General Engineering, Inc.

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless and until the said Respondent Union shall have demonstrated its exclusive representative status pursuant to a Board -conducted election among said employees. It will be recommended that the Respondents cease and desist from in any other manner restraining or coercing employees in the exercise of the right to self- organization , to form labor organizations , to join or assist DUOC 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, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act as amended. Upon the basis of the foregoing findings of fact , and upon the entire record in this case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 777, Taxicab Drivers, Maintenance and Garage Helpers Union, Inter- national Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, and Local 777, Democratic Union Organizing Committee , are labor or- ganizations within the meaning of Section 2(5) of the Act. 2. By contributing assistance and support to Local,777, Taxicab Drivers, Main- tenance and Garage Helpers Union, International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment and other terms and conditions of employment of their employees , thereby encouraging mem- bership in a labor organization, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 4. By interfering with , restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent Employers have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By causing and attempting to cause the Respondent Employers to discriminate against employees within the meaning of Section 8(a) (3) of the Act, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 6. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in and in engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The unfair labor practices found herein are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] General Engineering, Inc. and Harvey Aluminum (Incorporated) and United Steelworkers of America, AFL-CIO General Engineering, Inc. and Harvey Aluminum (Incorporated) and Aluminum Workers Council of The Dalles, Oregon .' Cases Nos. 36-CA-953, 36-CA-954, and 36-RC-1376. May 19, 1961 DECISION AND ORDER On March 29, 1960, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and 'Herein called the Council. 131 NLRB No. 87. GENERAL ENGINEERING , INC., ETC. 649 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondents'had not engaged in certain other unfair labor prac- tices and recommended that the complaint be dismissed with respect to such allegations. In addition, the Trial Examiner found merit in certain objections to the results of the election held on April 27 and 28,1959, in Case No. 36-RC-1376 (123 NLRB 586), and recommended that the election be set aside. The Trial Examiner recommended that the remaining objections be dismissed. Thereafter, the Respondents filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed 2 The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modifications. 1. The Trial Examiner found that the Respondent violated Section 8(a) (1) of the Act in March 1959, when General Manager Andrew Cronkite gave instructions to Charles A. Woodruff, a supervisor within the meaning of the Act, which were not carried out or com- municated to employees, to "get rid of" the men responsible for union activities by such pretexts as "overstaffing" or unauthorized absence from work areas. We do not agree. Although the Trial Examiner held on the basis of the Thayer case 3 that instructions to engage in unfair labor practices violated Section 8 (a) (1) of the Act whether or not they are executed, the Board rejected the Thayer doctrine in Florida Builders, Incorporated,4 which we now affirm. It remains our opinion that unexecuted instructions to a supervisor to discriminate against employees who are unaware of the instructions do not have any impact upon the employees and therefore cannot interfere with the exercise of the rights guaranteed by Section 7 of the Act.' Accord- ingly, we find, contrary to the Trial Examiner, that the unexecuted instructions to Woodruff were not in violation of Section 8(a) (1) of the Act. 2. The Trial Examiner found, and we agree,6 that the Respondents violated Section 8 (a) (1) of the Act by terminating Supervisor Wood- Contrary to the Respondents, we find no evidence in the record of any bias or prejudice on the part of the Trial Examiner. s H. N. Thayer Company, 99 NLRB 1122, 1125. • 111 NLRB 786, 787. 6 National Mattress Company, et al., 111 NLRB 890, 905; Arnolt Motor Company and S H Arnold, d/b/a Atlas Steel & Tube Company, 68 NLRB 868, 869. " Member Rodgers dissents from this holding that the discharge of Supervisor Woodruff constituted a violation of Section 8(a) (1). In Member Rodgers' opinion the record evi- dence is insufficient to support a finding or sustain an inference that any employee knew or could have known of the motivation for Woodruff's discharge. The record evidence indicates to, the contrary . Woodruff discussed with Cavanaugh the possibility that both might be discharged because of the "grain incident," but said nothing to Cavanaugh from which Cavanaugh might suppose that Cavanaugh was to be 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruff on June 15, 1959, for refusing to support as true the Respondents' pretext for the discriminatory discharge of employee Robert Cavanaugh that the latter sold grain sweepings for his own personal profit. As detailed in the Intermediate Report, the Trial Examiner found on the basis of abundant evidence that the Respondents, through numerous unlawful antiunion threats and promises of benefit and the discriminatory discharge of the adherents of the Steelworkers, made all too clear to the employees their strong opposition to the Union:7 As the Board found with judicial approval in the Vail case,' which involves circumstances similar to those herein, it is a reasonable infer- ence that, in plants such as that of the Respondents Where the em- ployees were aware of the Respondents' antagonism to the Union the reason for the discharge of Supervisor Woodruff, namely, the latter's refusal to aid the Respondents in their campaign against the Union, would come to the attention of the rank-and-file employees. It is Well settled that the discharge of a supervisor for refusing to engage in the unfair labor practice of thwarting the, employees' union activities violates Section 8(a) (1) of the Act, as the net effect thereof is to cause employees reasonably to fear that the employer Would take similar action against them if they continued to support the Union.9 Thus, the discharge of the supervisor herein for refusing to participate in the discriminatory discharge of employee Cavanaugh constituted an invasion of the self-organizational rights of rank-and-file employees because it demonstrated graphically to such rank-and-file employees the extreme measures to which the Respondents would resort in order to thwart them in their desire to jour or assist labor organizations.lo In view of the overwhelming evidence in this case of the Respondents' antiunion motivation and the fact that the grain incident was itself a mere pretext for the unlawful discharge of Cavanaugh, Ave cannot agree with our dissenting colleague that the discharge of Woodruff on the same pretext would go unnoticed by the rank-and-file employees and would successfully mask the true reason for his termination from responsible employment. 3. For reasons given in the Intermediate Report, We agree with the Trial Examiner that the Respondents' conduct prior to the election of April 27 and 28, 1959, inhibited a free and untrammeled electoral choice by the employees. We shall therefore adopt his recommenda- discharged for any other reason , or that Woodruff was to be discharged for refusing to help Respondents use the incident as a pretext, or that woodruff had even been asked to help frame such a pretext 7 The Trial Examiner also points out that the Board recently found that Respondents engaged in other unfair labor practices . See General Engineering, Inc, and Harvey Aluminum, 125 NLRB 674. 8Vail Manufacturing Company, 61 NLRB 181 , 182, 183 , enfd 158 F 2d 664 , 666-667 (C A. 7), cert . denied 331 U S 835 See also Better Monkey Grip Company, 115 NLRB 1170, 1171 , enfd 243 F 2d 836 (CA. 5), cert. denied 353 U.S 864 0 Talladega Cotton Factory, Inc., 106 NLRB 295, enfd 213 F. 2d 208 (C A. 5) 10 Jackson Tile Manufacturing Company, 122 NLRB 764, enfd 272 F. 2d 181 (C A. 5). GENERAL ENGINEERING, INC., ETC. 651 tion that the election be set aside and that a new election be held at such time as the Regional Director deems appropriate for a free choice of bargaining representatives. The Council, which at the time of the election in April 1959, consisted of a group of AFL-CIO unions and Teamsters Local 883 thereafter filed a motion and a sub- sequent affidavit in support thereof that its name be amended to add the AFL-CIO designation on the ground that Teamsters Local 883 had been removed from the Council. The Respondents filed opposi- tion to the motion and in reply to the Board's show cause order con- tended that the proposed amendment would create confusion among the employees voting in the election. We agree with the position of the Respondents and shall therefore deny the Council's motion. 4. The Trial Examiner found that the document entitled "Agree- ment Between Reynolds Metal Company . . . and United Steel- workers of America. . . ," which was posted on the Respondents' bulletin Board before the election, inhibited the employees' freedom of electoral choice. We find it unnecessary to pass upon this finding of the Trial Examiner as it would be cumulative in view of the Re- spondents' other conduct which interfered with the election. ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Rela- tions Board hereby orders that the Respondents, General Engineer- ing, Inc. and Harvey Aluminum (Incorporated), their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership of any of their employees in United Steelworkers of America, AFL-CIO, or Aluminum Workers Council of The Dalles, Oregon, or any other labor organization, by discharg- ing, or in any other manner discriminating against, any employee in regard to his hire, tenure, or any term or condition of employment, except as authorized by Section 8(a) (3) of the National Labor-Rela-- tions Act, as amended. (b) Interrogating any of their employees with respect to any em- ployee's activities, membership, or interest in, or connection with, any labor organization in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the said Act ; promising or otherwise informing any of their employees that they will be given a wage increase or recreational facilities or any other benefit or ad- vantage if they reject or forgo union representation or abstain from any activity in, or on behalf of, any labor organization; threatening or otherwise informing any of their employees that if they select a collective-bargaining representative, the Respondents will refuse or 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decline to negotiate or bargain with such representative or stall or unnecessarily delay such negotiation or bargaining; threatening or otherwise informing any of their employees that they will be dis- charged if they engage in any activity in, or on behalf of, any labor organization, or that they will be denied any wage increase, work, benefit, or advantage if they designate or select a collective bargaining representative; or discharging or in any other manner disciplining any supervisor because he has failed or refused so to discharge any employee, or so to interfere with, restrain, or coerce any employee in the exercise of such rights. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization; to form, join, or assist any labor organization; to join or assist United Steel- workers of America, AFL-CIO, or Aluminum Workers Council of The Dalles, Oregon; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Robert A. Cavanaugh, Lloyd K. Fowler, and Charles A. Woodruff immediate and full reinstatement to their respective former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole in the manner, according to the method, and under the terms set forth in section IV of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary or appropriate to an analysis of the amounts of backpay due and the rights of reemployment under the terms of any order that may be entered by the Board upon these recommendations. (c) Post at their said place of business in The Dallas, Oregon, copies of the notice attached hereto marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Nine- teenth Region of the Board, shall, after being duly signed by an authorized representative of the Respondents, be posted by them im- u 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." t GENERAL ENGINEERING, INC., ETC. - 653 mediately upon receipt thereof, and be maintained by them for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the said Respondents to insure that the said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply therewith. IT IS FURTHER ORDERED that the election held on April 27 and 28, 1959, in Case No. 36-RC-1376, be, and it hereby is, set aside. IT IS FURTHER ORDERED that Case No. 36-RC-1376, be, and it hereby is, remanded to the Regional Director for the Nineteenth Region for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. IT IS FURTHER ORDERED that the motion of the Aluminum Workers Council of The Dalles, Oregon, to amend its name be denied. IT IS FURTHER ORDERED that certain paragraphs of section 5 of the complaint which alleged the following 8(a) (1) violations be, and hereby are, dismissed : (a) Instructing foremen to engage in surveil- lance; (b) telling employees they 'were passed over for promotion because. of union activities; (c) requiring job applicants to list union affiliations; (d) engaging in a campaign of vilification against unions; and (e) putting pressure on employee Lloyd K. Fowler because of his union activities in order to induce him to quit. IT IS FURTHER ORDERED that the following objections be, and hereby are, overruled: Respondents conducted a concerned campaign of vili- fication and hate and conspired to permit persons not in voting unit to vote in the election. CHAIRMAN MCCULLOCH AND MEMBER BROWN took no part in the consideration of the above Decision and 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 our employees that: WE WILL NOT discourage membership by any of our employees in United Steelworkers of America, AFL-CIO, or Aluminum Workers Council of The Dalles, Oregon, or any other labor or- ganization, by discharging or in any other manner discriminating against any employee in regard to his hire, tenure of employment, or any term or condition of employment, except as authorized by Section 8 (a.) (3) of the said Act. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate any of our employees with respect to any employee's-activities,' membership, or interest-in, or connec- tion with, any labor organization in a manner constituting inter- ference, restrain, or coercion in violation of Section 8 (a) (1) of the said Act. WE WILL NOT promise or otherwise inform any of our employees that they will be given a wage increase or recreational facilities or any other benefit or advantage if they reject or forgo union representation or abstain from any activity in, or on behalf of, any labor organization. WE WILL NOT threaten or otherwise inform any of our employ- ees that if they select a collective-bargaining representative we will refuse or decline to negotiate or bargain with such represen- tative or stall or unnecessarily delay such negotiation or bargaining. WE WILL NOT threaten or otherwise inform any of our employ- ees that they will be discharged if they engage in any activity in, or on behalf of, any labor organization, or that they will be denied any wage increase, work, benefit, or advantage if they designate or -select a collective-bargaining, representative. WE WILL NOT discharge or in any other manner discipline any supervisor because he has failed or refused so to discharge any employee, or so to interfere with, restrain, or coerce any employee in the exercise of such rights. 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, join, or assist any labor organization; to join or assist United Steelworkers of America, AFL-CIO, or Aluminum Workers Council of The Dalles, Oregon ; to bargain collectively through representatives of their own choosing; to. engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection; or to refrain from any or all, such activities,, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the said Act. WE WILL offer to Robert A. Cavanaugh, Lloyd K. Fowler, and Charles A. Woodruff immediate and full reinstatement to their respective former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole for any loss of pay he may have suffered as a result of his unlawful discharge by us. WE WILL NOT in any manner interfere with the right of our employees to make a free and untrammeled choice in any election ordered by the National Labor Relations Board. GENERAL ENGINEERING, INC., ETC. 655 All of our employees are free to, become,, remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement conforming to the provisions of Section 8(a) (3) of the National Labor Relations Act, as amended. HARVEY ALUMINUM ( INCORPORATED), Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) GENERAL ENGINEERING, INC., Employer. Dated---------------- By------------------------------- ------ (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On April 2, 1959, the National Labor Relations Board, also called the Board herein,,,issued a Decision and`Direction of Election in Case ' No. 36-RC-1376 (123 NLRB 586), containing findings of fact and ordering a representation election among production and maintenance personnel in the employ of Harvey Aluminum (Incor- porated ) i and General Engineering, Inc., respectively referred to herein as Harvey Aluminum and General Engineering, and collectively as the Respondents , at a plant operated by the two companies in The Dalles, Oregon . The election was held on April 27 and 28, 1959. The participating labor organizations listed on the ballot were United Steelworkers of America, AFL-CIO , and Aluminum Workers Council of The Dalles, Oregon, respectively called the Steelworkers Union and the Aluminum Workers herein. A substantial majority of the ballots were cast against representa- tion ' by either labor - organization . Thereafter, the Steelworkers - Union filed timely objections to the results of the election, and, after investigation , the Regional Direc- tor for the Nineteenth Region of the Board issued a report , dated June 12, 1959, recommending to the Board that the election be set aside on various grounds specified in the report. On June 24, 1959 , the Steelworkers Union filed two charges with the Board; one in Case No. 36-CA-953, and the other in Case No. 36-CA-954, each imputing to the Respondents violations of the National Labor Relations Act, as amended (61 Stat. 136-163; also referred to herein as the Act). Each charge was subsequently amended by the Steelworkers Union. - By an instrument dated July 6, 1959 , the Respondents filed with the Board timely exceptions to certain conclusions of the Regional Director and to his recommenda- tion, requesting the Board to dismiss the objections or, in the alternative, that a hear- ing be held to determine issues raised by the exceptions. On July 30, 1959 , the Board entered an order on the exceptions , directing that a hearing be held "to resolve the issues raised by the (Steelworkers Union 's) objec- tions 1, 2, 3, 5 and 6, as numbered in the Regional Director 's report." Retaining the numbers used in the report , the relevant objections may be summarized as fol- lows- Harvey Aluminum and General Engineering ( 1) made preelection announce- ments that a wage increase would be granted unilaterally to the employees; (2) made preelection promises of immediate construction of recreational facilities if the employees voted for neither union ; (3) held preelection meetings , which employees were required to attend, where management representatives made promises that the employees would be given increased wages and benefits if both unions were re- jected, (5) conducted "a concerted [preelection] campaign of vilification , hate, mis- representation and falsehood against the union [Steelworkers Union], and of threats, 1 The name Harvey Aluminum ( Incorporated ) appears herein as corrected , by amend- ment, at the hearing in this proceeding 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intimidation and promises to the employees"; and (6) "conspired to permit persons not in the voting unit to vote in the election" with the result "that such persons actually voted." On August 12, 1959, on the basis of the charges. and amendments thereof, the General Counsel of the Board issued a complaint, alleging that the Respondents had violated Section 8(a)(3) of the Act by discharging and refusing to reinstate two employees, Robert Allen Cavanaugh and Lloyd Kenneth Fowler, because of the union membership and activities of such employees; that the Respondents discharged a foreman named Charles Woodruff "because of his refusal to discharge or other- wise discriminate against various of Respondents' employees," including Cavanaugh, and "failure" to engage in other unfair labor practices; and that by reason of the discharges of Cavanaugh, Fowler, and Woodruff, and other conduct, the Respondents have interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, and have thereby violated Section 8(a) (1) of the statute. The Respondents have filed a joint answer, denying, in substance, that they com- mitted the unfair labor practices imputed to them in the complaint. The proceeding directed by the Board in its order of July 30, 1959, to resolve objections to the election, has been duly consolidated for hearing with the cases in which the charges were filed; and copies of the charges, amendments thereof, com- plaint, and order of consolidation have been duly served upon all parties entitled to such service. Pursuant to notice duly served by the General Counsel upon all other parties, a hearing on the issues specified in the Board's order of July 30, 1959, and those raised by the complaint and answer, has been held before me, as duly designated Trial Examiner, at The Dalles, Oregon. The General Counsel and the Steelworkers Union appeared and were represented by respective counsel; the' Aluminum Workers by business representatives; and the Respondents by counsel and Harvey Aluminum's director of industrial relations. All parties were afforded a full opportunity to be heard, to examine and cross-examine witnesses, to adduce evidence, to file briefs, and to submit oral argument. I have read and considered briefs that the General Counsel, Steelworkers Union, and Respondents respectively filed with me after the close of the hearing. No brief has been submitted by the Aluminum Workers. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. IDENTITY OF THE RESPONDENTS; NATURE OF THEIR BUSINESS; THE BOARD'S JURISDICTION Harvey Aluminum is a California corporation and maintains an office and manu- facturing facilities in Torrance, California, where it is engaged in the business of fabricating aluminum products. The firm's affairs and operations are directed and controlled by members of a family who bear the surname Harvey, one of whom, Lawrence A., is the corporation's executive vice president. General Engineering is an Oregon corporation. As the Board found in the Deci- sion and Direction of Election, the company was organized at Lawrence A. Harvey's request by three attorneys who are the corporation's sole stockholders, officers, and directors. It may be noted here, as did the Board, that one of the attorneys testified in the representation hearing leading to the Decision and Direction of Election that he is "under a moral obligation to dispose of his stock in General Engineering pur- suant to directions from 'the Harvey interests.' " Harvey Aluminum owns a plant and related facilities for the production of alu- minum in The Dalles, Oregon. As the complaint alleges, and the answer admits, both Harvey Aluminum and General Engineering built the establishment, and both corporations are, and have been "at all material times," engaged "in the business of . . . operating" the plant; and in interstate commerce within the meaning of the Act .2 By reason of such interstate operations, the Board has jurisdiction over the 2 The record contains no specification of the dollar volume of General Engineering's interstate operations. As the answer concedes, during the calendar year ending Decem- ber 31, 1958, Harvey Aluminum received in excess of $100,000 for goods produced at its California plant and shipped by it to points in other States. As Harvey Aluminum and General Engineering, as will appear, are actually a single employer within the purview of the Act, Harvey Aluminum's interstate operations are sufficient to vest the Board with jurisdiction over both Respondents. Northern California Chapter, The Associated Gen- eral Contractors, et W , 119 NLRB 1020, 1049 ; Insulation Contractors of Southern California, 110 NLRB 638. In any case, the Respondents ' answer concedes that they are engaged in interstate commerce. GENERAL ENGINEERING, INC., ETC. 657 subject matter of the consolidated proceedings (which, it may be noted, do not in- volve the Torrance plant, but only the establishment at The Dalles). In the Decision and Direction of Election, the Board found, upon the basis of facts summarized therein (and unnecessary to detail here), "that the two corpora- tions constitute a single employer within the meaning of Section 2(2) of the Act." The Respondents opposed such a holding in the representation hearing that led to the election, and continue to question its validity. Needless to say, I am bound by the relevant finding at least with respect to the issues raised by the objections, for such issues arise in the representation proceeding in which the finding was made. What is more, the Decision and Direction of Election is, when noticed officially, as I notice it here, a sufficient basis for the same finding so far as the unfair labor practice issues raised by the complaint and answer are concerned. In any case, the record supports such a finding in abundant measure, apart from the Decision and Direction of Election. One may note first, in that connection, that the Respondents' answer admits allegations of the complaint that both corporations "are, and at all times material herein have been, engaged in the business of construct- ing and operating an aluminum reduction plant at The Dalles." In other words, the answer in effect concedes that the operation of the plant is question is a joint enterprise of both Respondents. Moreover, testimony given at the consolidated hearing, much of it by management or administrative personnel in the employ of one or the other of the Respondents, requires such a holding. A persuasive feature of the evidence in that regard is that it establishes that the plant's production employees and at least some of their immediate supervisors are on the payroll of General Engineering, but are subject to direction by management representatives of Harvey Aluminum. In fact, the man- agerial hierarchy consists of representatives of each Respondent, all performing interlocking functions directed to the common end of supervising the operation of the plant and the maintenance and production employees who work there. Thus, Law- rence A. Harvey, executive vice president of Harvey Aluminum, and obviously a dominant (if not indeed the controlling) voice in the affairs of both Respondents, has managerial authority over the plant's general manager, Andrew Cronkite, who is on the payroll of General Engineering, and has overall supervisory responsi- bility for the establishment's production activities. Cronkite, in turn, is the immedi- ate supervisor of a member of the plant's upper supervisory echelon named Rene Legault, who has the title of plant superintendent and is on the payroll of Harvey Aluminum. And among the activities that Legault superintends is the work of subordinate supervisors who are on the staff of General Engineering and direct the work of the production and maintenance employees on the payroll of that com- pany. In fact, Legault testified that it was he who decided to discharge Woodruff, a General Engineering supervisor, the legality of whose dismissal is one of the important issues here. What is more, the evidence establishes, beyond cavil, that labor relations policies affecting General Engineering's production employees are prescribed and applied by managerial representatives of Harvey Aluminum. This is evidenced by the fact that shortly before the election, Lawrence A. Harvey told a General Engineer- ing production supervisor named Francis Yankee that the latter was "free" to tell employees under his supervision that they would receive wage increases and other benefits "if they stayed with the company instead of the union" in the election. It is also noteworthy that Harvey Aluminum's director of industrial relations, Albert W. Hinz, formulates or applies labor relations policies affecting General Engineering production employees. Such functions are evident from the very fact that he entered an appearance at the consolidated hearing for General Engineering , as well as Harvey Aluminum (although both firms were represented by attorneys), and participated actively in the proceeding , on behalf of both Respondents, by the presentation of evidence, interrogation of witnesses , and submission of oral argument . Moreover, a Harvey Aluminum staff member named William S. Brunt is stationed at the plant in The Dalles, bears the title of personnel manager, is a subordinate of the director of industrial relations , and administers personnel affairs of General Engineering. That Brunt is a managerial vehicle of Harvey Aluminum for the application of that company's labor relations policies to General Engineering employees becomes obvious in the light of the fact that about 2 weeks before the election both he and Legault addressed such employees at a meeting convened by the management, urg- ing them to vote against both unions in the election. I think it an illuminating fact that Brunt and Legault, both on Harvey Aluminum's payroll, were the only man- agerial representatives to address the meeting. Significantly, also, notwithstanding the Respondents' insistence that as separate entities they are not a single employer, 599198-62-vol 131--43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their own preelection campaign material (SW Exhibit No. 2 for example), dis- tributed to General Engineering employees, interchangeably refers to "the company" and "Harvey" in contexts that, by clear implication at least, treat both companies as though they were one. From what has been said above, there can be no doubt that operation of the plant at The Dalles, and direction and control of those employed there, is a joint affair of both Respondents, with each acting for the other in the management of the enterprise and the administration and application of personnel and labor rela- tions policies affecting employees in the bargaining unit described in the Board's Decision and Direction of Election. The sum of the matter is that the Respondents constitute a single employer for the purposes of application of the Act .3 II. THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America , AFL-CIO, and Aluminum Workers Council of The Dalles, Oregon, are, respectively, labor organizations within the meaning of Section 2(5) of the Act. III. THE ISSUES RAISED BY THE OBJECTIONS AND RELATED ALLEGATIONS OF UNFAIR LABOR PRACTICES The objections upon which the Board ordered a hearing center, in part, upon literature distributed by the Respondents to employees eligible to vote (and who did vote) in the election. The material alleged (in the complaint, as well as in the objections) to contain improper promises was distributed to employees at a gate used by them at the plant in The Dalles. The distribution took place after the election was ordered and within a period of a week or two before it was held. One such document (SW' Exhibit No. 2), a lengthy circular given to employees at the plant gate less than a week before the election and addressed "TO ALL EMPLOYEES," sets forth 22 questions in numerical sequence, and an answer to each. Only a few of the questions and answers have any operative effect here. Answering question 1 ("If the union wins, will my rate of pay be cut? Will I be shifted around? Just what will happen?"), the document states: "This company has never cut wages. If the union wins every penny (or half-pennies the unions have in their contracts) will be bargained for on a tough company basis. It took the union 16 years to get the wages at other Aluminum Companies that this company will quickly provide it's [sic] employee's [sic] without a union." Replying to question 3, dealing with what "Harvey (can) afford," the circular states: "Harvey can afford to provide its employee's [sic] with year-round employ- ment which the union controlled aluminum companies have not been able to do. Harvey employees must be better off, for after all the Torrance plant has remained non-union for 19 years because it's [sic] employee's [sic] enjoy the highest earnings 31n General Engineering, Inc, et al, 125 NLRB 674, another unfair labor practice proceeding against both Respondents involving the same plant, the Board held that they constitute a single employer, stating that it was officially noticing "the evidence of common ownership and common control of both Respondents which was adduced in the representation proceeding" The Board added that the "functional integration of the Respondents' operations" was not "sufficient alone to warrant a single employer finding " This position is in effect an application of a doctrine expressed by the Board (Member Jenkins dissenting) in Dearborn Oil and Gas Corporation, et al., 125 NLRB 645. As the Board noted in its Decision and Direction of Election, at the representation hearing, one of the incorporators of General Engineering testified that he "is under a moral obligation to dispose of his stock in General Engineering pursuant to directions from `the Harvey Interests.' " This testimony, it may be assumed, served as it basis for the Board's finding in the unfair labor practice proceeding that there was "evidence of common owner- ship . . . of both Respondents " In any event, the record of the consolidated hearing in this proceeding warrants a finding that the Respondents constitute a single employer, irrespective of any evidence of "common ownership" of stock in both corporations. This is so because the operation of the plant at The Dalles is a single enterprise jointly con- ducted by both ; the employees in the bargaining unit involved perform their work under the interlocking supervision of both corporations ; and managerial representatives of Harvey Aluminum formulate and administer labor relations policies affecting such em- ployees Put another way , I do not read the Dearborn Oil decision as requiring a finding of "common ownership" as a precondition of a holding that separate legal entities consti- tute a single employer where the evidence , as here, unlike that in Dearborn Oil, establishes that the entities operate what is for all practical purposes a single enterprise , each acting for the other in the operation. GENERAL ENGINEERING, INC., ETC. 659 in the industry, which The Dalles employees can also have immediately if they vote no union." Question 21 poses the question, in effect, whether unionization of the plant would result in "the same benefits as union plants"; and the answer supplied states in part: "Harvey employees in the Torrance plant receive the highest benefits without paying for them and The Dalles employees can also receive these benefits if they choose the company in the coming election." 4 It is clear from the timing and content of each of the quoted answers that each contains a promise of benefit in the form of increased wages conditioned upon the rejection of union representation in the election. The condition is apparent in each answer, but is particularly evident in the answer to question 2, which flatly promises the employees "the highest earnings in the industry . . . immediately if they vote no union," and emphasizes the condition by italicizing it. The Respondents, however, would justify the promises by reading them in the light of what their brief terms a "factual context" of talks made by Brunt to small groups of employees in a series of meetings held over a period of a number of weeks some 5 or 6 months before the election. According to Brunt, in these talks, given after the filing of the representation petition and before the Board's Decision and Direction of Election, he described for the employees in attendance certain management policies, including various benefit programs and "wage progression plans which the company had," and told them "how a representation petition would interfere with the introduction of policies in the way of benefits, et cetera." Thus, so the Respond- ents' argument runs, the statements in the circular under consideration here "were no more than mere reiteration of its long existing position." The promises, in my judgment, were not justified by any "factual context," whether consisting of Brunt's talks or any other factor established by the evidence. As regards the talks, it is well to bear in mind that the record does not establish the extent to which the eligible voters included those whom Brunt addressed some 5 or 6 months before the election. For all that appears, because of such factors as staff accretion or other personnel changes, the voting complement included a significant number of employees who were not among the groups addressed by Brunt. But there is a deeper infirmity in the Respondents' thesis, and that is that the answers to questions 1, 3, and 21 make no reference to long-established "wage progression plans," nor to the effect of the representation proceeding upon them. The answers contain flat promises of benefit harnessed to the condition that the employees reject union representation in the election; and I can see no reason why the employees should be expected, by a species of exegesis, if not by a process of mindreading, to construe the promises to mean something other than what they say, or, in other words, to read them as a mere description of "long existing" wage plans, and a statement to the effect that they could not be made operative by reason of the rep- resentation proceeding. Thus, I hold that the impropriety of the promises is in no way lessened by the evidence of Brunt's talks or by any other allusion by the manage- ment to the existence of wage plans and the effect of the representation proceeding upon their operation.' The promises, in sum, interfered with a free and untram- meled balloting choice by the employees, and with the exercise of rights guaranteed them by Section 7 of the Act. By the infringement of such rights, the Respondents violated Section 8(a)(1) of the Act.' 4 The quoted excerpt from the answer to question 21 is the only part of the answer that has any operative effect upon the issues. The rest, contrasting employment opportunities at the plant with alleged unemployment among union members in the aluminum industry, and expressing criticism of "union pension plans," is not germane. 6 One such allusion may be found in the answer to question 14 of the circular under discussion The answer, purportedly forecasting events after the election, states that thereafter "the beer halls and taverns will lose a lot of union organizer business, but the company can then proceed to put in its wage plan and employee benefit plan that will give you workers the highest yearly earnings without fear of the strike this year that other aluminum worker's [sic] will suffer from " The fact that this appears in the same circular as the answers to questions 1, 3, and 21 does not alter my conclusions regarding the impropriety of the promises contained in such answers Indeed, although I deem it unnecessary to determine the matter, I note that it is at least arguable that the answer to question 14 contains an improper promise conditioned upon the outcome of the election 6 The Respondents allude in their brief to the exclusion at the consolidated hearing of a large number of pieces of union literature distributed to employees before the election by one or the other of the labor organizations involved here The documents were offered on the theory that they were part of the context in which the Respondents' literature was distributed, and it was urged in that connection that the particular content of the 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similar improprieties were contained in other bulletins distributed by the Respond- ents. One of these (SW Exhibit No. 3), given to employees the day before the election, after describing "three choices" in the impending balloting, and urging rejection of both unions, states: What you decide today will mark an important step for a long time to come. It will decide whether you wish to work in a community torn by strife, strike and hatred or whether you will adopt the middle road policy and peacefully attain the highest wage paid by any Aluminum Company in the United States. By the union connivance in filing a petition for election while the plant was still in process of organization they prevented the company from raising your rate of pay. Vote for neither (union) and your pay will be raised and continue to be raised until you are the highest paid workers in the Aluminum Industry. With this excerpt, too, it is evident that the argument the Respondents make of the prior talks of "wage progression plans," and of the effect of the representation petition upon a contemplated wage increase, are off the point. The critical fact is that the last sentence of the excerpt promises wage increases for the employees until they "are the highest paid workers in the Aluminum Industry," and conditions the promise on a vote for "neither" union. This was a palpable interference with the employees' electoral freedom of choice, and an abridgement of their Section 7 rights, and by making such a promise the Respondents violated Section 8 (a)( I) . Similarly improper was a statement contained in the second paragraph of a bulletin bearing the title "SECURITY" (SW Exhibit No. 4), distributed to em- ployees about 2 or 3 weeks before the election. The paragraph in question states: "The company can and will provide you with 52 weeks work a year, and the highest yearly earnings in the aluminum industry if you choose the company in the coming election." This language is preceded by an opening paragraph alleging that in addi- tion to "dues, assessments, and other money-grabbing schemes, the union (which one is not specified) is establishing a 'strike fund''; that "the unions have announced they are preparing for a long drawn out strike this year"; and that "this is the security they have been promising you." In the main, the balance of the document, follow- ing the second paragraph, alludes to the "gamble" of striking, and of "the assured loss of your job" as a consequence; 7 purports to describe the possible consequences of striking, such as "losing your homes, automobiles, savings, and other personal things"; and contrasts a disadvantageous impact upon the employees if they "choose a union," and thus become involved in strike action, with the advantage of continued steady employment if they "choose to work without a union." Whether or not the second paragraph of the circular be considered in the context of the whole document, I am unable to view the paragraph's content as privileged campaign material purporting to contrast advantages of not having union representa- tion with disadvantages of having it. The basic fact is that whatever view one takes of the rest of the document, the paragraph is a guarantee (and not a mere predic- tion) of year-round employment, with "the highest yearly earnings in the aluminum industry" if the employees "choose the company in the coming election," or, in other words, if they reject union representation. This conclusion is inescapable particu- larly if one takes into account the fact that the promise, and the single condition upon which it rests, consists of a separate paragraph; and that the language used, by means of the italicized word "can," stresses the management's power to give year- round employment, with "the highest yearly earnings" (and obviously, by negative implication, the power to withhold such benefits), and, again by italicizing, empha- sizes that the management "will provide" such employment and earnings upon the condition (in which the key word "if" is also stressed by italicizing) that the em- ployees "choose the company in the coming election." It is interesting to note that Board's order directing a hearing on the objections required admission of the material. The proffered evidence was excluded as irrelevant, and the reasons for the exclusion are amply set forth in the, record, but it may appropriately be noted here that • (1) Section 7 protects the rights of employees and not those of employers or unions; (2) thus, plainly, improprieties in any union literature would serve as no justification for abridgements by the Respondents of the employees' Section 7 rights, or for interference with their freedom of choice in the election ; and (3 ) obviously, the Board's order may not properly be read as requiring its hearing officer to receive irrelevant matter. Q Neither the complaint nor the objections raise the question of the legality of the statement that the concerted activity of a strike would be a "gamble with the assured loss of your job." Hence I do not pass on the matter, although noting that the Respondents do not explain , either in the relevant bulletin or elsewhere , why such concerted activity would be a "gamble" on a loss of a job, if the loss is "assured." GENERAL ENGINEERING, INC., ETC. 661 the paragraph is silent about any other factors such as, for example , the state of the country's economy or of the aluminum market, that could conceivably affect the observance of the promise made. In the light of what has been said, to hold that the language in question is but part of a permissible evaluation of the results of choosing or rejecting unionization is to make the national labor policy embodied in the Act a game of words, with the advantage to those who are adept in the use of superficially correct language as a vehicle for conveying promise and threat, and are armed with the power to carry out either or both. The sum of the matter is that the second paragraph of the circular under consideration was a promise of benefit to the employees conditioned upon their voting as the management desired , and was thus an interference with their freedom of choice in the election, and with the exercise of their statutory guarantees. The Respondents thereby violated Section 8 (a)(1) of the Act. These conclusions also apply to part of the last paragraph of a circular (SW Exhibit No. 5) entitled "WHAT ABOUT ME," and distributed to employees about a week before the election . The paragraph reads: "Your company will not solicit you in beer taverns and pass out handbills all over town . We have more respect for you and your families than to engage in that type of activity. We will not insult your integrity by extravagant promises; but we do say, if you choose the company over the union, your confidence in us will result in your having the highest yearly earnings and the highest possible benefits of any aluminum worker in the country, without fear of losing your jobs, costly strikes, and forced to pay dues, assessments, fines, and other fund raising union schemes to take part of your earnings each month." As with the circular entitled "SECURITY," privileged comment on the possible consequence of union membership , such as union exactions and economic loss resulting from strikes , is one thing; but it is quite another matter to promise the employees that their choice of "the company over the unions . . . will result in your having the highest yearly earnings and the highest possible benefits of any aluminum worker in the country." Whether or not one views this promise as "extravagant," it amounts to nothing more than the offer of a reward to the em- ployees upon condition that they reject union representation. In short, this promise, too, interfered with the employees' freedom of electoral choice, and abridged the exercise of their statutory guarantees. By the abridgment, the Respondents violated Section 8(a)(1) of the Act. The allegations of an improper promise of construction of recreational facilities stand, in part, upon a portion of a circular (SW Exhibit No. 1) entitled "WHY HAVE THE UNIONS LIED TO US," and distributed to employees shortly before the election. The relevant statement is included in a paragraph that reads: The Company invites all of it's [sic] employees to see the design of the proposed new recreational facilities for the employees and family. This includes a swim- ming pool, picnic ground, ball diamond and numerous other facilities for the enjoyment of the employees and their families [sic] complete enjoyment. This is planned for the exclusive use of our working men. If the employees display their confidence in the Company, construction can proceed immediately. We have furnished the finest "Change house" possible and we hope we can build you the finest "Recreational Club." Other portions of the circular leave no room for doubt that the manner in which the employees were besought to "display their confidence in the Company" was to vote against both unions in the election. In short, the quoted paragraph contains a promise that "if" the employees reject union representation, construction of "the finest Recreational Club" for the employees "can proceed immediately." Undisputed evidence adduced by the Respondents establishes that the manage- ment-made plans for recreational facilities prior to the filing of the representation petition, and they see in this evidence lawful justification for the promise. The contention misses the issue. The Respondents are not charged with providing or planning recreational facilities to influence the outcome of an election; what is charged is that on the eve of the election, they promised "immediate construction" of recreational facilities on the condition that the employees ballot against union representation. Such a promise is improper no matter when the recreational facili- ties were planned, and the evidence of the planning is beside the point of any material issue in this case. Nor do I find any merit in the claim, put forward in the Respondents' brief, that the statement in question was justified because of "misleading and deceptive statements by both Unions in their campaign propaganda (bulletins and circulars excluded )t the consolidated hearing as immaterial) that the employees ,could obtain such facilities only if each Union [sic] won the election and subsequently 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was designated as the bargaining agent." My examination of the voluminous "cam- paign propaganda," in the course of passing on its admissibility, did not reveal the claimed "misleading and deceptive statements " to which the Respondents allude, nor does their brief specify where such statements may be found in the many documents involved. Be that as it may, the Respondents have not established that the promise of "immediate construction" of the recreational facilities mentioned in their circular was made because of, or in response to, "misleading or deceptive statements " by either union on the subject of such facilities . The sum of the matter is that the promise constituted interference with the employees ' freedom of choice in the election, and an abridgement of their section 7 guarantees ; and that, as a consequence, the Respondents violated Section 8 (a) (1) of the Act. In addition to the written improprieties discussed above, the management of the plant made improper oral statements to employees in connection with the election. Some of these were made at a meeting convened by the management in the plant cafeteria during regular working hours about a week or two before the election. Employees were required by their supervisors to attend and approximately 100 were present. Legault arranged the program with Brunt and both made speeches to the assemblage. During the course of his remarks , Brunt, who spoke first , noting that the plant was newly established , asked the men, as a matter of fairness , to give the management time to put its plans into effect without a union at the plant ; described and praised an insurance plan that had recently been placed in operation for the employees; promised that they would be given a wage increase if they voted against union repre- sentation in the election ; and asserted that if they chose unionization, the management would fight the choice as long as it could , and their wages would not be increased .8 Legault addressed the employees in a loud and excited tone of voice , gesticulating with his arms. He opened his speech with a statement that management did not want a union in the plant and would not tolerate one, and followed this with remarks to the effect that the plant was new, and management needed a chance and in time would pay better wages and provide more benefits; that a long-range wage plan would be put into effect if the employees voted against unionization in the election ; that the management would have increased wages previously , but did not do so because "the union" would have accused the management of trying to influence the election results; that if union representation was rejected , the management would provide new recreational facilities ; and that if the employees chose a union, their workweek would be reduced to 4 days, and management would continue to contest the election result as long as possible and thereby stall efforts by the employees' repre- sentative to negotiate contract terms and a wage increase for them .9 8 Findings regarding Brunt's remarks are based on applicable portions of the testimony of two employees, Cavanaugh and Browning. (Two other employees gave testimony con- cerning the meeting, but one, Bushman, sat too far from Brunt to distinguish what he said, and the other, Fowler, arrived late ) Although testifying at length for the Re- spondents, Brunt gave no description of what either he or Legault said. Legault's testi- mony pictures Brunt as describing the insurance plan The Respondents urge rejection of the relevant testimony of Cavanaugh and Browning, basing the position in large measure on the fact that the account of one differs from that of the other But it appeared to me that both gave their best recollection, their differences (not of overriding significance, in my judgment) arising from variables in powers of recall and articulation that one inevitably finds in the testimony of two or more humans who describe remarks of any length months after they were uttered In contrast, as will appear, Legault gave testi- mony that was lacking in candor. Actually, Cavanaugh and Browning, although differing in expression, are in basic accord on the important point that Brunt made a promise of increased wages conditioned upon the election result. Moreover, there is evidence in abundance, as the circulars themselves establish, that it was management policy to make such promises, and there is thus strong corroboration for the testimony of Cavanaugh and Browning. 9 Legault's version of his speech, unlike the account of each of the four employees called by the General Counsel, reflects no threat or improper promise I am unable to accept his account as a suitable basis for findings, for he did not appear to me to be as candid as he should have been This characteristic appears almost at the inception of his version, for he quotes himself as saying that management neither opposed nor favored unions for the employees Such a profession of neutrality is quite at variance with the indubitable fact, established by the Respondents' own literature, if by nothing else, that they have a strong hostility toward unionization of their employees I think it far more likely, as the four employees claim in effect, that Legault expressed such hostility. It is also GENERAL ENGINEERING, INC., ETC. 663 Legault's speech, as well as Brunt's, contained unlawful promise and threat. The superintendent's remarks on the subject of wages was much more than the expression of a view that if the employees chose union representation, they would have to look to their representative's bargaining efforts, rather than existing management plans, for wage increases. One may find on intimation to that effect if one does not go beyond the allusions to the claimed long-range wage plans and the reason why no increase had been granted, but these statements were tied to a threat that if the election went against the management, it would do all it could to contest the election result in order to stall and delay negotiation of a contract and a wage increase for the employees. This was but another way of saying that the employees would be rewarded with increased wages if they voted the way the management wished, and punished with stall and delay in bargaining negotiations and in the granting of wage increases if the employees chose union representation. I hold that the Respondents abridged the statutory guarantees of their employees, thereby violating Section 8(a) (1) of the Act, and interfered with the employees' freedom of choice in the election by each of the following: Brunt's promise that the employees would be given a wage increase if they rejected union representation in the election; his threat that if they chose such representation, the management would contest the choice as long as it could, and the employees' wages would not be increased; Legault's promise and threat to the same effect; his threat that the workweek would be reduced to 4 days if the employees chose union representation; and his promise that if they rejected such representation, the management would provide them with new recre- ational facilities.10 The Steelworkers Union contends that the Respondents made misrepresentations to the employees prior to the election with respect to a collective-bargaining contract then in effect between the labor organization and an aluminum producer named Reynolds Metals Company which, judging by the agreement, operates plants in a substantial number of States, including a facility at Troutdale, Oregon. The contention centers on a document that was posted on a bulletin board at the plant maintained by the management and open to the view of the employees. The document was placed on the board sometime prior to the election, was there at the time of the balloting, and was still there some months later when the consolidated hearing was held. The Respondents do not explain how the document came to be posted or maintained on their bulletin board, and, particularly in the absence of such an explanation, the responsibility for such maintenance before and at the time of the election must be charged to the plant management or, in other words, to the Respondents. noteworthy that Legault gave untrue testimony that Woodruff, one of the dischargees named in the complaint, voluntarily resigned, although the evidence establishes beyond any doubt that Woodruff was discharged. To be sure, there are variances in the testimony of the four employees on the subject of Legault's remarks, but this is not decisive, although certainly a matter to be considered in evaluating their credibility. It is important to bear in mind that although couched in different terms, all four accounts in effect impute both promise and threat to Legault ; and that this aspect of their tesimony is corroborated by evidence, much of it consisting of the Respondents' own literature, that it was management policy to interfere with the free exercise of their employees' statutory guarantees. Upon a full appraisal of the record and the witnesses, I have concluded that a composite of the testimony of the four employees reflects the significant features of Legault's speech, and I have thus based findings on such a composite. 10 The General Counsel claims, and the Respondents in effect deny, that shortly before the election Foreman Yankee made a coercive statement to an employee (Yukich), and that a leadman named Hoke made one to another employee (Browning). In view of the sub- stantial volume of improper statements, including threats, already found above, and be- cause of the scope of the remedy to be recommended herein, I believe it would add nothing of substance to resolve the relevant issues relating to Yankee and Hoke, and I therefore do not pass on the questions. For much the same reason, I deem it un- necessary to pass on the legality of documentary statements by the Respondent (alleged in the complaint to be unlawful threats) that a choice of union representation in the election would bring to the employees " a community torn by strife and hatred" (SW- Exhibit No 3), and that such a choice would result in "tough company" bargaining for "every penny" or "half pennies" (SW Exhibit No 2). Similarly, no useful purpose would be served in passing on a disputed issue whether a leadman named Duarte made a statement to an employee (Yukich) to the effect that the management had a list of employees slated for discharge because of union activity ; nor whether the Respondents should be required to accept responsibility for Duarte's remarks , if made. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The document consists of a single sheet of paper. One half of the visible side of the sheet, as posted, contains the following matter in print: AGREEMENT Between REYNOLDS METALS COMPANY TROUTDALE,OREGON and UNITED STEELWORKERS OF AMERICA C.I.O.-LOCAL 330 The other visible half of the sheet, under the caption "Section 2. Annual Wage Increases," sets forth a schedule of progressive increases for a 3-year period beginning August 1, 1956; and contains the names of the purported signatories, consisting of two for the Troutdale plant and two for the named local affiliate of the Steelworkers Union. One of the latter names is that of Dan LaMain, an organizer of the Steel- workers Union, who lives in the Dalles and has been engaged in organizational work among the Respondents' employees there. The posted document is, in truth, a composite of relatively small portions of two separate contracts. The language of the schedule of wage increases is identical with that of a similarly labeled section 2 (of article XXIII) of a comprehensive agree- ment (printed in SW Exhibit No. 12A) between the Steelworkers Union (not the local affiliate) and Reynolds affecting the latter's plants at the specified locations in widely separated parts of the United States. Among the contract's many provisions (which span some 30 pages of a printed pamphlet), in addition to section 2 of article XXIII, are clauses providing for wage studies to determine whether revisions should be made in the "established rate ranges" (section 4, article XXIII), and for increases in "incentive earnings" proportioned to the prescribed hourly rate increases (section 7, article XXIII). LaMain was not a signatory to the contract (which was signed by 15 individuals on behalf of the Steelworkers Union). The purported signature in- formation in the posted document was obviously excerpted from another agreement, one between the local affiliate and the Troutdale plant, dealing with matters of particular application to that plant, but unrelated to wage increases (or, for that matter, any specification of hourly rates), incentive earnings, or wage studies. The posted document, in my judgment, has the effect of misrepresenting material facts beyond the misstatement to the effect that LaMain was a signatory to the con- tract containing the schedule of wage increases. This arises from the omission from the posted, composite of any reference to the schedule's companion provisions (con- tained, also, like the schedule, in article XXIII) dealing with projected wage studies, and with the proportionate increases in incentive earnings. Reading the document, one would not merely erroneously conclude that its contents came from a single agreement between the local and Reynolds, but would be led to believe that the pro- visions for annual wage increases applicable to the Troutdale plant were those em- braced in the posted document, whereas, in truth, the contract from which the con- tent of "Section 2. Annual Wage Increases" was taken contained provisions under which the Troutdale employees, as well as those of the other Reynolds plants, could receive higher increments than those shown in the posted material. It will not do to say that the very circumstance that the caption includes the phrase "Section 2" would put one on notice that there were additional contract terms in effect. The very nature of the phrase "Annual Wage Increases" in the caption would justify a belief that those were the only provisions for annual increments. Moreover, the caption could not possibly put one on notice that the local and Reynolds had entered into a contract containing terms of any kind dealing with wage increases, for there has been no such contract. The Respondents offer no explanation of the reason why excerpts from two differ- ent agreements were laced together and presented on their bulletin board to employ- ees as though the terms came from a single contract, nor why they omitted to men- tion other relevant contractual provisions; nor do they explain why they in effect misrepresented to their employees that LaMain was one of those responsible for the purported contractual terms in the document. Particularly in the absence of such explanations, the record impels the conclusion that the misrepresentations, by means of both inclusion and omission, were designed to influence the employees to reject union representation in the election. As the Board has pointed out, in passing on a somewhat comparable issue: "Exaggerations, inaccuracies, partial truths, name- calling, and falsehoods, while not condoned, may be excused as legitimate propa- ganda, provided they are not so misleading as to prevent the exercise of a free choice by employees in the election . The ultimate consideration is whether the challenged propaganda has lowered the standards of campaigning to the point where it may be said that the uninhibited desires of the employees cannot be determined in GENERAL ENGINEERING, INC., ETC. 665 the election" (The Gummed Products Company, 112 NLRB 1092, 1094). The posted document, in my judgment, reached the point described by the Board in the cited case. By maintaining it on the bulletin board in the period preceding the elec- tion, the Respondents inhibited the employees' freedom of electoral choice. The claim by the Steelworkers Union that the Respondents engaged in a pre- election campaign of "vilification" and "hate" against the union, rests, judging by its brief, on the contents of literature distributed by the Respondents to the em- ployees. (Presumably, a somewhat comparable claim of "vilification" alleged in the complaint is similarly based on such material, although the General Counsel does not say so in his brief and presents no argument on the matter there.) It is unnecessary to reproduce here all the documentary statements of the type in question, for reference to a few will suffice to exemplify the general vein or direction of substantially all, and serve as a basis for resolution of the issue presented. One such example is a statement : "After the election, it should be added, the beer halls and taverns will lose a lot of union organizer business . ." (SW Exhibit No. 2.) The same document contains the following: "The union talks of their pension plan, they should, it has provided jobs for all the wife's [sic] of all the union officials." Another circular (SW Exhibit No. 3) states: "The . . . National Labor Relations Board will not allow a wage increase to employees once a petition has been filed for an election . The Unions deliberately filed a petition before the plant was completed these Unions with their smart attorneys . deliberately cheated you and your families out of hundreds of dollars that the Company wanted to pay you." The record contains no evidence of the truth or falsity of the utterances against the Steelworkers Union and its representatives, of the type described above, and that factor of itself, it seems to me, is sufficient warrant for rejection of the relevant claim, quite apart from the question whether the material under consideration, even if false, "may be excused," within the meaning of the Gummed Products doctrine, "as legitimate propaganda." Thus without reaching that question, I shall recom- mend dismissal of the relevant portions of the objections and of the comparable allegations contained in paragraph V(g) of the complaint. I note, too, that in view of the disposition of the General Counsel's claim, it is unnecessary to con- sider the applicability of Section 8(c) of the Act to any of the alleged "vilification." The remaining question regarding the objections is whether the Respondents "con- spired" to permit ineligible individuals to vote in the election, and, if the manage- ment engaged in such conduct, what consequences should follow. I note in that connection that the Steelworkers Union concedes in its brief that the "evidence concerning this count is scarce in the record." In any case, the principal evidentiary support for the claim, as the brief indicates, consists of testimony by George Woodruff. then a supervisor in the plant, that a few days before the election he asked one of his superiors, another supervisor named Mack Holt, if the latter had any extra help he could spare for work in Woodruff's department; that Holt in the course of the ensuing conversation told him that he had four men as "spare help" who were in the employ of a Portland firm named General Ore (apparently affiliated with the Respondents). and that the four had been temporarily transferred to the Respondents' plant "for the election," would work there until after the balloting, and then return to their jobs at General Ore. Holt testified that as far as he could recall all he said was that it was agreeable to him that the "spare help" be used by Woodruff. It is apparent that there is no firm denial by Holt that he made the remarks on the subject of the election imputed to him, but in any case, upon my observation of both witnesses, I believe, and find, that the conversation substantially took the course described by Woodruff.ii There is evidence that one of the four men voted, but the record does not establish whether the others did. Assuming, arguendo, that Holt's remarks to Woodruff warrant an inference that the Respondents temporarily employed four men at the plant for the express pur- pose of having them vote in the election. I can see no reason to pass on the question whether that is a sufficient reason for setting the election aside, bearing in mind that there are ample other grounds requiring that result, and that the Board's election procedures provide machinery for challenging voting eligibility. and for determin- ing issues raised by such challenges.'2 It seems to me that in the event of another "I regard Woodruff's testimony as credible, notwithstanding the fact that two of the "spare" employees were still employed at the plant at the time of the hearing The evidence, it may be noted, does not clearly establish what disposition was made of the other two men after the election ' By alluding to the procedure for challenges, I intend no implication that the relevant objection was procedurally improper. Such a matter need not be determined here. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, the parties thereto can adequately protect themselves against ineligible voting through timely and efficient use of the procedures for observation of the election and for challenges. Accordingly, I shall recommend the dismissal of the relevant objection. In summary, the evidence establishes, as found above, that prior to the election, the Respondents made promises to employees conditioned upon the result thereof; made threats and misrepresentations to employees designed to influence that result; and by such conduct inhibited a free and untrammeled electoral choice by the employees. It necessarily follows that the election should be set aside. IV. THE REMAINING ALLEGATIONS OF UNFAIR LABOR PRACTICES A. The discharge of Cavanaugh and Woodruff and related evidence Preliminary to consideration of the allegations pertaining to Cavanaugh and Woodruff, it may be noted that there are security rules and controls in effect at the plant in The Dalles, and a staff to apply and enforce them. The staff includes Lynn R. Wallis, who, with the title of security officer, subject to the supervision of the director of industrial relations, has the function of protecting plant facilities and any property that may be on the premises. There is also a guard force whose duties include the observation of the employees and visitors to the plant upon their entrance and exit from the premises, and the prevention of unauthorized removal of property therefrom To perform these functions, one or more guards is stationed at a gate used by employees and other pedestrians to leave and enter the plant. The guard force has a headquarters or office (also called the "guard shack") which is adjacent or close to the gate. A plant rule forbids anyone, whether an employee or not, to remove property from the plant "without a properly signed pass," and re- quires the pass to be exhibited to a guard before the property is removed from the premises. Cavanaugh entered the Respondents' employ at The Dalles in May 1958, worked there in several successive capacities, including that of a loader in the shipping department, and was discharged on June 15, 1959, under circumstances to be de- scribed later. As a loader, the position he held at the time of his discharge, it was his duty to load aluminum into freight cars located on a siding of the plant, and to sweep or otherwise remove "waste material" from the cars to prepare them for loading. Woodruff, whose termination, as will appear, was linked to that of Cavanaugh, was hired in September 1958 in the supervisory position of assistant superintendent of the plant foundry, which includes the shipping department, and worked thereafter in that capacity under the supervision of George Steele, the foundry superintendent, until the latter was transferred to the Torrance plant in or about the early part of June 1959. Upon Steele's transfer, Woodruff was promoted to succeed him and served as the foundry superintendent until his termination on the same day as Cavanaugh's. Steele, and Woodruff under him, supervised the work of about 30 employees, and there can be no doubt, that both, throughout their tenure at the plant in The Dalles, were supervisors within the purview of the Act. Before entering the Respondents' employ, Cavanaugh had worked for a mining concern in Riddle, Oregon, and, while so employed, had been an officer of a local affiliate of the Steelworkers Union. He had lost a leg while at Riddle, and there is some suggestion in the record that his handicap prompted a recommendation for his employment at the Respondent's plant. In any case, either about the time he was hired or some 2 months later, he informed an administrative employee named Robert Moore, who works under Legault's supervision, of his previous union mem- bership and position, and intimated, without elaboration, that he no longer had any union affiliation because of some feeling he harbored against the Riddle local in connection with his handicap.13 "Whether Cavanaugh talked to Moore In July 1958, as the former stated, or shortly before his application for employment was approved, as Moore testified, is of no particular moment. Similarly, the results in this case are not materially affected by the issue whether Moore asked Cavanaugh at the time in question whether he "was affiliated with the Union now" The limitation In Section 10(b) of the Act, if nothing else, precludes a finding that such interrogation violated the Act Nor would a resolution of the issue materially add to , or detract from, the conclusion , amply supported by evidence of much more recent vintage, that the Respondents are hostile to unionization of their employees and have implemented the hostility with unfair labor practices. For much the same reasons, I deem it unnecessary to resolve disputed issues whether Wallis interrogated employees Browning and Turner on the subject of union affiliation in 1958 when they, GENERAL ENGINEERING, INC., ETC. 667 • Whatever his attitude toward the Riddle local, Cavanaugh engaged in organiza- tional activities in the plant on behalf of the Steelworkers Union in or about Sep- tember 1958 (the month in which the union filed the representation petition), so- liciting employees to sign membership application cards, and securing about 20 signatures over a period of some 10 days. He pursued no prounion activities in the plant thereafter, although, according to his testimony, he spoke in his residence neighborhood "on behalf of the union" following the period of his plant activities. In October 1958, Steele told Cavanaugh that because of his good work record, he would be a "logical choice" for promotion to "shipping leadman" should an opening arise, but about 2 weeks later Steele informed Cavanaugh that he had made a "mistake," that no shipping leadman would be chosen at that time, and that the prior statement should be disregarded. However, the opening did arise during the course of the next few months (probably about the beginning of March 1959), and the promotion was given to someone other than Cavanaugh. On direct examination, Cavanaugh gave testimony to .the effect that he asked Steele for an explanation during the early part of March 1959, and that the super- visor replied that Cavanaugh had been passed over because of his "past union ac- tivity." However, under cross-examination, giving what was apparently intended to be an enlarged version of the same conversation, Cavanaugh did not quote Steele to the same effect, but instead depicted the supervisor as interrogating him on the subject of his past union affiliation and current organizational attitude. As is evident from his testimony under cross-examination, Cavanaugh equates such inter- rogation with adverse criticism of his union activities, and this and other aspects of his testimony present the possibility that his assertion that Steele told him he had been denied promotion because of his "past union activity" is not a substantially ac- curate quotation of what Steele actually said, but rather the result of an inference drawn by Cavanaugh from remarks by Steele of a different content. Steele denied that he told Cavanaugh that the latter had been passed over for promotion because of his organizational activities, but it may be noted, also, that the Respondents offered no testimony explaining the reason for the failure to promote Cavanaugh to the leadman's vacancy. In the context of the whole record, I think it likely that Cavanaugh did seek the explanation he describes, and that some conversation on the subject of his union affiliation or activities ensued, but the characteristics of Cavanaugh's testimony, described above, preclude any reasonably certain determina- tion as to the content of Steele's remarks on the occasion in question. Thus, the record will not support a finding that Steele unlawfully interrogated Cavanaugh or, as the complaint in effect alleges, told the latter that he had been "passed over for promotion because of (his) union activities." (The complaint contains no allega- tion that the failure to promote Cavanaugh stemmed from an unlawful discrim- inatory motive.) There is, however, credible evidence that the management was concerned in March 1959 with the subject of Cavanaugh's union sympathies. In that month, General Manager Cronkite told Woodruff that the foundry was a "hot-bed of union activity"; that it was up to Woodruff as foreman there to get rid of the men respon- sible so that they would not "contaminate" other employees; and that the course to follow was to operate the foundry "as a human centrifuge," keeping the men "mixed . . . [and] stirred up so that they couldn't group together and the bad apples or union men . would be thrown out and wouldn't have a chance to contaminate the other workers in that department." Woodruff asked who the union adherents were, and Cronkite replied that there were about five or six, and named two, Cavanaugh and Howard Bushman. Woodruff remarked that men under his supervision appeared to be displeased with "benefits and wages they were receiving," and that the best way "to defeat the union" was to grant "a few benefits and an increase in wages." Cronkite responded that the "best defense was a good offense," and reiterated his direction that Woodruff "get rid of those men." Then, replying to Woodruff's inquiry as to how that should be done, Cronkite stated that pretexts could be used, such as an excuse that the department was "overstaffed," or that the employee involved had absented himself from his work area without authorization. Woodruff agreed to follow Cronkite's instructions, and with that the conversation closed 14 (Actually, however, Woodruff did not comply with the instructions.) respectively applied for employment at the plant; nor whether Wallis, in September of that year, asked an employee named Bourland whether the latter had noticed any "union agitation," and enjoined Bourland to be on the lookout for union sympathizers and report them to the management. 14 Findings as to the conversation are based on Woodruff 's credited testimony Cronkite denied having any discussion with Woodruff about union activity Stating that lie had 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Each of the foregoing directions and suggestions by Cronkite , including the pro- posal that pretexts be used to discharge union adherents , constituted an unlawful interference with the exercise of rights guaranteed employees by Section 7 of the Act, and as a consequence of each, the Respondents violated Section 8(a)(1) of the statute.15 Cavanaugh's attitude toward unionization of the plant underwent a change within a period of several weeks before the election. After hearing management repre- sentatives make promises at plant meetings that employees would be benefited if they rejected union representation, Cavanaugh reached a conclusion to that effect, and expressed opinions of that nature to other employees. In April, also, he dis- cussed his change of attitude with Brunt. On the occasion in question, Cavanaugh called on the personnel manager in the latter's office; asked what was in store for him "if the plant did go non-union" in the election; stated that he intended to vote against the Union, and had told other employees of his opposition to unionization of the plant; and, in substance, expressed dissatisfaction with the Riddle local, giv- ing his reason therefor. Brunt stated, in effect, that he was pleased with Cava- naugh's attitude, and told the latter that his work record had been satisfactory, that there was no reason why he could not advance, and that there would be opportunities for promotion.is Following the conversation, Cavanaugh solicited an unspecified number of employees to vote against union representation in the election. During the course of investigation of the objections (which were filed early in May 1959), Cavanaugh gave a representative of the Board an affidavit relating to the election. About May 12, Brunt told Woodruff that Cavanaugh and another employee, Bushman, had not "kept their promises to the company about refraining from union activity"; and inquired whether the foundry supervisor knew anything about the matter. Woodruff replied that so far as he knew neither employee had engaged in such activity "on the job." Brunt reiterated his view that the two men had not adhered to their promises, and asserted that "the company would have to get rid of them." 17 Whether Brunt's allusion to "union activity" by Cavanaugh referred either to the affidavit or to remarks made by him away from the plant cannot be determined in the posture of the record, but subsequent remarks by Brunt to Woodruff several weeks later express a more precise reason for the management's noticed that Woodruff was deficient in keeping his men busy, Cronkite testified that he summoned Woodruff to his office for a discussion of the matter and directed the super- visor "to stir his men up to keep them from accumulating in bunches and clusters and talking " Subsequently, Cronkite conceded that he told Woodruff "very vigorously" to keep the foundry "stirred up and . . . his men from bunching up " This approaches an admission that he told Woodruff to operate the foundry "as a human centrifuge," and it is thus evident, whether or not that phrase was used, that Cronkite himself gives sub- stantial support to an important aspect of Woodruff's version What is more, the plausibility of Woodruff's account is materially enhanced by Cronkite's testimony at one point that "it is quite possible" that he "discussed the unions" with Steele, Woodruff's immediate supervisor, in the course of "trying to inquire why the people bunched up in the foundry," thus preventing proper work scheduling Another noteworthy matter is that Cronkite himself promoted Woodruff to succeed Steele as foundry superintendent, and it is reasonable to conclude that Woodruff was regarded by the management as a competent supervisor, and not a deficient one as ^Cronkite 's testimony would lead one to believe. Moreover, Woodruff's version is given corroborative support by the impressive volume of manifestations of antiunion animus by the management, much of it in incontro- vertible documentary form Finally, Woodruff appeared to me to be a candid witness with good powers of recall . In short, I am persuaded that Cronkite 's version of the discussion omits important details that Woodruff's contains , and have made corresponding findings. 15 H. N. Thayer Company, 99 NLRB 1122, 1125, enfd 213 F 2d 748 (C.A. 1), cert. denied 348 U S 883 19 Cavanaugh and Brunt are not in significant disagreement as to the conversation, and I have based findings as to its content on the testimony of both It may be noted that Cavanaugh testified that the conversation occurred "on the same day as the election," while Brunt stated that it took place about April 10. The conflict need not be resolved, as it has no effect upon the material issues. 17 About a week or two before the election , as both Bushman and Brunt testified , in sub- stance, Bushman expressed concern that he was going to be discharged because of his previous union activities . The versions diverge on other aspects of the conversation, but the areas of difference need not be resolved or reconciled , for the only point that need be noted is that Bushman testified credibly that on the occasion in question he assured Brunt and a supervisor named Holt , who was present , that he would refrain from union activities Neither Brunt nor Holt entered a denial that Bushman made a statement to that effect. GENERAL ENGINEERING, INC., ETC. 669 hostility to Cavanaugh. About June 2 or 3, 1959, Brunt reiterated his view to Woodruff that Cavanaugh and Bushman had resumed union activities, and that he had heard that both employees "had attended some sort of a meeting and signed affidavits to get a new election." Woodruff replied that he had also heard about the affidavits, and asked Brunt how he had learned about the matter. Brunt gave no responsive reply, but went on to say, in substance, that the management "would have to get rid" of Bushman (who, it may be noted in passing, quit sometime later). 18 The freight car sweepings, mentioned earlier, from time to time included grain left in the cars after their use by prior shippers. During his tenure as foundry superintendent, Steele followed the practice of permitting employees to take the grain (or "waste material," as he described it) from the plant for such use as chicken feed. He never denied a request for the material, and, in all, issued some seven or eight property passes to employees who sought the sweepings. Woodruff issued one such pass to an employee, at Steele's direction, about May 18, 1959. On the same day, Woodruff suggested to Steele that instead of giving the sweep- ings to employees, the material be sold, if a market could be found, and that the proceeds be used to promote safety among the foundry employees. The proposal contemplated that sporting or camping equipment be bought with the "safety fund," and that employees who had not had an accident during a prescribed monthly period be eligible to participate in a "drawing" for such equipment. Steele approved the plan, stating he thought it was "a very good idea." That day, too, Woodruff out- lined the proposal to the plant's safety director, Keith Palmer, who similarly ex- pressed approval of the suggestion and lauded it, stating, also, that he had proposed a similar plan, of plantwide application, to "the company," but had not as yet been able to secure the necessary funds.19 In or about the early part of June 1959, Woodruff, who by then had succeeded Steele as foundry superintendent, outlined the plan to Cavanaugh, who was a plant 18 Findings as to Brunt's remarks on both occasions are based on Woodruff's testimony which I credit. Brunt denied having knowledge of any union activity by Cavanaugh following their April conversation Stating that he had a conversation with Woodruff concerning Cavanaugh about the middle of May, he testified that it did not relate to union activities, but was a discussion pertaining to Cavanaugh's progress The personnel man- ager also testified that he had no conversation with Woodruff about Bushman "at all that I recall," but it may be noted that Brunt's testimony contains no version of a conversa- tion with Woodruff early in June on the subject of Cavanaugh, nor a denial that such a conversation took place. In any case, in resolving the credibility issues presented, I have taken into account the fact that there are a substantial number of shortcomings in Brunt's testimony, taken as a whole, including repeated efforts by him to avoid giving direct answers to pertinent questions as to matters that I am convinced are within his knowledge. A few examples, bearing on the issue whether the Respondents constitute a single employer, will suffice. One is his testimony that he does not know how he came to attend the cafeteria meeting (attended by General Engineering employees) addressed by himself and Legault, and which the latter testified he arranged with Brunt. Singularly, too, Brunt, although personnel manager at the plant for a substantial period of time, stated that he "could not answer" a question, and "do[es] not know," whether Legault works "under the direction of Mr. Cronkite, the General Manager." Also, although it is clear that Brunt is a subordinate of Cronkite, notwithstanding the fact that the former is on the payroll of Harvey Aluminum, and the general manager on that of General Engineering, the per- sonnel manager sought to sidestep a question whether Cronkite has given him "orders," testifying : "He [Cronkite] has requested me to do things if you want to make that as in the nature of an order-I don't." This, it may be noted too, is not quite consistent with prior testimony by Brunt that he interviewed employees at the "direction" of Cronkite. 19 There is no significant conflict between Woodruff and Palmer regarding their con- versation . Woodruff appeared to have the better recollection . I do not credit a claim by Steele that when the plan was broached to him, he told Woodruff that it "might possibly be accepted," and that Woodruff would have to secure permission from either Cronkite or Legault both for the removal of the grain and its proposed use. Why Steele should refer his subordinate to top management officials at the plant for permission to remove what was actually abandoned rubbish does not plausibly appear . And the Implausibility of Steele's version becomes even more pronounced in the light of his own testimony to the effect that he had always granted employees ' requests for the "waste material " ; that he did this without seeking prior authorization from Cronkite and Legault ; and that it was his responsibility as foundry supervisor to promote safety in his department . For the reasons indicated, I have based the relevant findings on Woodruff's account of his conversa- tion with Steele. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "safety committeeman," serving by designation of the foundry employees, and had official duties in the promotion of safety among them. The supervisor also instructed Cavanaugh to describe the program at a "safety meeting" of such employees, and sack and store future grain sweepings for application to the plan; and asked Cava- naugh to let him know if anyone expressed interest in buying the material. Between the time of this conversation and Friday, June 12, 1959, Cavanaugh and others in the loading crew had occasion to sweep grain leftovers from the freight cars, and they placed the sweepings in sacks. On Friday, June 12, 1959, about 4 p.m., the hour when a shift change occurs at the plant, a railroad employee named Montgomery, having heard that the grain was for sale, came to the plant gate in a truck to inquire about purchasing the material. Cavanaugh had been informed of Montgomery's interest by another railroad em- ployee earlier that day and had told Woodruff about the matter; and Woodruff had instructed him to make arrangements for the sale and turn the proceeds over to him. Montgomery, who did not know Cavanaugh by sight, stated his business to a guard upon arrival at the gate, asking for Cavanaugh by a nickname by which he is known. The guard, who was then engaged in "checking" employees entering and leaving the premises, replied that he did not recognize the nickname and had heard nothing about a projected grain sale. Brunt appeared at that point on his way to his office which is nearby, and the guard asked him if he knew anything about the matter. The personnel manager said that he did not, but that he would "go in the office and see if he could find out something about it." 20 Soon after Brunt left, a departing employee, to whom Montgomery had mentioned his business, saw Cavanaugh, signaled him to come to the gate, and identified him for Montgomery. Cavanaugh told Montgomery that the grain had been sacked and was located inside the entrance to a structure known as the general service building. Wallis and two guards were in the guard office at the time, and, deeming Wallis to be "Chief of Security" (as Cavanaugh described him) and, therefore, a proper authority with whom to clear Montgomery's admission to the plant, Cavanaugh, followed by Montgomery, entered the guard office and spoke to Wallis, outlining the purpose of Montgomery's visit and the use to which the proceeds of the impending sale were to be put. Wallis made no reply. He testified that he paid no attention to what Cavanaugh had to say because he was on the telephone at the time, but putting this testimony aside for later reference, I have no doubt that, in the context of circumstances, Cavanaugh took Wallis' failure to reply as meaning assent to Montgomery's admission to the plant for the purpose of purchasing and removing the grain. After Cavanaugh made the statements to Wallis outlined above, the former and Montgomery left the guard office and, in its vicinity, agreed on a total price of $5.75 for the six sacks of grain sweepings involved. At Cavanaugh's suggestion, Montgomery backed his truck through a gate, which is located about 40 feet from the guard shack, and within sight of it, and up a loading ramp that leads to the general service building entrance, where Cavanaugh and Montgomery placed the sacks on the trucks without any hindrance or interference by anyone. The general service building entrance, it may be noted, is located some 60 to 150 feet from the guard office (estimates of the distance vary), but it is undisputed that the entrance, like the gate used by Montgomery to reach it, is within view of the guard shack area. After the grain was loaded, Montgomery paid Cavanaugh the agreed price of $5.75, and left the premises, driving at a rate of some "four or five miles an hour" through the gate by which he had entered. There was a guard on duty at the time at the gate adjacent to the guard shack, and another inside the shack The latter, at least (through a window), saw Montgomery's truck enter the plant premises through the vehicular gate on its way to the loading area, and when it left. Neither of these guards, nor any other member of the security staff, stopped, hindered, or otherwise addressed Montgomery at any time while he was on the premises following the remarks addressed by Cavanaugh to Wallis in the guard office Neither Cavanaugh nor Montgomery had sought a property pass for the removal of the grain, nor had one been issued. Upon completion of the transaction, Cavanaugh pro- ceeded to the foundry area and reported it to Woodruff. 20 Brunt claims that he instructed Montgomery to wait In the guard office pending his Inquiry I credit a denial by Montgomery that Brunt gave him any such instruction Montgomery, It should be borne in mind, has no interest in the results In this proceeding Moreover, a report (SW Exhibit No 20), dated June 19, 1959, made by Wallis to Lawrence Harvey regarding the grain incident, says nothing about any instruction to Montgomery, but, significantly, criticizes Brunt with the comment that after the latter spoke to Montgomery, he "should have informed the guard the wheat was not to leave the plant, Instead of 15 minutes later." 11. GENERAL ENGINEERING, INC., ETC. 671 Montgomery had not heard from Brunt prior to his departure with the grain. After reaching his office, Brunt informed Cronkite by telephone of the projected grain sale, and the general manager replied that he was unaware that there was any grain on the premises, and that he would call back shortly. He did so about 5 minutes later and told Brunt to inform Montgomery that no grain would be sold that day. Brunt summoned the "sergeant of the guard" and requested him to carry out Cronkite's direction. The guard supervisor left to do so, but returned soon thereafter with the information that Montgomery had already left the premises and was then "driving down the road." Brunt relayed the report to Cronkite by telephone. At 4:15 p.m. that same afternoon, Cronkite proceeded to the foundry area and spoke to Woodruff about the grain sale. Woodruff's version suggests that this occurred after Cronkite learned of the truck's departure, whereas, according to Cronkite, he had not as yet been so informed; but, in any case, there is no significant conflict between the two accounts, both establishing, substantially, that Cronkite asked Woodruff whether he knew about a grain sale; that the foundry superintendent said that he was aware of it and outlined the "safety program" for which the pro- ceeds were intended; that Woodruff stated that he had not issued a pass for the removal of the material; and that Cronkite said he would continue his investigation of the matter. About 15 minutes later, Wallis visited Woodruff in the plant and told the latter that the removal of the grain without a pass would cause "a lot of trouble," and that "some heads (would) fall over it." Woodruff replied that grain had been removed from the plant previously, although with a pass, and that the absence of one for the material in question was not of sufficient seriousness to warrant the discharge of anyone. Wallis then said that both he and Woodruff might lose their jobs because of the incident, but that that might be avoided if they could "get together and shift the blame" to Cavanaugh. Woodruff responded that he would not agree to such a course. Wallis stated that he was in difficulty because the truck had removed material from the plant without a pass; that Woodruff was in trouble because of the grain sale; that Cavanaugh "was a union man and the company wanted to get rid of him anyway"; and that he (Wallis) and Woodruff "would be in the clear" if they took the position that Cavanaugh had sold the grain "for his own personal gain," without Woodruff's knowledge. Woodruff rejected the proposal again, but stated that "if it was a matter of saving" a guard from discharge, he would be willing to write out a pass, "timing [it] to appear that it had been given to the man who left with the grain"; that Wallis "could handle the pass in any way he wanted to"; and that he (Wallis) could avoid "trouble . . . on his end" by making it appear that "the man . . . had had a pass in his possession and that the guards had accepted that pass." Wallis said that such a pass would be of assistance to him, and Woodruff proceeded to write one and gave it to Wallis.21 Later that evening, about 7 p in., Wallis called Woodruff at his home and asked him to come to the guard office. Woodruff complied, and upon his arrival found Wallis; the captain of the guard force, Bert J. Wyatt; and a sergeant of the force named Irwin. Wallis ushered the group into a "back room" near the guard office. The only significant subject of the discussion that followed is that dealing with the issuance of a belated pass for the removal of the grain, and, as to that, there is marked conflict in the evidence. 21 Wallis' version of the conversation is brief and far less detailed than that of Woodruff. Wallis testified : "I . . . asked him [Woodruff ] if he knew of any grain had left the plant. He said, 'Yes' I said, 'Did you give him a pass?' He said , 'No' I said, 'Please do so on your way out tonight' " A number of factors have led me to base findings as to the conversation on Woodruff's testimony. One is my appraisal , previously noted, that he was a candid witness. This characteristic appears in his assumption of responsibility for the suggestion that he issue an improperly timed pass, and his version of the con- versation includes a circumstantially detailed reason for his proposal . In contrast, Wallis does not quote himself as giving Woodruff any reason for his alleged request that Woodruff issue a pass ; and, significantly, when Wallis was asked to explain the necessity for-the issuance of a pass after the grain had already been removed from the plant, his testimony took an implausible turn. His reply was : "There should be a pass in the guardhouse for any material regardless of who leaves the plant." The answer is plainly unresponsive, but, in any case, it will not do as an explanation, for the plant rule is, as Cronkite testified, that a pass is required for the removal of any property "before it's passed through the gate." In short, Woodruff's testimony plausibly and frankly explains how the subject of the issuance of the belated pass arose ; Wallis' account does not. Finally, as regards the credibility resolution, it may be noted that Wallis testified that he made no report of the grain incident to any of his superiors, including Lawrence Harvey ; whereas, the fact is that lie made such a report in writing to Harvey, and it is in evidence. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Woodruff gave testimony on the subject to the effect that Wallis produced the pass given him earlier and said that it was unacceptable. The reason given for this, according to the sense of Woodruff's version, was that the pass contained a time entry which had the effect of a misrepresentation that the pass had been given to the person who had removed the grain. Wyatt, Woodruff testified, stated that "they had to have a pass for their records," and thereupon Woodruff, according to his account, destroyed the pass previously given Wallis and wrote another that contained no time entry, and gave it to Wyatt. Wyatt testified on the point in issue that he told Woodruff that the guard force was "in a bad spot" and that "that was the only thing [he] was interested in"; and that Woodruff thereupon produced "a piece of paper," saying: "I have here a pass for the grain, if you will take this, it will help clear the guard force and it will also make it seem that things were done right to begin with." According to Wyatt, he rejected the pass with the statement that he did not want it, that he "wasn't at all interested in attempting to cover up the facts in any way"; and that "what happened had happened" and would be so reported by him if he were asked. Wyatt testified that he then thanked Woodruff; that both left "the back room [where the meeting had been held] out toward the guardhouse"; that he procured a blank pass from the guard office and asked Woodruff if he "would mind filling it out when in front of witnesses [Wallis and Irwin] to show that he had authorized the wheat leaving the plant and so there would be no misunderstanding as to any attempt to cover up anything." Then,' according to Wyatt, Woodruff agreed, completed the form in the presence of Wallis and Irwin, and gave it to Wyatt. Terming himself ",a spectator," Wallis testified that he took no part in the dis- cussion. His account of the conversation is scant, amounting, substantially, to as- sertions that Wyatt and Woodruff talked "about a pass," and that Wyatt told Wood- ruff that "a pass should and must be obtained." According to Wallis, he did not accompany Woodruff and Wyatt to the guard office, but went to his own office after leaving the room where the meeting had been held. A number of factors militate against acceptance of Wyatt's version. One is that Woodruff's testimony that Wyatt asked him for a pass in the "back room" is corrobo- rated by Wallis who quotes Wyatt to the same effect. In fact, Wallis, who, like Wyatt, was called by the Respondents as their witness, testified that shortly before the meeting he "advised [Wyatt] that a pass was necessary to cover the issue of the movement of the grain." The plain meaning of this, in the context of events, is that Wallis told Wyatt to ask Woodruff for a belated pass; and that being the case, this aspect of Wallis' testimony contributes support to Woodruff's account of what took place in the "back room." Moreover, Wyatt's claim that he rejected the offer of a pass there, and that he "wasn't at all interested in attempting to cover up the facts," simply do not jibe with his own testimony that he and Woodruff then pro- ceeded to the guard office where he asked Woodruff to make out a pass. The excuse he advances for doing so is that such a pass would be filled out before witnesses" and "understood" to have been "received much later than the actual incident," but the attempted justification falters markedly when examined in the light of other facets of the record. For one thing, the allegedly rejected pass (which Wyatt claims he "didn't actually look at") was, according to Wyatt's own account, tendered "before witnesses," including Wallis and Irwin, and it is not plausibly explained why the same understanding that it was "received" belatedly would not attach to that docu- ment as much as the one allegedly procured from the guard office. For another matter, Wallis does not support Wyatt's claim that he was one of the "witnesses" to the guard office transaction. According to Wallis, he did not accompany Wood- ruff and Wyatt into that room, and the sense of Wallis' relevant testimony is that he did not see Woodruff give Wyatt any pass. What is more, there is, to say the least, good reason to doubt Wyatt's claim that he resorted to the guard office pass, in lieu of the rejected one, "[s]o that there was no question of covering up." The docu- ment allegedly "filled out before witnesses" would no more comply with the plant's security regulations than the one Wyatt portrays himself as rejecting. The au- thority for that conclusion is Cronkite who testified that a pass is required for the removal of any property from the plant "before it's passed through the gate"; and that the rule is "one of the standard security measures" that he had inaugurated. Significantly, too, Cronkite admitted (with a demeanor of reluctance) that he re- gards Wallis' "advice" that a belated pass be secured as "highly improper"; and testified that he has "no idea" what purpose such a pass could serve except to conceal the fact that the grain had been removed without one. Against the back- ground of this testimony, I give no credence to a claim by Wyatt that the belated pass was sought from Woodruff because "the company requires a pass," and be- cause he "was interested in whether Woodruff had actually given permission (for the GENERAL ENGINEERING, -INC., ETC. 673 grain removal ) or not." For much the same reasons, I do not credit testimony by Wallis to the effect that he "advised" Wyatt to seek a belated pass because of a plant requirement. Because of the lack of candor in the testimony of Wallis and Wyatt on the sub- ject, it would be an idle task to undertake a survey of the possible uses to which they intended to put the "highly improper" pass; nor is such an exploration neces- sary. It is enough to note here that the implausibility of Wyatt's explanation, cou- pled with the fact that Wallis' version of what took place during the interview does not support him at material points, leads me to find that his account is not a reliable basis for findings . I credit Woodruff's version . That evidence warrants the con- clusion that whatever object Wallis and Wyatt had in mind in seeking the belated pass, the purpose of the interview was not, as Wallis' testimony would lead one to believe, an investigation into the breach of security procedures.22 On the morning of June 13, the day following his meeting with Wallis and Wyatt, Woodruff worked at the plant without incident, but in the afternoon, upon his return from lunch, he was stopped by a guard at the gate and told that an order had been issued to exclude him . Woodruff called Brunt from the vicinity of the gate and inquired why he had been excluded from the plant, and whether he had been terminated . Brunt replied that there had been no termination , that the exclusion was attributable to the "grain business ," that the matter was under in- vestigation, and that "all parties involved would be kept off the company property until a complete investigation had been made ." Woodruff then called Cronkite and received substantially the same information. Woodruff next reported to the plant on Monday morning, June 15, and was told by a guard to go to Brunt's office . He did so, together with Cavanaugh who had been similarly directed there, and , as Woodruff credibly testified , talked with Brunt about "shop" and other matters unrelated to the grain sale until Cronkite appeared in Brunt's office.23 Cronkite gave Brunt a terminal paycheck for Cavanaugh , told the personnel manager to process Cavanaugh's termination , and then ushered Woodruff into another room for a private talk. Brunt proceeded to inform Cavanaugh that he had been discharged, and gave him some papers to sign. The documents are not in evidence, but the testimony includes descriptions, with- out objection, of much of their material contents . One of the papers is a form that contains a question whether the employee affected felt he had been treated fairly. Cavanaugh's testimony suggests that the form contained an affirmative answer when presented to him; Brunt testified that Cavanaugh refused to "complete" the form. The result is the same , for Cavanaugh refused to sign the document . He signed another form which contains a space for an entry as to "reasons for leaving." The entry, made by Brunt , reads: "Security violation, engaging in private enterprise." 22 Wyatt's account of the meeting portrays himself as telling Woodruff that he (Wyatt) was there to investigate Montgomery 's plant entry "without clearance" and the grain re- moval "without a pass" , and quotes Woodruff as saying , in response to interrogation, that he had not been present "when the grain went out and didn't know about that part of it," and as then relating at some length the origin and nature of the "safety fund" program, and what steps had been taken , and omitted , to secure "approval" of the plan. It is be noted that not only Woodruff's testimony omits any description of the interroga- tion and responses described by Wyatt, but that Wallis' account of the meeting also con- tains no description of such matters . Moreover, Wyatt' s own testimony at one point suggests that what preoccupied him was the possibility that he and his subordinates would be held responsible for the breach of security regulations . This appears when he quotes himself as telling Woodruff • ".. . It was a bad situation-put my guard force in a bad spot-bastcally, that was the only thing I was interested in." [Emphasis supplied ] In short, I find myself unable to base any findings as to the meeting on Wyatt's testimony. z° I do not credit a claim by Brunt that Woodruff admitted during this talk that he had not "obtained approval" of the safety program from Palmer. As Woodruff had se- cured Palmer's endorsement of the plan , I do not think it likely that he would tell Brunt that he had not done so In fact, Brunt himself quotes Woodruff as saying that Palmer had characterized the plan as "a good idea." Nor am I able to credit Brunt's claim that he asked Woodruff why he "had not obtained a pass for the grain removal," and that Woodruff replied that he had not done so because he was "negligent ." This testimony collides with the plain fact that there would be no need for Woodruff to "obtain" a pass for removal of the "waste material ," since, like Steele before him , he had the right to issue such a pass , as is made evident by the very fact that none other than Wallis and Wyatt, both of them security officials of the plant , sought a belated pass from him. 599196-62-vol 131-44 '674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brunt testified that he made the entry in Cavanaugh's presence; the latter stated that he could not recall whether it was there when he signed. I credit Brunt, noting, in .that connection, that Cavanaugh testified that he told Brunt on the occasion in ques- tion that he "felt (his discharge) was because of the grain transaction." 24 According to Brunt, Cronkite told him privately, shortly before the general manager led Woodruff into another room for their talk, that "Woodruff had re- .signed." Putting this testimony aside for later comment, it may be observed at this point that Woodruff had taken no such action. There is no question that Woodruff's termination was the central topic of the private talk between Cronkite and Woodruff, and that the upshot of the discussion was that Woodruff was told to see Brunt for the processing of his termination, but there is conflict on the question whether Woodruff was discharged or resigned in the .course of the discussion. On the point at issue, Woodruff denied that he made any offer to resign, and testified that Cronkite told him that he "hated" to terminate him, but a "thorough investigation" gave him "no other choice." Cronkite gave testimony to the effect that Woodruff asked whether "the situation was so serious -that it was better for him to resign"; and that he (Cronkite), stating that Legault had reported that Woodruff wished "to resign rather than be terminated," replied that he would accept the resignation rather than discharge Woodruff and "putting it on his record." The Respondent maintains that Woodruff was not discharged, but resigned. The validity of this claim must necessarily turn on a resolution of what took place in the talk between Cronkite and Woodruff. Before determining the truth of the matter, it may be observed that the Respondents' answer initially admitted that Woodruff was discharged, and that this was not changed until the hearing where the Respondents moved, and were permitted to amend the answer by substituting a denial for the admission. In any case, putting the answer aside, the clear weight of the evidence, as will presently appear, supports Woodruff's version of the conver- sation, as well as his denial, contradicting testimony by Legault, that on the day of his exclusion from the plant, he told Legault that he preferred to resign rather than be discharged.25 One factor to bear in mind in that regard, is testimony by Cronkite to the effect that he decided to discharge Woodruff shortly before their private talk. (Legault, incidentally, testified at one point that it was he who made the decision.) This testimony by Cronkite of itself raises a doubt that Woodruff had previously made an offer to resign, but, certainly, if Woodruff had done so, and Cronkite informed Brunt of such an action, a decision to discharge Woodruff, at the time Cronkite (or Legault, for that matter) claims it was made would have little or no point. Be that as it may, a decisive guide to a resolution of the claim that Woodruff re- signed is to be found in undisputed evidence of what took place in his "termination interview" by Brunt immediately after Cronkite's private talk with the foundry supervisor. The undisputed fact, described by both Woodruff and Brunt, is that Woodruff declined to sign a "termination slip" that purported to set forth the "rea- son" for Woodruff's termination. Brunt gave no details of the entry, but Woodruff testified, without contradiction, that the entry was "reason for discharge-violation of security." I credit this testimony, noting not only that it is uncontroverted but that it is given support, although vaguely, by Brunt who quotes himself as asking Wood- ruff, when the latter balked at signing the document, whether "the terminology used was objected to." 26 Brunt, incidentally , claims that Woodruff replied that he had 24 At one point in his cross-examination, Cavanaugh subscribed to a suggestion that he -told Brunt that he thought he was being discharged "for cause," but, subsequently, when asked what "words" he used, he said that he told Brunt that he felt his dismissal "was because of the grain transaction, so-called violation of security." Brunt, on the other hand, quotes Cavanaugh as saying that he "had made a mistake which he felt was justifi- cation for the discharge." I think it probable that this is an overstatement of a remark by Cavanaugh to the effect that he believed his discharge to be due to the grain incident. The very fact that Cavanaugh refused to sign the form containing the question whether he had been treated fairly suggests that he regarded his discharge as unfair In any event, the reason for Cavanaugh's dismissal must be determined here in the light of the full record, and not merely on the basis of what Cavanaugh said to Brunt 25 Woodruff talked to Legault on June 13, as well as to Cronkite and Brunt, on the subject of his status following his exclusion from the plant. The only aspect of the con- versation that need be the subject of findings is the disputed question whether Woodruff told Legault that he preferred to resign 20 The evidence of the contents of the "termination slip" shown Woodruff is in no way ,negated by the fact that Brunt's files include a document (General Counsel's Exhibit GENERAL ENGINEERING, INC., ETC. 675 no such objection, but this strains one's sense of the credible in the face of the un- deniable fact that Woodruff refused to sign the document. It is far more plausible to believe, and I find, as Woodruff testified, that he told Brunt that his reason for de- clining to sign was that he "hadn't violated any security," and that he "felt that the security end of it was up to the guards and the security force." It is also noteworthy that Woodruff testified, without contradiction, that after he declined to sign the paper, Brunt asked him if he would like to write a letter of resignation, and that he declined, stating that he "could see no sense" in such a letter, because he had "already (been) terminated." Now, clearly, even if one puts aside Woodruff's rejection of Brunt's suggestion that he resign, the content of the "termination slip" goes far to refute Cronkite's claim that he accepted an offer by Woodruff to resign, and gives corresponding support to Woodruff's version of what took place during the private talk. The sum of the matter is that I credit Woodruff's account of that discussion, as well as his denial that he expressed a preference for resignation to Legault; that the claim that Woodruff resigned has the earmarks of an afterthought; and that Woodruff did not resign, but was discharged. The Respondents' contention that Cavanaugh transgressed by "engaging in pri- vate enterprise," and the claim in their brief that Woodruff violated plant regula- tions by "participating in an unauthorized private transaction," are untenable. To be sure, Cavanaugh signed the termination slip setting forth the purported reason for his dismissal, but experience in discharge cases arising under the Act teaches us that an employee is often not privy to the motivation for his dismissal and may, from a limited perspective, signify acceptance of the reason given him, although subsequent investigation of the reason may prove it false. At the heart of the matter is the undeniable fact that the subject of the alleged "private enterprise" was abandoned rubbish, whether one calls it grain or, in Steele's words, "waste material." A second incontrovertible fact of large proportions is that before the incident in question, Steele as foundry superintendent, without consultation with Cronkite or Legault, initiated the policy of allowing employees to remove such rubbish, and substantially throughout his tenure as foundry superintendent repeatedly permitted employees to take such material from the plant. A third basic fact is that the evidence establishes beyond cavil that in the sale of the grain neither Cavanaugh nor Woodruff engaged in "private enterprise." The obvious meaning of the entry in the Cavanaugh termination slip is that he sold the material for "private" or, in other words, personal gain, but that this is devoid of any truth is made clear by the fact that it was Woodruff's duty as foundry superintendent to promote accident pre- vention in his department; that he openly discussed the program of selling the grain sweepings to provide a "safety fund" with Steele, while still the latter's subordinate, and Palmer, the plant's safety director, and secured approval of the program from both; that it was reasonable and natural for Woodruff to enlist Cavanaugh's aid for the plan, for the latter was the safety committeeman of the foundry department; that in selling the grain sweepings, Cavanaugh acted upon instruction of his super- visor in pursuit of the management objective of promoting accident prevention among employees; that Cavanaugh attempted to give Wallis advance notification of the removal of the grain, and of its purpose, whether or not Wallis heard him (a matter to be discussed presently; and that the material was openly removed soon thereafter, without hindrance from any guard or security personnel, within easy view of the guard headquarters and the point where a guard was stationed at the time. In the light of the foregoing, the claims that Cavanaugh was discharged for "engaging in private enterprise," and that Woodruff participated in a "private trans- action" (as the Respondents' brief puts it) in violation of plant regulations, are not entitled to credence, and I do not accept them. Moreover, although the grain sweepings were removed from the plant without prior issuance of a pass, contrary to a regulation, I am unable to place any stock No 10A), bearing the caption "Termination Interview," purportedly pertaining to Woodruff, and containing the entry "Resigned" in space following the phrase "Reason for Leaving" The document is unsigned and bears the notation "Declined to sign." There is no evidence that this paper was ever shown to Woodruff, nor does the record identify the person or persons who made the entries. Legault testified that on the morn- ing of June 15 he "prepared a slip" for Woodruff's "voluntary quitting" and gave it to 'Cronkite, but it would be no more than a guess to say that this alleged "slip" is the one labeled "Termination Interview," and there is no evidence (nor any claim in fact) that the paper mentioned by Legault was ever shown Woodruff. Incidentally, if the document with the caption "Termination Interview" tends to prove anything, it is that Woodruff did not resign. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the claim that either Cavanaugh or Woodruff was terminated for "violation of security." Actually, neither removed any property from the plant, but passing that aspect of the matter, a rational view of the facts leads one away from acceptance of the claim. To begin with, I think it was quite reasonable for Cavanaugh to enter the guard office to seek clearance from Wallis, the plant security officer, for Montgomery's entry into the plant and the removal of the grain. As Wallis pictures the scene, Cav- anaugh did not talk to him, but engaged in conversation with Montgomery; and he (Wallis) was on the telephone, paid no attention to the conversation, and did not hear what was said. The picture is not quite plausible, for it has the effect of draining rational mean- ing from the undisputed fact that Cavanaugh entered the guard office. Surely, it is an absurdity to believe that he entered with Montgomery merely to talk to the latter. And if he entered for the purpose he describes, as is quite reasonable to believe, is it plausible that he would talk to an unheeding person while the latter was on the telephone and simply let the matter rest there? I think not. Another matter to note is that there is some self-contradiction in Wallis' testimony, for he stated that he does not "know what he [Cavanaugh] said," and, elsewhere, that Cavanaugh and Montgomery were "talking about safety rewards-this being a good prize or this would be a better prize." Here, too, it does not plausibly appear why Cavanaugh should enter the guard office to talk to Montgomery about "safety rewards," rather than to Wallis, when it is plain that Cavanaugh entered the guard office to talk about that subject to Wallis. I am persuaded, in sum, that Cavanaugh, as he testified, addressed himself to Wallis, outlined the safety program, and de- scribed Montgomery's purpose; and that one of two things happened: Either Wallis did not fully hear what was said (he testified that he has hearing in only one ear) and made no reply for that reason; or understood, but deemed no reply necessary because he assumed that Cavanaugh or Montgomery would secure a property pass. In either event, I think it was not unnatural for a laborer such as Cavanaugh, who regarded Wallis as "Chief of Security," to conclude, as I am persuaded Cavanaugh did, that his explanation to Wallis, coupled with the lack of any reply, was sufficient warrant for Montgomery to proceed to the general service building entrance, load the sacks of grain sweepings, and remove them from the plant. The point of all this is that Cavanaugh acted upon reasonable premises, and this is particularly evident if one takes into account the fact that the material involved was abandoned waste of a type that employees had previously repeatedly taken with the permission of their foundry superintendent, and that what Cavanaugh did was not in pursuit of "private enter- prise" but in furtherance of an accident prevention program formulated by his department supervisor in the interest of the plant and its foundry department em- ployees. One would think that the "thorough investigation" to which Cronkite alluded in his private talk with Woodruff would have led to the conclusions outlined above rather than to the drastic step of discharging not only Cavanaugh, but Woodruff, who had been promoted to the post of foundry superintendent by Cron- kite himself only a short time before. From what has been said, it is evident that the Respondents have been far from candid in explaining the motivation for the discharges, and that it is not to be found in the justifications put forward by them. The real motive nevertheless emerges from an appraisal of the whole record, and is lodged, I am convinced, in the man- agement's belief, formed after the election (most likely after Cavanaugh gave the affidavit relating to it) that he had reneged on the promise he had made to Brunt to oppose unionization of the employees. The road to that conclusion begins with the fact that there is an abundance of evidence that the Respondents are hostile to the free exercise by their employees of the rights guaranteed them by Section 7 of the Act. For the earmarks of that attitude one need go no farther than the Respondents' written and oral preelection campaign material, which has been the subject of findings above, but, in addition, there are clear indications that the Respondents are disposed to apply the instru- ment of discharge as a means of inhibiting the exercise by employees of their statu- tory guarantees, and to use pretexts to conceal the unlawful conduct. The Board found as much recently in General Engineering, Inc., et al., 125 NLRB 674, of which I take official notice, where the Board held that Cronkite and another supervisor had unlawfully discharged employees. These findings may properly be taken into account in assessing the motivation for the discharge of Cavanaugh and Woodruff.27 zf N L R B v Reed & Prince Manufacturing Company, 205 F. 2d 131 , 139-140 (C A. 1), cert. denied 346 U.S. 887 ; Western Cartridge Company v . N.L.R.B, 139 F . 2d 855, 856-857 (CA. 7). GENERAL ENGINEERING, INC., ETC. 677 More to the point, such policies were in effect given voice by Brunt, who is not only personnel manager but on the staff of the plant's director of industrial relations, when Brunt complained to Woodruff within a period of a few weeks before Cavanaugh's discharge that the latter had not kept his promise to abstain from union activities and had attended a meeting where he had signed an affidavit "to get a new election"; and that "the company would have to get rid" of him28 These attitudes, in my judgment, lie close to the heart of Wallis' proposal to Woodruff very soon (probably no more than a half hour) after the security officer, also a member of the director's staff, learned that the grain sweepings had been removed from the plant without a pass. Whether Wallis was genuinely concerned for his job, as he told Woodruff, need not detain us. So much of the security officer's behavior relating to the grain incident has an equivocal or unexplained character that it would be a profitless task to canvass the question whether his pro- posal to make a scapegoat of Cavanaugh was motivated in any measure by a desire to insulate himself from criticism for a failure of the security system 29 It is enough that what he said points, in the context of the whole record, to the existence of an unlawful motivation for Cavanaugh's discharge. An important factor leading in that direction is that in making his proposal to Woodruff, Wallis, following much the same course as the Respondents do here, inflated the fact that no pass had been issued into a matter of extravagant propor- tions. The inflation is plain to see in the light of the evidence that the material removed was no more than rubbish of a type that had previously been repeatedly taken by employees for their own purposes; that Cavanaugh sold the sweepings in the interest of the plant and not in pursuit of a "private enterprise"; and that he acted upon reasonable premises in assuming that Wallis had assented to Montgomery's entry to remove the sweepings. Against that background, it is fair to conclude that Wallis magnified the possible consequence of the absence of a pass, visualizing the prospect that Woodruff would lose his job as a result, in order to maneuver Wood- ruff into joining in a plan to level a false accusation against Cavanaugh that the latter had sold the grain sweepings "for his own personal gain." Wallis' purpose swings into focus when it is remembered that the truth or falsity of the accusation would in no way alter the fact that there had been a failure in the security system, and it is thus improbable that he urged such a course merely to make a scapegoat of Cavanaugh for the failure. There is ample evidence that Wallis has a disposition for self-exoneration for the ineffectiveness of the system on the occa- sion in question, but a false accusation that Cavanaugh had sold the sweepings "for 2s In view of Brunt's position, and his extensive participation, on the Respondents' behalf, in labor-management relations in the plant, his remarks to Woodruff about Cavanaugh and Bushman on the occasions in question, as well as other statements made by him regarding management policies, described earlier at various places in this report, are imputable to the Respondents, irrespective of whether one concludes that Brunt is a supervisor within the purview of the Act. ire A disposition for self-exoneration in the security failure, and a lack of frankness, are quite evident in a report (SW Exhibit No 20) on the failure made by Wallis to Lawrence Harvey a few days after it occurred In the report, Wallis disclaims my intention to "aliby [sic] for the [security] force or himself," but makes no mention of Cavanaugh's visit to the guard shack with Montgomery shortly before the grain removal, nor of the fact that he and Wyatt sought and received the belated pass from Woodruff. Moreover, so far from accusing Cavanaugh and Woodruff of engaging in "private enterprise," the report actually goes in the other direction, in effect supporting Woodruff's claim, which I have credited, that Palmer, the safety director, gave his approval to Woodruff's "safety fund" program . Another matter to note is that the report in effect accuses Brunt of attempting to use the grain incident to impair Cronkite's prestige Stating that after talking to Montgomery, Brunt "should have informed the guard the wheat was not to leave the plant, instead of 15 minutes later," and that when "Montgomery was first con- tacted [by Wallis] he was under the impression Bill Brunt had approved" (the grain removal), Wallis asserts, without further elaboration, that "Brunt was trying to em- barrass or belittle Mr. Cronkite " This, like other features of the report, raises a number of questions to which Wallis has supplied no answers . In fact, he denied making such a report, and it was not until after he had testified and had left the hearing that evidence to the contrary was presented and the report offered and received in evidence. He did not return to the witness stand , nor did the Respondents present any evidence to explain their failure to recall him. Following receipt of the report in evidence, a subpena for Wallis was issued upon the application of the Steelworkers Union and delivered for service to the sheriff of Wasco County, Oregon (the county in which the plant is located and Wallis resides). The sheriff made a return that he had made "due and diligent inquiry" for Wallis for the purpose of serving the subpena, but was "unable to find" him. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his own personal gain" would put little gilding on the lily. Thus it is reasonable to- believe that Wallis had another motive for the proposal, and, particularly against the background of the Respondents' antiunion animus, Brunt's remarks to Woodruff some weeks earlier, and the fact that Cavanaugh acted on reasonable premises in omitting to secure a pass, there is good reason to conclude that Wallis proposed the false accusation because he was in search of a pretext to carry out a preexisting inten- tion by the management to discharge Cavanaugh because it believed that he had resumed union activity. An intimation of this purpose is found in Wallis' statement, made in the course of the proposal, that "Cavanaugh was a union man and the com- pany wanted to get rid of him anyway." That the purpose and the voice of Wallis were those of the management is clear. One need only note in that connection that the false accusation proposed by Wallis is substantially embodied in the allegation that Cavanaugh "engaged in private enterprise" set forth in the Respondents' person- nel records. Actually, the symptoms of the pretext appear in much more than Woodruff's credited testimony, and take on pronounced shape upon a comparison of the treat- ment meted out to Cavanaugh and Woodruff and that accorded Wallis, Wyatt, and the guards on duty in the guard shack area at the time Montgomery's truck was on the premises. In omitting to secure a pass, Cavanaugh obviously acted upon reasonable grounds (whether or not one assumes the premise that it was he, rather than Montgomery, who had an obligation to get one); yet his omission has been blown up into a breach of security justifying not only his discharge but that of a competent foreman who had been promoted but a short time before; and embroi- dered with untenable claims that Cavanaugh "engaged in private enterprise," and that Woodruff participated in it. In contrast, the security system, for all its super- visory hierarchy and elaborate inspection precautions, had a glaring failure, as is clearly evident from the fact that Montgomery entered and left the plant premises. in his truck, in broad daylight (obviously so, since the time was about 4 p m. on a June day), within sight of at least one guard, and within easy view from the- guard shack area; yet not a single member of the security force was discharged. Accepting Wyatt's testimony in the matter, all that happened to the guard who saw the truck enter and leave was that Wyatt "reprimanded (the guard) orally and in the form of a letter . placed in his file." The disparity, gross as it is, becomes even more pronounced when one takes into account Cronkite's testimony that he regards the plan to secure a belated pass from Woodruff as "highly improper," and" that it could have had no purpose except to conceal the fact that the grain had been removed without a pass. That the Respondents feel the weight of the disparity upon their case is made- evident by the fact that they seek to escape its consequences with proffered justifica- tions for the sec'irity force to the effect that the guards on duty in the guard shack area were preoccupied with matters such as the shift change, and that Montgomery's vehicle resembled a railroad truck (although it is not explained how that would alter the guards' obligations, and Wyatt himself gave testimony to the effect that the guard who saw the truck enter and leave knew Montgomery's purpose). These feeble explanations cannot obscure the fact that the very purpose of the guard force is to prevent an unauthorized removal of property; that if any part of the plant organiza- tion was seriously remiss in allowing the truck to enter and leave without hindrance, it was the security force; and that not one of its members has been discharged,, although if one is to believe Cronkite, two of the security staff, Wallis and Wyatt,. engaged in the "highly improper" act of seeking to conceal the security failure with the belated pass received by Wyatt from Woodruff.30 As to Cavanaugh, I have no doubt, and hold, in sum, that the reasons put forward by the Respondents for his dismissal are but a pretext to conceal the fact that he was discharged because the management believed that he had resumed union activity; and that by the discharge, the Respondents discriminated against Cavanaugh in violations of Section 8(a)(3) of the Act, and interfered with, restrained, and coerced em- ployees in the exercise of their Section 7 rights, thereby violating Section 8 (a)( I )' of the statute. 30 Cronkite claims that he "almost" discharged Wyatt because the latter secured the belated pass, but did not do so because he "accepted" an exnlanation by Wyatt that he wanted the pass "as a matter of record" It was after testimony in this vein that Cronkite admitted he had "no idea" what purpose such a pass could serve, "except to cover up" the removal of the grain, and then, in effect contradicting his claim that he "accepted" Wyatt's explanation, conceded that he still believes that Wyatt acted im- properly I am unable to credit Cronkite's claim that he "almost" discharged Wyatt, nor subsequent testimony he gave that he made a recommendation to the plant's director of industrial relations that Wallis be disciplined. GENERAL ENGINEERING, INC., ETC. 679' In Woodruff's case, particularly bearing in mind that he was promoted but a short time before his discharge, as the justification for his termination put forward by the Respondents does not stand up, the only rational inference one can draw from the record is that he was dismissed because he rejected Wallis' proposal that he join in the false accusation that Cavanaugh had sold the gram sweepings "for his own personal gain." That, I find, was the reason for Woodruff's discharge. As the moti- vation for the proposal was unlawful, it follows, under well-established doctrine, that Woodruff's discharge because he rejected the proposal was also unlawful, not- withstanding the fact that he was a supervisor within the meaning of the Act and thus not an employee within the reach of Section 8(a)(3).31 Applying that principle,. I find that by discharging Woodruff, the Respondents abridged Section 7 rights of employees, and thereby violated Section 8(a)( I) of the Act. B. The discharge of Fowler and related evidence Lloyd K. Fowler is a welder by trade and has been employed in that occupation much of the time since 1942. He holds a "state certification for pipe welding" (for which, as the record indicates, one must qualify by examination); and a welder's qualifying certificate issued by the American Bureau of Shipping. He applied for work as a welder at the Respondents' plant in The Dalles in No- vember 1958. He was hired in that month, but as a laborer. In that capacity he helped weigh freight cars over a period of about 4 or 5 months, and then worked in a department of the plant called the "pot rooms." He was employed in that de- partment at the time of the election. Fowler served in the election as an observer for the Steelworkers Union. In that capacity he was present at a meeting on the morning of April 27, the first day of the election, attended by a field agent of the Board; representatives of the two unions on the ballot, including an employee who served as observer for the Aluminum Workers; and management personnel consisting of Cronkite, Hinz, and Brunt. The purpose of the meeting was to discuss a list of eligible voters submitted by Cronkite. During the course of the discussion, Fowler raised a question as to the adequacy of the list, noting that identification of those listed was difficult because initials were used in lieu of first names, and no "badge number" was specified; and that there "was no way of telling" whether they were male or female, or in which department they were employed. Fowler also questioned the eligibility of some 13 persons listed. Cronkite agreed that one or two of the names be deleted, but took the position that the rest were eligible to vote, and these were not removed from the list. In May 1959, about 2 weeks after the election, Fowler was transferred, without any change in wages, to the position of welder in the plant's fabrication and machine shop which functions under the supervision of a foreman named Hal Lauderdale. The latter is subject to supervision by a Harvey Aluminum staff member named Wilbur C. Reynolds who, with the title of master mechanic, is "supervisor over plant maintenance." Toward the end of May 1959, a machine shop leadman named Mark Demeron, who exercised some supervision over Fowler, mistakenly led Fowler to believe that he would be entitled to a week's vacation, and could take the time in the middle of June Fowler was also interested in securing an additional week's leave of absence to harvest a cherry crop on a small farm he owns, and on one occasion or another in June (the date is not established), he went to Cronkite's office to find out whether he would be given the required time off. After some discussion of this subject (de- tails of which need not be set forth because they are of no real moment), Cronkite asked Fowler whether the Steelworkers Union was "still in town," and receiving an affirmative reply, inquired whether Fowler had "any contacts with them." Fowler replied that the only one he had had was when be had gone to the address of the organization in The Dalles to make a statement to a representative of the Board re- garding the election (which was then under investigation as a result of the objections). Cronkite then asked how Fowler felt "about the union, since it had lost in the elec- tion," and Fowler replied, in substance, that the employees would be more satis- fied if men doing the same work were paid the same wage, and that he felt that he had received "a raw deal" because his wages had not been increased when he was trans- ferred from a laborer's status to welding work, for which other welders received more than he. Cronkite remarked that Fowler had "worked too long for trade unions," and believed "every man was an equal," that such equality was not in effect at the plant, and that he would discharge Fowler if he believed him to be "an organizer for the Steelworkers Union." Then, noting that the management would do a large si Talladega Cotton Factory, Inc., 106 NLRB 295, enfd 213 F. 2d 208 (CA. 5) ; Jackson Tile Manufacturing Company, 122 NLRB 764. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount of construction work at the plant that summer with nonunion labor, Cronkite asked Fowler whether he thought the plant would be picketed, and Fowler expressed the belief that there would not be a picket line. That ended the conversation 32 Shortly thereafter, about June 15, 1959, Fowler discussed his vacation and leave wishes with Reynolds, and the latter told him that he was not entitled to a vacation until November, and that he could not be spared for a leave of absence because the department was "short-handed." The supervisor also said that it would "simplify" matters if Fowler "quit" to look after his cherry harvest, and then returned for the construction work anticipated for the summer. Fowler replied that he would not quit because he wished to retain his seniority standing. Reynolds retorted that Fowler's work was unsatisfactory because he was "too slow," and Fowler remarked that he had not previously heard any criticism of his work, to which Reynolds re- plied that about 3 weeks earlier he had instructed both Lauderdale and Demeron "to jack (Fowler) up." Fowler said that he had not been criticized by either, but, on the contrary, had been complimented by both.33 As Fowler testified credibly, neither Lauderdale nor Demeron had ever expressed criticism of his work to him, and each had on several occasions complimented him prior to his talk with Reynolds.34 On June 19, 1959, a few days after that conversation, Demeron told Fowler that he had been instructed by Reynolds to inform Fowler that he was being discharged that day. As Fowler testified, he asked for the reason, and Demeron replied that he did not know.35 At the close of his shift, Fowler went to the plant office and, encountering Cronkite, asked the latter for the reason for the termination, and the Findings as to the conversation are based on Fowler's credited testimony According to Cronkite, under direct examination, the conversation included no discussion "regarding (Fowler's) union activity " He testified that a day or two later, on an occasion when Fowler reported that his foreman had denied the requested leave, he asked Fowler whether he was having any trouble with other employees because he had acted as an election observer, and assured Fowler that it "cold shoulder" by others would not be tolerated by the management However, in subsequent testimony, Cronkite conceded that he had no information that other employees were ridiculing Fowler or giving him a "cold shoulder " Thus it does not plausibly appear why Cronkite should have given Fowler a gratuitous reassurance, and the terms in which the general manager quotes himself to that effect do not strike a convincing note Moreover, under cross-examination, he admitted that in a conversation he had with Fowler about the vacation subject, he asked Fowler "whether or not the Steelworkers were still in town " He also conceded that in such a conversation there was some discussion of construction work the management had in prospect, and that he "could have" asked Fowler for his opinion whether the management would "have any union trouble over this construction." Thus, Cronkite himself gives partial support to Fowler's relevant testimony, and it is evident that Cronkite's discussion of "union activity" with Fowler embraced far more than a concern that the latter would be given a "cold shoulder" because he served as an observer. In short, Fowler's account of what passed between him and Cronkite appeared to me to be more reliable than that of the latter, and I have made corresponding findings as The versions of Fowler and Reynolds are in substantial accord as to much of their conversation In his account, Reynolds neither quotes himself as saying the machine shop was "short-handed," nor describes Fowler as protesting that lie had been compli- mented by Lauderdale and Demeron ; but neither does Reynolds' testimony contain any denial that such statements were made. Actually, it is undisputed that Lauderdale and Demeron had complimented Fowler, and there is thus no reason to doubt that Fowler would point that out to Reynolds The undisputed fact that Demeron and Lauderdale never expressed any criticism to Fowler adds weight to his testimony that both complimented him several times, and I credit such testimony Apart from that, it is well to note that each of the two supervisory employees conceded that he complimented Fowler for the quality of his welding work Demeron did not specify the date when he did so, and Lauderdale stated that he com- mended Fowler about 2 days after the latter was transferred to the machine shop. 3s I do not credit a claim by Demeron that his reply to Fowler's query was that the reason for the discharge was that Fowler was "too slow." In determining the credibility issue, I have taken into account,the undisputed evidence that Fowler had never been told of any shortcoming in his work, but, instead had been complimented by Demeron before the former's talk with Reynolds Moreover, Demeron admitted that Reynolds had not given him any reason for the discharge . Another matter reflecting on Demeron 's credibility is that one would be led to believe from his testimony that he was not responsible for Fowler's assumption that he would be given a vacation that summer In point of fact, Reynolds testified that Demeron was responsible for that mistake. GENERAL ENGINEERING, INC., ETC. 681 general manager replied that there was no "more production welding here." Cron- kite referred Fowler to the personnel office for his terminal pay. Fowler proceeded to that office, and there Brunt's secretary gave him some papers to sign. One contained the following as the purported reason for his termination: "Involuntary, not qualified, slow and not interested in the work." The secretary had made the entry at Brunt's direction. It is undisputed that Fowler signed the document, and that he copied the alleged reason for his termination stated there, but there is conflict in the evidence as to what preceded the execution of the paper. According to Fowler, when the document was presented to him, he told the secre- tary that he would not sign the paper, and she replied that he would not be given two terminal paychecks she had for him if he did not sign. The secretary denied that she made such a statement, but her memory of the occasion appeared to me to be somewhat infirm. Before the denial, she testified that she could not remember where she got Fowler's paychecks, and she stated that she does not recall "that there was anything said" about them. At another point, she stated that "the extent of our conversation was that I probably just indicated where he was to sign the papers and I told him to complete this one paper which he refused" (she does not describe this document) ; and elsewhere she testified that he signed one paper, and declined to sign another; that she then gave him a third containing "the reason for his termina- tion"; that he made some notes from the document; and that "I don't remember anything else about the conversation." [Emphasis supplied.] Although one is left uninformed by the secretary's testimony as to the contents of the paper Fowler declined to sign, the fact remains that she does corroborate his testimony that he refused to sign one of the papers given him and made notes from it. This supports his claim that he balked at subscribing to the purported reason for the dismissal, and I have no doubt that he did so. Against that background, I find plausible his testimony that he signed the document only after the secretary told him that he would not be given his paychecks unless he did so, and I credit his testimony to that effect. In August 1959, some weeks after the charge alleging that Fowler's dismissal was unlawful was filed, Cronkite telephoned Fowler sand offered him employment at the plant as a welder, and at the same time sent Fowler a letter by registered mail to the same effect. (Cronkite testified that he could not recall whether he made the call before or after he posted the letter.) Fowler accepted, reported for work on August 17, 1959, and was assigned to pipewelding tasks connected with some re- modeling and extension of the plant facilities. He was still employed in such work at the time of the consolidated hearing some weeks later. His tenure is "indefinite" and is dependent upon the duration of the construction work involved or, in other words, is not regarded as having the degree of permanence of that of the machine shop staff. His work performance, since his return, has been admittedly satisfactory to the management. As in the case of Cavanaugh and Woodruff, the General Counsel maintains that the reasons assigned for Fowler's dismissal are but a pretext to cloak an unlawful motivation, which the General Counsel in effect views, in his brief, as a projection of the Respondents' policy of inhibiting the employees' exercise of their statutory guarantees. The Respondents, on the other hand, contend that Fowler was discharged from his post in the machine shop because he was incompetent to perform the tasks as- signed to him there, and in support of the claim presented testimony by plant per- sonnel. Basically, the sum of this testimony, given in the main by Demeron, Lauderdale, and Reynolds, is that most of the welding in the machine shop was in maintenance or repair work, requiring a different type of skill from that needed for construction welding; that thus for the plant's maintenance or repair work, unlike construction welding, the welder must in "the majority" of cases prepare his own "layout" (such as a sketch or similar plan) for his tasks; that Fowler could not do this adequately; and that he was "too slow" for the type of welding required, as exemplified by an excessive length of time he took in constructing a pipe rack. According to Lauderdale, he twice recommended Fowler's discharge to Reynolds about a week before the dismissal; and Reynolds testified that, with Cronkite's approval, it was he who decided to discharge Fowler because the latter was "out of place" in the work he was required to do in the shop, and "could not handle (it) efficiently." The Respondents produced no time records or "layouts" by Fowler to support their allegations of incompetence, and the claims to that effect rest entirely upon evidence in the form of subjective opinions given by plant personnel whose interest or neutrality is at least open to question. Weighing against the acceptance of these opinions is the undisputed evidence that Fowler has been a welder for much the better part of two decades, and holds certifications evidencing qualification in that 682 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD calling from disinterested authorities, one of them a State. However, one is not put to a mere choice between subjective opinions given by the Respondents' witnesses and the evidence of Fowler's experience and qualifications, for, upon careful study of the record, there is much to support the conclusion that the discharge stemmed from an unlawful motivation. In Fowler's case, as in that of Cavanaugh and Woodruff, one must bear in mind the substantial evidence of the Respondents' hostility to their employees' exercise of Section 7 rights; and of the management's disposition to use pretexts to discharge employees as a means of inhibiting the exercise of such rights. Particularly against that background, the timing of Fowler's dismissal has significant meaning, for he was discharged not long after he told Cronkite that he had gone to the address of the Steelworkers Union in The Dalles and had there given "testimony" (as Fowler termed it) or, in other words, had made a statement, to a Board representative en- gaged in investigating the election. Cavanaugh, too, it is well to recall, was dis- charged not long after the management received information that he had attended "some sort of a meeting" and had signed an affidavit "to get a new election." Moreover, as regards the timing, although the Respondents' allegations regarding Fowler would lead one to believe that he was inadequate and incompetent much of the 4 or 5 weeks he worked in the machine shop, it is an incontrovertible fact that the first time that any criticism of his work was voiced to him was when Reynolds did so but -a few days before the discharge; and that this came after Cronkite learned that he had given a statement to the Board representative. This absence of criticism takes on particularly significant meaning when it is borne in mind that Fowler's work on the pipe rack, upon which the Respondents place much stress as evidencing his alleged incompetency, took place, according to Demeron, some 3 weeks before his dismissal. The Respondents offer no explanation for ,this singular lapse, and the absence of one adds weight to a conclusion that the criticism, coming when it did, was no more than a contrived predicate for Fowler's discharge. The inference is strongly bolstered by the evidence that so far from saying anything to Fowler about short- comings in his work, his immediate supervisors, Demeron and Lauderdale, actually complimented him on his performance. Moreover, the conclusion is not negated by the fact that Fowler has, since his dis- charge, been given employment at the plant in pipewelding involved in a construc- tion project there. He entered on this employment almost on the eve of the con- solidated hearing. (The complaint, which was served upon the Respondents on August 13, 1959, 4 days before the employment began, contained a notice that the hearing would begin on September 1, 1959.) It is also noteworthy that Cronkite was hard put to it to explain why the offer of employment was made by registered mail, as well as by telephone. His claim in that regard is that he used the registry method because he "wanted to make sure" that Fowler received the letter, adding, subsequently, that Fowler "had moved," and that he was "not sure" of Fowler's address. However, Cronkite was certain enough of Fowler's location to be able to telephone him, and it does not appear that a letter sent by regular mail, particularly in a relatively small community such as The Dalles, would be any less likely to reach the addressee than one sent by registered mail I think it a reasonable in- ference that the registry method was used in order to make a postal record of the fact of mailing, and that the record was made with a view to achieving some end in the impending hearing. It is evident that Cronkite has chosen not to say what the end was. One can think of a number of possible reasons for the employment offer, such as 'a shortage of welders in the area, or a desire to establish a cutoff date for any backpay that may be due Fowler in the event of a holding that his discharge was unlawful, or to give supporting color to the Respondent's' claim that they re- garded Fowler as competent in construction, as distinguished from maintenance, welding and thus found him inadequate for employment in the machine shop; but I see no need to make any determination of the reason for the employment offer. It is enough that in the absence of a candid disclosure of the reason why the registry method was used, it would be improvident to hold that the offer of reemployment either negates 'the existence of an unlawful motive for the discharge or gives effective support to the Respondents' claim that Fowler was proficient in construction, but not maintenance, welding, and thus unsuitable for employment in the machine shop. The reasons assigned for Fowler's dismissal, as in the case of Cavanaugh and Woodruff, do not survive scrutiny. It is fair to conclude that the management, again as in the case of Cavanaugh, reacted unfavorably to information that Fowler, whose dismissal followed Cavanaugh's by only a few days, had been to the local office of the Steelworkers Union and had given a statement there on the subject of the election to a Board representative. Cronkite, it is reasonable to believe, would entertain the view that Fowler's statement was contrary to the management's interest, for Fowler, GENERAL ENGINEERING, INC., ETC. 683 acting as an election observer for the Steelworkers Union, had raised questions on the first day of the election at a meeting attended by Cronkite as to the propriety and adequacy of the voting eligibility list submitted by the general manager. Against that background, and particularly taking into account the Respondent's antiunion animus, the absence of any adverse comment to Fowler on his work prior to the disclosure that he had given a statement regarding the election, the timing of Reynolds' criti- cism and of the dismissal, and the fact that the justifications for the discharge put for- ward by the Respondents do not stand up, I am impelled to the conclusion that the dismissal resulted from the disclosure that Fowler had made a statement on the sub- ject of the election at the office of the Steelworkers Union. In other words, Fowler was dismissed for what the Respondents regarded as a union -activity-36 By the dismissal, the Respondents violated Section 8(a)(3) of the Act, and inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a) (1) of the statute. As the position in which Fowler has been reemployed is one of an indefinite or tem- porary tenure, and is therefore not the substantial equivalent of the one from which he was dismissed, I shall, in order to effectuate the policies of the Act, recommend that he be offered immediate reinstatement to his former position or its substantial equivalent. The Respondents also abridged their employees' Section 7 rights, thereby violating Section 8 (a) (1), as a result of Cronkite's interrogation of Fowler as to whether the Steelworkers Union was "still in town," whether he had "any contacts" with it, and how he felt "about the union, since it had lost in the election"; and as a conseqeunce of the general manager's statement on the same occasion that he would discharge Fowler if he thought him to be ",an organizer for the Steelworkers Union." V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents found to be unfair labor practices in sections III and IV, above, occurring in connection with the operations of the Respondents de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found .that the Respondents have engaged in unfair labor practices vio- lative of Section 8(a)(1) and (3) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondents' unfair labor practices strike at the heart of rights guaranteed employees by Section 7 of the Act 37 The rights involved are closely related to others guaranteed by Section 7. In view of the nature of the unfair labor practices found above, and of the fact that the Respondents have committed other violations of the Act, as found by the Board in General Engineering, Inc., et al., 125 NLRB 674, there are reasonable grounds to anticipate that the Respondents will infringe upon such other rights in the future unless appropriately restrained. Therefore, in order to make effective the interdependent guarantees of Section 7, 1 shall recommend an order below which will in effect require the Respondents to refrain in the future from abridging any of the rights guaranteed employees by said Section 7.38 80 In determining that the discharge was unlawful, I base no findings on undisputed evidence that shortly after the election a minor supervisory employeed named Van Pelt expressed hostility toward Fowler to an employee named Turner because Fowler had served as a union observer Turner testified that Van Pelt gave "orders" to an estimated 10 or 12 employees, but the type of supervision is not particularized, and I think the evi- dence Insufficient to support a holding that Van Pelt was a supervisor within the meaning of the Act. For much the same reason, I make no finding that the Respondents violated the Act as a result of a request by Van Pelt to Turner that the latter ask Browning what his "opinion of the union was." I dispense, too, with a determination whether the Respondents violated Section 8(a)(1) of the Act as a result of Reynolds' suggestion that Fowler quit. Judging by an allegation of the complaint, the General Counsel views Reynolds' denial of the leave request as "pressure" on Fowler to Induce him to quit "because of his union activities " In view of the broader holding that the dismissal was unlawful, and of the scope of the remedy to be recommended below, to pass on the allega- tion would neither materially add to, nor subtract from, the recommended remedy. sr See N L.R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). 88 See May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376; Bethlehem Steel Company v. N.L R.B., 120 F. 2d 641 (C.A.D.C.). 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that the Respondents discharged Robert A. Cavanaugh on June 15 and Lloyd K. Fowler on June 19, 1959, in violation of Section 8 (a) (1) and (3) of the Act, and Charles A. Woodruff on June 15, 1959, in violation of Section 8 (a) (1) of the said Act, I shall recommend that the Respondents offer each of these individ- uals immediate and full reinstatement to his former or a substantially equivalent position,39 without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of his discharge, as found above, by payment to him of a sum of money equal to the amount of wages he would have earned, but for the said discharge, between the date of his dismissal and the date of a proper offer of reinstatement to him as aforesaid ; and that the said loss of pay be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, to which the parties to this proceeding are expressly referred. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. General Engineering, Inc. and :Harvey Aluminum (Incorporated ) are, and have been at all times material to this proceeding , employers within the meaning of Section 2(2) of the Act. 2. United Steelworkers of America , AFL-CIO, and Aluminum Workers Council of The Dalles, Oregon, are, and have been at all times material to this proceeding, labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Robert A. Cavanaugh and Lloyd K. Fowler, as found above, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By discharging Charles A. Woodruff, as found above, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By interfering with , restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the said Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Sections 2(6) and (7) of the Act. [Recommendations omitted from publication.] "In accordance with the Board's past interpretation , the expression "former or a substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer In existence , then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico , Branch, 65 NLRB 827. Minnotte Manufacturing Corporation and United Steelworkers of America, AFL-CIO. Case No. 6-CA-2069. May 19, 1961 DECISION AND ORDER On February 16, 1961, 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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- 131 NLRB No. 85.