Corpus Christi Grain Exchange, Inc.

CORPUS CHRISTI GRAIN EXCHANGE, INC. 145 4. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondents, and each of them, have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) of the Act. 5. The aforesaid unfair labor practices having occurred in connection with Car- rier's operations as set forth in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and sub- stantially affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Corpus Christi Grain Exchange, Inc. and John L. Hamilton, Roy J. Rackley, Wesley E. Franklin . Cases Nos. 923-CA-1034-1, 23-CA-1034-0, and 23-CA-1034-3. July 14, 1961 DECISION AND ORDER On December 22, 1960, Trial Examiner Ramey Donovan 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed as to such allegations. There- after, the General Counsel and the Respondent filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report and the excep- tions and briefs, and hereby adopts i the findings,2 conclusions, and recommendations 3 of the Trial Examiner except as herein modified. i The Respondent 's request for oral argument is hereby denied as the record , including the exceptions and briefs , adequately present the issues and the positions of the parties. 3 At different places in his Intermediate Report in referring to events that occurred on May 16, 17, 18, and 19, the Trial Examiner stated the month to be March Instead of May. The Intermediate Report is corrected accordingly. Absent exceptions , we adopt pro forma the Trial Examiner's recommended dismissal of allegations that the Respondent violated the Act by laying off employees on May 16, by Foreman wyatt's interrogation of employees Fred Franklin and Bohach , by wyatt's advis- ing employees that there would be a layoff to discourage union activities , by wyatt's informing certain employees that they were laid off because the Respondent had learned of their union activities and was laying them off for that reason , and by Assistant Manager Hines telling employees to deal directly with management and that they would thereby achieve better benefits without a union. 8 The Trial Examiner recommended that the Respondent be ordered to cease and desist from violating the Act "in any like or related manner" to the violations found . Because the discriminatory refusals to rehire Rackley and Hamilton evince a studied intent to thwart the rights of employees in freely selecting their collective -bargaining representa- 132 NLRB No. 12. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Corpus Christi Grain Exchange, Inc., its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging activity in or on behalf of International Long- shoremen's Association, or any other labor organization of its em- ployees, by failing or refusing to rehire or reemploy employees. (b) Interrogating employees regarding their exercise of rights guaranteed by the Act in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (c) Conditioning wage increases and other benefits on the agree- ment by employees to abandon their union activity. (d) 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 bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection as guaranteed in Section 7 of the Act, and to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Roy J. Rackley and John L. Hamilton immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privi- leges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, all in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay and right of reinstatement due under the terms of this Order. (c) Post at its plant in Corpus Christi, Texas, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by Respondent immediately upon receipt there- tive, we shall issue a broad cease-and-desist order. North Texas Producers Association, 131 NLRB 146 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." CORPUS CHRISTI GRAIN EXCHANGE, INC. 147 of, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to em-, ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in all other respects. 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 activity in or on behalf of Interna- tional Longshoremen's Association, or any other labor organiza- tion of our employees, by failing or refusing to rehire or reem- ploy any of our employees. WE WILL NOT interrogate employees regarding their union activ- ity in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT condition wage increases or other benefits on the agreement of employees to abandon their union activity. WE WILL offer to Roy J. Rackley and John L. Hamilton im- mediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and will make them whole for any loss of pay they may have suffered by reason of the discrimination against them. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the right to self-organization, to form or join labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for their mutual aid or protection as guaranteed in Sec- tion 7 of the Act, and to refrain from any and all such activities if they wish. CORPUS CHRISTI GRAIN EXCHANGE, 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. 614913-62-vol. 132-11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner at Corpus Christi, Texas, on September 12, 1960, upon the complaint of the General Counsel and the answer of Respondent. The complaint alleged that on May 16, 1960 , Respondent discharged employees, Hamilton, Rackley, and Franklin, that on May 31, 1960, Respondent rehired Frank- lin and discharged Franklin on June 2, 1960 ; and that since May 16, as to Hamilton and Rackley, and since June 2, as to Franklin, Respondent has failed and refused to reinstate or reemploy said employees ; all discharges and failure and refusal to reinstate and reemploy are alleged to be due to the said employees ' union activity and due to the fact that the said employees filed charges or gave testimony under the Act; the' aforementioned acts of Respondent are alleged to be violative of Section 8(a)(1), (3), and (4 ) of the Act. The complaint also alleges specified acts of interference, restraint, and coercion by named supervisors of Respondent on specific dates, all said conduct being alleged as violative of Section 8(a) (1) of the Act. Respondent in its answer denies the commission of unfair labor practices as al- leged. Both parties filed briefs with the Trial Examiner. Upon the entire record, and from his observation of the witnesses , the Trial Ex- aminer makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation with its principal office and place of business at Corpus Christi, Texas. At all relevant times Respondent was engaged in the business of inspecting , grading, and weighing grain and grain sorghums. In the course of its business operations , during the 12-month period preceding August 1960, a representative period, Respondent inspected, graded and weighed grain and grain sorghums and performed related services valued in excess of $50,000 for other business enterprises , including Corn Products Refining Company, Lewis Dreyfuss, Inc., Cargill, Inc., and Uhlmann Elevators, each of which business enter- prise, separately and collectively, sells and ships goods, materials, and services valued in excess of $50,000 directly out of the State of Texas annually and each of which business enterprises is engaged in commerce within the meaning of Section 2(6) of the Act. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION INVOLVED International Longshoremen's Association, hereinafter called the Union , is a labor organization within the meaning of Section 2 (5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The normal employment complement of Respondent consisted of Haston, who was manager and chief inspector, as well as treasurer of Respondent corporation; five grain inspectors licensed by the Department of Agriculture who passed upon the quality and grade of the grain submitted to Respondent; office clerical employees; a grain sampler foreman ; and grain samplers . The work of the grain samplers is to extract samples of grain that customarily is brought to Respondent's premises in railroad boxcars or trucks. The foreman assigns a grain sampler to a particular boxcar and writes up a ticket identifying the boxcar and the sampler assigned thereto The ticket is placed in a sack which the sampler takes into the boxcar The sampler uses a probe which is about 5 feet long The probe is thrust into five different locations inside the grain-laden boxcar and the samples thus extracted are then gathered and eventually are inspected and tested by the grain inspector. The locations within the car where the probe is thrust are standardized by Respondent and are prescribed as a part of the grain sampler's training and duty. The number of grain samplers employed by Respondent varies. There are a number of year- round permanent samplers plus samplers who are taken on and laid off according to the amount of work on hand. The workload of Respondent is heaviest in the grain harvest season and the latter would be affected by weather and other natural conditions . In general , the harvest season commences about the end of June or July 1. CORPUS CHRISTI GRAIN EXCHANGE, INC. 149 B. The termination of Rackley , Hamilton, and Wesley Franklin Rackley had worked for Respondent as a grain sampler for the following periods: July 4 to August 29, 1957; June 18 to August 27, 1959; April 16 to May 16, 1960. In 1957 and 1959 Rackley had been attending school and had worked for Re- spondent during his summer vacation . Rackley was apparently attending Austin College at the time of the hearing but judging from the date of his employment in 1960, April 18 to May 16 , he evidently was not a student at that time . Hamilton was employed as a grain sampler by Respondent from May 1 to 8, 1958; Marc/i 31 to April 28, 1960; and May 10 to 16, 1960, and Franklin worked from March 30 to May 16, 1960; and May 30 to June 2, 1960. Rackley testified that about the second week when he was employed by Re- spondent in 1960 he heard discussion among the grain samplers about organizing a union Rackley told the men that he would undertake to secure information about what steps had to be taken . Thereafter Rackley was in touch with the president of an ILA local union in Corpus Christi and with the district president or director of that union . With the help of local union officials, a letter applying for a charter was prepared and application forms were secured . Rackley secured the signatures of his fel'ow workers on the aforementioned letter and applications and the letter was dispatched to the Union. According to Rackley, about May I he had two conversations, one being in a truck on the plant premises , with Wyatt, grain sampler foreman . Rackley told Wyatt that "we" had sent in an application for a union charter but had not yet re- ceived an answer. Wyatt said that he hoped they received an answer because he would like to see the men get organized . Hamilton testified that close to the time of his layoff on April 28, 1960, he was with Rackley in a truck when the latter told Wyatt what had been done about getting a union . Wyatt's response, according to Hamilton, was that, "Well, I hope you boys get it because it may help me." Wyatt denied having had the foregoing conversations or that he was aware of the union activity . Careful consideration of all the factors presented has led the Trial Examiner to credit the aforedescribed testimony of Rackley and Hamilton One of several elements was the fact that if the testimony of the employees was fabricated it would appear unlikely that they would not have also imputed to Wyatt some ex- pression of hostility toward the union project or a warning as to higher manage- ment's attitude . Such embellishment of fabricated testimony would have readily suggested itself as a most helpful element in their respective charges of discrimina- tion. Instead, the credited testimony shows approbation on Wyatt's part and a complete lack of hostility. The events of May 16, 1960 , are the subject of considerable controverted testi- mony. On Monday, May 16, Haston, who had been out of town since May 10 to attend a grain inspectors' conference, returned to Respondent's plant. It is Wyatt's and Haston's testimony, in substance, that on that morning the two con- ferred and decided upon a layoff. They selected the three junior employees, Rack- ley, Hamilton , and Wesley Franklin , as the men to be terminated . This basis of selection was the customary one at the plant. The asserted reason for the layoff was that at the time when Haston was to leave Corpus Christi to attend the afore- mentioned conference , Respondent had been informed that a substantial amount of grain was to be transferred from a ship and this would provide considerable work for Respondent . Because of the anticipated work Respondent on May 10 rehired Hami'ton whom it had terminated on April 28 , 1960. During Haston's absence the aforementioned ship transaction did not materialize and Respondent found that it had more grain samplers than it needed .' In addition to the fact that the ship job fell through, Wyatt and Haston testified that work was slack at the time and it was decided to lay off three men. The layoff was made at the end of the workday on May 16 , Both Wyatt and Haston denied that they were aware of union activity among the men on May 16. Haston testified that on May 17 while at lunch with the superintendent of the public grain elevator, located on adjacent premises, the latter said jokingly that he heard that Haston was laying off men for union activities . Haston said that this was the first he had heard about it. Upon returning to his office after lunch Haston asked Wyatt if he knew of any union activities and Wyatt said, "No." Later, that same afternoon Wyatt came back and informed Haston that he understood that the men were pretty far along with the Union. 'Haston testified that in addition to Hamilton another man was being hired but that the latter was not taken on when the woik did not develop 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wyatt testified in corroboration of Haston's testimony and fixed the date of the discussion about the Union as May 17. He stated that on that day Haston asked him if he knew anything about union activity among the men and that on that after- noon Wyatt asked Bohach and Fred Franklin about what they had done regarding a union. They told him what organizing steps had been taken. Wyatt asked how many had signed up, and he was told that all the grain samplers had signed. Wyatt told the two men that Haston knew about it.2 At the hearing, Wyatt was confronted by the General Counsel with an affidavit of Wyatt's in which the latter stated that his discussion with Haston and the men concerning the Union occurred on "Monday, May 16." Wyatt testified in effect that he had been in error about the date referred to in his affidavit. While the Trial Examiner can understand that an individual could be mistaken about a numerical date standing by itself, the affidavit makes reference to Monday, as well as the date, and to the discussion on that occasion with Haston concerning the failure of the shipboard grain job to materialize and the decision to make a layoff. On three different occasions in the affidavit, "Monday, May 16" is referred to and various events in which Wyatt participated on that same date are detailed. Moreover, it is the Trial Examiner's opinion that when the affidavit was signed the date of Monday, May 16, would reasonably have significance to Wyatt since that was the date of the termination of three employees under Wyatt's jurisdiction in a plant employing a relatively small working force; it was also the date of Haston's return to the plant after an absence of about a week. Both these events, it seems to the Trial Examiner, would cause Monday, May 16, to register significantly with Wyatt and the details of the affidavit, aforedescribed, with reference to events on that date confirm this opinion. The Trial Examiner does not credit Wyatt or Haston that the conversations between them concerning union activity among the employees occurred on Tuesday, May 17. Rackley testified that on May 16 work was finished earlier than usual. Apparently due to the fact that insufficient regular work was at hand, Rackley, Hamilton, and Wesley Franklin were assigned to cleaning up a storeroom known as the feed shack. This cleanup work occurred about 3 p.m. At 4:15 p.m. a truck pulled into the elevator and Rackley was assigned to sampling the truck .3 When Rackley finished sampling the truck he came back to the building known as the "lab." Wyatt, accord- ing to Rackley, was entering the lab at that time and had three checks in his hand. Rackley asked if one of the checks was his and was answered in the affirmative .4 Rackley testified that he and the others "were off work" that day at 4.30 p.m. al- though the regular quitting time was 5 p.m. Just before they left Wvatt gave Rack- lev, Hamilton, and Wesley Franklin their checks. Rackley testified that Wyatt said, "You boys come back around when the season is heavier." Whey they stepped out- side the lab, Wyatt allegedly said to Rackley and Hamilton, "It looks like the Chief found out what you all were doing." 5 Rackley said that he then told Wyatt that he was not going to stop trying. Hamilton corroborates Rackley's foregoing testimony in many respects. How- ever, Hamilton states that when Wyatt handed out the checks he said, "Well, I guess you know that the Chief has found out what you all were trying to do." 8 Rackley had placed the last-mentioned type of statement as having occurred pri- vately outside the lab after the checks had been given out inside the building. Rack- ley had also said that when Wyatt gave them the checks in the lab he simply told them to return when the season became busier. 2 Fred Franklin was one of the regular or permanent grain samplers. Bohach was a grain sampler. About April 1, 1960, Wyatt, the sampler foreman, attended school in Galveston for 4 days in preparation for becoming a grain inspector for Respondent During his absence Bohach functioned as foreman When Wyatt returned from Galveston Bohach continued to assign work to the grain samplers and to fill out work tickets al- though Wyatt was the titular foreman. Wyatt testified that Bohach was assistant fore- man and was in training to become foreman . When Wyatt became an inspector Bohach became foreman, about June 20, 1960 Bohach during April and May 1960, participated in the union discussions and activities of the other grain samplers and apparently was undistinguished from others in his interest in the Union. 8 According to Rackley sampling a boxcar would take less than 5 minutes It is apparent that the sampling of the single truck took no more time than a boxcar and probably less. 4 These events occurred, as we have seen, on Monday, May 16 Friday was the regular payday 5 The record establishes that Haston was commonly referred to as the "chief " .The statement attributed to Wyatt by Rackley and Hamilton concerning what they were doing or trying to do carried the clear implication of and reference to union activity. CORPUS- CHRISTI GRAIN EXCHANGE, INC: 151 Mitchell, a grain inspector in Respondent's employ, testified that he was present on May 16 when Wyatt gave the three men their checks. Mitchell stated that all Wyatt said was that there was a little reduction in the work force; there was no mention of the Union. Mitchell walked outside the lab with those present and said to Rackley, "I guess you are going to New Orleans now." The latter said, "Yes, I sure am." This was all that was said, according to Mitchell , and there was no other reference made. Wyatt testified that on the morning of May 16 they were all sitting in the lab with nothing to do and Wyatt announced that there was going to be a layoff that day. Later, that afternoon Wyatt testified he gave the three men their checks, saying that the layoff was due to lack of work . Wyatt said that when he gave out the checks everybody left and there was no discussion with reference to the Union. Wesley Franklin testified that on the morning of May 16 he heard Wyatt state in the lab that the chief had heard about us trying to organize a union and that they were going to lay off some of the grain samplers and try to put a stop to it. Accord- ing to Wesley Franklin, Hamilton was among those present . The Trial Examiner finds Wesley Franklin's testimony to be at variance with that of Hamilton who placed Wyatt's remarks as having occurred at the end of the day when they received their checks.7 Rackley placed Wyatt's remarks not only at the end of the day but also said that the significant statement of Wyatt was uttered outside the lab as they were leaving and was not uttered publicly as Wesley Franklin testified . The Trial Examiner does not credit the foregoing testimony of Franklin except to the extent that Wyatt had announced that there would be a layoff . At another point in his testimony the latter stated that Wyatt "told us that morning that some of the guys were getting laid off, and the guys that hadn 't been there as long are usually the ones that get laid off, and we figured it was us." Fred Franklin , a grain sampler who was still employed by Respondent at the time of the hearing, testified that he and others had discussed union activities with Wyatt. He testified that this occurred about the middle of March 1960, ". we was just trying to or thinking about going union and we discussed it with him." Wyatt "told us if that is what we wanted to do, well , it would be all right." Fred Franklin also testified that on the morning of May 16 , outside the lab, Wyatt spoke to him and another sampler, Klavemann. According to Franklin, Wyatt said that Haston "had found out about us trying to go union and that he thought it was going to be a little lay-off." Hamilton testified that between 2 and 3 p.m. on March 16 Fred Franklin told him, Rackley, and Wesley Franklin, together, that somebody is supposed to get laid off. Respondent's witness, Garza, was also a grain sampler. He testified that after he and the other samplers had signed the letter applying for a union charter he was in a group talking to Wyatt; one of the men told Wyatt that they had applied for a union character and Wyatt said "it was up to us." 8 Garza's testimony on some points was not too clear but the Trial Examiner is con- vinced and finds, based on Garza's testimony, that after the terminations on May 16 and before Wednesday or Thursday, May 18 or May 19, Wyatt spoke to Garza and a group of samplers while they were out sampling boxcars. The statement by Wyatt was made after the terminations but since it was made while the men were out sampling, it is found to have occurred no earlier than May 17. The record is clear that when the three men were given their checks on May 16, everyone, including Wyatt , went home and there was no work performed after that time, about 4:30 p m.9 The statement by Wyatt on the aforementioned occasion , to which Garza testified, was that Haston "didn't like what we were doing about trying to organize a union." In reconstructing the events leading to the terminations on May 16, it is apparent that the General Counsel's position and that of Respondent are in sharp variance. 7 Franklin's testimony attributed a stronger or more direct statement to Wyatt than did that of Rackley and Hamilton, to wit, the chief knew about the union activity and was going to lay off some samplers in order to put a stop to it 9 The date when the letter applying for a charter was sent was never definitely estab- lished in the record Rackley , who was perhaps in the best position to know , was unable to give a precise date Rackley's estimate was that it occurred about May 1 Since Hamilton testified that shortly before his layoff on April 28. 1980. he heard Racklev tell Wyatt about what the men had done regarding the Union, the Trial Examiner finds that this charter application was made a day or two prior to April 28, and that the matter was discussed with Wyatt within the ensuing week 6 Apparently there was not much work performed that entire day since , as we have seen. Wyatt and the men were sitting in the lab with nothing to do sometime in the morning of May 16 In the afternoon , also , there was apparently a paucity of work 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reduced to its simplest terms the General Counsel contends that Respondent was aware of the union activity prior to the terminations and made the terminations in order to stifle such activity. Respondent's contention is that the layoffs were made for economic reasons and that neither Haston nor Wyatt became aware of any union activity in the plant until March 17, the day after the layoffs. Bohach, in Respond- ent's view, was not a supervisor. The manner in which Respondent asserts it learned about the union activity on March 17 has been previously set forth in describing the testimony of Haston and Wyatt.io The General Counsel, on the other hand, asserts that Respondent was aware of the union activity since the middle of March, through Wyatt and Bohach. In the General Counsel's view, the knowledge of the two supervisors is imputed to Respondent. Since the Respondent is a corporation that acted through its manager, Haston, the General Counsel apparently would equate Haston's knowledge of union activity with that of his supervisors. Such knowledge would therefore have existed since about March 15 and as of the end of April, Haston, Wyatt, and Bohach would be aware that the samplers had all signed applications and had asked the Union for a charter. It is very difficult to find any basis in the iecord to conclude that Wyatt and Bohach were hostile to the union activity or were opposed to having a union in the plant. Certainly this is true for the period from March through May 16. All the evidence establishes that during that period Wyatt was favorably disposed to the union activity and encouraged it. Bohach was an active participant in the activity and had signed an application and the letter applying for a charter. But let us assume, arguendo, that management, Haston, and the supervisors, in view of the whole record, including events after March 16, was at all times opposed to union activity among the employees and to the prospect of having a union in the plant The logical periods for opposition, including laying off employees and expressions or statements calculated to discourage union activity, would be either the times when talk of the union commenced in March or the end of April or early May when all employees joined in applying for a union charter. There is not a shred of evidence to show any opposition from Wyatt or Bohach during these periods or from Haston, althbugh the premise is that the latter, as well as his supervisors, were aware of the union activity and were hostile to such activity. This hostility was such that it allegedly was the reason for laying off three employees During the aforementioned period the union activity was going on and had gone as far as any organizational activity can go. All the employees had discussed joining a union, without interfer- ence; all the employees had signed up and had applied for a charter, without inter- ference Can it reasonably be said that Respondent was waiting until the union representative actually came in and demanded recognition before engaging in dis- criminatory conduct. Generally, the only time employer opposition to union activity manifests itself for the first time at the last-described stage is when the employer learns for the first time when the union asks for recognition that its employees have affiliated with a union. But the premise we are discussing is that the instant Employer knew about the union activity from the beginning and at each significant stage thereof but did nothing until it allegedly discharged the three men on May 16. Perhaps such a theory would be tenable if immediately before March 16 or on March 16 some significant act of union activity occurred or if the three men did something of sig- nificance regarding union activity just prior to their layoff or that the record shows some precipitating cause. The record is barren of such evidence. As far as appears the last significant act of union activity was around the latter part of April when all the samplers applied for a union charter. Between that time and March 16 there is no evidence of union activity and evidently the men were simply waitine to hear from the Union. Far from there being a precipitating factor or incident, the loneer th^ time lapse from the date of application for the charter, in April, to the middle of May, the less imminent appeared to be the union threat The delay in receiving a reply from the Union, as far as the record shows, might be regarded as an indi- cation that the Union was not prepared to represent these grain samplers. In any event, there was no precipitating union activity that could be said to have galvanized Respondent into an overt act of antiunionism on May 16, thus explaining why until May 16 it did not do anything about its prior knowledge of union activity and its presumably prior or continuing (but unmanifested) opposition to union activity. 10 It is apparent that adoption of either the General Counsel's position or that of Respondent would greatly simplify the adjudication of this case If Respondent's evidence is adopted the testimony of the General Counsel' s witnesses becomes virtually untenable and vice versa . The Trial Examiner's view of the evidence, however, is somewhat differ- ent from that of either of the parties CORPUS CHRISTI GRAIN EXCHANGE, INC. 153 Perhaps the General Counsel's theory is that while Respondent, i.e., Haston, is chargeable with knowledge of the union activity from the middle of March, through Supervisors Wyatt and Bohach, Haston actually did not learn of the union activity of the samplers, including Rackley, Hamilton, and Franklin, until March 16 when he returned from his trip. Without dwelling on the question of logical consistency or inconsistency, let us, at this point, discuss the situation from the premise that Haston first gained the aforementioned knowledge on May 16. This would seem to entail as a corollary the fact that Bohach had not previously informed Haston of the union activity of himself and the others and that Wyatt had not known of such activity, as he asserted at the hearing, or if he had known, he had not informed Haston because he, Wyatt, was favorable to such activity and had encouraged it; or, least likely, Wyatt had never thought to mention such a matter to Haston. Since Haston had been in Toledo, Ohio, for a week, it is unlikely that he had learned, in Ohio, what his nine samplers had been up to since March if he had not learned about it prior to May 10 when he left Corpus Christi. But, as I believe the General Counsel asserts, within the premise we are now examining , Haston knew about the union activity on May 16 before he laid off the men and he laid them off for that reason. Quite appar- ently, then, Haston gained his knowledge from some source. It would appear that the General Counsel asserts, as he does in his brief, that the knowledge of Wyatt and Bohach is imputed to Haston. We have previously encountered some difficulty in the imputation approach in our above discussion but let us assert that the imputation becomes operative on May 16 or that Wyatt or Bohach on May 16 tell Haston what they have known since March. We turn then to assume, arguendo, that on March 16, for the first time, Wyatt or Bohach, presumably Wyatt, informed Haston of the union activity and of the par- ticipants therein . This of course again raises the question of why the silence since March, why the unexplained reversal on the part of Wyatt from approbation of the union activity and failure to inform Haston for almost 2 months. There is no basis for saying that perhaps Wyatt did become convinced that the union movement had become a serious threat whereas theretofore it had no serious aspects. The union situation was serious in April when all the men had signed up and had applied for a charter. It was no more serious on May 16 and if anything, the failure of the Union to grant the charter by May 16 and the total absence of any evidence of any addi- tional union activity between April and May 16, indicated a less serious situation. Nor can it be said within the premise under discussion that since there was a lack of work Wyatt decided to tell Haston about the union activity and thereby enable him- self and Haston to utilize the layoff to crush the union aspirations. Aside from the fact that such a supposition is inconsistent with Wyatt's attitude, the General Counsel argues vigorously that there was no proven justification for any layoff. Let us however pursue the theory of a pretextuous layoff. A layoff of the latter type would entail positing that Respondent actually needed the three men and had sufficient work for all its samplers. Since the presumed motive in the pretextuous layoff was to frustrate or discourage the union activity, Rackley would be the logical target. Although the union activity had started prior to the date of Rackley's hiring, he had given the movement impetus and direction. Rackley was hired after Hamilton and Franklin and on May 16 he also had the least total service in 1960 of any of Respondent's samplers. He, therefore, in the pretextuous layoff, could be eliminated as the least senior sampler and the objective of the layoff would be thereby achieved. Since the supposition is that work had not fallen off and that Respondent needed samplers, the elimination of one man, Rackley, would not only be a serious blow to the union activity but would also entail minimal effect on the sampler complement. However, instead of the foregoing, Respondent also laid off Hamilton and Franklin. There is nothing in the record to show that the latter two were in any way outstanding in the union movement. There was no more union activity on their part than there was by all the other samplers. By laying them off, it is difficult to see that anything was accomplished insofar as the union movement was concerned that would not be accomplished by Rackley's layoff. In addition, Respondent was depriving himself of two samplers who, on the supposition that there was actually no lack of work, were needed. If Respondent believed that the layoff of more than Rackley would have a greater deterrent effect, it would seem that one or two of the permanent samplers would be the likely ones to add to Rackley. The union discussions had started among the permanent men before Rackley, Hamilton, and Franklin were hired The permanent men continued actively in the movement and, because of their more or less permanent status, union activity among them was a much more serious threat than was the union sentiment of the union samplers whose employment might end in a few months through normal fall off in the workload An employer who is depicted as determined to 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frustrate union activity could no doubt conjure up a reason for terminating one or more permanent samplers together with Rackley . Various types of inetliciency, including alleged scooping of a boxcar, could be asserted as a reason for such ter- minatlon .ll This however was not done nand only Rackley, Hamilton, and Franklin were laid off. In discussing the various facts of this case, it is apparent that we cannot ignore certain evidence adduced by the General Counsel regarding alleged statements made by Wyatt. These statements are placed by various witnesses as occurring on May 16. In substance, the alleged statements assert that Haston found out about the union activity and the implication of the testimony of the General Counsel's wit- nesses is that this was the reason for the layoff . The General Counsel 's case in essential respects is based upon these statements and from the statements his theory then goes back and explains the statements as attributable to the imputed knowledge of Haston through his supervisors. It is our task at this juncture to examine the evidence in detail and to resolve questions of credibility and other problems. Based on the evidence of the witnesses as he evaluated it and synthesized it, as well as upon observance of the witnesses , the Trial Examiner finds as follows: When Haston returned on May 16, after being away since May 10 , he and Wyatt discussed, in the morning, the fact that the anticipated work relating to the transfer of grain on a ship had not materialized . That particular ship project was sup- posed to start on a Wednesday, May 11 , according to Haston's uncontroverted testimony. The witness credibly stated that the ship job was supposed to take 5 days, entailing 24 hours of work around the clock for three shifts of grain samplers. In anticipation of this work Hamilton, originally hired in 1960 on March 31 and laid off for lack of work on April 28, was rehired on May 10 . Another man was also contacted in anticipation of the added work . While Haston was out of town, the ship project was canceled insofar as Respondent's securing of the work was concerned. The anticipated hiring of the additional man who had not reported was canceled as a result. Since Hamilton had already reported back to work he was allowed to continue. The Trial Examiner is of the opinion that the record shows that while Wyatt, as foreman, had the ostensible authority to hire and to discharge, neither of these actions was customarily taken without at least apprising Haston of the situation. And Haston was the man with the ultimate authority on such matters . Respondent's operation was relatively small and there was no super- visory hierarchy between Haston and Wyatt. Consonant with the foregoing, Wyatt testified that because of Haston's absence for a week he had to see Haston as soon as he returned "because we didn't need that much help . . . but he [Haston] wasn't there so we just had to let things ride until he got back . . . the morning when he came back is when we had the layoff ." 12 Haston learned, on May 16, when he returned , that the ship job had fallen through . Wyatt and Haston decided at that time that they had too many men and they decided to lay off "the three bottom ones off the time book." Rackley, Hamilton, and Wesley Franklin were the lowest in seniority among the grain samplers .13 The cancellation of the ship work project , in the opinion of the Trial Examiner, affected not only Hamilton who had been rehired in anticipation of such project but also affected the amount of work generally available to Respondent. Since the project would have entailed three shifts of samplers working around the clock for about 5 days and since Respondent planned to do all its work with 10 samplers, it is apparent that there was not too much other or regular work on hand.14 n "Scooping" is discussed at a later point in this report since the General Counsel asserts that Respondent in effect falsely accused Wesley Franklin of scooping after he was rehired on May 30 and was terminated on June 2. 121t is clear from the record including other portions of Wyatt's testimony as well as the testimony of General Counsel's witnesses that the layoff was actually made later in the afternoon The quoted portion of Wyatt's testimony above, in my opinion, clearly means Respondent's decision on the layoff which, in a sense, was the layoff Is Although Respondent had no formal seniority, it apparently, on layoffs, had followed with some consistency this policy of laying off the lowest in seriority first General Counsel's Exhibit No. 6, which contains the only information in the record regarding complement with respect to 1960, shows six regular or permanent samplers while the others, the three alleged discriminatees, had lesser periods of service, commencing March 30 and 31 and April 16, 1960, respectively 14 The 10 samplers would be the 6 permanent samplers, plus Rackley, Hamilton, Franklin, and a man who had been contacted but who was not hired when the ship job failed to materialize. CORPUS CHRISTI GRAIN EXCHANGE, INC. 155 In this connection the work situation on May 16, as shown by the record, is one where the employees did not have too much work to do. They were sitting around in the lab during part of the morning and were not working. In the afternoon, Rackley, Hamilton, and Franklin were again around the lab and they were not sampling boxcars or trucks. They were then put to the task of clearing up the feed shack which occupied substantially the balance of their time on that day. Rackley did sample one truck that he pulled into the elevator. Hamilton testified that there were trucks on the premises and that he sampled one or two of them. Since it took a sampler no more than 4 or 5 minutes to sample a boxcar, it is apparent that a substantial number of boxcars and trucks would be necessary to keep a force of nine samplers reasonably occupied. Respondent's business is dependent upon grain shipments. The shipments in turn are dependent upon seasonal factors, including the vagaries of the season such as weather and climate. It would also be the Trial Examiner's opinion that market conditions, including the views of farmers, shippers, and others, would enter into the picture. In any event the nature of the business 15 customarily resulted in rapid increases or decreases in personnel at least outside of a core of more or less permanent samplers.16 The busy season for Respondent began about July 1 which usually marked the inception of the grain harvest. Although Rackley, Hamilton, and Franklin were hired prior to the harvest season, on April 16 and March 31 and 30, 1960, respec- tively, the Trial Examiner is not convinced by this fact that they were hired as permanent samplers. Hamilton, for instance , although hired on March 31 had been laid off on April 28 for lack of work and rehired on May 10 in anticipation of the ship project.17 It is the Trial Examiner's opinion that whatever the term of description used, permanent or temporary, there were six men who had more regular service with Respondent in 1960, prior to May 16, than did the three men with whom we are concerned. Haston testified that he, in 1960, regarded six samplers as a hard core minimum and the employment record introduced into evidence, limited though it is, shows that from the beginning of April 1960, Fred Franklin, Otwell, Klavemann, Bohach, Garza, and Lightsey worked steadily through June 30 which is the last date covered by the payroll exhibit. No other samplers had comparable records of steady employment. 15 Apparently many factors entered into the work picture. Because somebody had de- cided to transfer grain from a ship, possibly to another vessel, Respondent was alerted to handle a substantial amount of work. When the decision was changed, for some reason or another, a reverse effect resulted. Haston testified that the ship project was highly unusual. v The data follows : Number of Number of 1958-Week ending : samplers 1959-Week ending-Con samplers April 3------------------- 5 May 21------------------- 3 April 10------------------ 4 May 28------------------- 3 April 17------------------ 4 June 4-------------------- 4 April 24------------------ 6 June 11------------------- 6 May 1-------------------- 8 June 18------------------- 8 May 8-------------------- 8 June 25------------------- 9 May 15------------------- 5 July 2-------------------- 12 May 22------------------- 5 1960-Week ending : May 29------------------- 5 April 7------------------- 10 June 5------ -------------- 4 April 14------------------ 9 June 12 ------------------- 4 April 21------------------ 10 June 19 ------------------- 4 April 28------------------ 10 June 26------------------- 3 May 5-------------------- 8 June 30------------------- 7 May 12------------------- 9 1959-Week ending: May 19------------------- 9 April 2------------------- 8 May 26------------------- 6 April 9------------------- 8 June 2-------------------- 7 April 16------------------ 8 June 9-------------------- 6 April 23------------------ 4 June 16------------------- 6 April 30------------------ 4 June 23------------------- 10 May 7-------------------- 4 June 30------------------- 11 May 14------------------- 4 Hamilton and Maranitch . The latter was 17 Two men had been laid off on April 28, not rehired. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel contends in his brief that having made out a prima facie case of discriminatory discharge of the three men Respondent's "vague statements" as to lack of work do not sustain the burden of proof placed upon it to prove that the discharges were nondiscriminatory. If the General Counsel's reference to a prima facie case of illegal discrimination means that upon conclusion of the General Counsel 's case alone there was a prima facie case the Trial Examiner agrees. However, it is apparent that the record upon which the Trial Examiner 's decision must be based is the entire record. It is true that where there is evidence establishing or showing discrimination the Respondent has the burden of meeting such evidence convincingly . But there is no simple formula as to how Respondent must or can establish a defense . In the instant case Respondent's contention that the decision to lay off three men was due to lack of work would have been stronger if it had produced written evidence to support its position, e.g., correspondence regarding the ship contract , if any, and written records of the number of boxcars and trucks on hand at various relevant dates. The General Counsel, too, would have been in a stronger position if it had secured, by subpena or otherwise, such records of Respondent since they might possibly have refuted Respondent's contention. The fact is neither party produced or sought to produce such evidence. The Trial Examiner is of the opinion that if a record contains substantial evidence of discrimination, a sudden layoff of union adherents , in a business operating nor- mally without marked fluctuations and with a stable work force, places a substantial burden upon a respondent to convince the trier of fact that the terminations were due to lack of work. In such situations it is fair to conclude that only the most convincing evidence would sustain the defense . The defense would be further affected if the prosecution 's evidence had included evidence tending to show no lack of work, e.g., new hirings or overtime immediately following the layoffs or no history of sudden layoffs . But the Trial Examiner is not persuaded that the fore- going is the instant case. Prescinding for the moment from the question of whether there is substantial evidence of discrimination on the record as a whole as distin- guished from the General Counsel 's prima facie case alone, the instant record, in my opinion , does not present a situation of a mere barebones statement by an official of Respondent that there was a lack of work . Without repeating the evidence hereto- fore set forth, including the fluctuating nature of the business , the credible testimony regarding the ship contract , the past record of almost weekly layoffs and hirings, and the work situation on the day of the layoff, it is the Trial Examiner's opinion that the record contains sufficient evidence to warrant the conclusion that the layoff was not unusual or dissimilar from past fluctuations in personnel and that the evi- dentiary indicia in the record justifying a layoff are not palpably transparent. The testimony of Wyatt and Haston as to lack of work is not controverted by any sub- stantial evidence and such tangible evidence as there is in the record , as distinguished from their testimony, supports their testimony. The existence of economic justi- fication for the layoff is of course not dispositive of the issue in the case and accord- ingly we continue our consideration of the evidence and will make further findings thereon. Following the decision by Haston and Wyatt on the morning of May 16 to lay off the three most recently hired men, it is found that on that same morning , Wyatt, while sitting with the samplers in the lab "with nothing to do." announced that there would be a layoff that day because there was not enough work.18 After lunch on May 16 , it is found that Haston asked Wyatt if he knew of any union activity at the plant. The Trial Examiner believes that Haston's inquiry pos- sibly was prompted by remarks made at lunch to Haston by the superintendent of the adjacent public grain elevator. The tenor of the lunch time remarks was that the superintendent heard rumors that Respondent was laying off employees because of union activity . 19 In reply to Haston's question about union activity, it is found "The Trial Examiner credits Wyatt as to this incident Wesley Franklin testified that Wyatt had told them on that morning that there would be a layoff and in the afternoon when Wyatt gave them their checks it came as no surprise because of the prior announce- ment and since "the guys that hadn't been there as long are usually the ones that get laid off and we figured it was us" At another point in his testimony Wesley Franklin had stated that in the morning while in the lab Wyatt had said that the chief heard about us trying to organize it union and that there was going to be a layoff The Trial Examiner has not credited Franklin that Wyatt accompanied his announcement with a reference to the chief having found out about a union 19 As noted, the public elevator employees who worked on adjacent pronerty to Re- spondent's were represented by the ILA and officials of that local union had aided CORPUS CHRISTI GRAIN EXCHANGE, INC. 157 that Wyatt either answered no, as both he and Haston testified, or that he may have given a limited response such as, he had heard some of the men talking about a union on one occasion 2° Although the Trial Examiner is of the opinion that Wyatt knew about the union activity as early as the middle of March and a day or two prior to April 28,21 I do not believe that Wyatt revealed this information to Haston. The record demonstrates that Wyatt's own attitude toward the union activity was admittedly sympathetic and encouraging ; there is no evidence that he playing the role of informant and the fact that no reprisal or antiunion action was taken or antiunion statement made during the approximately 18 or 20 days when he was aware of the union activity, including the application for a charter, indicates the contrary; Hamilton had been rehired on May 10 although Wyatt was then aware of the prior union activity of all the samplers, including Hamilton; there is no indication that prior to May 16 Haston was aware of any union activity; the absence of such knowledge by Haston tends to indicate lack of communication from Wyatt to Haston on the subject and by the same token if Haston had manifested knowledge of union activity immediately or shortly after Rackley and the others had confided in Wyatt, the opposite inference would exist; the record shows that there was no precipitating union activity or de- velopment between the latter part of April or early May and May 16 which would cause some change in Wyatt's attitude and would cause him to fully inform Haston; by the end of April apparently all the samplers, all the employees in the potential bargaining unit, had signed applications and a letter to the Union applying for a charter; as far as the record shows there was no further union activity during the period through May 16 and the men were apparently waiting for a reply from the Union; finally, if Wyatt had, on the afternoon of May 16, revealed to Haston for the first time what he had known for several weeks, he might have foreseen that he was placed in an embarrassing position with his superior for not having made an earlier disclosure, particularly so since Wyatt was then, as both he and Haston knew, on the threshold of a promotion to the higher job of grain inspector 22 Following the above conversation with Haston in the afternoon, Wyatt went out and spoke with Fred Franklin and Bohach. Wyatt asserts that he asked them Ur they were starting a union. This is consistent with Wyatt's denial that he had any knowledge of union activity prior to May 16. However, since the Trial Examiner has not credited this denial, he does not believe that Wyatt asked them whether they were starting a union . It is found that upon Wyatt 's initiative reference was made to the union activity during the conversation and that Wyatt said that Haston know Respondent's samplers in their efforts to organize . It is not unlikely that, after Wyatt's morning announcement of an impending Layoff, rumors and speculation as to reason may have circulated and reached personnel of the neighboring company. Haston testified as found above, but stated that the date was May 17 The Trial Examiner has previously set forth his reason for rejecting this date In considering the testimony of Wyatt. 20 This latter type of answer Is to be found in Wyatt's affidavit secured by the Board agent during the investigation of the case The Trial Examiner has referred to the affidavit as a factor in evaluating Wyatt's credibility on this and other points and In arriving at conclusions concerning various Incidents 21 See the testimony of Rackley, Hamilton, Fred Franklin , and Garza, above, on this point 22 The Trial Examiner is of the opinion that Bohach for 4 days , about the first of April 1960, was acting as foreman during Wyatt's absence. Thereafter, and until June 20, Bohacli was an assistant foreman and was In effect training to be foreman He became foreman on June 20 when Wyatt became an Inspector. Prior to June 20 It Is found that Bohach exercised supervisory power in assigning men to their tasks and in writing work tickets and checking on their work All the employee witnesses who testified about the types of work performed by Bohach during this period stated that he assigned work and none of these witnesses or any witnesses stated that Bohach spent his time In sampling personally. He did not hire and discharge on his own authority although he probably could do so after clearance with Wyatt or Haston Bohach was closely associated with the other employees In their work and in their union activity He was a full participant In the latter apparently with the full acquiescence and approbation of the employees. His union attitude and activity was indistingiutihable from that of the other employees and there is no evidence that his union role was any more favorable to management than that of other employees . As of May 16 the Trial Examiner finds no basis for con- cluding that Bohach had informed Huston of the union activity although I believe he exercised supervisory functions and was an assistant foreman and supervisor . The doc- trine of imputed knowledge In the particular circumstances of this case has been previ- ously discussed. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about it 23 During the conversation with Bohach and Franklin, Wyatt asked what it was that the men wanted and was told they wanted a raise in pay. Wyatt's state- ment to the two men on that occasion that Haston knew about it, in my opinion, meant and was understood to mean that Haston was aware that union activity was going on. Haston's earlier inquiry to Wyatt had indicated that Haston had wind of such activity although not the specifics thereof. Wyatt's mention of such a fact to Franklin and Bohach was in effect a warning, and, in context, it appears to have been a friendly warning consistent with Wyatt's relationship with the men on this -entire subject of their union activity. Fred Franklin, a permanent grain sampler and a participant in the union activi- ties, testified that on the morning of May 16, outside the lab, Wyatt told himself and Klavemann that Haston had found out about us trying to go union and he thought there was going to be a little layoff. According to Franklin's testimony this was the extent of the conversation. Hamilton testified that between 2 and 3 p.m. on that day Fred Franklin came into the lab and said that "somebody is supposed to get laid off." The Trial Examiner is not persuaded as to the accuracy of Franklin's aforemen- tioned testimony. It is my opinion that if, as Franklin testified, Wyatt had told 'him that morning that Haston "had found about us trying to go union and he thought there was going to be a little layoff" Franklin would have passed on this information to his fellow union activists promptly 24 Certainly the lunch period if not earlier, would appear to have been the logical time for such mention. When Franklin finally, between 2 and 3 p.m., did refer to what he had learned, he referred only to a prospective layoff and left out what, in my opinion, was the most signifi- cant point both to himself and to the other men, namely the alleged statement that Haston had found out about the union activity and was going to lay off some of the men. The Trial Examiner has previously found that Wyatt had announced that morning in the lab that there would be a layoff for lack of work.25 It is the Trial Examiner's opinion that, as found, Wyatt did speak to Franklin and Bohach that afternoon and had the conversation previously described. In that conversation the layoff was not referred to. It was a fact already announced and Wyatt's purpose in speaking to Franklin and Bohach was as described.26 Wyatt did tell Franklin that Haston knew about the union activity. 2' The Trial Examiner is inclined to believe that the reference to the union activity was probably as to the present status of such activity, including more specific information than Wyatt had and was also probably directed to ascertain precisely what the men wanted or hoped to gain through a union, since Wyatt's last information had been gained in the latter part of April or early in May. In any event, the finding made above is as stated. In his affidavit, Wyatt had said that the conversation was with Bohach and Klavemann, one of the regular samplers. Neither of these individuals testified. The Trial Examiner is of the opinion that the reason why Wyatt spoke to the two men after Haston's inquiry to Wyatt about union activity was either because Haston was dis- satisfied with Wyatt's response or because Wyatt, having perceived Hasten's interest in the subject, upon reflection decided that his own status might be affected unless he se- cured up-to-the-minute information on the union activity. By making it contemporary inquiry of Bohach and Franklin, Wyatt was in a position to then report to Haston on the basis of such inquiry. Thus he would be reporting not only the latest information but could reveal the time and source of such information without reflection upon him- self As previously explained, Wyatt would probably have been in a poorer position if he had told Haston, when the latter first inquired on May 16, that he had known about the union activity since the latter part of March but had not reported such information to Haston Haston testified that when he first spoke to Wyatt in the afternoon about union activity at the plant Wyatt said he knew of no such activity. Later, in the after- noon, according to Haston, Wyatt came back and reported to Haston that he had ]earned that the men were pretty far along with the Union 24 Discussion about forming a union was going on when Rackley was hired in April Franklin was one of the participants in the union activity both prior to Rackley's hiring and thereafter and he had discussed such matters wtih Wyatt He was as interested in the subject as any of the other samplers 25 See the testimony of Wyatt and Wesley Franklin 20 Since Franklin did not testify that he told the other men on the afternoon of May 16 that there was going to be a layoff there is some doubt about Hamilton's testimony on this score not only for this reason but because the layoff had been announced publicly in the morning and not confidentially to Franklin. It is possible that after Wyatt had the conversation with Franklin and Bobach in the afternoon, as described heretofore, and after Wyatt stated that Haston knew about the union activity, Franklin passed that CORPUS CHRISTI GRAIN EXCHANGE, INC. 159 Regarding the actual terminations we have Rackley's testimony that about 4:30 p.m. on May 16, Wyatt gave checks to Rackley, Hamilton, and Wesley Franklin. Wyatt said, "You boys come back when the season is heavier." This was a rather cryptic announcement but no one asked any questions of Wyatt. It is the Trial Examiner's opinion that both of the foregoing factors are explainable by and are consistent with the fact that that morning Wyatt had announced that there would be a layoff that day for lack of work. The men knew that they were the junior employees among the samplers and, as Wesley Franklin testified, ". . the guys that hadn't been there as long are usually the ones that get laid off and we figured it was us." As Wyatt had come into the lab with the checks and before he had said anything, Rackley asked if one of the checks was his. Rackley then testified that, after they left the lab with their checks and were outside, Wyatt said to him and Hamilton, "It looks like the chief found out what you all were doing." Hamil- ton testified that "Wyatt came and he handed me my check and he gave Roy [Rackley] one and he said, `Well, I guess you know that the chief has found out what you all were trying to do: " Wyatt denied that he said anything of the above nature. Mitchell who was present corroborated this denial and said that he went outside as they all were leaving and said to Rackley that he guessed he would be going to New Orleans now and Rackley said he was. Mitchell said he heard no, remarks of the above nature from Wyatt. Wesley Franklin testified that Wyatt handed him his check and said, "I guess you know what this is for . . . good luck." After careful consideration the Trial Examiner is not convinced that Wyatt, when he gave out the checks, stated publicly, as Hamilton testified, that he guessed they knew that the chief had found out about their union activity. Neither Wesley Franklin, Mitchell, nor Rackley, all of whom were present, heard such a public statement by Wyatt. As between Rackley's version and Hamilton's the former has more plausibilities in that the remark about the chief was allegedly made later, outside the lab. However, I find it difficult although not impossible to understand why Wyatt, who had admittedly, according to Rackley, told them as he gave out the checks that they should come back when the season is heavier, should then seek to place management and himself in a noose by clearly implying that the layoff had nothing to do with lack of work and was due to the union activity. The two state- ments were inconsistent and it served no purpose to tell the same persons incon- sistent stories. If the layoff was for union activity and if the men were so informed, why tell the men to come back when work was available. There was no reason to refer to lack of work and then refer to a reason wholly inconsistent therewith. This was not the case where the employer places "lack of work" on a written ter- mination slip in order to have a record to show in defense of its action. Wyatt was making no more of a record by his oral statement telling the men in effect that they were laid off for lack of work and should return in the busy season than he was by telling them that Haston had found out about the union activities, thereby im- plying the reason for the layoffs. There was no neutral third party present for whose benefit Wyatt might wish to make a statement for the record. The Trial Examiner finds that Wyatt did not make the statement attributed to him 27 information on and a connection was drawn between the layoff and Wyatt's admonition that Haston knew about the union activity. The layoff decision, however, and Wyatt's statement have been carefully described, heretofore, both in time sequence and in con- text and the findings of the Trial Examiner thereon have been stated 271f the testimony of Rackley and Hamilton had been that Wyatt, after paying them off and telling them to return when the season was busier, had told them privately that Haston was aware of the union activity in the plant, a more difficult problem of resolu- tion might have existed. Rackley's testimony came close to the foregoing but the com- bined twist of his testimony and that of Hamilton was, in effect, that Wyatt said, "Haston found out about your union activity and that is why you are being laid off." As the Trial Examiner views the record, it is possible that Wyatt after telling the men to come hack in the busy season might have privately told them that IIaston was aware of what was going on about having a union in the plant Such a confidence would have been prompted by the fact that Wyatt had been a confidant of the men regarding the organizing and was aware of Rackley's interest and leadership in the union effort and he simply was letting Rackley know that Haston was now aware of the movement This was the same type of statement that Wyatt had made to Fred Franklin, earlier on the same afternoon, to wit. Haston knows about the union activity Neither statement, in context and in view of the findings made about the time when the decision to lay off was made and the reasons therefor, carries the tilt of phraseology and the implication of the testimony given by Hamilton, and to a lesser extent by Rackley's testimony, as to what Wyatt said, "It looks like the chief found out what you all were doing " 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As has been found, Wyatt on May 16 in discussing the union activity had asked Bohach and Fred Franklin what it was they wanted. 1 hey told him that they wanted a raise in pay. Later, on the same day, Wyatt admittedly reported to Haston that the men were well immersed in the idea of having a union. Although Wyatt did not so testify, nor did Haston, it seems highly unlikely that when Wyatt reported about the men's interest in a union he did not also mention that he had found out that they wanted more money. In the Trial Examiner's opinion Wyatt did so report. On Wednesday or Thursday, May 18 or 19, Bohach, Otwell, Garza, and Fred Franklin, all samplers, went to Haston's office. The evidence is not clear as to how this meeting was initiated. It is the Trial Examiner' s opinion that the sam- plers were concerned about the fact that Haston was now aware of the union activity, as Wyatt had told Bohach and Fred Franklin on May 16, and that Haston was not favorably disposed toward such activity, as Wyatt had told Garza and others on May 17. Although layoffs were not uncommon , it is also a fair inference that any layoff has some effect on employees. The meeting probably resulted be- cause the men thought it would be a good idea to talk to Haston at that stage and there is indication in the record that they first discussed such an idea with Wyatt or one of the grain inspectors. Wyatt testified that he was aware that the four men were going to see Haston. In any event the four men, above described, met with Haston in his office. The substance of the conversation that ensued was that the men said that they were interested in a pay raise and improvement in some of their working conditions. Haston agreed to grant a 20-cent per hour pay increase and to improve some of the working conditions and it was mutually agreed or understood that the men would forget about the Union as a result.28 While the testimony persuades me that the men did tell Haston that they wanted a raise, I find that Haston gave them to understand that in return for the wage increase they were to forget about the Union. The fact that the men readily agreed to this, as I believe they did, does not alter the finding that the wage increase was given as a quid pro quo for such an understanding. As Franklin testified, ". . he [Haston] said both sides of us would stand up to our agreement. .. ." 29 Conditioning the wage increase on the understanding that the union activity was to be abandoned was violative of Section 8(a)(1) of the Act. Wesley Franklin testified he was at Respondent' s premises on May 30 to pay a $2 debt he owed. He happened to see Wyatt and Bohach and Wyatt said they needed somebody to go back to work. Franklin said he would have to talk to Hamilton and Hartley. The latter was president of the union local at the adiacent public elevator. Franklin then went and spoke to Hartley and returned. Wyatt told him to see Haston. The latter said he did not need anyone. After Franklin left Haston's office, one of the samplers came after him and said Haston needed somebody so Franklin went to work. On the morning of June 2 Bohach asked Franklin if he had talked to a labor relations man that came down and Franklin said he had done so the night before. 28 Haston testified that between the layoffs on March 16 and the meeting in his office he had caused a copy of the contract between the Houston Merchants Exchange and the ILA to be placed in the lab where it could be read. Hasten said he did this so the men could see a union contract The contract which is in evidence shows, safer a1ia. higher wage rates for grain samplers than Respondent was paying before it gr.inted the 20-cent raise The raise that Resnondent granted brought its rates into line with the contract rates, perhaps even a fraction higher In the Trial Examiner's opinion the purpose of Haston's aforedescribed use of the contract was to show the men the rates in a union plant, rates that Haston was prepared to and did match without the presence of a union Haston might well have been prepared to give other provisions similar to those obtained by the Union There is no evidence that his employees asked for such things although they did ask for a wage increase Haston is the only witness who testified about the presence of the contract in the lab Whether the employees had actually seen it is not known. 29 Garza's testimony was conflicting At one point lie testified that ITaston said he would give a 20-cent raise and equipment that was needed if the men would give him their word that they would forget about the Union Later, Garza testified that Haston said the wage increase would not prevent the men from continuing with the Union if they wished In viewing the testimony of all the witnesses regarding the meeting, including that of Wyatt, Haston, Franklin, and Garza, I am persuaded that Haston did give those present to understand clearly that the benefits he agreed to grant were in return for the employees' abandonment of the Union CORPUS CHRISTI GRAIN EXCHANGE, INC. 161 That same morning Bohach asked the same question of Garza 30 Later, that same day, June 2, Wyatt handed Franklin his check together with a note stating that he sampled a car incorrectly. Franklin was thereupon terminated. When Wyatt gave Franklin his check on June 2 he asked Wyatt to show him the boxcar and the ticket that he was supposed to have scooped 31 Wyatt said there was no point in doing that since Franklin already had his check. Franklin also received no satisfaction from Bohach and Mitchell , the grain inspector. Franklin denies that he scooped a car. He states that he, Garza. and Otwell had been doing the sampling and Bohach wrote out the tickets.32 Wyatt testified that on the morning of June 2 there were four boxcars concerning which appeals had been filed by the shipper. The latter appealed because he was not satisfied with the grade given to the grain as a result of the initial sampling and grading. Wyatt took the numbers of the appealed cars and went to where the cars were standing. He noticed that one of the cars had been scooped. This conclusion was based on his experience which observed that there were a few footprints in the grain at the door of the car but at each end of the car there were no footprints and the grain was smooth and had dust thereon, all indicating to Wyatt that the sampler had not gone to the ends of the car to take samples as prescribed 33 Wyatt stated that the initial sample had been taken in the morning and he himself had gone down on the appeals right after lunch. He said that Bohach and Mitchell were with him when he saw the afore- described scooped car. Mitchell corroborates Wyatt's testimony that he, Mitchell, also saw the car in question and that it was Mitchell's opinion that it had been scooped. Bohach did not testify. After Wyatt had made the foregoing inspection he took down the number of the car, returned to the office, informed Haston, and they took the sampling ticket out of the file and learned at that point that the sampler of the particular car had been Wesley Franklin. Wyatt got Mitchell and Bohach who verified to Haston that they had also seen the car and that its condition showed it had been scooped. There- after Franklin was discharged for scooping, which was the usual penalty for such offense.34 Through Wyatt, the General Counsel elicited evidence that the grain in the cars was yellow milo which was described as small round seeds that are hard and about the same size or slightly larger than a BB shot. The seeds were dry. It also appears that the boxcars with the yellow milo had come some distance before they reached Respondent's premises. When the cars were originally sampled by Respondent's samplers that morning they were near the elevator. In the afternoon when the scooping was discovered the cars had been moved 250 to 300 yards from the elevator. Some bumping of the cars was entailed when they were moved The implication which the Trial Examiner believes the General Counsel would have him draw from the foregoing physical facts is that the vestiges of footprints in the cars would have been erased or substantially erased by the bumping of the cars when they were moved about 300 yards between the morning sampling and the afternoon checkup. In view of the nature of this particular grain the foregoing possibility does not appear implausible. But it also would appear that in the course of the original journey to Respondent's premises the grain might have become so well settled in the boxcars that the subsequent short movement between morning and afternoon on June 2 would have had little effect on footprints or other marks that had been made on the contents of the car that morning The Trial Examiner is far from being an expert on such a subject and in the face of the testimony of Wyatt and Mitchell, two expert ahd experienced men who testified as to the condition of the car when they inspected it, I am unable to say that the facts testified to were not 11 The record indicates that the field examiner from the Regional Office had interviewed witnesses the night before 3' As previously explained the sampler is supposed to use a probe to extract sample, from five distinct locations in a car Scooping means that the sampler simply takes a few handfuls of grain from the car near the door and places them in the sample bag The record shows that Respondent regarded scooping as a major defense since it meant that a representative sampling of the whole cai was not accomplished 33 The tickets are placed in the sack that the sampler takes into the boxcar The ticket has thereon the initials of the sampler assigned to the car and identifies the car and so forth Either Wyatt or Bohach customarily wrote out the tickets 33 The other three cars, according to Wyatt, did have footmarks at the ends of the cars 34 Subsequently, the original sample grade of the car on which the appeal had been filed was sustained This fact was not necessarily inconsistent with the fact that the original sample had been scooped 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD credible. While there is not conclusive proof that Franklin was the man who sampled the particular boxcar, the evidence, aforedescribed, would warrant the conclusion that he had done so. It is so found.35 The circumstances relating to Franklin give rise to suspicion. He was rehired on May 30, prior to the time he had filed a charge with the Board regarding his May 16 layoff. On the morning of June 2 he was interrogated by Bohach as to whether he had gone to see the Board field examiner the night before and he answered in the affirmative. He was discharged later that day on a charge of scooping a boxcar. The scooping affair could have been a pretext or a situation engineered by Respond- ent but on all the evidence the Trial Examiner is not persuaded that the burden of proof has been sustained. Dismissal of the allegation of discrimination on June 2 is recommended.36 Following the layoffs on May 16, Respondent's force consisted of six samplers and Foreman Wyatt.37 This complement continued unchanged from the week end- ing May 19 to the week ending June 16, with the exception of the fact that Wesley Franklin was rehired on May 30 and terminated June 2. On the payroll for the week ending June 23, Wyatt's name no longer appears since he had been made an inspector. Bohach is listed for the first time therein as foreman, plus F. Franklin, Otwell, Klavemann, Garza, and Lightsey. Also appearing are the names Sweet, Bartel, M. Kennemer, Rankin, and West. For the week ending June 30, the above names again appear, plus A. Kennemer and B. Reeves. The 1958 record shows that Bartel and Rankin were students and were on the payroll for the week ending June 30, 1958. Since that period was about the commencement of the harvest season it is not unlikely that they worked during ensuing weeks. M. Kennemer worked the weeks ending April 2, 9, and 16 and July 2, 1959. Bartel worked the weeks ending June 11, 18, and 25 and July 2, 1959. Rankin worked the weeks end- ing June 18 and 25 and July 2, 1959.38 Other than as indicated the names of the men who appear on the June 23 and 30, 1960 payrolls, do not previously appear in the record. Haston testified that he had hired the additional samplers on June 20 because word had been received that the harvest was early and grain would start coming in on June 20. He stated that the men he hired had been coming back for several sum- mers and were senior in point of service to Rackley and Hamilton. In rebuttal Rackley testified that Sweet had come to work for the first time in 1959 and Rackley said he had instructed Sweet how to sample a boxcar. The Trial Examiner credits this testimony of Rackley. With doubt thus cast upon Haston's above testimony and with such payroll excerpts as were in the record indicating that not all the men es Garza testified that be was sampling cars with Franklin that morning. He stated that he observed Franklin scoop one of the cars. 36 According to Wesley Franklin, about a week or a week and a half after his June 2 termination he was talking to one of the inspectors at Respondent's plant when Easton came in Franklin testified that Easton asked him why he had not filled out the written statement (apparently the charges of unfair labor practice and the supporting statement) with the labor relations man when Hamilton and Rackley did so. The record shows that the two last-named individuals had filed charges regarding their respective May 16 lay- offs on May 23, 1960. Franklin replied to Easton's question by allegedly saying that it was due to an accident that he had had. Easton then asked what good did they think they would accomplish from all that. Franklin said he did not know. The conversation ended, according to Franklin, with Easton saying, "Well, if you will stick around a little later, why, in about a week or so , well, I might be able to put you back on." Easton testified that the conversation occurred about a week or 10 days after Franklin's June 2 termination. On the date, therefore, both Franklin and Easton agree. Haston testified that when he saw Franklin he said, "Aren't you one of the boys that filed one of those charges?" And Franklin said , yes, he was. This was all that was said, according to Easton. Since Franklin filed his charge on June 6, 1960, and both witnesses agree that the conversation occurred a week or 10 days after Franklin's June 2 termination, Easton's testimony is the more credible. Franklin had filed his charge by that time and Respond- ent would of course know such fact by reason of the service of the charge upon it. The import of Franklin's version was that before he had filed a charge but after his June 2 termination, Easton was disposed to rehire him for that reason notwithstanding his prior offense of scooping The Trial Examiner does not credit this testimony of Franklin. 87 Bohach, F. Franklin, Otwell, Klavemann, Garza, and Lightsey. Bohac's status as a sampler has been previously discussed. 88 See the remark above concerning the harvest season . The excerpts from the payroll that are in evidence cover only the period of April, May , and June, in 1955, 1959, and 1960. CORPUS CHRISTI GRAIN EXCHANGE, INC. 163 hired in June 1960, had worked previously for Respondent, I am unable to conclude that all the newly hired men had greater length of service than Rackley and Hamil- ton. In my opinion the payroll records were within Respondent's control and its failure to support the controverted statement of Haston by adducing its records warrants the conclusion that seniority was not shown to be greater in all the newly hired men than it was among the samplers who had been laid off in May and who were not rehired. Rackley testified credibly that Haston told him in 1959 that he would keep a record of the boys who had done good work and he would call them back each season. Without expressly denying having made such a statement, Haston testified that generally he told the students whose records had been good that they were welcome to come back the following year.39 Since Haston at the hearing attributed the hiring of additional samplers other than Rackley and Hamilton, in June 1960, to allegedly greater prior service, it is evident that seniority is asserted as a determining factor. While Respondent had no contractual or other obligation to follow seniority in hiring or in layoffs, it is evident from the record that normally it followed such a rule and asserted that it did so. Perhaps the rule was not applied with absolute precision as to instances in- volving a few days or a week in the case of seasonal employees but even here it was followed as the basic norm. There is substantial ground for saying that in 1959 Respondent planned to call back in 1960 the seasonal employees who had performed satisfactorily in the pre- vious season, and the inference to be drawn from Haston's testimony that the men hired in the latter part of June 1960 had worked for him during several previous seasons supports such a conclusion. Haston, who had the information, did not testify that Respondent in 1960 had not called or communication with the men it hired in June 1960. The import of Haston's testimony is that these men were called back by Respondent because of their prior service. But prescinding from the ques- tion whether Respondent called men back in June or whether the men had applied and then were taken back, we have in the case of Rackley and Hamilton a somewhat different situation. This is not an issue of whether men who had worked in the 1959 season had or had not been called back by Respondent at the inception of the 1960 season. These men had been already hired in 1960,,a few months prior to the harvest. They were laid off on May 16 for lack of work. While Respondent might not have known that a student who had worked in the harvest season of 1959 was available or interested in working in 1960, it was evident that the three men in question were available for work and wanted to work in 1960. Their severance had been involuntary. Hamilton, who had been laid off on April 28, 1960, for lack of work, had been recalled by Respondent, by Respondent writing to him, on May 10 when Respondent had reason to believe that more work was available. The Trial Examiner is of the opinion that normally and reasonably Respondent would have recalled the laid-off samplers for the harvest season which commenced about 35 days after their layoff.40 This it did not do and its action is sought to be explained on the ground of seniority. The Trial Examiner finds Respondent's aforementioned position unconvincing. It is my opinion that the evidence warrants the conclusion that Rackley, et al., having been hired in 1960 prior to the season and having been laid off for lack of work not long prior to the season , would normally have been recalled prior to students who had worked during the summer season in prior years regardless of overall seniority 41 89 Haston was asked specifically if Rackley's testimony that what he had said in 1959 was correct. He answered, "I don't recall the complete conversation there" and then went on to testify as described above. In a letter that Haston wrote to the Board after the charges had been filed he stated, inter alia, regarding Rackley, "due to lack of re- ceipts until harvest we laid him off with the thought of calling him back for the harvest " 40 As appears from Haston's testimony the harvest season in 1960 commenced about 10 days earlier than usual. Respondent became aware of the impending early start of the busy season from one of its principal customers It is apparent that the laid-off men had no way of knowing of this impending early beginning of the season 41 There is no assertion that Rackley and Hamilton were not good samplers or satis- factory employees. All the evidence indicates the contrary. Actual payroll records that are in evidence are in the handwriting of the payroll clerk. In this handwriting, inter elia, there, appears on Rackley's record the notation "(good)"; on Hamilton's record the words are "( real good sampler) (good)"; Franklin's record as of May 16 bears the nota- tion "(good)." Haston testified that he had not authorized such notations. However, it is the Trial Examiner's opinion that in Respondent's relatively small operation, with one 614913-62-vol. 132-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But even on an overall seniority basis this record does not support Respondent's claim. Considering the men hired in the latter part of June 1960 and resolving any reasonable doubts in Respondent's favor , we can concede arguendo that Bartel, M. Kennemer, and Rankin had worked previously for Respondent. There is no evidence in the record that this was true of A. Kennemer and Reeves. As to Sweet, it has been found that he did not have greater seniority than Rackley or Hamilton, having been taught how to perform sampling work by Rackley in 1959. In the Trial Examiner's opinion there is substantial evidence in the record that after the layoffs on May 16, 1960, Haston learned of the union activity among his samplers. Both Haston and Wyatt so testified. When it was apparent to him that Haston had wind of the union activity Wyatt advised various samplers of this fact, as described hereinabove. The most reasonable interpretation of this latter action on the part of Wyatt was that Haston's knowledge of the union activity was a sig- nificant fact in Wyatt's mind and he considered it significant enough to relay the information to his subordinates 42 The record is clear that, while the men had informed Wyatt of their union activity as early as March and thereafter, they ap- parently were careful not to convey the same information to Haston. As previously found, neither Wyatt or Bohach imparted to Haston their own information regarding the union activity prior to the afternoon of May 16 when Haston himself had be- come aware of such activity from another source. The import of the foregoing failure to inform Haston regarding the Union on the part of both the men and the supervisors was that it was assumed or known that Haston would not be favorably disposed. Both the employees and Supervisors Wyatt and Bohach were well dis- posed to the unionization of the plant. If any of them had believed that Haston was similarly disposed or would be indifferent regarding the matter, it is fair to conclude that Haston would have been informed either by the employees or by his supervisors, particularly since the latter presumably had the normal duty of so reporting. The distinct, and, I believe, designed effort to withhold the union information from Haston is indicative of what was believed to be Haston's attitude on the subject. Wyatt's warning on May 16 that Haston now knew about the union activity is consistent with the foregoing. The belief on the part of the employees could have been wrong and Wyatt could have been wrong in his estimate. However, the latter is not likely since Wyatt was close to Haston as the next highest ranking supervisor. Moreover, there is definite evidence that the prelayoff estimates of Haston's attitude toward the Union were accurate. Wyatt, on about March 17, as has been found previously, stated that Haston did not like what the men were doing about trying to organize a union. The reaction of the balance of the employees in the light of the facts as they had learned them was to readily agree with Haston on March 18 or 19 to forget about the Union in return for the wage increase and other benefits. The agreement that the Union would be dropped in return for the wage increase is attributable to the fact that the men had previously learned definitely what they had at all times believed, namely, that Haston did not like the idea of his plant being organized. Conclusions It has been found that the May 16 layoffs were made for economic reasons and that the decision was reached prior to the time that Haston became aware of the union activities . It is recommended that the complaint allegations regarding the illegality of the May 16 layoffs be dismissed. It is also recommended that the com- plaint allegations regarding the termination of Franklin on June 2, 1960, be dis- missed. The Trial Examiner recommends dismissal of the allegations that Franklin, since June 2, 1960, was not reinstated or reemployed because of his union activity or because he filed charges or gave testimony under the Act. The Trial Examiner finds that Rackley was not reinstated or reemployed on or about June 20, 1960, when the busy season commenced, because Respondent had payroll clerk, working directly under Haston's supervision, we do not have a huge corporation with hundreds of faceless clerks for whose notations the head of the corpora- tion might not be held responsible It is very difficult to conclude that Respondent's clerk under all the circumstances would have undertaken to make such entries without authority, express or implied, to do so Nor do I believe it reasonable to believe that such a clerk of his own volition without at least some indication from the operating super- visors would have undertaken to make such notations Regarding Franklin, in addition to the notation "(good)" as of his layoff on May 16, a notation borne out by the fact that he was rehired May 30, there is also the notation, as of June 2, "did not sample car of grain carefully-scooped sample of grain " 42 Of what consequence was it to tell employees that Haston knew about the activity if Haston was indifferent on the subject CORPUS CHRISTI GRAIN EXCHANGE, INC. 165 become aware of his union activity on May 16 ; this conduct was violative of Section 8(a)(1) and ( 3) of the Act; as of May 16 and thereafter when Haston became aware of such activity and Wyatt informed Haston thereon the Trial Examiner be- lieves that it would be unrealistic not to infer that Wyatt 's knowledge of Rackley's leading role in such activity became known to Haston and that the knowledge of Wyatt and Bohach were imputable to Haston; by May 16 the entire matter was out in the open and by May 18 or 19 the Union was abandoned in the plant; whatever factors might have prompted prior reticence on Wyatt 's part no longer existed. It is also found that Rackley and Hamilton were not reinstated or reemployed on or about June 20, 1960, because they had filed charges under the Act on May 23, 1960, a fact known to Respondent ; the charges and their processing were apparently what prompted Bohach to interrogate Wesley Franklin and Garza on June 2, 1960, as to whether they had gone to see the Board agent investigating the charges , such interro- gation, in my opinion, constituted illegal interference with the rights guaranteed to ,employees under Section 7 of the Act; the inhibiting effect of such interrogation and ,the apprehension engendered is illustrated by the fact that Garza had first told Bohach that he had not gone to see the Board agent but later admitted the fact when Franklin told Bohach that Garza had also been present; 43 the illegal interrogation is violative of Section 8(a) (1) of the Act and is an indication of Respondent 's reaction to the charges and their processing ; 44 Haston's attitude toward having a union in the plant after he became aware of the union activity was supplemented by the filing of the charges that made it clear that Rackley and Hamilton had been engaged in the union activity and were still intent on the union cause ; 45 Respondent s failure to recall Rackley and Hamilton , two experienced and capable samplers, at a time when it needed employees, under all the circumstances previously described is confirmatory of the fact, otherwise without tenable explanation , that they were discriminated against is violative of Section 8(a)(1), (3 ), and (4 ) of the Act. It is further found that Wyatt's interrogation of Fred Franklin and Bohach on May 16 regarding the union activity was not illegal in view of Wyatt's then known attitude toward the union activity. Dismissal of this allegation is recommended; dis- missal of the allegations that on May 16 Wyatt told employees that there would be a layoff to discourage union activities and the allegation that on the same date Wyatt told certain employees that they were laid off because Respondent had learned of their union activities and was laying them off for that reason is recommended; it is also recommended that the allegation that Hines told employees on May 18 to deal directly with management and that they would thereby achieve better benefits with- out a union be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the operations of Respondent described in section I, above, have a close , intimate, and substantialy 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 thereof. V. THE REMEDY Having found that Respondent discriminatorily and illegally failed and refused to recall or rehire Rackley and Hamilton on or about June 20 , 1960, or thereafter, it will be recommended that Respondent offer said employees reinstatement to their former or substantially equivalent jobs, displacing if necessary any employees on its payroll who are junior in length of employment and who were hired on or about 43 Illustrative demonstration of the effect of illegal conduct is of course not a necessary Ingredient to finding whether or not conduct is normally calculated to interfere with guaranteed rights under the Act 4413y June 2 when Bohach interrogated Franklin and Garza , Haston's opposition to the union activity was known and Bohach as well as the others had promised Haston that they would abandon the Union. In view of Bohach's supervisory status and the fact that his own former participation in the Union was now supplanted by Haston's policy of opposing the union activity , it cannot be inferred that the interrogation was simply a conversation between one employee and another. 49 The charges stated , inter alga, that the Charging Parties were terminated because of their activities in behalf of the ILA. It is also to be noted that by May 18 or 19, 1960, all the samplers except Rackley , Hamilton , and Wesley Franklin had forsworn the Union and had promised Haston to abandon union activity Rackley and Hamilton not only had not forsworn the Union but had engaged In further union activity by the filing of the charges alleging that they had been discriminated against for union activity 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 20, 1960, or thereafter. In the event employment is not then available for Rackley and Hamilton, it is recommended that they be placed on a preferential list with priority for hiring in accordance with nondiscriminatory standards heretofore used by Respondent and thereafter offer them employment as such employment be- comes available and before other persons are hired for such work. Backpay is recommended to make whole the above employees against whom Re- spondent has discriminated for any losses they may have suffered by reasons of the discrimination. The period of the computation is to be from the date of discrimi- nation to the date of the offer of reinstatement or reinstatement, whichever is earlier, or placement on a preferential list, as the case may be. In view of the fluctuating nature of Respondent's business and the effect thereof upon the employment complement this factor is to be taken into consideration in the backpay computation. Also, because there is evidence that Rackley, at least, was attending school, such factor or related appropriate factors bearing on the discrimi- natees' normal absence, if any, from the labor market, is to be taken into consider- ation in computing backpay. In summary, it is recommended, that Respondent make whole Rackley and Hamil- ton for any losses they may have suffered because of the discrimination against them, by payment to each a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of the offer of rein- statement, or placement on a preferential list, as the case may be, less their respective net earnings during said period The backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. CONCLUSIONS OF LAW 1. By failing and refusing to rehire and reemploy Roy J. Rackley and John L. Hamilton on or about June 20, 1960, as found in section III, hereinabove, Respondent, has discriminated in regard to their hire, tenure, and conditions of employment, thereby discouraging membership in a labor organization or in concerted activity, and the exercise of rights guaranteed by the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 2. By interrogating employees concerning their union or protected activity on June 2, 1960, Respondent has interfered with the rights of its employees within the meaning of Section 8(a) (1) of the Act. 3. By conditioning the grant of a wage increase and other benefits to its employees on May 18 or 19, 1960, upon their agreement to abandon their union activity, Re- spondent has interefered with the rights of its employees within the meaning of Section 8 (a)( I) of the Act. 4. Respondent has not engaged in unfair labor practices in those respects de- scribed in section III, above, wherein a recommendation of dismissal of the par- ticular complaint allegations has been made. [Recommendations omitted from publication.] Arts & Crafts Distributors, Inc. and Warehouse Employees Union Local 730, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 5-CA-1726. July 14, 1961 DECISION AND ORDER On November 16, 1960, Trial Examiner Louis Plost 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 Intermediate Report attached hereto. He also found that Respondent had not engaged in certain other unfair labor practices as alleged in the com- 132 NLRB No. 14.