National Welders Supply Co., Inc.

660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we conclude that McDonald's voting in union elections constitutes interference in the internal affairs of the Union and is violative of Sec- tion 8(a) (2) and (1) of the Act.e We therefore affirm our original finding and order' respecting the voting activity of McDonald and the responsibility therefor of Goss Mechanical Contractors Company, his employer. MiER BROWN took no part in the consideration of the above Sup- plemental Decision and Order. 11 Nassau and Suffolk Contractors' Association, Inc., and its members, 118 NLRB 174, 184, 187; Anchorage Bu8inessmen's Association, Drugstore Unit, and its Member Employers, etc., 124 NLRB 662. 7 Detroit Association of Plumbing Contractors, 126 NLRB 1381, at 1384-1386. 'National Welders Supply Co., Inc., Lee Associates, Inc., Investi- gations, Inc., R. E. Lee, and W. B. Crider, Jr. and International Union of Operating Engineers , Local No. 465, AFL-CIO. Cases Nos. 11-CA-1458 and 11-CA-1662. August 2, 1961 DECISION AND ORDER On March 21, 1961, Trial Examiner. Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings'of the Trial Examiner made at the hearing and finds that no prejudicial error- was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the cases, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following exceptions. There are five Respondents in these cases, National Welders Supply Co., Inc. ; Lee Associates, Inc. ; Investigations, Inc. ; R. E. Lee ; and W. B. Crider, Jr. The Trial Examiner found, as the complaint alleged, that the five Respondents violated Section 8(a) (1) by their conduct with respect to employees of National Welders Supply, Inc., and applicants for employment with National Welders Supply, Inc., as set forth in the Intermediate Report, including (1) interrogation concerning union membership, interest, or activity; (2) threats of dis- 132 NLRB No. 39. NATIONAL WELDERS SUPPLY CO., INC., ETC. 661 charge for engaging in union activity ; (3) requests that any union activity be reported to the Respondents; (4) and instructions to refrain from union membership or activity. The first charge herein against four of the Respondents, namely, Lee Associates, Inc., Investigations, Inc., Lee, and Crider, was served upon them on September 6, 1960. Relying on Section 10 (b) of the Act, these four Respondents moved to dismiss the complaint with respect to alleged unlawful conduct committed by them more than 6 months prior to the service of the charge upon them. In his Inter- mediate Report, the Trial Examiner denied the motion to dismiss the complaint. He reasoned that, as these four Respondents had engaged in unfair labor practices within as well as outside the 6-month period and as they had engaged in such unfair labor practices in their capac- itiy as representatives of the Respondent, National Welders Supply Company, Inc., as to whom timely charges had been served covering all the unfair labor practices found, it was "unnecessary to determine what effect, if any, Section 10(b) of the Act has upon the evidence detailed herein and the order that I shall issue based thereon." As Lee Associates, Inc., Investigations, Inc., Lee, and Crider engaged in unfair labor practices within the 10(b) period, the Trial Examiner properly denied their motion to dismiss the complaint. However, as the first charge was served upon them on September 6, 1960, we shall, contrary to the Trial Examiner, limit our unfair labor practice find- ings as to them to the unlawful conduct engaged in by them on and after March 6, 1960, as detailed in the Intermediate Report.' ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent, National Welders Supply Co., Inc., Charlotte, North Carolina, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating its employees, including applicants for employ- ment, concerning their union membership, interest, or activity, in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (b) Threatening or otherwise warning employees, including ap- plicants for employment, that they would be discharged or not hired for engaging in union activities. (c) Requesting employees, including applicants for employment, to report any union activity to their supervisors, or officers, or to the Respondents, R. E. Lee or W. B. Crider, Jr. 'The H. K. Ferguson Company, 124 NLRB 544, 566. Cf. United Mine Workers of America, 129 NLRB 146. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Instructing its employees, including applicants for employ- ment, to refrain from joining or having anything to do with Inter- national Union of Operating Engineers, Local No. 465, AFL-CIO, or any other labor organization. (e) In any like or related manner interfering with, restraining, or coercing employees, including applicants for employment, in the ex- ercise of their rights of self-organization, to form labor organiza- tions, to join or assist International Union of Operating Engineers, Local No. 465, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at its Charlotte and Derita, North Carolina, plants, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after having been duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. The Respondent shall also per- mit the other Respondents to post the notices required of them in sec- tion B2(a) of this Order. Reasonable steps shall be taken by the Respondent, National Welders Supply, Inc., to insure that said no- tices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Eleventh Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. B. The Respondents, Lee Associates, Inc., Investigators, Inc., R. E. Lee, and W. B. Crider, Jr., and each of them, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating the employees of, including applicants for em- ployment with, National Welders Supply Co., Inc., concerning their union membership, interest, or activity in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. (b) Threatening. or otherwise warning employees of, including applicants for employment with, National Welders Supply Co., Inc., 2 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 " NATIONAL WELDERS SUPPLY CO., INC.,- ETC. 663 that they would be discharged-Or not hired for engaging in union 'activities. (c) Instructing employees of, including 'applicants for employ- ment with National Welders Supply Co., Inc., to refrain from join- ing or having anything to do with International Union of Operating Engineers, Local No. 465, AFL-CIO, or any other labor organiza- tion. (d) In any like or related manner interfering with, restraining, or coercing the employees of, including applicants for employment with, National Welders Supply Co., Inc., in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union of Operating Engineers, Local No. 465, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in their offices in Charlotte, North Carolina, and at the Charlotte and Derita, North Carolina, plants of National Welders Supply Co., Inc., copies of the notice attached hereto marked "Ap- pendix B." 3 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after having been duly signed by the Respondents, Lee Associates, Inc., Investigations, Inc., R. E. Lee, and W. B. Crider, Jr., and each of them, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees, including applicants for employment, are customarily posted. Reasonable steps shall be taken by the above-named Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Eleventh Region, in writing, within 10 days from the date of this Order, what steps the Respondents, and each of them, have taken to comply herewith. 8'See footnote 2, supra. APPENDIX A 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 interrogate our employees, including applicants 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for employment, concerning union membership, interest, or ac- tivities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. WE WILL NOT threaten or otherwise warn our employees, includ- ing applicants for employment, that they will be discharged or not hired for engaging in union activities. WE WILL NOT request our employees, including applicants for employment, to report any union activity to any supervisor or officer of this Company or to any outside agency or agent. WE WILL NOT instruct our employees, including applicants for employment, to refrain from joining or having anything to do with International Union of Operating Engineers, Local No. 465, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the right to engage in or re- frain from engaging in any or,all of the activities guaranteed them by the National Labor Relations Act, as amended. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. NATIONAL WELDERS SUPPLY CO., 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. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify all employees, including applicants for employment that : WE WILL NOT interrogate employees, including applicants for employment, of National Welders Supply Co., Inc., concerning union membership, interest, or activity in a manner constituting interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the Act. WE WILL NOT threaten or otherwise warn employees, including applicants for employment, of National Welders Supply Co., Inc., that they will be discharged or not hired for engaging in union activities. WE WILL NOT instruct employees, including applicants for em- NATIONAL WELDERS SUPPLY CO., INC., ETC. 665 ployment, of National Welders Supply Co., Inc., to refrain from joining or having anything to do with International Union of Operating Engineers, Local No. 465, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the right to engage in or refrain from engaging in any or all the activities guaranteed them by the National Labor Relations Act, as amended. All employees, including applicants for employment, are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. LEE AssoclATES, INC., Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) INVESTIGATIONS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) Dated---------------- By------------------------------------- (R. E. LEE) Dated---------------- By------------------------------------- (W. B. CRIDIDR, Jr.) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges and an amended charge filed on March 19, 1959, and July 25 and September 2, 1960, respectively, by International Union of Operating Engineers, Local No. 465, AFL-CIO, herein referred to as the Union, the Acting Regional Director for the Eleventh Region of the National Labor Relations Board, herein referred to as the Board, issued a consolidated complaint on September 12, 1960, against National Welders Supply Co., Inc., Lee Associates, Inc., Investigations, Inc., R. E. Lee, and W. B. Crider, Jr., Respondents herein, alleging violations of Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In their duly filed answer, Respondents, while admitting certain allegations of the complaint, denied the commission of any unfair labor practice. Contemporaneously with the filing of their answer Respondents moved to strike and to dismiss certain portions of the complaint and to make the complaint in certain respects more definite and to require the filing of bill of particulars. The foregoing motions were referred for consideration and disposition to Trial Examiner Albert P. Wheatley who, on September 29, 1960, reserved on the motions to dismiss, which motions are hereby denied, for reasons specified herein (infra, and footnotes 11 and 12). In addition, Trial Examiner Wheatley granted, in part, the motions to make more definite and for a bill of particulars, the terms of which the General Counsel complied with on October 7, 1960. Pursuant to notice, a hearing was held before me on October 18 and 19 and No- vember 10, 1960, at Charlotte, North Carolina. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. During the course of the hearing the General Counsel, over Respondents' objection, amended the complaint to include 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain incidents that were in fact accumulations of evidence relating to violations of the Act already alleged. With respect to these amendments and to certain allegations in the consolidated complaint Respondents moved to dismiss for the reason that the substance of the amendments and specified allegations constituted an enlargement of the original charges in the case. "A complaint `may allege violations not alleged in the charge if (a) they are closely related to the violations named in the charge, and (b) occurred within six months before the filing of the charge.' " 1 As a detailed review of the credible evidence in this case will disclose (infra) both of these con- ditions have been fulfilled and I therefore deny Respondents' motions to strike and dismiss. Upon consideration of the entire record before me, including arguments made at the hearing, the briefs of the parties, and upon my observation of the witnesses,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT NATIONAL WELDERS SUPPLY CO., INC. National Welders Supply Co., Inc., hereafter referred to as the Company, is a North Carolina corporation maintaining its main office and three installations in the Char- lotte, North Carolina, area where it is engaged in the manufacture, sale, and distribu- tion of commercial gases and cylinder trucks and the sale and repair of welding equipment. The Company also maintains warehouse and sales distribution centers at Asheville, Fayetteville, and Salisbury, North Carolina, and at Greenville, Columbia, Charleston, and Florence, South Carolina. The Company annually purchases from points outside of the State of North Carolina raw materials valued in excess of $75,000. During the same period it sold and shipped to customers outside the State of North Carolina from its installations in the Charlotte area finished products valued in excess of $250,000. Respondents admit and decisions of the Board establish 3 that the Company is engaged in commerce. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. IH. THE ISSUES INVOLVED 1. The substantiality of evidence of unlawful interrogation, threats, warnings, and other proscribed forms of interference, restraint, and coercion of the Company's employees. 2. The employer status of labor consultants who were retained by the Company and thereafter acted on its behalf. 3. The employee status of applicants for employment who have been interfered with, restrained, and coerced. 4. The application of Section 10(b) of the Act to situations where parties Re- spondent are added by amendment to the charge, and where the charge is enlarged by addition of incidents to the complaint. IV. THE UNFAIR LABOR PRACTICES A. The advent of the Union Union interest among the Company's employees first developed in late 1958 upon the filing of a petition with the Board by the Union requesting that a representation election be held.4 Six weeks before the election Union Representative Robert Hice appeared on the scene and began soliciting memberships among the employees. Despite his efforts the Union lost the election, held on February 24 and 25, 1959, by a vote of 31 to 22. 1N L R B v. Pallette Stone Corporation. Inc, 283 F. 2d 641, 642 (C.A. 2). Mt. Clemens Metal Products Co, 126 NLRB 1297, footnote 7. 2 Unless specifically indicated to the contrary any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his or her demeanor as I observed it at the time the testimony was given. Cf Bryan Brothers Packting Company, 129 NLRB 285 To the extent that I indicate hereafter that I reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony, as the case may be, is discredited by me Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1. s National Welders Supply Company, Inc., 129 NLRB 514. A Case No. 11-RC-1196 (not published in NLRB volumes). NATIONAL WELDERS SUPPLY CO., INC., ETC. 667 B. The Company's advisers Immediately following the filing of the Union's first petition for a Board-conducted election, the Company, in late 1958, retained a firm of labor consultants, Lee Associ- ates, Inc., another Respondent herein, whose president, R. E. Lee, also a Respondent, thereafter took an active part in the Company's labor problems, advising it as to its rights in connection with the election petition, representing it at subsequent Board proceedings, and recruiting, screening, and processing applicants for employment. Lee Associates, Inc., maintains offices in Charlotte, North Carolina, and in addition to the Company represents approximately 100 other clients.5 This organization shares office space with and appears to be closely integrated with Investigations, Inc , an- other Respondent herein. Investigations, Inc., was organized in March 1960. Its president is Respondent W. B. Crider, Jr., and its vice president Respondent Lee, who is also one of its principal stockholders. The testimony adduced at the hearing strongly suggests that each organization is the alter ego of the other but this inter- relationship is of no relevance to the issues presented in this case, as both organiza- tions, and their respective and overlapping officers, participated actively in the conduct alleged to be violative of the Act. The facts set forth hereafter establish in detail the close working relationship exist- ing between these four Respondents and Respondent National. By such relationship, instituted directly by Respondent National, these Respondents became agents of Re- spondent National and employers within the meaning of Section 2(2) of the Act, sub- ject to the remedial processes of the Board. For "the Act makes one who aids the immediate employer in contravening the statute an employer also. Such an interpretation is an adoption of the established common law principle that an agent is accountable for his own illegal acts even though performed under conditions im- posing liability on his principal." 6 C. Sequence of events Upon receipt of notice of the election petition Respondent Company, in addition to enlisting the professional services of Lee, undertook the more direct approach of interviewing the employees. In November 1958, after consulting with Respondent Lee, the Company's president, J. A. Turner, Jr., by his own admission, questioned employees at both the Charlotte and Derita plants. At the main plant (Charlotte) he called a number of the employees to his office, including J. W. Bright and Fred D. Hoke, told them of the Union's claim of a majority, and asked them how they felt about the Union .7 Turner followed the same procedure at the Derita plant where he assembled the employees, including R. J. Smith, nand asked each how he felt about the Union.8 As the campaign progressed Respondent Lee appears to have assumed more direc- tion of the Company's quest for information. Thus in mid-January, in Turner's office, Lee summoned employee Archie Small and, after warning him that the sub- stance of their conversation was not to be repeated, asked him if he had ever had any dealings with the Union. When Small told him that on one occasion he had such dealings, Lee told him "that they already knew that." He then sought to learn who had talked union with Small on company property, and who the union leaders were. He then told Small that he did not have to supply the instigators' names as they were already known and "they wouldn't be there too long after it was over." 9 5 The testimony of Respondent Lee. I do not credit Lee generally, however, except as to undisputed matters peculiarly within his knowledge, admissions against his or the other Respondents' interest, or except as his testimony is corroborated by the testimony of credible witnesses. In so concluding I rely entirely upon my observation of this wit- ness at the hearing Cf footnote 2, supra 9 N.L R B v. Taylor-Colqustt Co , 140 F. 2d 92, 93 (C.A 4). 7The credited testimony of Bright. Employee Hoke's testimony was singularly un- informative and evasive. After several questions by me, however, he recalled having been asked to Turner's office where he "guessed" he was asked how he felt about the Union In the questioning that followed, Hoke became so agitated and evasive that I deem his testimony to be valueless for any purpose and do not rely upon it herein. 8 The credited testimony of employee Smith, corroborated by President Turner o The credited testimony of employee Small. In the course of the cross-examination of Small, Respondent's counsel sought, by way of reference to a prior inconsistent statement, to establish Small's lack of credibility. This statement, as well as similar general and specific statements taken from other employees, was procured at the employer's request during the employee's continuing tenure of employment, and, in point of time, after the commission of the acts alleged herein as unfair labor practices . Specifically, by, the 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Small was emphatic that Lee did not limit his objection to union activity to such as would affect an employee's work. Respondent Lee conceded that he had such a conversation with Small but that it was for the purpose of ascertaining who, if anyone, was "bringing pressure to bear against him for signing a union card and working on behalf of the Union," in such a manner that it was affecting Small's work. Lee thus sought by his testimony to create the impression that he was only protecting Small, a known union leader, from the shop persecution by employees opposed to the Union. I do not believe Lee, for his avowed reasons become flimsy by his elaboration. Thus he testified that he warned Small that if in the future anyone brought pressure on him and Small failed to report this fact Small's job would be in jeopardy. Lee's zeal in thus protecting Small's right to work peaceably reaches a ridiculous finale-the jeopardy of Small's job. Mindful of this inconsistency and of the eagerness with which Lee concededly sought to curtail union activity on company time and property, I am further persuaded that his testimony generally is unworthy of credence. Lee had a similar conversation with Eugene Blevins during this same period. Blevins, who had been hired several weeks previously, was called up to "Lee's office," presumably an office at the plant being used by him. Lee asked him if any- one had approached him about the Union.io Shortly after the February 1959 election Lee interviewed applicants for employ- ment referred to him by the Company's secretary, Brice Keller. One of these, Stacy Long, credibly testified that in the course of the interview Lee asked him how he felt about unions, and told him that a union had sought to organize the Com- pany's employees and had failed, that he had the names of those who had voted for the Union, and that he hoped to get rid of them before the next election was held. Lee told Long of the job he had in mind for him and told him that if he engaged in ,any union activities it would be found out and not only would Long lose his job but he would be "black-balled" in the area. Lee further requested Long to report to him any approach to join the Union or any threat on the part of a union member or leader. For reasons not relevant to the issues in this case Long was never selected for employment.ii Thereafter on June 22, 1959, Burmah H. Curtis applied at the Company's office for employment.12 Secretary Keller interviewed him and passed him on to Plant statement, the individual employee expressed the voluntary nature of his action and dis- claimed any threat, bribe, or inducement by management of the Company for refraining from union activities Significantly, most of the employees questioned at the hearing concerning this statement which they had signed, had extreme difficulty in defining the words and phrases to which they had subscribed. The compulsions inherent in the procurement of such a statement are obvious I can- not, therefore, blind myself to reality and place credence upon them or permit their use to damage what I deem to be otherwise credible testimony. I therefore reject the state- ments for all purposes N L R.B. v. Habib Marcus, d/b/a Marcus Bros., 272 F 2d 253 (C.A 2) 10 Blevins' credited testimony. I do not accept Lee's explanation of this questioning as being merely a chance meeting in the plant and a query as to how he was getting along and if "pressure was being brought to bear on him." u It Is Respondents' contention that Long and other applicants for employment who were never hired are not properly included in the category of "employees" for purposes of assessing the allegations of the unlawful conduct herein. The Supreme Court has disposed of Respondent's argument by classifying such individuals as employees for the purpose of assessing discrimination. Phelps Dodge Corp. v. N.L.R B., 313 U S. 177, 183-187. Discrimination, of course, has always been held to constitute interference, restraint, and coercion in violation of Section '8(a) (1), as well as being the basic substance of Section 8 (a) (3). N LR B. v. Remington Rand, Inc., 94 F. 2d 862, 869 (C A. 2) ; Sixth Annual Report of the NLRB, 87-89 (1941). Certainly, therefore, if an applicant be con- sidered an employee when the victim of unlawful discrimination , he becomes no less an employee when he allegedly becomes the victim of interference, restraint, and coercion, of which discrimination is but one variety. za Respondents move to dismiss the complaint as -to this particular incident, occurring as it did following the signing of a settlement agreement, later rescinded, in Case No. 11-CA-1458 and more than 6 months prior to the filing of the charge in Case No. 11-CA-1662 "The Board is not precluded from `dealing adequately with unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board.' 11 N.L.R B. v. Pant Milling Company, 360 U.S. 301, 309. [Emphasis supplied.] Accordingly, Respondents' motion to dismiss on this ground is denied. NATIONAL WELDERS SUPPLY CO., INC., ETC. 669 Superintendent Coggins who secured an application from him, interviewed him, and referred him to Respondent Lee Associates, Inc., at its Charlotte office. Upon visit- ing that office Curtis was interviewed by Charles Geer who held the title of industrial engineer and vice president in the Lee organization.13 Geer asked Curtis if he had heard of the trouble the Company had had with the Union and elaborated by referring Curtis to a notice he would see on the bulletin board (if he got the job) to the effect that anyone found to be talking about or having anything to do with the Union would be dismissed. The notice which is frequently referred to in the record read as follows: TO ALL EMPLOYEES A GOOD MANY OF YOU HAVE RECENTLY BEEN ASKING QUES- TIONS IN REGARD TO THE FOLLOWING MATTERS AND WE HAVE DECIDED TO STATE THE COMPANY'S POSITION ON THESE MAT- TERS AS CLEARLY AND AS DEFINITELY AS WE CAN FOR EVERY- BODY ALIKE. IT IS NOT NECESSARY, AND IT IS NOT EVER GOING TO BE NEC- ESSARY, FOR ANYONE TO BELONG TO THE OPER. ENG. UNION, OR ANY OTHER UNION, IN ORDER TO WORK IN THIS PLANT. NO PERSON WILL BE ALLOWED TO CARRY ON UNION ORGANIZ- ING ACTIVITIES IN THE PLANT DURING WORKNG HOURS. ANY- BODY WHO UNDERTAKES TO DO SO AND WHO THEREBY INTER- FERES WITH HIS OWN WORK OR THE WORK OF OTHERS WILL BE DISCHARGED. WE WILL NOT TOLERATE ANY ACT BY THE UNION OR UNION MEMBERS WHICH IS DONE WITH THE PURPOSE OF CAUSING ANY TROUBLE IN THE PLANT FOR EMPLOYEES WHO ARE OPPOSED TO THE UNION. THOSE WHO UNDERTAKE TO PUT SUCH PRESSURE ON OTHER EMPLOYEES WILL BE DISCHARGED. ANYBODY WHO TELLS YOU ANYTHING CONTRARY TO THE FOREGOING IS NOT TELLING YOU THE TRUTH. NATIONAL WELDERS SUPPLY CO. INC. Geer told Curtis of the recent election and went on to say that they knew every man who had anything to do with the Union . Geer, by his own admission, then directed Curtis that if he were approached by anyone "while on the job that he should report this to his supervisor." 14 Geer explained to Curtis, and reiterated at the hearing, that the reason for this effort to eliminate union activity during work- ing hours and on the property was the dangerous character of the work , the manu- facture of oxygen, and the dangers inherent in employee distraction. By the time David S. Harllee applied for a job with the Company in October 1959, Lee Associates, Inc., had assumed not only the interviewing of applicants but their recruiting as well . Accordingly, Harllee, in answering a newspaper ad, went directly to Lee. Harllee credibly testified to three interviews with Lee; two prior to his hiring and one a week thereafter. During the course of the first interview, Lee asked Harllee if he had ever been a member of a union . Harllee appeared to have the necessary qualifications and was recalled for another interview and offered a job. After a week on the job Harllee returned to Lee's office at Lee's earlier request. Lee on this occasion told him "not to say anything about the union out there , that they didn't like the union and that if [he ] said anything about the union or talked or anything, that [he] would probably get dismissed from the job." The hiring procedure at the Derita plant assumed similar overtones during this period . Thus employee Berrell Gardner credibly testified that in November 1959, while interviewing him for a job , Plant Foreman Howard Smith asked him if he belonged to the Union and told him the Company was nonunion .15 Smith turned Gardner over to Lee for further interviewing. Lee, in the course of the interview, "Geer is no longer associated with Lee 14 Geer's account of this incident agreees substantially with Curtis' credited account and is accepted. I do not, however, credit his denial that he told Curtis that the union ad- herents were known. It stretches credulity to conclude that an organization as active and presumably as qualified as Lee Associates, Inc, of which the witness was vice presi- dent, had not, in 6 months , identified the leaders of the Union whose activities on the property they were seeking to curtail. 25 1 do not credit Foreman Smith 's denial of this statement attributed to him. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked Gardner if he had any dealings with the Union or if any of his relatives were "union people." Lee then told Gardner that people "had been fired on account of talking about the union" and in this respect Gardner testified that Lee did not limit his warning to the engaging in union activities "on the job." 16 Sinkler Vogt applied for work with the Company on March 1, 1960, reporting first to Secretary Keller who referred him to Lee Associates, Inc. Respondent Lee interviewed Vogt and in the process told him that he could get a job with the Company as long as he was not involved with the Union. Lee then asked him if he had ever belonged to a union, to which Vogt replied that he had worked on a union job but that he was only employed as an "extra." Lee, in approving Vogt for employment, warned him in conclusion that if he got involved with the Union he would be fired.17 And in this respect Vogt had no recollection whatever that Lee had limited his warning on union activities to those which occurred on company time and property. A month thereafter, Philip C. Howard applied for a job at the Company's Derita plant, where he saw Foreman Smith. Smith referred him to Secretary Keller. In the course of his conversation with Howard, Keller asked him if he had belonged to a labor union; to which Howard replied that he had belonged to the Steelworkers 10 years previously. Keller gave him an application form to fill out and sent him to Lee. Lee also inquired of Howard's union membership and was given the same reply. Whereupon, Lee stated that the Company had been having "a little labor trouble." Howard left after filing his application with Lee. He thereafter made several calls to Keller to inquire as to his application. On one call Keller told him the report from Lee had not yet been received by the Company, and on the final call to Keller, Howard was told that "the job fell through." This was his last contact with the Company.18 Early in May 1960, Kenneth Buchanan applied for work with the Company and saw Foreman Howard Smith who referred him to Secretary Keller. Keller put Buchanan to work in the plant and several days thereafter sent him a message, through Foreman Smith, to report to Respondent Lee's office. During the course of Buchanan's interview, Lee asked him if he ever belonged to a union or would be in favor of a union, and Buchanan answered in the negative. Meanwhile Respondent Crider, who was present throughout the interview, was engaged in making notes. Lee also asked Buchanan if any of his family were members of the Union and he concluded the interview by stating that if Buchanan "was for the union and tried to get it," he would not work for the Company.19 In the latter part of June 1960, employee Ransom B. Tarleton applied for work in answer to a classified advertisement and was interviewed by Foreman Howard Smith, who referred him to Secretary Keller.20 Keller gave Tarleton an application form to fill out and directed him to Lee Associates, Inc., where he was interviewed by Respondent Crider. Employee Tarleton's testimony as to what occurred at this interview bears signifi- cance only by virtue of its confusion. In detailing what happened at the interview, Tarleton volunteered that he was not sure whether or not Crider asked him if he ever belonged to a union. Later on he testified that "he thought he asked [him] that question." And when next asked what he replied to this question, Tarleton testified, "I told him that I didn't know anything about a union, that I had never been under one." The significant feature of this witness' testimony is his uncertainty as to what was asked him, and his prompt recall of his reply. Tarleton impressed me as an intelligent individual who should have experienced little difficulty in either recollect- ing past events or answering questions. And upon my observation of this witness I am convinced that he did understand the question, and knew the answers, but that he was laboring under compulsions, real or fancied, which related to his employment tenure. Thus, assessing his testimony, I am constrained to interpolate his remarks and credit them as evidence of Crider's interrogation of him concerning the Union.21 In addition to the foregoing incidents involving alleged threats and interrogation of employees, evidence was offered in the form of testimony by employee Thomas 16 The credited testimony of employee Gardner 17 The credited testimony of employee Vogt. is The credited testimony of Howard I do not accept Keller 's explanation of his con- versation with Howard as being, in part, a discussion , not of a labor union, but of a credit union. 19 The credited testimony of Buchanan. 20 Tarleton had sought a job a month earlier but it had been filled before he had made inquiries. 21 Respondent Crider was never specifically questioned concerning the Tarleton interview. NATIONAL WELDERS SUPPLY CO., INC., ETC. 671 Braswell and rebuttal testimony by Respondents Lee and Crider relating to an inci- dent occurring in the offices of these respective Respondents and their counsel, and to several pretrial statements in apparent contradiction with one another and with Braswell's own testimony. The substance of the evidence adduced by the General Counsel would, if believed, contribute nothing but an accumulation of incidents similar to those already detailed herein and would in no way add or detract to any order I would recommend be issued herein. As a resolution of this conflict of evi- dence would thus contribute nothing to the final results in this proceeding and would unduly burden this report, I shall make no findings with respect to any alleged incident relying for its proof upon the testimony of Thomas Braswell, or any incident concerning him, which testimony I do not consider herein for any purpose. D. Analysis and conclusions The facts detailed above describe in chronological order a campaign on the part of the Company and its retained agents calculated to uncover all that was to be learned of the Union's progress among the employees, to forewarn applicants and newly hired employees of the Company's predisposition against the Union, to seek out by way of employee espionage and reporting any union activity or leadership that might have otherwise gone unnoticed, to insinuate that the Company and its retained agents had knowledge of who among the employees belonged to or were active in the Union, and to underline the consequences of union membership, activity, or leadership by suggesting that anyone who became so involved and those already so involved would be discharged and "black-balled" in the area. By thus interrogating the employees and applicants, threatening and warning them of the discharge that would result from their union membership and activity, asking them to spy upon their fellow employees and reportthe results of the espionage to company supervisors and officers and to Respondents Lee and Crider, and by in- structing the employees to avoid the Union, the Respondent Company and Re- spondents Lee, Lee Associates, Inc., Crider, and Investigations, Inc., all acting in the Company's interest and behalf,22 interfered with, restrained, and coerced the em- ployees, including applicants for hire in the exercise of their statutory right of self- organization. Citation of authority is unnecessary to establish that such conduct, col- lectively and as individual incidents detailed herein, constitute a violation of Section 8(a)(1) of the Act, and I so find. It is Respondent's position, however, as stated in its argument before me, in its brief, and in the cross-examination of witnesses, that all it' has done here is to legiti- mately insulate itself from the damage to its plant and plant efficiency by promulgat- ing and policing a regulation which forbade union activity on company time and property. A study of the incidents described above and the credited evidence upon which they rest clearly defines an attempt on the part of the Company and the other Respondents in its behalf, to eliminate the Union and anyone remotely associated with it. Under circumstances which so clearly establish that the Company's rule "was adopted for a discriminatory purpose" and that the notice was posted as an adjunct of this same purpose, I find it unnecessary to consider further the legal aspects of this particular plant rule 23 Indeed, were the evidence of discriminatory motivation less clear the company reliance upon its rule would be nonetheless fruitless because (1) the rule was applicable to nonworking as well as working time, and (2) there was no showing in the record by the testimony of any company official, credible or other- wise, "that special circumstances make the rule necessary in order to maintain pro- duction or discipline." 24 2' Respondents Lee Associates, Inc , Lee Investigations, Inc., and Crider moved to dis- miss the complaint with respect to conduct committed by them, and each of them, prior to the filing and service on September 6, 1960, of the amended charge in aCse No 11-CA-1662, wherein they were designated for the first time as parties Respondent to these proceed- ings. As the credited evidence detailed above discloses the commission by these Respond- ents, and each of them, of conduct found to be unlawful at times within the period of 6 months prior to the filing of the amended charge, as well as prior to such period, and as, in any event, these Respondents have been found to have acted as representatives of Respondent National at all times covered by both charges herein as well as by the amended charge, I find it unnecessary to determine what effect, if any, Section 10(b) of the Act has upon the evidence detailed herein and the order that I shall issue based thereon. Accord- ingly, I deny Respondents' motion to dismiss 23 Republic Aviation Corporation v. N L.R B., 324 U S. 793, footnote 10; Walton Manu- facturing Company, 126 NLRB 697, 698. 24 Walton Manufacturing Company, supra In this respect I can place no reliance upon 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In conclusion, therefore, I find for the reasons detailed above that Respondents and each of them have interfered with, restrained, and coerced the employees of the Respondent Company in the exercise of their rights guaranteed them by Section 7 of the Act, thus violating Section 8(a)( I) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section IV, above, occurring in con- nection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondents engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action which it is found necessary to effectuate the policies of the Act, including the posting of two appropriate notices at each of Respondent Company's plants and installations : one notice at each location being signed by Respondent Company, and designated herein as "Appendix A," and the second notice ("Appendix B") being signed by the other Respondents. In addition I would recommend that the latter notice, designated as "Appendix B," be posted in the offices of Respondents Lee Associates, Inc., Investigations, Inc., R. E. Lee, and W. B. Crider, Jr., in public and conspicuous places for a designated period. In relation to the framing of an adequate remedy for the unlawful conduct I have found herein I have particularly considered the nature of the operations of Respond- ents Lee Associates, Inc., and Investigations, Inc., and their respective presidents, Respondents R. E. Lee and W. B. Crider, Jr. These Respondents, by their own ad- mission, are retained by approximately 100 industrial clients, presumably for the purpose of rendering a labor relations service similar to that rendered to the Respond- ent Company. There is nothing in this record to suggest that in the rendering of such services to its clients generally these Respondents, or any one or more of them, indulged in the same unlawful tactics which I have found they committed with respect to Respondent National's employees. I am, therefore, precluded from requiring that these particular Respondents post notices or otherwise notify the employees of their other clients that they will cease and desist from the unlawful conduct committed with respect to Respondent National's employees. Instead I will recommend the posting be limited, as noted above, to these Respondents' own offices and to the sev- eral installations of Respondent National and that it specify that these particular Respondents will cease and desist their unlawful actions not only with respect to Respondent National's employees but to the employees of any other employer. To require less would be a meaningless gesture that would in no way effectuate the remedial purposes of the Act. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent National Welders Supply Co., Inc, occur in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] the testimony of Charles Geer, whom I have previously credited In part, that the purpose of the rule was one of safety (supra) Geer was not an official of the Company promulgat- ing the rule but merely an ex-official of the Company's representative in labor relations matters It is my understanding of the Walton case that a more substantial showing of "'special circumstances" must be made