Ewell Engineering & Contracting Co., Inc.

•5540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employment of Vivian Hampton, thereby discouraging membership in the above-named Union , the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the foregoing conduct, the Respondent has interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Ewell Engineering & Contracting Co., .Inc. and Claude Laverne O'Neal and James C. Jameson Ewell Prestressed Concrete Co., Ewell Concrete Pipe Co. and Travis Jolley, John C. Jolley, Jr., and George W. Dyess. Cases' Nos. 10-CA-1641-1, 10-CA-1739, 1N-CA-1736-1, M -CA-173649, and 12-CA-1736-3. November 21, 1961 DECISION AND ORDER On June 14, 1961, Trial Examiner Henry S. Sahm issued his In- termediate 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 Re- port attached hereto. The Trial Examiner also found that the Re- spondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Fanning, 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. The complaint alleged, inter alia, that the Respondent, by reason of threats made to employees by Foreman Jim Edwards, had violated Section 8(a) (1) of the Act. The Trial Examiner found that the General Counsel had failed to establish by a preponderance of the evidence that Edwards is a supervisor within the meaning of the Act, and, accordingly, recommended that these allegations be dis- missed. The General Counsel excepts, contending that the preponder- 134 NLRB No. 56. EWELL ENGINEERING & CONTRACTING CO., INC. 541 ante of the evidence clearly establishes that Edwards is a supervisor within the meaning of the Act. We find merit in the General Coun- sel's exception. The record testimony shows that Edwards effectively recommends discharges, disciplines employees, and makes work assignments. Thus, Superintendent Page testified that when Edwards told him that he wanted to get rid of a man, his reaction was, "Well, if I have got a bunch of men out there working with Jim and they don't suit him, they don't suit me either." Page further testified that when Edwards told him that he did not want a man any more, that man would be discharged. Page also testified that Edwards has authority to transfer the men in his crew from job to job and to discipline em- ployees, taking whatever action was necessary to reprimand or correct them. In addition to the foregoing indicia of Edward's supervisory authority, there is uncontradicted testimony that Edwards hired em- ployees. -Thus, employees Dyess, Langley, and Basinger testified that they were hired by Edwards. Moreover, we note, as the Trial Ex- aminer himself found, that Dyess was discharged by Foreman Ed- wards. On the basis of the foregoing, we conclude and find that Edwards is a supervisor within the meaning of the Act. As to the unlawful conduct alleged to have been engaged in by Edwards, employees Langley and Basinger testified without contra- diction that Edwards made threats as charged. Langley testified that Edwards told him on two occasions that Ewell would shut down before he would allow a union to come in. Basinger testified that he heard Edwards state that there was no use in signing union cards, that Ewell would close down before having a union. We find that by these threats of its supervisor, the Respondent interfered with employees' rights guaranteed under Section 7 of the Act, and thereby violated Section 8 (a) (1) of the Act. 2. The complaint also alleged that employee George W. Dyess was discriminatorily discharged. The Trial Examiner found that the General Counsel failed to establish that the Respondent had knowl- edge of Dyess' union activity or that Dyess' discharge was unlawfully motivated. We find merit in the General Counsel's exceptions to these findings. The record testimony clearly establishes that the Respondent was aware of the fact that Dyess had signed a union card, and that Dyess was active on behalf of the Union. Thus, there is the testimony of Superintendent Page that he had a discussion with employee Travis Jolley concerning a union meeting held about the first part of Sep- tember 1960, and that Jolley, in that conversation, identified Dyess as one of a group of employees who had attended this meeting. There is also the uncontradicted testimony of Dyess that he told Foreman Ed- wards that he had signed a union card. Employee Langley also testi- 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fled without contradiction that, about 2 weeks after Dyess was dis- charged, Edwards told him that Dyess was terminated for bragging and boasting about the Union. In view of the foregoing, we find, contrary to the Trial Examiner, that the General Counsel did meet the burden of affirmatively proving that the Respondent had knowledge of Dyess' union activity. The Respondent contends that Dyess was discharged because of excessive tardiness. Although it appears that Dyess was tardy on three occasions, as alleged by the Respondent, we do not accept Re- spondent's claim that such tardiness was the motivating reason for Dyess' discharge. We note that other employees have been equally as tardy as Dyess and have been retained. Employee Scoles testified that he was tardy seven or eight times, both before and after Dyess' discharge, and only on one occasion was he docked any pay. Em- ,ployee Phillips testified that he was tardy three times within a month of the hearing, and that on each occasion Superintendent Page only asked him to try to be punctual. Employee Basinger testified that within a period of 2 weeks before Dyess' discharge he was tardy twice, and since the discharge has been tardy twice again. Only on the last occasion, just a few days before the hearing herein, was he repri- manded. On the basis of the foregoing, we believe that the reason given by the Respondent for Dyess' discharge fails adequately to ex- plain why Dyess should have been treated differently from other em- ployees who have been similarly tardy and who have been retained. In the absence of an explanation for this disparate treatment and in view of Respondent's hostility to the Union, Dyess' known union ad- herence, and particularly Foreman Edwards' (who was the one who discharged Dyess) statement that Dyess was discharged for bragging and boasting about the Union, we are convinced that Dyess' discharge was motivated by antiunion considerations. We therefore find that by discharging Dyess, and thereafter refusing to reinstate him, the Respondent discriminated in regard to his hire and tenure of em- ployment, thereby discouraging membership in the Union, and inter- fering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, and by such conduct the Respondent violated Section 8(a) (3) and (1) of the Act. THE REMEDY As we have found that the Respondent discriminatorily discharged George W. Dyess, we shall order that the Respondent offer him im- mediate and full reinstatement to his former or substantially equiva- lent position, without prejudice to his seniority or other rights and privileges, and make him whole in accordance with the Board's remedial policies (The Chase National Bank of the City.of New York, EWELL ENGINEERING & CONTRACTING CO., INC. 543 San Juan, Puerto Rico, Branch, 65 NLRB 827; Crossett Lwmber Com- pany, 8 NLRB 440; and F. W. Woolworth Company, 90 NLRB 289) for any loss of pay he may have suffered by reason of the discrimi- nation against him. However, as the Trial Examiner did not find that George Dyess was discriminatorily discharged, in accordance with our customary practice, we shall exclude from the computation of his backpay the period between the issuance of the Intermediate Report and our present Order.' 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, Ewell Engineer- ing & Contracting Co., Inc., Ewell Prestressed Concrete Co., and Ewell Concrete Pipe Co., Lakeland, Florida, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Coercively or otherwise unlawfully interrogating employees concerning their membership in, or activities on behalf of, Inter- national Union of Operating Engineers, Local 925, AFL-CIO, and International Hod Carriers, Building and Common Laborers Union, Local 1240, AFL-CIO, or any other labor organization of its em- ployees, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1). (b) Threatening employees for engaging in union activities or other concerted activities. (c) Discouraging membership in International Union of Oper- ating Engineers, Local 925, AFL-CIO, and International Hod Car- riers, Building and Common Laborers Union, Local 1240, AFL-CIO, or any other labor organization of its employees, by discharging any of its employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer Claude Laverne O'Neal, Joseph C. Jameson, Travis Jolley, John C. Jolley, Jr., and George W. Dyess immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Claude Laverne O'Neal, James C. Jameson, Travis Jolley, and John C. Jolley, Jr., for any loss of pay they may have suffered by 1 See, e g, Industrial Fabricating Inc, et at, 119 NLRB 162, 173. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason of discrimination against them in the manner provided in the section of the Intermediate Report entitled "The Remedy." (c) Make whole George W. Dyess for any loss of pay he may have suffered by reason of the discrimination against him in the manner provided in the section of this Order entitled "The Remedy." (d) Post at its offices and places of business in Lakeland, Florida, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent's representa- tive, be posted immediately upon receipt thereof, and be maintained by it for a period of at least 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices shall not be altered, defaced, or covered by any other material. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Notify the Regional Director for the Twelfth Region, in writ- ing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we notify our employees that : WE WILL NOT discourage membership in International Union of Operating Engineers, Local 925, AFL-CIO, and International Hod Carriers, Building and Common Laborers Union, Local 1240, AFL-CIO, or any other labor organization of our employees, by discharging any of our employees or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their union activities on behalf of International Union of Operating En- gineers, Local 925, AFL-CIO, and International Hod Carriers, Building and Common Laborers Union, Local 1240, AFL-CIO, or any other labor organization of our employees, or threaten them in a manner in violation of Section 8 (a) (1). EWELL ENGINEERING & CONTRACTING CO., INC. 545 WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist International Union of Operating Engineers, Local 925, AFL-CIO, and International Hod Carriers, Building and Common Laborers Union, Local 1240, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL offer to Claude Laverne O'Neal, James C. Jameson, Travis Jolley, John C. Jolley, Jr., and George W. Dyess immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered by them as a result of the discrimination against them. All of our employees are free to become or remain members or to refrain from becoming or remaining members of the above-named Unions, or any other labor organization. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organizations. EWELL ENGINEERING & CONTRACTING CO., INC., EWELL PRESTRESSED CONCRETE CO., EWELL CONCRETE PIPE CO., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, against Ewell Engineering & Contracting Co., Inc., Ewell Prestressed Concrete Co., and Ewell Concrete Pipe Co., herein called the Respondents, upon charges filed by Claude Laverne O'Neal , James C. Jameson , Travis Jolley, John C. Jolley, Jr., and George W. Dyess, and upon complaint and answer, was heard, pursuant to due notice, beginning on December 20, 1960, and concluding on January 4, 1961 , in Lakeland, Florida, before Henry S. Sahm, the duly designated Trial Examiner. Only the Respondent filed a brief which has been fully considered. Preface The testimony concerning many of the incidents involved in this .proceeding is con- flicting and contradictory and the findings of fact made herein result from an attempt to reconcile the evidence and determine what occurred . The findings of fact are based upon consideration of the entire record and observation of witnesses . All evi- dence on disputed points is not described so as not to burden unnecessarily this 630849-62-vol. 134-^S6 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report.' In those few instances in which no reference is made to conflicting evidence, it is solely because the testimony was discredited, insubstantial, or immaterial. However, all has been considered and, where required, resolved. Due to the length of this report, it would needlessly burden the decision to detail the testimony on dis- puted points as the reasons for the conclusions have been fully stated. Comment has not been made on all points and arguments presented by both sides but they have been carefully considered in arriving at this decision. Such testimony or other evidence as is in conflict with the findings herein and on which no specific finding is made, is not credited. In determining credibility the following has been considered, inter alias the de- meanor and conduct of witnesses; their candor or lack thereof; their ability to know, comprehend, and understand matters about which they have testified; whether they have been contradicted or otherwise impeached; and the inconsistency and inherent probability of their testimony. There are, of course, limitations inherent in making credibility findings based on demeanor evidence as no means has yet been devised whereby words in a cold, bare record, devoid of the witnesses' demeanor while testi- fying, may be utilized to convey meanings with the same exactitude as mathematical symbols.' In many instances, the trier of the facts must be content, therefore, in his determination as to where the truth lies, with an amalgam of bare belief and inference, as knowing the absolute truth is a divine virtue not given to mere mortals. FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Ewell Engineering & Contracting Co., Inc., of which Ewell Prestressed Con- crete Co. and Ewell Concrete Pipe Co. are subsidiary companies, are Florida corpo- rations engaged in the contracting business. They have approximately 300 employees. During the year 1960, Ewell Engineering & Contracting Co., Inc., performed services for corporations ouside the State of Florida in an amount in excess of $50,000. Dur- ing the same period of time, Ewell Engineering & Contracting Co., Inc., performed building and construction services in an amount in excess of $50,000 for firms within the State of Florida which themselves shipped outside the State of Florida goods in excess of $50,000. During the same 12-month period, the Respondent Company and its subsidiaries, purchased and received goods, materials, and supplies valued in excess of $50,000 from Florida suppliers who in turn received such goods, materials, and supplies from points directly outside the State of Florida; and that during the year 1960, it did purchase across State lines materials in excess of $50,000.3 It is found that Ewell Engineering & Contracting Co., Inc., and its subsidiaries, Ewell Pre- stressed Concrete Co. and Ewell Concrete Pipe Co., constitute a single employer and that they are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union of Operating Engineers , Local 925, AFL-CIO, and Inter- national Hod Carriers, Building & Common Laborers Union, Local 1240 , AFL-CIO, herein called the Laborers Union, are now and have been at all times material herein labor organizations within the meaning of Section 2(5) of the Act. ',See former Member Jenkins' statement in Arrow Gas Corporation, 124 NLRB 766, 771, wherein he stated: I do not take it to be a responsibility or duty of a Trial Examiner that he specifically refer to all the evidence in the record lest he be found to have overlooked certain testimony. Such a requirement would foist an almost insuperable burden upon him and would lead Inevitably to voluminous intermediate reports When a Trial Examiner does not allude to particular testimony In the record, I believe the fair presumption to be that he considered it but found it wanting and unimpressive. 2 To the extent any testimony is rejected it is meant to be discredited. See Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, and Croscili Cartons Compdny and Durham Drapery Company, 130 NLRB 1465, footnote 4 3It was stipulated that all of the employees of the three Companies involved herein are on the same payroll ; that the bookkeeping in connection with the payroll is performed by the same persons for all Companies ; that the employees are all paid on the same day ; that all the checks are signed by the same person ; that the Ewell referred to in all three company titles is J. L. Ewell ; and that the supervisor, C. S. Page, of Ewell Prestressed Concrete Company, Inc, is regarded as an employee of Ewell Engineering & Contracting Company, Inc. EWELL ENGINEERING & CONTRACTING CO., INC. 547 III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Sometime in July 1960, the two Unions mentioned immediately above began an organizational campaign among Respondent's construction employees. Union mem- bership application cards, which authorized the Unions to act as bargaining agents, were distributed to the employees. Employees O'Neal, Jameson, and Travis Jolley distributed these cards in the early part of September 1960, and solicited employees of Respondent to sign these cards for the eventual purpose of having the Unions represent the said employees in collective-bargaining negotiations with the Respond- ent. O'Neal has not worked for Respondent since 'September 15, 1960; Jameson since September 9; and Travis Jolley and J. C. Jolley were discharged on Novem- ber 10, 1960, allegedly for violations of company rules. In addition, one other dis- chargee, George W. Dyess, was fired on November 9, 1960, allegedly for being late for work The initiation of organizational activities among the employees brought about a responsive movement by Respondent to oppose the Unions by calling a meeting on October 1 of all its supervisory personnel in order to instruct them as to what they could and could not do with respect to the Unions' organizational campaign. The General Counsel asserts that during the course of the Unions' organizational cam- paign, Respondent's supervisors, Yeoman, Page, and Edwards told employees that Respondent would discontinue its business before it would permit its employees to become unionized and that it committed other acts which interfered with, restrained, and coerced its employees. Contentions The General Counsel contends that these five employees were discharged because of their union activities. The Respondent's defense as to these five alleged discrim- inatees is as follows: that O'Neal was discharged because he was believed to have been responsible for the sabotage of company property; the Jolley brothers for vio- lation of company rules, and Dyess for arriving late to work. With respect to Jame- son, Respondent alleges that he has never been discharged but merely laid off because of lack of work. B. Introduction Before considering the specific facts in this proceeding, it might be well to discuss briefly some applicable legal principles. In determining whether a discharge is for union activities or for cause, the problem is to ascertain the employer's motive .4 It is the "true purpose" or "real motive" in hiring or firing that constitutes the test. Some conduct may by its very nature contain the implications of the required intent; the natural foreseeable consequences of certain action may warrant the inference. And see Republic Aviation Corp. v. Labor Board, 324 U.S. 793. The existence of discrimination may at times be inferred by the Board, for "it is permissible to draw on experience in factual inquiries." 5 Since direct evidence of a purpose to violate the Act is rarely obtainable, proof of motive usually entails the weighing of conflicting inferences. The task of weighing conflicting inferences is entrusted to the trier of the facts. "The possibility of draw- ing either of two inconsistent inferences from the evidence [does] not prevent the [trier of the facts] from drawing one of them. . " 6 For the reasons hereinafter explained, it is believed the record in this case makes plain that with respect to those employees found to have been discriminatorily dis- charged, there is considerably more than a coincidental connection between their ' N L R B. v Jones & Laughlin Steel Corporation, 301 U S 1, 45-46, The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A H. Bull Steamship Company) v NLRB , 347 U.S 17, 43-44 5Local 357, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Los Angeles-Seattle Motor Express) v. N L R.B., 365 U.S 667. 6 N L R B. v. Nevada Consolidated Copper Corporation, 316 U S 105, 106. See also N.L.R B. v L Ronney & Sons Furniture Manufacturing Go, 206 F 2d 730, 737, where the Court of Appeals for the Ninth Circuit stated, "It is well settled that an employer vio- lates Section 8(a) (3) by discharging . an inefficient employee if the employer's reason for so doing is not the employee's inefficiency but his union affiliation or activity." Cf. N.L R B v. C & J Camp, Inc, et al d/b/a Kibler-Camp Phosphate Enterprise, 216 F 2d 113, 115 (CA 5), where the court held that a justifiable cause for discharge cannot shield discrimination in employment shown to have been unlawfully motivated. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities and their terminations.? Indeed, the "principal events [are] really no coincidence at all, but rather part of a deliberate effort by the [Re- spondent Company] to scotch the lawful measures of the employees before they had progressed too far toward fruition." 8 Under these circumstances "a very con- vincing case of discharge for cause would have to be made to make unreasonable a conclusion that [the] discharge [s were] because of union [activities]." 9 As was stated by the Court of Appeals for the Fifth Circuit 10 "whatever may be thought of the case made, if the occurrences are viewed and apprehended piecemeal, viewed and apprehended as a whole, the record fully supports the . findings: that an anti-union coup was planned . . . to eradicate the union and unionism from the plant . . . C. The alleged violations of Section 8(a)(3)11 1. Claude L. O'Neal O'Neal was employed by Respondent in June 1959 as a bulldozer operator. He first became interested in the Union when he attended two meetings in August and September 1960, and suggested to union -officials that they organize Respond- ent's construction employees. On or about September 8, 1960, he signed an Oper- ating Engineers union card and became active in distributing union authorization cards to Respondent's employees and soliciting them to join the Union. He suc- ceeded in obtaining approximately 18 of his fellow employees, working at various construction projects of the Respondent, to sign up with the Union. At one of these project sites, O'Neal requested and obtained permission from Ben Cook, foreman, to solicit the men under Cook's supervision to sign union cards. On September 10 and 11, a hurricane struck the locality where the project at which O'Neal was working was located. When he reported for work on the following day, he was advised by Respondent that weather conditions made it impossible to con- tinue the roadbuilding project on which he was employed as a bulldozer operator. O'Neal continued to report each morning to the project site in the hope that work would resume. On the morning of September 15, while riding to the project site in the automobile of Dillard Shelton, his foreman, Shelton told O'Neal that the Respondent "knew about mine and Jameson's [an alleged discriminatee] union activities, and that they were out to fire us or get rid of us some way or other; that we had better watch our step." 12 Some time after he arrived at the project site, 7 N.L.R.B. v. Condensor Corporation of America, 128 F 2d 67, 75 (C A. 3). S N L R B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A 2). 0 Dannen Crain and Mzlh.nq Company v N L.R.B., 130 F. 2d 321, 328 (C.A 8). 10 Shell Oil Company v. N L.R.B , 196 F. 2d 637, 639 (C.A. 5). 11 The relevant provisions of the National Labor Relations Act, as amended (61 Stat. 136, 65 Stat 601, 72 Stat. 945, 29 U.S.C, Sees 151, et seq ), are as follows: RIGHTS OF EMPLOYEES Sac 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, 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, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a) (3) UNFAIR LABOR PRACTICES Sac 8 (a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; R t M ; • 4 R (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: t s a • • t t 121t is found that Shelton had actual authority as a supervisor within the meaning of Section 2(11) of the Act, as he had authority responsibly to direct employees under him, as well as authority effectively to recommend layoff or discharge of such employees. Moreover, Shelton was also held out as a supervisor by the Respondent and was so re- garded by the Respondent's employees and thus had authority to represent the Respondent. Furthermore, Shelton attended a company meeting called by Respondent on October 1, EWELL ENGINEERING & CONTRACTING CO., INC. 549 O'Neal inquired from Bobby Love, assistant superintendent, if there would be work that day. Love told him that it would probably be 2 to 3 weeks until construction would recommence and that it was decided to lay him off, whereupon Love handed ,O'Neal a printed slip of paper captioned "Notice of Separation" which had written upon it in longhand: "Layoff due to lack of work." 13 Nevertheless, O'Neal continued, at various times thereafter, to return to the project site to inquire when there might be work for him but Love told him each lime there was none, although O'•Neal testified that he saw the bulldozer he had formerly operated being used sometime in the early part of October by another operator named Conrad Cobb. On cross-examination, O'Neal testified that when he was told repeatedly by Love, the assistant superintendent, that there was no work for him, he said to Love, "If my machine went back to work and I didn't get to go to work on it, that I would consider that lay-off slip as a fired slip for my union activities. .. ." Respondent's defense to its action in not recalling O'Neal to his former position when the road project on which he had been employed was reactivated after the ,effects of the hurricane had passed, is that they suspected O'Neal was responsible for the sabotage of some of their road construction equipment. Respondent also defends on the ground that O'Neal has a criminal record and that it is company policy not to hire or to retain knowingly an employee with a criminal record.14 On August 24, 1960, damage in excess of $8,000 was done to 10 of Respondent's machines, including the bulldozer O'Neal operated, by putting sugar in the gas tanks. This was confirmed by a report from a laboratory on August 31. One of Re- spondent's employees, Shelton Moore, reported to the Respondent's supervisor, Amos Ready, on or about September 13, when it was common knowledge among the em- ployees that sugar had been found in the gas tanks of 10 pieces of equipment, that he recalled having seen a sack of sugar in O'Neal's automobile around the middle of July 1960. Another employee reported to Respondent that O'Neal had been boast- ing about his "moonshining" activities which was subsequently confirmed on or about September 13, by a check of police records by Respondent which showed O'Neal had been convicted for illicitly making liquor. These circumstances, Re- spondent alleges, convinced it that O'Neal's services should be terminated, as D. S. Galloway, vice president of Respondent, suspected O'Neal was the one who had placed the sugar in the gas tanks of their machines. Galloway testified that this decision to terminate O'Neal was made around September 15. Galloway explained this by stating O'Neal "was laid off [originally] because of weather conditions [the hurricane on September 10] and that he was not recalled when it was learned on or about September 13 that he had a criminal record." 15 Dillard Shelton, who was employed by Respondent from November 1959 to November 14, 1960, at which time he left voluntarily, was O'Neal's foreman 16 from January 1960 until O'Neal left Respondent's employ. Shelton testified that on or about September 13, 1960, he had a conversation with J. B. Hampton, Respondent's general superintendent, with respect to the union activities of certain employees. Shelton's testimony continues as follows: Hampton came up on the job that day and asked me if I knew about union activities that was going on; told me that O'Neal and Jameson had beaten the bushes around on all the other jobs around, trying to get the men to sign union cards and Mr. Hampton at that time asked me why I didn't fire O'Neal; and I told him that O'Neal was a good man, and I didn't have any reason at that time to fire him. He was one of the best men I had. "A few days" later, Shelton testified, while driving O'Neal to the project site, he "warned O'Neal . that [Respondent] knew about his union activities, and he should be careful, because they were looking for an excuse to fire [him]." 1960 , which limited attendance exclusively to supervisors See supra International Association of Machinists, Tool and Die Makers Lodge No 35 (Serrick Corp ) v. N L R.B , 311 II S 72, 80: N L R B v. Southern Airways Company, 290 F 2d 519 (C A. 5) ; N L.R B v Cleveland Cliff Iron Company, 133 F 2d 295, 301 (CA. 6) "Respondent's Exhibit No 3 Printed on the "Notice of Separation" is the following: "Discharged for misconduct" but the words "for misconduct" are crossed out "O'Neal did not fill out a written application form when he was hired so there is no question of misrepresentation Moreover, the Respondent's application form does not ask applicants for employment if they have ever been arrested or convicted 15 O'Neal pleaded guilty on August 1, 1955, to having in his possession distillery appa- ratus for which he was fined $500 or, in default thereof, 0 months in prison 10It is found that Shelton was a supervisor for the reasons stated at footnote 12 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shelton testified that O'Neal reported for work on September 15 and he assigned him to moving a machine which took a few hours and then he told O'Neal he could leave for the day. This was the last day O'Neal was paid for any work he did for Respondent.17 Later that same day, Shelton testified, Love, assistant superintendent, told him "that he had gotten rid of O'Neal." Shelton also testified, that about a month later sometime in October, "after O'Neal was fired," Hampton, superintendent, told him that another employee, by the name of Philip Davis, "was carrying the ball now for the Union, and asked me at that time to get rid of Davis.. .. Hampton denied that any of these various conversations which Shelton testified to had ever occurred. Conclusions We have here then a situation in which Shelton testified such conversations oc- curred and Hampton denying it. Nevertheless, after observing these two witnesses testify, analyzing the record, and the inferences to be drawn therefrom, and for the reasons explicated immediately below, the version told by Shelton is credited. Moreover, when the weakness and improbabilities inherent in the assigned rea- sons for O'Neal's discharge are weighed against the countervailing circumstances, both of which are delineated below, it is believed that his discharge was discrim- inatorily motivated. Corroborative of this conclusion is the uncontradicted testimony of Ben Cook, a foreman, that he had a conversation with Love, assistant superin- tendent, about September 1, regarding union activities among Respondent's em- ployees. Cook testified that Love: told me that Mr. Hampton [superintendent] told him that the men on the job that we were on, 301, had been participating in union activities, and said for me to keep my eyes and ears open and try to find out who the leaders were, and report back to him, let him know. And he said that he would clamp down on them. Turning now to a consideration and evaluation of the Company's defense, the reasons ascribed for O'Neal's discharge are not persuasive. The Respondent urges that O'Neal was discharged as they suspected it was he who sabotaged their equip- ment because he had been seen with sugar in his auto 2 months before his discharge, and he had a criminal record for "moonshining." If this were so, it was indeed good cause for discharging O'Neal but Respondent never told O'Neal this was the reason when they terminated him on Sepetmber 15. The reason given him and written on the "Notice of Separation" (Respondent's Exhibit No. 3) was "laid off due to lack of work." 18 This variation of the grounds subsequently stated for O'Neal's discharge casts doubt upon the meritoriousness of the Respondent's de- fense. And the Company's inconsistent explanations for O'Neal's termination is a circumstance indicating its motivation.19 It is found, therefore, that the reasons subsequently alleged for the first time at the hearing for discharging O'Neal were spurious and a pretext to screen Respondent's discriminatory motivation. Then, too, "if employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency, there is none- theless a violation of the Act." 20 Motivation is a subjective matter, which if found, must be found from objective circumstances established by the record after duly considering all countervailing testimony. One of the objective circumstances in this case is O'Neal's intensive union activities, of which Respondent knew, as evidenced by Superintendent Hamp- ton telling Shelton, who was O'Neal's foreman, that O'Neal was in the forefront of the Union's effort to organize Respondent's employees. Corroborative of this conclusion is the fact that O'Neal was the most active em- ployee in the union organizational campaign. It was he who prevailed upon the Union to undertake to organize Respondent's employees. He signed an authorization card on September 8, 1960, when the union campaign was in its initial stage. O'Neal 17 Hampton testified that the last day O'Neal worked was on September 7, although O'Neal's "Notice of Separation" (Respondent's Exhibit No 3) is dated September 15, 1960 It is found the last day he worked was September 15 Is See footnote 13, supra "I N L R B v. C W Radcliffe and W W Mane? e, d/h/a Homedale Tractor & Equip- ment Company, 211 F 2d 309, 314 (C A. 9) ; N L R B v Somerset Shoe Company, 111 F 2d 681 (CA 1) ; see also Mooresville Mills, 99 NLRB 572, 600; Sandy Hill Iron & Brass Works, 69 NLRB 355, 377, enfd 165 F. 2d 660 (CA 2) ; Lewis & Holmes Motor Freight Corporation, 63 NLRB 996, 1008 21 N L R B. v Jamestown Sterling Corp , 211 F 2d 725, 726 (C A. 2). EWELL ENGINEERING & CONTRACTING CO., INC. 551 took on the responsibility of talking to coworkers as well as obtaining 18 of them to sign union authorization cards. The importance of his role takes on added sig- nificance in the light of the fact that Respondent's entire complement only comprised approximately 300 employees. Another objective circumstance indicating motivation in this proceeding is Foreman Shelton's testimony that the manner in which O'Neal was terminated did not accord with normal company procedures. Love, before discharging O'Neal, did not con- sult or confer with Shelton, who was O'Neal's immediate supervisor. Shelton testi- fied that when Love, assistant superintendent, told him on September 15 he had "gotten rid" of O'Neal, that this was "unusual," in that he (Shelton) in the past had fired all men directly under his supervision (which O'Neal was), but when O'Neal was discharged, "Love more or less went over my head, and did it." More- over, Shelton testified, that the first time he learned O'Neal was fired was when Love advised him on September 15 that he had "gotten rid" of O'Neal 2i Then, too, Respondent claims it decided to discharge O'Neal on September 13, but fails to explain its inconsistent action in not so advising him and permitting him to work on September 15. This inconsistency tends to indicate that the assigned reason for his discharge was an afterthought. Nor is it "natural" that Respondent would continue to refrain from telling O'Neal the real reason that he was being fired, when he continued to return to the project after September 15 to ask for work. The natural thing would have been to advise O'Neal that he was being fired because of Respondent's suspicions he sabotaged the machines and his criminal record instead of continuing to stall him 22 O'Neal was not apprised at any time by Respondent that he was being terminated because of their suspicions about the sabotage incident and his criminal record which Respondent later relied upon at the hearing to explain its action. In fact, O'Neal testified that he was led to believe that when there was work, he would be re- called. Respondent's silence in not telling O'Neal why he was being discharged, unexplained at the hearing, leads to a reasonable inference that O'Neal's union activity was the operative cause and these belated reasons were specious after- thoughts, used as a pretext to conceal the fact that O'Neal was not recalled because of his union activities and solicitation of employees. It is well settled that "the failure to notify [an employee of] the reason [for his discharge] naturally raises some doubt as to whether it was really the cause of his discharge." 23 It was only after O'Neal saw his machine being operated at the project site by another employee that he came to the conclusion that he was fired. It is not believed that a nondiscrimina- torily motivated employer would have acted so unreasonably under such circum- stances. It is much more reasonable to infer that O'Neal's union activities toward which Respondent was hostile, was the real reason for this attitude.24 Then, too, it is not believed plausible that O'Neal would sabotage the machine be operated and thus result in putting himself out of a job during the time it would take to repair his machine. Shelton, under whose immediate supervision O'Neal worked, testified that shortly after O'Neal left Respondent's employ, Hampton, gen- eral superintendent, asked him if he thought O'Neal had put sugar in the company equipment to which Shelton replied: "No, I didn't think so, because O'Neal had too much to lose to put sugar in the machines . . . because a man that was hard up, as most of those men were who were working there, they wouldn't do anything to hurt their jobs, because with a man just getting by, or no more than we had been working due to weather, a man going out there and doing something to his own machine so he would have to lay off some more, it didn't make sense to me " One of the damaged machines was operated by O'Neal. Corroborative of Shelton's opinion is the fact that the record is devoid of any suggestion as to why O'Neal, with a record of faithful service behind him, should commit an act of sabotage on his own machine which resulted in depriving him of his livelihood for 2 weeks, which was the length of time it required to repair his damaged machine. Then, too, Galloway, vice president of Respondent, testified that a private in- vestigator by the name of Fullmer was hired to investigate the sabotage incident. sx Cf N.L R B v. Chaaitaugvia Hardware Corporation, 192 F 2d 492. 494 (C A. 2) 22 See E Anthony h Sons. Inc v NLRB , 163 F 2d 22, 26-27 (C A.D C ), where the court said: "Such action on the part of an employer is not natural If the employer had really been disturbed by the circumstances it assigned as reasons for these discharges, and had no other circumstances in mind , some word of admonition, some caution that the offending lapse he not repeated, or some opportunity for correction of the objectionable practice, would be almost inevitable" 21 NLRB v. National Casket Company, Inc., 107 F 2d 992. 998 (C A 2). See also N L R B v El Paso-Ysleta Bits Line, Inc, 190 F 2d 261, 262 (CA 5) 24 See supra 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Galloway testified that the investigator "named some names." When Galloway was asked who of Respondent's employees, in addition to O'Neal, was named by the investigator, he replied that he did not remember. It is incredible that he would not remember such a vitally important thing as the names of the employees toward whom the finger of suspicion pointed, in view of the fact that the damage to these machines amounted to over $8,000. Furthermore, the investigator, Fullmer, was not called as a witness by Respondent to testify to this important and material matter which goes to the heart of the O'Neal termination. Failure to adduce evidence peculiarly within a party's knowledge warrants the inference that such evidence, if adduced, would not have been favorable 25 Considering all these objective factors, it is concluded there is a causal chain linking O'Neal's discharge to his union activities. Still another objective circumstance is the Company's union antipathy, as evidenced by its supervisors warning employees that Respondent would shut down before it would go union, and the meeting called by Respondent on October 1, and attended by all its supervisors at which means for combatting the Union were considered, details of which are discussed in later sections of this decision. Against the evidence of Respondent's suspicions that O'Neal might have been the perpetrator of the sabotage of these machines as well as his criminal record which are alleged by Respondent for his discharge,26 the Trial Examiner has weighed the following evidence, the cumulative force of which commands the most serious con- sideration, namely, the oblique and devious manner in which O'Neal was discharged, in that it did not accord with normal company procedures nor was he informed di- rectly that he was fired or the reason therefor given to him; the timing of the dis- ,charge, the Respondent's union animus and its knowledge of O'Neal's union activities prior to the date of his discharge. All these things considered, it is patent that Re- spondent had some compelling reason for the discharge which its officials did not see fit to disclose to O'Neal at the time. Based upon these indicia, it is concluded that the Respondent's hidden cause was O'Neal's union activity. Moreover, "a justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." 27 Considering the foregoing facts, "not simply in isolation, but cumulatively and com- positely as well," 28 it is found O'Neal was discriminatorily discharged and that his discharge was motivated by his union activities and by Respondent's resentment against the Union, all of which was designed to discourage union activity in viola- tion of Section 8(a) (3) of the Act. 2. John C. Jolley, Jr., and Travis Jolley John C. Jolley, Jr., worked for Respondent from November 1959 until April 1960 as a laborer when he voluntarily left. He returned to work in the same capacity about September 1, 1960, 29 in the Respondent's prestressed concrete yard. Respond- ent is engaged at that site in the manufacture of prestressed concrete beams. A few .days before he returned to work, J. C. Jolley testified that he went out to the pre- stressed yard to see his two brothers, Travis and William, who worked there. On this occasion, he spoke to C. S. Page, superintendent of the Ewell Prestressed Con- crete Company yard. According to J. C. Jolley, Page asked him if he "knew any- thing about the Union situation.. .. He told me that Billy and Travis [J. C. Jolley's brothers] were putting out the union cards." J. C. Jolley returned to the yard a few days later seeking work. At that time, Page said, according to Jolley, "I would rather you wouldn't even come back on the yard until we get this union deal squashed away, because it is hurting us both ways. 25N.L R B v Local 815, Chauffeurs, Warehousemen and Helpers of America, Independ- ent (Montauk Iron d Steel Corp ), 290 F. 2d 99 (C A. 2) ; NL.RB. v Conlon Bros Mfg. Co , 187 F. 2d 329, 332 (C A. 7) ; N L.R B v. Sam Wallick and Sam K Schwalm, d/b/a Wallick and Schwalm Company , et al , 198 F. 2d 477, 483 (C A. 3) ; N L R B v C W. -Radcliffe and W. W. Mancke d/h/a Homedale Tractor & Equepment Company. 211 F 2d 309, 315 (C A 9), cert denied 348 U S 833 ; Interstate Circuit v. U.S. 300 U.S 208, 225, 220 ; Concord Supplies & Equipment Corp , 110 NLRB 1873, 1879 21 O'Neal testified that he told Love, assistant superintendent, about August 1959, in the presence of an employee named John Deal, that he had been convicted for •'moonshining." aT NLRB v Solo Cup Company, 237 F 2d 521, 525 (C A 8) 28 The Canyon Corporation v N L R R , 128 F 2d 953, 955 (C A. 8) 0 Page, superintendent of the prestressed concrete yard, testified J C. Jolley returned to work on September 21, 1960. EWELL ENGINEERING & CONTRACTING CO., INC. 553 We can't hire nobody, and we can't fire nobody, on account of the Union." 30 To this Jolley testified that he told Page, "Well, Pop Yeoman [foreman at the yard] told me to be back in the morning to go to work." Jolley began working in the prestressed yard the following morning as a laborer. As such, his work included working a hyster which was used to lift and move various materials about the yard used in road construction work. The particular hyster he worked on was operated by his brother, Travis. On or about September 1, 1960, when he returned to work for Respondent, he signed an authorization card for the Laborers Union which was given him by his brother Travis and he "talked in favor of the Union to several" employees. In the latter part of October, J. C. Jolley testified that Page, the superintendent, said to him: Well, I hear you aren't for the union. I says, "I'm not for it or against it. If it ever comes in out here it will help me, and if it don't it won't hurt me." So he turned around and he started to walk off, and he says, "I want to use you for a stool pigeon." He asked me had I gone to the union meeting; I told him I had. . . . So he says, "Well, I figured if you wasn't for the union I was going to let you go to union meetings and use you for a stool pigeon." I told him, "I don't stool pigeon for nobody." So he told me, "If it goes any further I will have to call you a liar, because I am not supposed to say anything to you, it is a law for me not to say anything to you about it in any way, form or fashion." On April 29, 1960, Respondent posted the following notice over the timeclock in the office of the prestressed concrete company yard where the men employed there punched in: Beginning this date (April 29, 1960) all hyster and Clark lift drivers will be responsible for keeping all personnel off his machine, off forks, off forms (while transporting) off any load he is transporting. It shall be the driver's responsi- bility to see that this is carried out. Failing in this responsibility would mean- loss of job. (Signed ) C. S. PAGE. On November 10, 1960, at a time when Travis Jolley was operating the hyster in the yard and J. C. Jolley was riding the fork, and while engaged in performing their duties, Page ordered them to come to the office. He told them they were both discharged for violating the company rule posted over the timeclock requiring hyster operators to prevent personnel from riding the fork of a hyster while it was in an elevated position and the hyster was moving horizontally across the ground. Superintendent Page testified that J. C. Jolley said to him, "that he knew what this was all about, that I was firing him for union activity, . whereupon Page said: .. I told him no, that I had certain rules and regulations to enforce, and that I was going to enforce them." J. C. Jolley's brother, Travis Jolley, who operated the hyster in question, began working for the Respondent Company in September 1959. At the time of his, discharge, he was working under the immediate supervision of "Pop" Yeoman and C. S. Page, both of whom it is stipulated are supervisors within the meaning of Section 2(11) of the Act. Travis Jolley signed a union card sometime in July 1960, solicited about 9 co- workers to join the Union, obtained the signatures of a "couple" of them at his home, and attended 8 to 10 union meetings. Approximately 3 weeks after he signed a union card, Travis Jolley testified that Page: ... came up to me and he told me he was not going to force me or threaten me to tell him nothing about it, and then he asked me what did I know about the Union. . . He asked me where did I get my union card. I told him r got it up at the union hall. He asked me how many of the guys was going to, the union meetings, and I told him there were six or eight of us. About 3 weeks before he was discharged on November 10, 1960, Travis Jolley, testified that he had the following conversation with Page in his office: He told me I knowed more about the union than I was letting on, why didn't I tell him? He told me it wasn't too'late for me to pull my union card back that Page's version of this conversation is as follows: "I told J C. that we had some- mess with the Union, that they were trying to organize I believe I told him that I didn't need any more right now, that I wasn't hiring any more right now " 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I had already signed. He asked me did I know what I was doing. I told him yes. He asked me if I knew if they went on strike I would have to strike with them, and I told him yes. He also asked me had I been going to the union meetings and I told him yes. Travis Jolley testified that on November 10, the day he and his brother, J. C. Jolley, were fired by Page, that Tom Scoles, a fellow employee, told him that he [Scoles] had heard "they were looking for an excuse to fire [J. C. ]." As Travis and J. C. began their assigned duties on the hyster on November 10, Travis told J. C. what Scoles had told him. Shortly thereafter, Page discharged Travis and J. C. Jolley, as described above. Both brothers testified that the rule against riding the forks of the hyster had never been enforced and that Page and Yeoman frequently had seen J. C. and other employees violating this rule. Travis testified that sometime during November, just before they were fired, J. C. rode the hyster fork on the average of three or four times a week. Travis also testified that he had never ordered his brother, J. C., to get down from the fork prior to the day they were fired because it was unnecessary as "Yeoman was always there" whenever J. C. was riding the fork. Travis and J. C. were the only employees ever discharged for violating the rule against riding on a hyster fork. Tom Scoles, who is presently employed by Respondent, testified that he rode the hyster fork three or four times and the last time he did this was about 3 weeks before the Jolley brothers were fired. He states that Yeoman, his foreman, was "present" at these times. He also testified that neither of his supervisors, Yeoman or Page, had ever told him not to ride the hyster fork. Scoles also testified that he had seen other employees of Respondent riding the hyster fork as recently as November 1960 and that no one, other than the Jolley brothers, had ever been discharged for violating the rule prohibiting employees from riding the hyster fork while it was in an elevated position and moving horizontally across the yard. Coland Harrell, who is presently employed at Respondent's prestressed concrete yard, testified that he rode the fork of a hyster three or four times since the notice was posted and that Yeoman saw him and that he had seen other employees do the same when foremen were "present." He also testified that Yeoman and Page had never warned him not to do so. J. E. Phillips, another employee, testified to the same effect. Discussion and Conclusions The General Counsel's contention that the Jolley brothers were discharged for their union activities is confirmed by the following credited testimony. Both J. C. Jolley and Travis Jolley related various conversations with their supervisor, Page, which establish Respondent's predischarge knowledge of their union interest and its illegal motivation for their discharges. While Page admitted that these conver- sations occurred, his version differed in some respects from those related by the Jolley brothers. His testimony, therefore, presents an issue of credibility which is resolved, for the reasons hereinafter indicated, in favor of the versions told by J. C. and Travis Jolley. Buttressing this credibility resolution is Page's own testimony that the first time he and J. C. Jolley discussed the Union, he [Page] said: "Well, maybe you know a lot of things that I want to know." Page also acknowledged that during this same conversation, in discussing J. C.'s brothers, Travis and William (who also worked for Respondent), he [Page] said to J. C.: "I don't know that they are in it, but I have a strong suspicion that they are." Page also testified that about a month after this first conversation he asked J. C., "Have you heard anything? And he [J. C.] said, `No, these people know that I am not for the Union and they don't talk about it to me.' " Superintendent Page also testified that sometime around the first of August he had a conversation with Travis Jolley about the Union. He saw Travis and some other employees talking in the yard and when Page came into view they broke up the conversation and Page said to Travis: "What were you all talking about up there?" And he said, "we weren't talking about anything." I said, "You mean you were standing there talking and weren't saying anything?" And he said yes. I said, "Perhaps you don't have anything to tell me about what you were talking about?" And he said no. I said, "Are you sure?" He said, "Oh, you mean about this union thing?" And I said, "What union thing?" And he said, "These union cards these boys are getting signed." And he said, "These union cards they are signing out here." I said, "I don't know anything about them," and I think I said, "Well if there is anything being signed I would like to know about it." EWELL ENGINEERING & CONTRACTING CO., INC. 555 About 3 or 4 weeks later, Page testified that he had another conversation with Travis Jolley about the Union. It occurred in the company pickup truck which Page was driving. While they were riding around "some way or other the union got brought into it," Page testified, "and I don't remember exactly what happened, but anyway he [Travis Jolley] said that he had went to a union meeting the previous night, to find out what it was all about; that he wanted to see what was going on." Q. Did he say anything else? A. Yes, he told me all who was down there at the meeting. Q. Who did he name? A. I believe he named George Dyess, Lowell Langley, Tom Scoles, William J. Doster, Ydell Mondy, and I believe he said all of the Basinger boys. Q. Did you say anything to him after he told you who all were at the union meeting? A. These things were all conversation, and I didn't make any notes as to what I had said or what I had not said, but I probably said "Well these things were good to know," or "I would like to know about these things." Then, too, the precipitate and summary manner in which the Jolleys were dis- charged in view of the fact that they and other employees repeatedly had violated this company rule forbidding employees from riding a hyster fork, with no penalty exacted until the Jolleys' discharge, leads to the belief that their discharges were il- legally motivated It is not normal business practice for an employer, without warning, to discharge employees, ostensibly efficient ones, for conduct which it had tolerated over a protracted period of time in the past. In these circumstances and bearing in mind the time of the discharges in relation to the Jolleys' union activities and Respondent's manifest disapproval of such activities, the conclusion is inescap- able that it was not J. C. and Travis Jolley's violation of the company rule, but rather their union sympathies which was the real reason for their discharge. It is believed that resuscitating this stale violation was a mere pretext concocted by the Respondent to disguise its real purpose for discharging the Jolleys, namely, to rid itself of two union adherents. The repeated rule violation "did not become intolerable to Re- spondent until [they] began to play [their] leading part in the affairs of the Union." 3i As was said in Magnolia Petroleum Company v. N.L.R.B.,32 "until the union issue arose, these complained of acts . were all condoned and would have continued to be condoned; . the straw that broke the back of petitioner's tolerance and condonation was the union activity. . The evidence summarized above discloses that the Respondent was well aware of the Jolley brothers' organizational activities as evidenced by Page not only interrogating them about the Union but also urging J. C. Jolley to revoke his union bargaining authorization card. There remains for consideration the question as to whether the Respondent's evidence that the Jolleys were discharged for violating a company rule was refuted by the General Counsel's case that their discharge was rooted in its desire to abort the incipient organizational activities of the union adherents by discharging them. Although Travis and J. C. Jolley violated the company rules against riding the hyster fork, it is believed that the Respondent seized upon this incident as a pretext to discharge the Jolleys for their union activities and interest. This conclusion is based on the record as a whole and particularly on the following significant facts, which are substantially undisputed: 1. There is no question that the brothers were satisfactory employees. 2. No other employees were criticized, reprimanded, or discharged for riding the hyster forks. 3. No action was taken against Travis and J. C. Jolley until after Respondent became aware of their union activities. Except for the Respondent's action in discharging the two Jolleys because of the November 10 infraction of the Company's posted rule, there is no evidence of enforcement of the rule before that date, although the Respondent was often aware that the rule had been broken 33 It is believed that the disparate application of the posted hyster rule becomes apparent upon consideration of the testimony of Scoles and Harrell, fellow employees. Their testimony showed the rule was not N L R R v Moss Planing Mill Co, 206 F 2d 557, 559 (C A 4) 32 200 F 2d 148, 149 (CA 5) 33 Leonard Carden, who was employed by Respondent until June 26, 1960, testified that in May 1960, 6 months before the Jolleys were discharged, he was riding the fork of a hyster operated by an employee named Edwards and that Page reprimanded Edwards 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforced until the Jolleys were fired, and that Respondent was aware it was being violated by other employees including Scoles and Harrell themselves. Great credence has been placed upon Scoles' and Harrell's testimony, as they were em- ployed by Respondent at the time they testified. As such, they depended on their jobs for their livelihood and they understood that after testifying adversely to Respondent's interests that they must continue in the employ of the Company. Considering the circumstances under which the hyster incident, which led to their discharge, occurred, and that other employees were neither discharged nor repri- manded for riding hyster forks, it can validly be concluded that the Respondent had other motives in discharging the Jolley brothers. And when the weakness and improbabilities inherent in the assigned reason for the discharges are weighed against the dischargees' satisfactory services with Respondent, one of them (Travis) being a prominent union advocate, the Company's antiunion animus, the summary nature of their discharges so soon after they become union advocates, and finally Supervisor Page's admission of his union conversations with both of them-it is concluded that J. C. and Travis Jolley's discharges were discriminatorily motivated. If employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency, there is nonetheless a violation of the . . . Act.34 While it is true the Jolley brothers violated the company rule, the record es- tablishes that the rule was far from inflexible, laxly enforced, and "honored more in its breach than in its observance" by company personnel in the past and that no prior discharges for this reason had ever occurred. It is also true that the deci- sions have never denied to an employer the resort by an employer to promulgate in advance regulations or rules prescribing working conditions. However, in the case of particular discharges, the purported resort to enforcement of employees' working rules is sometimes found to be merely a pretext to conceal the antiunion motive for the discharge. It is believed that such was the case in this proceeding: namely, that this was a pretext and did not motivate the Respondent in discharging them. Based upon the circumstances delineated above, it cannot be said that the Jolley brothers were "fired for a violation of the rule as reasonably inter- preted." 35 On the contrary, it is believed that this harsh and precipitate application of the no-fork-riding rule was motivated by a desire to get rid of two union adherents because the rule had not "heretofore been consistently applied." 36 Granting that the Jolleys violated the rule, the question is not whether Respond- ent "had good cause" for the discharge of said employees but whether such cause was the real reason for the discharge.37 It is believed that the Respondent did not feel the concern about this dereliction which they now express and was not motivated by it in discharging the Jolley brothers. It is found, therefore, based upon the factors discussed above, that the Jolleys' union activities caused or con- tributed to their being discharged by the Respondent33 In these circumstances , and upon the evidence in its entirety , it is concluded and found that J. C. Jolley's and Travis Jolley's discharges were unrelated to the violation of the rule forbidding riding on a hyster fork but was, on the contrary, motivated by the Respondent's desire to discourage interest in the Union and to forestall or- ganization of its employees by the Union, and that the Respondent thereby engaged in unfair labor practices proscribed by Section 8(a)(3) and ( 1) of the Act.39 3. James C. Jameson Jameson went to work for the Respondent in September 1959 as a bulldozer operator. On September 8, 1960, at the request of O'Neal , he signed an Operating 84 N L.R.B v Jamestown Sterling Corp , 211 F . 2d 725, 726 (C A 2). es N.L R.B. v West Point Mfg Co. (Lanett Mill), 245 F. 2d 783, 789 (C.A 5) se N L R B. v. Armstrong Tire and Rubber Company, Tire Test Fleet Branch, 228 F. 2d 159, 161 (C A. 5) 8r N.L.R B v WTVJ, Inc., 268 F 2d 346, 347 (C A 5). as See N.L R B v. Whiten Machine Works, 204 F. 2d 883, 885 (C A. 1) ; N.L R B v Dixie Shirt Company, 176 F. 2d 969. 974 (C A 4) ; N.L R B v A B Swsnerton, Richard Walberg and Howard Hansard, d/b/a Swinerton and Walberg Company, 202 F. 2d 511, 515-516 (C A 9), cert denied 346 U.S 814 ee See N.L R.B. v. Continental Pipe Line Co., 161 F. 2d 302 (CA. 5), enfg. 67 NLRB 389, where Respondent contended an employee was discharged because of violation of a company rule. The court found that he was singled out and discharged by Respondent because they were displeased with him for his union activities and that the violation of the rule was a pretext to justify his discharge. EWELL ENGINEERING & CONTRACTING CO., INC. 557 Engineers union authorization card at the project where he was working. At the time he signed this card, his foreman, Ben Cook, was standing about 6 to 8 feet away from him. After he signed a union card, Jameson also spoke to approximately 20 to 30 employees at various company projects with respect to the Union. He also attended union meetings during this same period of time. The last day he worked for Respondent.was on Friday, September 9, 1960. The following day, a hurricane passed through this section of Florida so that he did not report for work until Tuesday, September 13. At that time, he was told there was no work due to the wet condition in which the hurricane left the Respondent's rock quarry where Jameson was employed operating a bulldozer 40 He returned to the quarry on September 19 to inquire if work had resumed. Hampton, the Respond- ent's superintendent, informed him about 7 a.m. on the 19th that there was still no work due to the wet condition of the ground. Ben Cook, the foreman at the quarry, testified that he was at the quarry on September 19, and "it seemed awful dry up there to me. I didn't see any water standing." Jameson testified that as of September 9, the last day he worked before the hurricane, he had been engaged at the quarry in removing overburden by the bull- dozer.41 He testified that he saw his bulldozer being operated by H. L. Adams at the rock quarry on September 19 to remove overburden. Jameson also testified that from September 9, the last day he worked, until September 19, when he was at the quarry inquiring when he might return to work, he could see that work had been done in this intervening period of time in removing additional overburden. He further testified that he knows from being at the quarry on September 19 that the machine he had been operating immediately before the last day he worked had been used sometime between September 9 and 19, because "this machine that I ran had a track wider than the other machines that were up there, . . . ; It was an old antique, and that is why I know the machine that I ran was the machine that did the work." Ben Cook, foreman at the quarry, testified that as of September 19, it would have taken an additional month to complete the job of removing over- burden that Jameson had been engaged in before the hurricane. Hampton, Respondent's superintendent, testified there was no stripping of the overburden by means of bulldozers after the hurricane but that overburden was removed by draglines and truck, after Jameson was "laid-off." Hampton acknowl- edged, however, that the bulldozer Jameson had operated remained at the quarry after the hurricane and that it was used "at times" during the period Jameson was not working by another operator named H. L. Adams, to build a dike for stripping at the quarry. Hampton also admitted that Jameson's bulldozer, No. 764, was operated by Adams at various times beginning on September 14, and continuing until December 5, 1960, and that Adams was taken off his own tractor and trans- ferred to Jameson's tractor and another employee named Farnan took over the operation of Adam's tractor. Jameson testified that Amos Ready, one of Respondent's supervisors, and his wife visited with him at his home on or about September 17 and during the course of their visit, Ready told him "the Company felt that I was a union leader and they were out to get me . . . for the union activities." Ready and his wife denied this was said. Cook, who was Jameson's foreman, also testified that Ready said to him on September 14, "I heard you and all your men on the 301 job has gone union." Foreman Cook also testified about a conversation he had with Love, project superintendent, around September 1, the details of which are set out above, in which he was told to be on the lookout to ascertain which of the employees were engaged in union activities and to report back to him [Love] in order that Re- spondent could "clamp down on them." Shelton, another foreman, also testified that Hampton, Respondent's superintendent, told him on or about September 13 that Jameson was "trying to get the men to sign union cards." See supra. After Jameson was idle about a month, he telephoned the Respondent's office on October 9 and asked to speak to Hampton. When he was informed that Hampton was not in, he spoke to Galloway, vice president, asking him when he might expect to return to his job. Galloway told Jameson to leave his name and address and he 0 Cook, foreman at the quarry, testified that Hampton, superintendent, notified him on Sunday, September 11, at 6:30 a m., ,to lay off all my men for two or three days on account of high water in the quarry. . . Cook also testified that Hampton advised him on September 14 that the effects of the hurricane prevented resumption of work at the quarry and that it would be at least 2 weeks before anything definite would be known as to when operations could begin at the quarry again. n This is the earth above the rock which it is first necessary to -remove in order to get at the rock located 'underneath the overburden. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would see that Hampton received the message . When Jameson did not have his telephone call returned by Hampton , he telephoned on two other occasions, the last time in November, but neither time did Hampton contact him. Jameson also testified that he never received a layoff notice from Respondent. Conclusions The only disputed question of fact in Jameson's case, therefore, is whether he was discharged, as the General Counsel asserts, or merely laid off because of lack of work as Respondent claims. Respondent contends that Jameson has never been discharged but merely laid off until such time as work is available at which time he will be recalled. The facts detailed above show that Jameson was an outspoken union adherent and that Respondent knew of Jameson's union activities . It is also uncontradicted that Respondent's defense that there was no work available for Jameson is belied by the fact that the machine he operated prior to the hurricane was working from September 14 until shortly before the hearing in this case began . There is no question about the quality of Jameson 's work and that work was available , so that the conclusion is inescapable that the Company 's failure to return his telephone calls asking for work, and his not returning to work was motivated by his union activity. The inference , arising from this sequence of events is that the failure to recall Jameson was intended to effectuate discriminatory purposes . This inference is bolstered by other facts. Thus, the reason given Jameson that no work was avail- able, was plainly false, as it is squarely contradicted by the objective fact that the bulldozer he operated prior to the hurricane went back into operation on Septem- ber 14. This was never explained . Moreover, this conclusion is strengthened by the fact that Respondent's attempted explanation that there was no work does not "stand up under scrutiny ." 42 On these facts, and the record as a whole, which shows the Respondent's antiunion attitude and other unfair labor practices, it is found that the reason Jameson was not recalled was because of Respondent's re- sentment of his activities on behalf of the Union and not because of lack of work. The background of antiunion purpose manifested by the conduct of the Respond- ent is a "persuasive interpreter of [its] equivocal conduct" when its "activities [are] viewed in the light of manifest interest and purpose " 43 The Trial Examiner is of the belief, therefore, that but for Jameson's union activities, which Respondent knew of as evidenced by Superintendent Hampton telling Supervisor Shelton on Septem- ber 13, that Jameson was signing up employees for the Union (supra), the Re- spondent would have recalled him after the hurricane , and that its not doing so was designed to retaliate against a union proponent . It is concluded, therefore, that the real reason Jameson was not recalled was Respondent 's desire to rid itself of an irritating nucleus of union adherents and sympathizers of which Jameson was one, because of its antipathy to the Union , and thus abort the Union's incipient or- ganizational efforts. This treatment of Jameson by Respondent, which was moti- vated by his union activities, discouraged membership in labor organizations and, accordingly, violated Section 8(a)(3) of the Act, as well as Section 8(a)(1).44 4. George W. Dyess Dyess went to work for Respondent in September 1960 as a laborer. Sometime in the middle of October Dyess signed a union card . This was the extent of his union activity. He testified that a week later, his foreman, Edwards, said: some of the guys up there thought they couldn't be fired on account of they were trying to get the union in out there, and that one of these days he was going to surprise them, he was going to show them that they could be. And I told him I had signed a card, and I had an idea that if he would fire all of them that had signed cards on the job he would have to fire the whole 42 N.L R.B v Abbott Worsted Mills, Inc, 127 F 2d 438, 440 (C A 1) ; N L R B v J G Boswell Co, 136 F 2d 585 , 595 (CA 9). See also NL.RB v. Weyerhaeuser Timber Company ( Clemons Branch ), 132 F 2d 234, 236 (C .A. 9) ; N L.R B. v. Bird Machine Company, 161 F. 2d 589 , 592 (CA. 1). 48 Texas and N 0 R Co v Railway Clerks, 281 U S. 548, 559 i4 N.L R B . v Jones Sausage Co & James Abattoir Co , 257 F. 2d 878, 881-882 (C A 4), where the court said : ". . economic reasons may not be asserted to shield an em- ployer . . . [if an employee] would not have been laid off but for his union activities or membership . . 11 See also N L.R.B. v. Dixie Shirt Company, 176 F. 2d 969 , 973-974 (C.A 4) ; N L.R B. v. Electric City Dyeing Co , 178 F. 2d 980, 983 (CA 3). EWELL ENGINEERING & CONTRACTING CO., INC. 559 yard. Then I asked him if he wanted to give me my time, and he said no, he couldn't afford to right then. On November 4, 1960, Dyess overslept resulting in his being 11/2 hours late for work. This was the third time he was late. He was discharged by Foreman Edwards. He was late for work on two prior occasions; the first time, Dyess testi- fied, he was late about 7 minutes, and the second time about a half hour. The sec- ond time, Dyess testified, he was warned by Edwards who told him "that he didn't have to put up with us being late, and he wasn't going to." The General Counsel contends that Dyess was discharged for his union activities; the Respondent for good cause, namely, Dyess being late on three occasions within a period of less than 2 months. Section 10(c) of the Act forbids reinstatement of an employee discharged "for cause." The legislative history of the Act reveals that when the meaning of the phrase "for cause" was discussed in the Senate by Senator Taft, he had the following to say with respect to it: It merely states the present rule. If a man is discharged for cause, he cannot be reinstated. If he is discharged for union activity, he must be reinstated. In every case it is a question of fact for the Board to determine.45 In determining whether the discharge was motivated by Dyess signing a union card or "for cause," the burden of proof was on the General Counsel to establish and sustain the allegations of his complaint by a preponderance of the probative evi- dence, and where a discriminatory discharge, as here is charged, then he must estab- lish by a preponderance of the evidence that such discharge was discriminatory.46 Moreover, when the Respondent's explanation of the discharge is a reasonable one, that the discharge, as in this instance, was due to Dyess being unreasonably and inexcusably late for work on two occasions, and, 7 minutes tardy a third time, within a period of 2 months after going to work for Respondent, then the General Counsel must establish that such discharge was discriminatory. However, when the Re- spondent's explanation of the discharge is a reasonable one, that the discharge was due to Dyess' inexcusable tardiness, the burden of going forward with evidence shifts to the General Counsel to establish the falsity of the explanation and the truth of his own interpretation.47 Merely showing that Dyess signed a union card is not sufficient to establish a prima facie case. Here, the union activity was limited to signing a union card, and there is no basis for inferring that Respondent had knowledge of this limited union activity by Dyess.48 Substantial evidence requires that there be more than a suspicion of the existence of the fact to be established.49 Such evidence did not relieve the General Counsel of his burden of affirmatively proving that Respondent had knowl- edge of the alleged discriminatee's interest in, and activity on behalf of, the Union. Nor does Dyess' uncorroborated, self-serving testimony of his conversation with Edwards, his foreman, supra, meet the requisite burden of proof. Therefore, the Trial Examiner is satisfied that the foregoing facts and circumstances fail to expose by a preponderance of the probative and credible evidence that Respondent's pur- pose for discharging Dyess was discriminatorily and unlawfully motivated 50 D. The alleged violations of Section 8(a) (1) The complaint alleges that "during the latter part of August, 1960, and on several occasions thereafter in October and November, 1960, the exact dates being un- known, Respondent, by its foremen `Pop' Yeoman and Jim Edwards, told employees that Mr. Ewell would shut down before he would go union. During September, 1960, and in October, 1960, the exact dates being unknown, Respondent, by its supervisor `Pete' Page, interrogated employees concerning their union activities and the union activities of other employees, and asked an employee to inform on the other employees' activities." 4$ Vol 93, Congressional Record, page 6518, column 2 4a Indiana Metal Products Corporation v N L R B , 202 F 2d 613, 616 (C A 7) ; N L R B v Deena Products Company, 195 F 2d 330, 335 (C A 7), cert denied 344 U.S. 827. 47 Martell Mills Corporation v N L R B , 114 F 2d 624, 631 (C A. 4) , N L R B v Entwistle Mfg Co , 120 F 2d 532, 535 (C A 4) 48 Diamond Ginger Ale, Inc , 125 NLRB 1173, 1177, 1178 40 N L.R.B v. Del E. Webb Construction Company, 196 F 2d '702 (CA 8). 50 N L R B. v. United Brass works, 287 F 2d 6'89 (C A 4). 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is concluded and found that by the following conduct, the Respondent engaged in interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act: 1. John C. Jolley, Jr. (J. C.), testified (and it is uncontradicted) that sometime in September 1960 he had heard "Pop" Yeoman 51 state "several times" that if the Union were successful in organizing the employees, "Ewell would shut down." 2. Travis Jolley's uncontradicted testimony that Yeoman on three or four occa- sions made the statement that Ewell would close down if the Union came in. Travis Jolley testified that, "He didn't say he probably would close down; he [Yeoman] said definitely he would close down." 3. Tom Scoles, who is presently employed by the Respondent, testified Yeoman said about seven or eight times that "Mr. Ewell would shut down before he would go union." 4. William C. Jolley testified Yeoman said, "before Mr. Ewell would go union he would close down." 5. C. S. Page,52 by his own testimony, admitted that he asked J. C. Jolley, "Have you heard anything?" In the context in which this was asked, as detailed supra in this decision, Page was inquiring as to the union activities of company employees. 6. Page's own testimony, set out above, in which he questioned Travis Jolley about union activities, particularly the incident with respect to obtaining signatures of employees to union authorization cards in which Page stated, inter alia, "Well, if there is anything being signed, I would like to know about it." ... "or I would like to know about these things." These six incidents in their cumulative effect, it is found, were intended and so timed, in relation to the Union's organizational campaign, as reasonably to have the effect of interfering with employee rights guaranteed to and protected by Section 7 of the Act, and constituted interference, restraint, and coercion in violation of Section 8(a) (1) of the Act. The complaint also alleges that Respondent committed unfair labor practices when "its foreman Jim Edwards told employees that Mr. Ewell would shut down before he would go union." However, the question of whether Respondent is liable for the alleged conduct of Edwards requires a determination of whether Ed- wards is a supervisor within the meaning of Section 2(11) of the Act 53 It is not believed that Edwards has been shown to be a supervisor within the meaning of Section 2(11) of the Act. Accordingly, it is found that the General Counsel failed to establish by a preponderance of the evidence that Edwards is a supervisor, and, therefore, has not sustained his burden of proof. It is, therefore, recommended that this allegation of the complaint with respect to Edwards be dismissed. E. The alleged illegal conduct of Respondent's counsel The third amended complaint alleges that: On or about October 1, 1960, Respondents, by their attorney and agent, Granville M. Alley, Jr., told Respondents' supervisory personnel that it was permissible for them to get some of the employees to become informers for the Company concerning other employees' union activities for the purpose of interfering with, restraining and coercing the employees in the exercise of their rights guaranteed by Section 7 of the Act, and thereafter the supervisors did solicit Respondents' employees to become informers for the Company con- cerning the union and other concerted activities of Respondents' employees. Respondent's answer to the third amended complaint reads as follows: Respondents affirmatively allege that all communication on October 1, 1960, between Respondents' supervisors and Respondents' attorney was privileged communication. Respondents allege that on Saturday, October 1, 1960, a meeting was held by Respondents, their supervisors and their attorney, Gran- ville M. Alley. That said meeting was a confidential meeting held for the 51 It was stipulated that Yeoman was a supervisor within the meaning of the Act. 52 It is stipulated that Page is a supervisor within the meaning of Section 2(11) of the Act. 5 Section 2(11) provides: "The term `supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." EWELL ENGINEERING & CONTRACTING CO., INC. 561 purpose of Respondents' attorney explaining to the Respondents and their supervisors the legal obligations placed upon and the legal rights of Respondents and their supervisors during a union organizational campaign under the Act. On Saturday, October 1, 1960, Respondent called a meeting of all its 30 to 35 super- visors to discuss the activities of the Union among its employees. Shelton, one of Respondent's supervisors, testified, in part, as follows on direct examination and cross-examination: I attended this supervisors' meeting there, and Mr. Alley went over a super- visor's manual with us. He distributed them out among the supervisors, and Mr. Alley went over the supervisors' manual with us page for page on this, and discussed it with the men present there; and after he got through there were some questions pertaining to the union, and one incident I remember, Mr. Gill asked the question from the floor, if it was permissible to find out about union activity among the men, employees there, through a third party or another employee. He asked Mr. Alley that question and Mr. Alley stated it would be all right. Whatever it was, Mr. Galloway taken the floor later on during the meeting, and one of the questions arose about how to get rid of a union man. . . . And Mr. Galloway after some little discussion between him and Mr. Alley, Mr. Galloway 'decided that a foreman should watch a known union man, and if-he caught him violating a company rule, for the foreman to go and reprimand him at that time, and he wanted him to take the witness with him, and if he could, send in a note to the office to that effect; and if he caught him breaking the same rule again he was to fire him. And that is about all I can remember about that meeting. On cross-examination, Shelton testified as follows: Q. What were Mr. Alley's words in response to Mr. Gill's question? A. The best I can remember, he said it would be all right. Q. Isn't it possible that'. Mr. Alley may have said something other than the exact words, "That is all right," and you later on in your own mind thought those words? A. I would say it would be possible, yes, sir. Q. Isn't it possible that Mr. Alley could have used other words instead of "That is all right?" A. Well, the best I can remember, that is what he said; but it could be pos- sible, yes, sir. Q. Mr. Galloway made some comment about how you should discharge a man, is that correct? A. Yes, sir. Q. Now I want you to tell me-you testified on direct examination that if they violated a company rule they were to be warned, and if they violated it the second time they were to take a witness and discharge the man. A. Yes, sir. Attorney Alley testified that as attorney for Respondent he was asked by Galloway, the company vice president, to attend the October 1 meeting in order to explain to the supervisors their legal rights and obligations and to answer any questions asked by the supervisory personnel. Alley's testimony continues as follows: There was a question asked by one of the supervisors present, which as I recall the question was to this effect: He asked me if it would be permissible to find out about the union membership of company employees through a third party or their employees. My answer to that was that this would not be advisable. Six supervisors who were present at this meeting corroborated Alley's testimony along with Attorney Petteway, another of Respondent's attorneys, who was also present at this meeting. The question of credibility raised by the above-quoted testimony is resolved in favor of the version related by Respondent's witnesses. This is not to indicate that Shelton is not believed to be a credible witness. On the contrary, it is the belief of the trier of these facts that Shelton was a forthright and honest witness, as shown by his testimony as to other aspects of this case, supra, which has been credited. It is believed, and his cross-examination, supra, indicates, that he was honestly mis*,aken and perhaps confused as.to what Alley exactly said at the supervisors' meeting when it is considered that he was testifying with respect to technical and precise legal terminology and to an event which had occurred almost a year prior to the hearing. It is not believed that Shelton deliberately lied, but rather that he was prey to "the 630849-62-vol . 134-87 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fallibility of the human memory, the infirmities of the human mind, the weakness of human understanding and recollection." 54 Moreover, it is believed that Respondent's attorney, Alley, was not attempting to interfere with, restrain, or coerce employees in their organizational rights, but rather to advise the supervisors who attended the meeting of what they legally could do and could not do with respect to the Union's organizational campaign. It is found, therefore, that it has not been proved by a preponderance of the probative evidence that Alley engaged in any illegal conduct. Accordingly, it is recommended that the allegation of the complaint with respect to the alleged unfair labor practice on the part of Alley be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it shall be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent discriminated in regard to the hire and tenure of employment of Claude Laverne O'Neal, James C. Jameson, Travis Jolley, and John C. Jolley, Jr., by discharging them because of their union activities. It shall, there- fore, be recommended that the Respondent offer to Claude Laverne O'Neal, James C. Jameson, Travis Jolley, and John C. Jolley, Jr., immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of such discrimination, by payment to them of a sum of money equal to that which they would have earned as wages from the date of their discriminatory discharge to the date of the offer of reinstatement, less their net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and approved in N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. It is also recommended that the Respondent make available to the Board or its agents, upon request, payroll and other records to facilitate the checking of the amounts of backpay due. Inasmuch as Respondent's antiunion activities are considerable in manner and scope as to indicate an attitude of general opposition to employees' rights, it will be recommended that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4); May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Union of Operating Engineers, Local 925, AFL-CIO, and Inter- national Hod Carriers, Building and Common Laborers Union, Local 1240, AFL- CIO, are labor organizations within the meaning of Section 2(5) of the Act. 2. The Respondent, Ewell Engineering & Contracting Co., Inc., Ewell Prestressed Concrete Co., and Ewell Concrete Pipe Co. are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating with regard to the hire and tenure of employment of Claude Laverne O'Neal, James C. Jameson, Travis Jolley, and John C. Jolley, Jr., Respondent discouraged membership in the aforementioned Unions and committed unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication. ] 54 Time Magazine, November 7, 1960, page 50, quoting Mr. Justice Felix Frankfurter.