late in 1959. With minor exceptions, the events herein considered were subsequent to the purchase of Respondent on December 28, 1959. I have outlined above the change in ownership on December 28, 1959. When the plant began functioning on December 28, Respondent retained the same supervisors and the rank-and-file employees, and on January 21, 1960, Respondent assumed the obligation of the collective-bargaining agreement that its predecessor had with the Union on behalf of the production and maintenance workers. The assumption agreement was retroactive to December 30, 1959. The complaint, paragraph 6, contains allegations of interrogations of employees by Chief Inspector Maurice Heath and Production and Control Manager Charlie B. Hunter which are alleged to have occurred on December 23, 1959 General Counsel contends Respondent is answerable as a successor company, but does not dispute the fact that the sale was an arm's length transaction. The position of General Counsel is premised on continuity of supervision and the composition of the unit. No authority in support of the position asserted has been cited. This record permits only a finding that the purchaser was Fulton Bag and Cotton Mills, presumably a stranger. The assignee, Precasco Corporation, is also presumably a stranger. The Board's findings of responsibility for unfair labor practices previously committed, 3 See Sailors' Union of the Pacific , AFL (Moore Dry Dock Company), 92 NLRB 547, footnote 1; American Snuff Company, 109 NLRB 885 and footnote 2 thereof ; Inter- national Union of Electrical , Radio and Machine Workers, AFL-CIO v. NLR.B. (Neco Electrical Products Corp. ), 289 F. 2d 757 (C.A.D C ). AINSWORTH MANUFACTURING COMPANY, ETC. 279 where the purchaser is the alter ego of the predecessor 4 or a purchaser with knowl- edge 5 have no application. The Board has found that no provision of the Act authorized the Board to impose the responsibility for remedying unfair labor prac- tices on persons who did not engage therein .6 I shall recommend dismissal of these portions of the complaint.? 4. Organization The first organizational meeting of the office employees was held about December 15, 1959, at the home of Ruth Doss, an alleged discriminatee herein. On December 16, another meeting was held at the home of Ellis Wilkins. On the latter date appli- cation for membership cards, designating the Union as collective-bargaining repre- sentative, were executed by at least 17 employees of a potential total of 26. Respond- ent contends that five timekeepers and an alleged supervisor, all of whom, signed cards, should not be included in the unit. Should Respondent prevail the number of cards signed by those in the unit would be 11, and the total in the unit 20, these contentions are discussed below. It is undisputed that the cards are valid authoriza- tion cards and they were signed by the individual employees, whose names appear thereon, on December 16, 1959. C. E. Strickland, International Representative, talked to A. M. Bazzy,8 personnel director, twice, in the latter part of December 1959, and early part of January 1960. Bazzy, during an unspecified portion of this period was substituting for Operations Manager Locks, while the latter was in a hospital. Bazzy was quoted by Strickland as advising that he knew the office employees were being organized and that he (Bazzy) would recommend to higher officials that the Union be "accepted." Strickland testified they were waiting for,the Company to officially change hands before requesting recognition. 5. Supervisory personnel It is undisputed that President Mitchell, Vice President and Operations Manager Edward J. Locks, Plant Controller William L. Coleman, Production and Control Manager Charlie B. Hunter, and Chief Inspector Maurice Heath are, and at all times pertinent herein were, supervisors within the meaning of Section 2(11) of the Act. B. Interference, restraint, and coercion The evidence relative to acts and statements of Respondent's supervisory person- nel, allegedly conduct in derogation of the provisions of the Act, is summarized under the name of the particular representative specified in the complaint and testimony. 1. Plant Controller William L. Coleman Mary Darlene Dorris was first employed in October 1958, and worked in accounts payable, she is still employed, but is now a billing clerk. She credibly testified that about January 3, 1960, Coleman asked her if she had signed a union membership application card and she responded in the affirmative. Coleman then mentioned some of the things that had been going on about the Union and told her who had been attending meetings. He told her that they had had a meeting at Mrs. Doss' house, that he knew she had attended, and that he also knew that Maurene Lam- berth, Wilbur Wilkins, Ellis Wilkins, and Ruth Doss were present. Dorris related that she was behind other employees on her pay raises, about $5, and Coleman wanted to know if that was the reason she signed the card. Coleman was queried as to whether he heard any discussion in the office about organizing taking place and responded that it was common talk all over the office that there was organizing going on. He denied telling Mrs. Dorris that he knew who was in the Union and ' See Atlanta Paper Company and Mead Atlanta Paper Company, 121 NLRB 125; Ozark Hardwood Company, 119 NLRB 1130, affd in pertinent part in N L.R B v. Ozark Hardwood Company, 282 F. 2d 1 (C.A. 8) ; Ohio Hoist and Manufacturing Com- pany, 108 NLRB 561, and footnote 1 thereof. 6 The Alexander Milburn Company, 78 NLRB 747. 6 Symns Grocer Co and Idaho Whole8ale Grocery Co , 109 NLRB 346, 348 7 General Counsel's request that I take official notice of a case involving Respondent's predecessor (125 NLRB 601), to the extent that it reflects antiunion animus by super- visors involved herein, is denied for the reasons stated. 8 Incorrectly spelled "Besse" in the transcript 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew who had been to a meeting at Ruth Doss ' house. He did not deny interrogating Mrs. Dorris relative to her signing a union card and the reason therefor. Ruth Doss commenced working on September 9, 1958 , and is one of the alleged discriminatees herein. She worked in accounts payable under the supervision of Coleman. She credibly testified that Coleman called her into his office about January 25, and told her that he had heard that she had signed a union card and had a meeting in her home, he was very much surprised and asked her if she was not satisfied with her job . She also quoted Coleman as saying that he knew he was not supposed to mention these facts to her and further that if she did tell it, he would have to swear it was a lie. She admitted uncertainty as to the exact date, stating that it could have been a little earlier than January 25 . Coleman, in re- sponse to a question of whether he ever talked with Mrs. Doss about her union activity, prior to the time she was laid off, first testified "I have had a lot of talks with all of my employees, as to unionism, I have no recollection," he next testified "I have called my employees in from time to time , by themselves and in groups, to the best of my knowledge , no." Still later he specifically denied ever mentioning this employee's union activities to her . Coleman admitted that he had talked about the Union to Mr. Smith, personnel manager, and a lot of the employees . Coleman learned of the union activity and union meetings from common talk around the office engaged in by timekeepers, switchboard operators , and from the personnel director. Coleman however was either evasive or of uncertain memory in his testi- mony, stating first that Mr. Smith might have told him of the meetings, acknowl- edging that Smith discussed it with him, and finally admitting that it was Smith who told him. Coleman was certain that Smith had told him that Ruth Doss had at- tended a union meeting, but could not remember if Smith had told him that she had held a union meeting in her house . Coleman acknowledged expressing his feelings "that I don't like union" to his entire office staff on two occasions , when he called them in to discuss the fact that the work wasn't getting done, he then testified that he did know how many times he had actually made that statement to the employees. To the extent that Coleman's testimony is at variance with that of Dorris and Doss, as outlined, I credit Dorris and Doss. The evasiveness, inconsistencies , and inac- curacies in his testimony and his demeanor cause me to find Coleman not a reliable witness. 2. Production and Control Manager Charlie B. Hunter Dallon E. Morrison was employed from October 28, 1958, until he was laid off, February 5, 1960 . He did customer contact work, handling releases and scheduling. John W. (Wayne) Choate was employed beginning August 21, 1958, and is still employed. He was engaged in sales contact work and handled the releases from other customers , which supply parts. Hunter was the supervisor of these two em- ployees. On January 22, 1960 , the Union sent a letter to Respondent containing a list of the office employees who had volunteered to serve as an organizing committee, which included the names of these two employees, among others. The letter is discussed in more detail below. Learning of the receipt of the letter, containing their names, by the Company, these two employees inquired of Hunter as to what, if any, effect the letter would have on raises, which they understood were then pending. Morrison stated that Hunter advised that he did not know what would happen relative to the raises, that it might affect the raises which had already been promised, but he was not sure about it. Morrison testified that other employees had already received raises. Choate likewise testified that the others had received their raises, that he and Morrison inquired of Hunter whether the information contained in the letter would affect their raises and that Hunter said "it probably would affect our raises, but he did not know, in other words, he didn't know for sure." This con- versation took place the morning the letter was received. Hunter acknowledged that the two employees asked him if the fact that they had joined the Union would affect their raises and that he told them he did not know, maybe it would, maybe it would not, he could not answer the question because he did not know. The com- plaint alleges that Respondent, through Hunter, warned its employees that it would not grant economic benefits because its employees had joined the Union. I find no evidence of such a warning in the testimony of either Morrison or Choate. I will, accordingly, recommend dismissal of this allegation of the complaint. Charles J. Wallace testified that he heard Hunter say there would never be an office workers union in the plant Hunter denied the statement. Wallace was unable to place the time of the statement, except that it was subsequent to the time of the first union meetings and could have been in December. Accordingly, the statement, if made, may reasonably have predated the take-over of the plant by the Respondent. In addition the statement stands on the record without further ex- AINSWORTH MANUFACTURING COMPANY, ETC. 281 planation, and without the context in which it was said. Under these circumstances, I make no finding relative to this item. Wilbur Wilkins testified that on January 23, 1960, his supervisor, Production and Control Manager Charlie B. Hunter, called him into the conference room and asked him if he had signed a union card and Wilkins responded in the affirmative. Hunter was quoted by Wilkins as asking if he knew what he was doing, receiving an affirmative reply, then advising Wilkins that it meant that he was going to take him off supervision. Hunter acknowledged the conversation and acknowledged that he told Wilkins that he could not be management and union both. Hunter, however, testified that he did not demote Wilkins This conversation occurred after Respond- ent received the list of the union organizing committee which contained Wilkins' name. Respondent contends that Wilkins was a supervisor and, thus, Hunter's interrogation did not constitute a violation of the Act .9 I find that Wilkins did not have supervisory status, for reasons stated infra. 3. President Mitchell C. E. Strickland, International representative, credibly testified that he was at Respondent's plant on the afternoon of January 22, 1960, and was called into a conference attended by President Mitchell, Vice President and Operations Manager Edward J. Locks, and James H. Dean, chairman of the bargaining committee of the Local Union and a plant employee. Mitchell, according to Strickland, wanted to know what the disturbance among the office workers was about, he understood they were unhappy and wanted to belong to the Union. Upon inquiry, Mitchell was advised by Strickland that the union membership of the production and maintenance employees approximated 90 to 95 percent, and Mitchell inquired if Strickland would like to have 100 percent. Mitchell then asked what it would take to cause the Union to withdraw the "petition" (for the office employees), stating that he had some 93 plants with no office workers organized and that he did not intend to start in Springfield. Mitchell is also quoted by Strickland as saying there would not be an office workers union in Springfield, that he would move the work to Atlanta, Georgia, if that happened. The testimony of Dean corroborated that of Strickland. Mitchell did not testify and no reason was given for his failure to appear. Locks testified that Mitchell learned that Strickland was in the plant and wanted to meet with him. Locks' version of the conversation was that Mitchell asked Strickland about the conditions in the plant and stated that he (Mitchell) heard rumors to the effect that office workers wanted to organize, and he wanted to know why. Strick- land told him that he should know that, that when there was any kind of trouble employees go to someone and they had gone to Strickland. On redirect examina- tion, Locks was asked if Mitchell had said anything during this conversation rela- tive to moving the office to Atlanta. Locks responded, "No, other than if business had gone downgrade, and it never warranted that we keep a duplicate office force, that eventually something like that could happen, because we anticipated a cutback in business, not as drastic as it happened, what I mean, we thought maybe things could be controlled out of one central office, but with one or two people here." Locks admitted that Dean was present during a portion of the meeting, when conditions in the plant were discussed, but denied that Dean was present when Mitchell and Strickland discussed the office employees. I do not credit Locks' denials of the conversation related by Strickland and Dean, or of Dean's presence.lo 9 J. A. Booker d/b/a Atlantic Stages, 78 NLRB 553. 16 Charlie Smith, personnel director at the time of the hearing , testified that Dean was in the office with Smith and Bazzy during the entire time of the meeting between Locks, Mitchell , and Strickland in an adjacent office Dean related that among the matters discussed with Mitchell , in the presence of Locks and Strickland was the fact that Wallace, an office employee who was paid $50 more than any employee in the front office, was scheduled for discharge and Mitchell advised Dean and Strickland to get together with Mike Bazzy in the personnel office (he was at that time personnel director ) to take a close look at Wallace's record before they made any hasty decision . Dean was uncertain and confused as to the presence or absence of Smith in Bazzy's office on January 22, it appearing that Dean and his bargaining committee did meet with Bazzy and Smith the previous day, however, I do not consider this uncertainty as reflecting adversely upon Dean's testimony of the conversation with Mitchell corroborated by Strickland The Respondent's effort to place Dean outside the meeting with Mitchell was for obvious reasons, discussed below. The testimony of Smith that he was with Dean during the entire period Mitchell , Strickland, and Locks met is at variance with, and discredited by, the testimony of Locks that Dean was, in fact, in the meeting and discussed plant prob- 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Edward J. Locks Mary Darlene Dorris, whom I have noted above is still employed, credibly testi- fied-that on January 25, 1960, Locks called some of the office employees into his office, including Dorris, Maude Carroll, Marie Chapman, Ruth Doss, and Rose Lee. At that time Locks told these employees that he did not want a union in the office, that Fulton Mills had many offices and none of them were union and they were not going to have this one union, that if the office employees did form a union they would move all .the work to Atlanta, Georgia. Ruth Doss credibly testified, con- cerning the same event, that Locks wanted to know why the unrest and dissatisfac- tion in the office and told them that he understood that the Union was going to be formed, that Respondent would absolutely not have a union, that if such a thing oc- curred Respondent would move the office to Atlanta, he told them that anything they said or did in the meeting would not cost them their jobs, and that he felt that things would be straightened out in about 3 weeks. Locks acknowledged having a conversation with four or five of the office girls on January 25, identifying them as Mr. Coleman's group. He told them that he had heard that they were very much interested in the Union, he explained to them that something had happened while he was in the hospital, it disturbed him deeply, he felt that he had been as fair asa person could possibly be with the office help, and just in a general way asked what the troubles were and what he could do to alleviate them. This was the extent of Locks' memory of this meeting. Locks acknowledged that both Dorris and Doss were present at the meeting. I credit the testimony of Dorris and Doss 11 and find Locks made the statements attributed to him. Dallon E. Morrison, employed by Respondent until he was laid off February 5, 1960, testified relative to a conversation he and Wayne Choate had with Locks on January 25. Morrison related there was a lengthy conversation about several differ- ent things and Locks brought up the matter of Osborne and said he was sorry he had to lay him off, that he did not have anything against him personally, but due to his union activities he would not be rehired out in the plant, there might be a possibility of him being hired later in the office. John W. (Wayne) Choate, presently employed, testified that the conversation primarily was relative to a division of the work result- ing from the layoff of Osborne, that Locks said something about due to the fact that Osborne's name was on the list of union employees that had been turned in that he (Osborne) would not have a job anywhere except in the office. Locks testified that he could not recall such a conversation with Morrison or anyone else. Osborne, as noted below, first worked in the plant and was transferred to the office in January of 1959, and has been reemployed in the plant. In view of the fact that the plant is organized, and since the testimony of General Counsel's witnesses was generally to the effect that Respondent sought to prevent the organization of the office employees, I am unable to do other than concur with the observation of Respondent's counsel that the statement which Locks is alleged to have made would be illogical under the circumstances. I shall, accordingly, credit Locks' denial and recommend a dis- missal of this allegation. 5. Concluding findings It is clear from the evidence, and I find, that Respondent, through its supervisors, interrogated employees concerning their union membership, activities, and desires. That such interrogation is presumptively unlawful has been held by the courts and the Board in numerous decisions.12 In so finding I am not unmindful of the Board's holding in the Blue Flash decision.13 Respondent here does not contend that there was a legitimate purpose for the interrogation and in fact denies the existence of interrogation. The Board has held that the Blue Flash rule was not intended to lems Bazzy, though still employed by Respondent, was not called as a witness Locks' explanation of conditions which might cause a move of the office to Atlanta appear to be more in the nature of hindsight considerations than a recitation of a likely conversation during discussion of an organizing effort. In arriving at my credibility determinations I am not unmindful of the demeanor and forthrightness, or lack thereof, of these witnesses. 11 Three employees, Maude Carrol, Marie Chapman, and Rose Lee, whom the testimony establishes were present at this meeting, were not called as witnesses. Respondent offered no explanation of its failure to call the first two named who presumably are still employed The failure to call a witness, or give a reason therefor, gives rise to a pre- sumption that the witnesses' testimony would have been adverse 12 See Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB 1031 13Blue Flash Express, Inc, 109 NLRB 591 AINSWORTH MANUFACTURING COMPANY, ETC. 283 license the use of interrogation as an integral part of an unlawful campaign to defeat a union, simply because the interrogation , if considered in isolation separate from such a campaign, would not be found independently coercive. The Union Furniture Co., Inc., 118 NLRB 1148 . The instant case encompasses more than mere interrogation. I have found above that President Mitchell , on January 22, 1960, told Dean and Strickland that there would not be an office workers union in Springfield , that he would move the work to Atlanta, Georgia, if that happened. Respondent, contend- ing that Dean was not present, urges that there can be no violation of the Act, no matter what Mitchell said, since Strickland was not an employee. Since I have found Dean was present when this threat was made , I find it unnecessary to reach the ques- tion raised by the Respondent. Locks, on January 25, 1960, advised five employees that he did not want a union in the office, that Fulton Mills had many offices and none of them were union and they were not going to have this one union , and if the employees did form a union Respondent would move all the work to Atlanta, Georgia. That these statements of Mitchell and Locks constituted a threat of economic reprisal, deprivation of employ- ment by removal of the place of employment, and are a violation of Section 8(a)( 1) of the Act cannot be gainsaid . The courts and the Board have so held in numerous cases.14 I have found above that Coleman interrogated Mary Darlene Dorris on January 3, 1960, and at that time told her of his knowledge of the meeting at Mrs. Doss' house and of his knowledge relative to the identity of the employees who attended the meeting. Creating the impression that the Respondent had engaged in surveil- lance has been held to be violative of the provisions of Section 8(a)(1).15 The fact is, however, the meeting, on December 15, antedated the purchase of this plant by Respondent . I have found above that Respondent is not answerable for the con- duct of its predecessor. Since Respondent, under these circumstances, could not be found to have engaged in surveillance , it follows that Respondent cannot be found to have created an impression of surveillance at a time prior to its acquisition of the plant. I shall, accordingly, recommend a dismissal of this allegation. I further find that Respondent, by interrogating its employees and threatening removal of the office work to Atlanta, Georgia, has interfered with , restrained, and coerced its employees in the exercise of rights guaranteed them under the Act, and has thus violated Section 8 ( a) (1) of the Act. C. The alleged discriminatory discharges 1. Ray D. Osborne Osborne was first employed as a floor inspector in the plant, commencing October 1958. In January 1959 he was transferred to a position in the office which he identified as a purchase parts and manufactured parts expediter. At the time of his discharge, January 25, 1960, he was a production control expediter. He attended the meeting at Ruth Doss' home on December 15, 1959, and the meeting at Ellis Wilkins' home on December 16, 1959. He was one of the office employees who signed a union application for membership and authorization card on December 16, 1959 (General Counsel's Exhibit No. 5), and, pursuant to his authorization, his name was included in the Union's list of office employees who served as an organizing committee, submitted to the Respondent by the Union, by letter dated January 22, 1960 (General Counsel's Exhibit No. 20). On Friday, January 22, 1960, Charlie J. Wallace was discharged. Wallace, at that time, worked in production control and handled a portion of the purchases of parts. Wallace, Osborne, Wilbur Wilkins, Ellis Wilkins, and Billy Joe Jones were at that time under the direct supervision of Production and Control Manager Charlie B. Hunter. On the same day, Osborne credibly testified, Hunter called Osborne and the two Wilkins into his office and said they would have to come in on Saturday, January 23_1960, and familiarize themselves with Wallace's records, at the same time advising them that they would each be given a $15 a month pay raise, with a like additional amount each 6 months in the following 18-month period. On Saturday they worked on Wallace's books, as directed. On Monday, January 25, 1960, Hunter advised Osborne that he was to assume, from Wallace's work, all the E's and X's (presumably accounts identified by those letters), and that the balance 14 See Jamestown Machine and Manufacturing ' Company, 127 NLRB 172; Caldwell Packaging Company, 125 NLRB 495. 25 Capitol Fish Company, 126 NLRB 980. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to be broken down and assigned to the two Wilkins and Billy Joe Jones, and at the same time Hunter again explained the pay raise, which had meanwhile been approved by Locks. The same afternoon Hunter advised Osborne, according to Osborne, that he (Hunter) figured that Osborne already knew that he would have to be laid off saying that maybe he had heard it. Hunter advised Osborne that he would have to be discharged that afternoon. Respondent's Defense Vice President Edward Locks testified that the Arthur Anderson Company, a firm of management consultants, commenced a survey of the office, the staff, and requirements, which was conducted over a period of 3 weeks, that they recommended certain reductions in different offices, which recommendations were carried out. This activity was under the direction of the new management. Production and Control Manager Charlie B. Hunter testified that Osborne's termination was due to a reduction in force, that he was the youngest man and least qualified in the office. Hunter further testified that Osborne's termination had nothing to do with his union activity. Hunter testified that Collet, Anderson representative, made recommendations as far as the overall picture of his office was concerned, that he (Hunter) tried to follow his (Collet's) recommendations and evaluate them to see whether or not he (Hunter) agreed with the recommendations. Hunter testified that after these recommendations were made he started looking for ways to eliminate help that was not actually needed. He described Osborne's duties as those of a "footman" in the plant, running errands, counting material, checking on particular items, etc. Hunter described Osborne as an average worker, admitted telling him on the morning he was discharged that his raise was coming through, asserted that he had recommended the raise 2 or 3 weeks previously. Hunter acknowledged that he had recommended raises at the same time for Wilbur Wilkins, Ellis Wilkins, and Billy Joe Jones. Hunter explained his advice to Osborne that he had approved the raise on the same day as the discharge by asserting that he was still taking the discharge under advisement, "I knew I was going to let someone go, at least I thought I was, I was still thinking it out, not made the decision yet." Hunter next asserted that he had Osborne definitely in mind but hadn't definitely made up his mind. Nothing happened between Hunter's conversation with Osborne in the morning and his conversation with him in the afternoon except that he (Hunter) made up his mind. Hunter then explained that he had been thinking of discharging Osborne for several days. According to Hunter the Anderson Company repre- sentative made recommendations to assist Hunter in evaluating the workload in his office, but had nothing to do with the selection of Osborne for discharge, the latter being a decision of Hunter, which he communicated to Locks. Hunter, however, also ascribed the reason for the discharge of Osborne as an inability on his part to learn the work, testifying: Well, after a certain training period of which our people had plenty of time to go through, they eventually learned their job well enough where they could take on additional work. After evaluating the work, I found this not to be true. I let Mr. Osborne go. To the extent that Hunter's testimony conflicts with that of Osborne, I credit Osborne. Concluding Findings The Board and the courts have held that an individual may be discharged for a good reason, a bad reason, or no reason at all, but may not be discharged for a reason proscribed by the Act. The sole question here is whether the reasons assigned for the discharge were merely a pretext. Charlie J. Wallace, who received $50 more per month than any other employee under Hunter, was discharged on January 22, 1960. On the same day, Osborne, the two Wilkins and Billy Joe Jones were advised by Hunter that they were to take over Wallace's work and would each receive an immediate raise of $15 a month, with further raises thereafter. I do not credit Hunter's testimony that he had recommended the raise 2 or 3 weeks before. They were requested to come in and work on Saturday in order to acquaint themselves with the work of Wallace. Janu- ary 22 was also the day that President Mitchell advised Strickland and Dean, as I have found above, that there would be no office union in Springfield and that, if necessary, he would move the office work to Atlanta. It was also the day Respondent was advised that Osborne was a member of the organizing committee. AINSWORTH MANUFACTURING COMPANY, ETC. 285 On January 25, 1960 , Locks called a group of Coleman 's employees into his office and similarly advised them that the new owners did not propose to allow an office workers union to be formed in the plant and that if necessary the work would be moved to Atlanta. This was the day that Hunter advised Osborne in the morning, for the second time, that his raise would go through and that Locks had approved it, it was also the day of his discharge. I turn now to the inconsistent defenses asserted by the Respondent . Hunter asserted that the discharge was due to a reduction in force. Locks, on the other hand, testified that a meeting on February 5, 1960, was for the purpose of telling the employees then being discharged that a reduction in force was then going into effect in line with the policy of the new owners, and they would retain the employees Respondent and Arthur Anderson thought were best for continued operation. Dallon E. Morrison, who worked in Hunter's department, was one of seven dis- charged on February 5, 1960. While Respondent sought to establish as a general defense that the discharges enumerated in the charge underlying this case were economic and resulted from a management survey of the office operations, Hunter's testimony is clear that Collet (Anderson representative) did not recommend Osborne's discharge, but merely suggested to Hunter the means of improving his operation which Hunter then took under advisement. Accordingly, I find Osborne's discharge was not recommended by the Anderson representative. Hunter implied that after a certain training period Osborne had not learned his job well enough to take on aditional work and this was the reason for letting him go, but at the same time he did not deny Osborne's testimony relative to the assign- ment of a portion of Wallace's work on the prior Friday. Hunter did not deny that he advised Osborne of his pending raise on the morning of the day of Osborne's discharge which causes me to reject Hunter's claim that he had the discharge under consideration as implausible. Hunter also advanced lack of seniority as a consideration in the selection of Osborne. Those working with Osborne, the two Wilkins and Billy Joe Jones, were also members of the organizing committee . In the discharge of Ruth Doss, next considered, Respondent disregarded seniority. The abruptness and timing of the discharge, the first workday after the Union's demand for recognition , the inconsistent and unconvincing character of the reasons advanced by Respondent to support the discharge , coupled with the antiunion animus found above in my view constitute a prima facie case of discrimination.16 The asserted economic considerations on the basis of the record as a whole, are a mere pretext. I so find. Speaking for the court , Circuit Judge Medina has said "the unexplained coinci- dence of time with respect to the principal events was no coincidence at all, but rather part of a deliberate effort by the management to scotch the lawful measures of the employees before they had progressed too far toward fruition. ..... N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725 (C A. 2) The existence of some justifiable ground for discharge or layoff is no defense if it was not the "moving cause." Wells, Inc., v. N.L R B., 162 F. 2d 457, 460 (C.A. 9). In view of the above facts, and upon the entire record as a whole, I be- lieve and hold that Respondent 's purported reasons for discharging Osborne were pretextuous, and that the real reason and "moving cause",was the known Union and concerted activities of said employee and said discharge constituted discrimi- nation with respect to his hire and tenure of employment to discourage member- ship in the Union in violation of Section 8(a)(3) and (1) of the Act. 2. Ruth Doss Ruth Doss was first employed on September 9, 1958 , and continued to work until her discharge on February 5, 1960. She worked in accounts payable during the entire period of her employment . Her supervisor was Plant Controller William L. Coleman. The first meeting of the union representatives, with other office per- sonnel in attendance, was held in her home on December 15, 1959. Her name appears as a member of the union organizing committee on the list submitted by the Union to the Company, by letter dated January 22, 1960. I have found above that Coleman discussed the meeting at Doss' home with Dorris on January 3, 1960, and with Doss on January 25. 1 have also found that Locks discussed the Union, and made his threat of removal of the office work to Atlanta '8 Antonio Santisteban & Co , Inc., 122 NLRB 44 ; Wiese Plow Welding Co , Inc, 123 NLRB 616; Pacemaker Corporation, 120 NLRB 987. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if a union was formed in a conference with five of Coleman's employees, including Doss and Dorris, on January 25, 1960. Doss credibly testified that about a week before her layoff Coleman called her to his office and in the presence of J: Allen Home, identified as another employee work- ing in accounts payable, told her that he was going to put her on all accounts payable. Doss explained that she, Dorris, and Horne had been doing this work. Coleman stated that he was going to transfer Dorris to work as a billing clerk. He explained to Doss that she was one of the oldest employees, was more familiar with the work and he felt she was capable of carrying the load. She at that time asked him if he had any complaint whatsoever about her work or any suggestions, and he advised her that he had no complaints whatsoever. On February 5, 1960, at 5 minutes to 4 o'clock, Coleman advised Doss to go to Lock's office. Locks advised Doss, two supervisors working for Coleman (Marvin Howard and Norman Carpo), James Harry Hall and Larry Pond, timekeepers, under Coleman, Dallon E. Morrison, a customer contact representative working under Hunter, and Chapman, working for Von Hurst in time study, that he had very sad news for them, that it was a thing he hated to do, but as of that minute they were laid off. Mrs. Doss acknowledged that Locks advised that the new Company had taken over the plant, that Locks did not see how they could possibly carry on the work with as few workers as they anticipated doing, but that an independent concern had checked over the office and designated certain jobs that had to be eliminated. Mrs. Doss contended that she had never been interviewed by the Anderson people. Doss also testified that right after her layoff Coleman expressed his regret and stated that he did his best to get them to keep her, but that there was not anything he could do about it. Respondent's Defense Plant Controller William L. Coleman testified that the Anderson Company repre- sentatives made certain recommendations relative to cutting back the force to keep the plant in a profitable condition, and that it was for this reason that they made certain cuts when they did He testified that the "independent auditors" observed the work of the people and made recommendations that certain people should be let go, these recommendations were discussed with management before the actual layoff and in every instance the recommendations of the auditors were carried out. Cole- man also testified that the first action taken on any recommendation made by,the Anderson firm was on February 5, insofar as his department was concerned. Several days previously Collet, an Anderson representative, a Mr. Bacon from Precasco, Locks, and Coleman conferred relative to Coleman's department. In each instance the recommendation of Collet, according to Coleman, was effected. However, Locks testified his discussion with Coleman was confined to the number of people that had to be let go, but not as individuals. Locks stated: "All I was interested in, we cut our office force fifty percent, those were my orders." Locks in acknowledging that he discussed Ruth Doss with Bennett Collet, testified, "we had made it a policy that if we have to cut, we would cut the youngest person, if the person older was qualified to do the work. When they came to me and said the decision was made to let Ruth Doss go, I said, `remember that girl has more seniority than other people in the department, if she is qualified to do the work, I feel she should be retained."' However, Locks testified that Collet advised him that Doss was not qualified. Locks advised Collet "we will have to give her a chance." This was his only conference with Collet relative to Doss. Locks was uncertain if Doss' discharge was several days, or "weeks," thereafter. Coleman related two incident reports, January 25 and February 3, 1960, when he discussed errors with Ruth Doss. The first was an error of $250 on an invoice, the latter was attaching documents to the wrong invoice. There were no other written incident reports on her. These incident reports, Coleman stated, were not con- sidered in evaluating whether or not to continue Ruth Doss as an employee, but were considered in deciding she should not be transferred to another job. Coleman stated that Doss was not qualified to do any other job except the one she was working on, he so advised Collet when the question was asked whether she could work in payroll or labor distribution. His opinion was predicated on the fact she had not done this work. Doss' work was taken over by Horne, who also had worked in accounts payable, assisted by Wakefield, who worked in accounts receivable and as a substitute payroll clerk. Concluding Findings General Counsel, at the outset of the case, stated that the Arthur Anderson con- sulting firm was making a survey in all of the plants to determine whether they could AINSWORTH MANUFACTURING COMPANY, ETC. 287 cut down operations and merge operations to make a profit. This was under the direction of the Fulton Mills people. General Counsel further advised that he made no contention that the survey was discriminatory and acknowledged that he had no evidence to show that it was other than as represented. In his brief, General Counsel asserts that the survey appears generally to be the true motive for the ter- minations, except in the cases of Osborne and Doss. General Counsel urges that the layoff of Doss was discriminatory because her work was taken over by Geraldine Wakefield, who had been employed by the Re- spondent for only 6 months at the time of the layoff. This was the testimony of Doss, whom I have credited above and is consistent with Locks' admission that seniority would govern if the employee was qualified. Coleman did not deny telling Doss, shortly before her discharge, that he intended to put her on all accounts payable and to transfer Dorris to billing clerk. The evidence shows that Dorris, in fact, was a billing clerk at the time of the hearing. Doss was employed on the same job from September 1958 to February 1960. Coleman recited only two incident reports on her during that period, yet Locks con- cluded his testimony by ascribing "incompetency" as the reason for Doss' layoff. How this conclusion is reconciled with Locks' testimony that he advised Collet, in the only conversation they had, that "we will have to give her a chance" is not ex- plained. This testimony also conflicts with Coleman's statement that the two inci- dent reports were not considered, and no other incompetence is related by him. Locks' testimony that Collet reported he tried Doss on numerous jobs and she made the same mistakes over and over, stands in sharp contrast to the testimony of Doss that she did not talk to the Anderson representatives. Collet did not testify. I credit Doss' testimony that she did not talk to Anderson representative. Coleman, whom I have found above was not a reliable witness, first testified the selection of individuals for discharge was pursuant to the Anderson recommenda- tions. He then acknowledged "we all made the decision." Locks testified the de- cision was Coleman's, "that was his own decision with the people from Arthur Ander- son." Locks, however, made no effort to reconcile this testimony with his later testi- mony that he did not know how the choice was finally made as to who was to be laid off. I have above found interrogation of Doss by Coleman about January 25, 1960, relative to the union meeting which she had at her home, and his inquiry as to whether she was satisfied with her job, as well as his advice that he intended to put her in charge of all accounts payable. Respondent's defense is varied, inconsistent and unconvincing, its antiunion animus is amply demonstrated as found above. While General Counsel has not contested the existence of a valid economic reason for the other discharges enumerated in the charge, he contends the selection of Doss was discriminatory. There can be no doubt that a prima facie case of discrimination appears. The burden of going forward, and presenting substantial evidence to refute is the obligation of the Respondent. The Board and courts have held in numerous cases that shifting defenses and conflicting reasons for the action taken may be con- sidered and found to be mere subterfuges. I so find. In view of the above facts, and upon the entire record as a whole, I believe and find that Respondent's purported reason for discharging Doss was a pretext, and that the real reason was the known union and concerted activities of said employee and said discharge constituted discrimination with respect to her hire and tenure of employ- ment to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act. D. The refusal to bargain 1. The appropriate unit-the Union's majority status It appears undisputed, and I find, the following employees of the Respondent con- stitute a unit appropriate for the purposes of collective bargaining within Section 9(b) of the Act: All office clerical employees at the Springfield, Tennessee, plant, excluding en- gineers, time-study engineers, watchmen, guards, and supervisors as defined by the Act. There is no prior collective-bargaining history. It is undisputed that all of the office employees, except the personnel clerk and the timekeepers, work in the general offices located in the south end of the plant. The hours of work are the same for all, except the personnel, billing, and production control clerk, who report to and leave work 1 hour later than the other office employees. All office clericals are carried on the same payroll, are paid on a salary basis, on the same payday. All receive the same employee benefits, such as insurance, holidays, overtime , parking privileges, 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, length of vacation varies according to the tenure of employment. There is no interchange between office clerical and other classifications. Two confidential employees, Betty Cotter and Opal Jones, secretaries to the plant manager and person- nel manager, all parties agree, are excluded. There are five timekeepers, whom the General Counsel would include and Re- spondent would exclude from the unit. These employees spend approximately 95 percent of their time in the production area where they have tables on which to make computations. Each production employee clocks in on a particular card, which shows the job, part number, operation number, and number of pieces produced. The timekeepers assemble these cards and record the number of pieces produced as op- posed to the quota set for the particular operation. They maintain the quota records and give such information to employees or supervisors. The remaining portion of their time is spent in the general office where they turn in their computations and re- solve discrepancies in labor distribution records. Two clerks in the accounting de- partment have responsibility for the maintenance of labor distribution records, they apply rates and charge to customer accounts the information received from the time- keepers. The timekeepers are in the accounting department and under the super- vision of William L. Coleman, the controller. General Counsel urges that the Board excluded the timekeepers from the production and maintenance unit in its decision and direction of election in Case No. 10-RC-4346, June 16, 1959 (General Counsel Exhibit No. 19). While the Board excluded "accounting employees" there is nothing in the decision to indicate that the timekeeper classification was called to the atten- tion of, or considered by, the Board. In any event, the prior decision is not disposi- tive of the issue here presented. It appears from the foregoing, and from prior Board decisions, that the timekeepers are factory clericals, as distinguished from office clericals. The Board's customary policy is not to have office clerical and plant clerical employees in the same unit where there is objection to such inclusion. Fair- banks, Morse & Company, 117 NLRB 1449, 1450.17 I find the timekeepers should be excluded from the unit. General Counsel asserts that Wilkins is not a supervisor and should be included in the unit. Respondent contends that Wilkins is a supervisor and should be excluded from the unit. Wilkins testified that he has been employed since August 5, 1958, he is in the production control department, under Hunter. He described the department as having the making of schedules, expediting parts, following up, releasing parts, customer contact, and perpetual inventories. He described his duties as "parts follow up man, and I release purchase parts to the vendors, I schedule various departments out in the plant, I follow up on manufactured parts, and that is about it." He has no one working under him, has never hired, fired, or laid off anyone. He has never disciplined anyone, granted a raise, promoted anyone, or adjusted a grievance for anyone, and has never been in charge of the department. On one occasion, during the absence of Hunter, he granted an employee an hour off. Wilkins credibly testi- fied that normally when an individual is made a supervisor a memorandum is dis- tributed to the employees stating that fact, and no memorandum stating that Wilkins was made a supervisor, or designating employees to be under his supervision was ever issued. When Wallace was discharged, discussed supra, Wilkins was called into Locks' office, Hunter and Coleman may have been present, and his advice sought as to whether he thought Osborne qualified to take over Wallace's job. Wallace's job was then split between Osborne, the two Wilkins and Jones, and each was advised of a $15 a month raise. Wallace had received $50 per month more salary than Wilkins, though not a supervisor. The only other employees working for Hunter were Ruth Adams, Wayne Choate, and Dallon E. Morrison. Wilkins testified he received his raises at the same time and in the same amount as the other employees and had no benefits that were different from the employees working with him. Wilkins acknowledged that he attended supervisory meetings. 17 The cases cited by the Charging Party are inapposite. Charging Party urges that if the timekeepers are not appropriately a part of the office clerical unit, they either consti- tute an appropriate residual unit or may be a part of the production and maintenance unit. The Charging Party further urges that while the Board has recognized the policy of excluding plant clericals from an office clerical unit upon the insistence of any party, it has held that plant clericals shall be afforded a self-determination election to determine if they want to become a part of an existing production and maintenance unit The question before me is not the matter of representation of plant clericals, rather it 1s confined to the question of whether the timekeepers may properly be included in the unit sought. AINSWORTH MANUFACTURING COMPANY, ETC. 289 Charles J. Wallace testified he was not a supervisor, that after Locks became plant manager there was a supervisory or staff meeting held each morning at 9 o'clock, which was attended by Wilbur Wilkins, Ellis Wilkins, and Wallace. Production problems were discussed and any shortages that existed or might exist in relation to manufactured parts or purchase parts that would hinder or curtail production sched- ules were brought to the attention of the meeting by these three. Wallace being re- sponsible for all local purchasing, and with Ellis Wilkins, responsible for purchase parts, while Wilbur Wilkins was responsible for manufactured parts. In November 1959, because there was seldom a purchase parts shortage, Wallace and Ellis Wilkins discontinued attendance at these meetings. Respondent did not cross-examine Wal- lace, or otherwise challenge this testimony. Wilkins' attendance at supervisory meet- ings appears thus of no consequence in resolving his supervisory status. Wilkins acknowledged reporting Ruth Adams, to Hunter, for taking her lunch hour when everyone was absent from the office, on one occasion. He also testified that he was asked to keep a record of personnel who reported late and acknowledged cau- tioning employees (unspecified) about being late. The Act defines the term "super- visor" in Section 2(11).18 While it appears that Hunter advised Wilkins that he was a supervisor, this record is devoid of any testimony as to which, if any, employees were under his supervision. While he kept a record of employees reporting late to work, the record likewise contains no evidence of any action being taken by anyone in respect thereto, at any time. Whether the keeping of this lateness record was a mere routine or clerical function is likewise obscure. The Board has found in numerous cases that the sporadic exercise of supervisory authority does not constitute an employee a supervisor within the meaning of Sec- tion 2(11) of the Act, or require his exclusion from an appropriate unit. Brezner Tanning Corporation, 121 NLRB 822; Cities Service Refining Corporation, 121 NLRB 1091; Barr Rubber Products Company, 118 NLRB 1428. I find that Wilbur Wilkins is not a supervisor within the meaning of Section 2(11) of the Act, and should be included in the unit. It is undisputed that there were, 26 employees in the unit sought on Jan. 21 and 22, 1960, excluding the 2 confidential employees, but including the 5 timekeep- ers. The appropriate unit, as found herein, contained 21 employees. Twelve office employees, and all five timekeepers, signed cards for the Union on December 16, 1959, this fact is undisputed. Witnesses for the General Counsel testified that the Union was authorized to submit the names of those signing cards to the Respond- ent, as an organizing committee, on January 21, 1960. The Union was and is the duly authorized and exclusive representative of a majority. 2. The refusal to bargain On January 21, 1960, C. E. Strickland, International representative, and the mem- bers of the plant bargaining committee, met with H. J. Roesch, Industrial Relations Director, and other representatives of the Respondent, for the purpose of executing an agreement whereby Respondent assumed the obligation of the collective-bargain- ing agreement that its predecessor had with the Union, on behalf of the production and maintenance workers. I have found, supra, that on two occasions, prior to January 21, 1960, Strickland and A. M. Bazzy, personnel director, discussed the organization of the office employees. At the meeting on January 21, Strickland inquired as to what Roesch intended to do about the office workers, the language used is not specified. Strickland quoted Roesch as advising that "we would have to go the hard way, as far as he was concerned." It is not here contended that this incident constituted a refusal to bargain. On January 22, 1960, the Union mailed a petition for certification, which was received and filed in the Atlanta Regional Office on January 25, 1960 (Case No. 10-RC-4596). The petition was withdrawn on April 11, 1960. On January 22, 1960, the Union sent a letter to the Respondent advising that it was enclosing a list of the office employees who had volunteered to serve as an is Section 2(11) reads: The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend , lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 599198-62-vol. 131-20 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizing committee. The list included the names of the 17 employees, including the 5 timekeepers, who had previously signed the union authorization cards (Gen- eral Counsel's Exhibits Nos. 20 A and B). The Union mailed a second letter to the Respondent on January 22, 1960, in this letter the Union advised Respondent that it represented a majority of the office employees, that it had been designated as the exclusive representative of such employees for the purpose of collective bargaining, that it desired to institute negotiations relative to rates of pay, etc., and it is clear that the request was a request for bargaining (General Counsel's Exhibit No. 21). I so find. I also find that the Company received both of these letters.19 It appears undisputed in the record that the Company never acknowledged or responded, in any manner, to the Union's letter demand of January 22, 1960. Considering all of the evidence in the record, I find that at all times on and after January 22, 1960, Respondent refused to recognize and bargain with the Union as the exclusive representative of the office employees in an appropriate unit for the purpose of collective bargaining, in violation of Section 8(a)(5) and (1) of the Act.2o Respondent alludes to the fact that the charges in this case were not filed until March 4, 1960, after the hearing on the petition for certification was held on Feb- ruary 24, 1960. The Union sought and obtained permission to withdraw the peti- tion for certification on April 11, 1960, before any order of election issued and be- fore any election was held, also at the approximate time of the complaint herein, issued on April 6, 1960. Thus the situation found by the Board in the Aiello case has no application for the reasons stated by the Board in the Dan River Mills and United Butchers cases.21 Respondent asserts that the pendency of the petition for certification justified its refusal to bargain. The Board has rejected a similar contention, in a case not unlike the situation existing here, holding that the pendency of the petition did not justify Respondent's refusal to bargain after receipt of the Union's claim of majority desig- nation and bargaining demand. Laabs, Inc., 128 NLRB 374. Respondent alleges a good-faith doubt, particularly after the terminations herein. The request for bargaining was January 22, 1960, and the bulk of the terminations were not until February 5, 1960. General Counsel contends that the situation pre- sented by the evidence herein is similar to that in Joy Silk Mills 22 in which the 8(a)(1) violations were of the type which manifestly undermine the Union and dis- sipated its majority status. I so find. However, General Counsel has correctly noted one distinction, here Respondent never questioned the Union's majority status. The Board recently reaffirmed its holding in the Joy Silk Mills case stating: It is true that an employer may in good faith insist upon a Board election, as proof of a union's majority status. However, when its insistence upon an elec- tion is motivated, not by any bona fide doubt as to the union's majority status, 19 There is attached to Exhibits Nos 20 and 21 the return receipts for certified mail, both of which are signed "Edward J Locks by Betty Cotter " There is no dispute that Exhibit No. 20 was received by the Respondent Locks' testimony that he did not receive General Counsel's Exhibit No. 21 is not credited That the receipt was signed by Locks' secretary was not disputed, and while available, she was not called to testify. 20 It was on the afternoon of January 22, 1960, at about 3 •30 p in , that President Mitchell, Locks, Strickland, and Dean had their meeting, called at the request of Mitchell. I have above credited Strickland's testimony that Mitchell wanted to know what the disturbance among the office workers was about, he understood that they were unhappy and wanted to belong to the Union, Mitchell offered to aid the Union in obtain- ing 100 percent membership in the plant unit if they would withdraw the petition for the office workers. Mitchell also made it clear that he had some 93 plants in which no office workers were organized, he did not intend to permit organization in Springfield, and would move the work to Atlanta, Georgia, if that happened. Strickland was unable to recall any reference being made during this conversation to his letter requesting Respondent to bargain with the Union. Locks testified that President Mitchell pointed out at this conference, that there were new principals in the plant, that they would be going through a reorganizational program, that a lot of people would be laid off, es- pecially in the office, and that if anything was to be done it should be held in abeyance for a while. 21 See Louis Aiello at at d/b/a Aiello Dairy Farms, 110 NLRB 1365; United Butchers Abattoir, Inc, 123 NLRB 946; Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645. 22 Joy Silk Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A D.C.). AINSWORTH MANUFACTURING COMPANY, ETC. 291 but rather a rejection of the collective bargaining principle, or a desire to gain time within which to undermine the union, such insistence is unlawful. This question of good faith is one which, of necessity, must be determined in the light of all relevant facts in the case, including any unlawful conduct of the employer. Here the record clearly establishes that Respondent's failure to bargain was motivated by its complete rejection of the collective bargaining principle. [Laabs, Inc., 128 NLRB 374.] IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring,in con- nection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor prac- tices, tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It will be recom- mended that Respondent , upon request, bargain collectively with International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive representative of all employees in the unit herein found to be appropriate for the purpose of collective bargaining ; that it offer to Ray D. Osborne and Ruth Doss immediate and full reinstatement to the former or substantially equivalent position of each 23 without prejudice to their seniority and other rights and privileges of employment and make them whole for any loss of pay suffered by reason of the discrimination against them by the payment of a sum of money equal to the amount they would normally have earned as wages from the date on which the employment of each was terminated by the Respondent to the date on which Respondent shall offer to each proper reinstatement as herein provided , less net earnings 24 to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. It is also recommended that the Respondent be ordered to make available to the Board , upon request, payroll and other records to facilitate checking of the amount of earnings due. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated . I shall therefore 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 foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union , United Automobile , Aircraft and Agricultural Implement Workers of America , UAW-AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct set forth in the section entitled "Interference, Re- straint, and Coercion," to the extent therein found , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Ray D. Osborne and Ruth Doss , thereby discouraging the free exercise of the rights guar- anteed by Section 7 of the Act, and discouraging membership in and activities for the above-named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and ( 1) of the Act. 5. All office-clerical employees at the Springfield , Tennessee, plant, excluding engineers, time-study engineers, watchmen, guards , and supervisors as defined in 13See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 21 See Crossett Lumber Company, 8 NLRB 440, 496. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. International Union , United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, is and at all times commencing and since January 22, 1960, has been the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 7. By failing and refusing at all times, commencing and since January 22, 1960, to bargain with International Union, United Automobile Aircraft and Agricultural Implement Workers of America, UAW-AFL-CIO, as the exclusive bargaining rep- resentative of employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act by the conduct of supervisors , as specified in paragraph 6 of the complaint, which antedate the purchase of Respondent on December 28, 1959, or by surveillance as alleged in paragraph 8 of the complaint , or by warning its employees that it would not grant economic benefits, as alleged in paragraph 9 of the complaint. 9. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Amalgamated Union, Local 5, UAW, Independent and Dynamic Manufacturing Corporation. Cases Nos. 2-CC-464 and 2-CB- 2265. April 26, 1961 DECISION AND ORDER On October 29, 1958, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed ex- ceptions to the Intermediate Report. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Leedom, and Fanning]. 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 Intermedi- ate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as indicated below.' 1 Based on the Supreme Court 's decision in N.L .R.B. v. Drivers, Chauffeurs and Helpers Local Union No. 639, etc. ( Curtis Brothers ), 362 U.S. 274 , contrary to the Trial Examiner, the Board finds that the Respondent did not violate Section 8 ( b)(1)(A) of the Act as alleged in the complaint. 131 NLRB No. 43.