Automotive Proving Grounds, Inc.

AUTOMOTIVE PROVING GROUNDS, INCORPORATED 431 All our employees are free to become, remain , or refrain from becoming mem- 'bers of International Leather Goods , Plastics & Novelty Workers' Union , AFL-CIO. SAVOY LEATHER MFG. CORP, 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. Employees may communicate with the Board 's Regional Office, 24 School Street, Boston 8, Massachusetts , Telephone Number, Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions Automotive Proving Grounds, Incorporated and United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO Armstrong Tire and Rubber Company and Louie E. Wright and Herman Lloyd Automotive Proving Grounds, Incorporated and Armstrong Tire and Rubber Company, Armstrong Tire Test Fleet and Louie E. Wright, Paul B. Smith, and Fred W. Geissler. Cases Nos. 16-C A-1492, 16-CA-1551, and 16-CA-1552-N-3. October 24, 1962 DECISION AND ORDER On June 6, 1962, Trial Examiner John C. Fischer issued his Inter- mediate Report in the above-entitled proceeding, finding that Respond- ent Automotive Proving Grounds, Incorporated had engaged in cer- tain unfair labor practices and recommending that they cease and desist therefrom and take affirmative action, as set forth in the attached Intermediate Report. He also found that the Respondents named in Cases Nos. 16-CA-1551 and 16-CA-1552-2-3 had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondents and the General Counsel filed exceptions 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 [Chairman McCulloch and Members Leedom and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in I A major portion of this Intermediate Report consists of some 18 pages from Respond- ents' briefs and a portion of the General Counsel's brief, which the Trial Examiner states he "adopts as his own" because he is "unable to improve on this recitation " of the facts while it does not appear that this practice has resulted in prejudice to any of the parties, Chairman McCulloch and Member Fanning do not believe that an Intermediate Report, reciting and adopting to this unusual extent the allegations of either of the adversaries in this proceeding, is a desirable exercise of the Trial Examiner's function to provide the Board with his own recitation of the facts and recommended findings. 139 NLRB No. 33. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these cases, and, except as noted herein adopts the findings, conclu- sions, and recommendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order, with the following modifications: 3 1. Following the word "Respondent" in the third line of opening paragraph, insert the following : "Automotive Proving Grounds, Incorporated, Pecos, Texas." 2, Revise paragraph 1(b) to read: "Threatening employees with discharge or other economic reprisal if they join, retain membership in, or engage in activity on behalf of the Union, or any other labor organization of its employees; engaging in surveillance of union meetings; threatening employees; and interrogating employees as to their union membership, activities or desires, or as to the activities of other employees, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act."' 3, Delete from paragraph 1(c) of the Recommended Order the proviso "except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a) (3) of the Act" and delete corresponding language in the notice 4 4. Add the following as the second paragraph of the notice : NE WILL NOT engage in surveillance of our employees' union meetings. 5, Add the following paragraph immediately below the signature the notice : Noce.-We will notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to. full reinstatement -upon application in accordance with the Selec- tive Service Act after discharge from the Armed Forces. 2 We deem it unnecessary to decide whether Respondents Armstrong and Automotive are in fact as completely separate entities as found by the Trial Examiner For, accepting, as we do, the credibility resolutions of the Trial Examiner, we find insufficient evidence of any discriminatory motivation in Armstrong's shutdown at San Antonio and Autorno- tive's commencement of operations at Pecos, including its staffing of that operation While crediting Bechlin's denial of the statement attributed to him that but for "this damned union activity we wouldn't have to move," the Trial Examiner notes that even such a statement would not have been "actionable in this context." As stated, we are accepting the Trial Examiner's credibility findings in the case and, for that reason alone, find that Bechlin did not make statements violative of the Act a For the reasons given in Isis Plumbing & Heating Co., Inc., 138 NLRB 716, we also, order that the Respondent's backpay obligation include the payment of 6 percent interest on the backpay due Griffin. Member Leedom, however, for the reasons stated in the dissent in the aforementioned case, would not grant such interest. * Texas has a right-to-work law ; See Nebraska Bag Company, et at., d/b/a Nebraska Bag Pm ocessing Company, 122 NLRB 654, 656 AUTOMOTIVE PROVING GROUNDS, INCORPORATED 433 6. Change the penultimate sentence of the notice to read : "This notice must remain posted 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material." INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges duly filed by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and Louie E. Wright, Herman Lloyd, Paul B . Smith, and Fred W. Geissler, individuals , the General Counsel of the National Labor Relations Board, by the Regional Directors for the Sixteenth and Twenty-third Regions, issued complaints against Automotive Proving Grounds, Incorporated , and Armstrong Tire and Rubber Company, herein called Respondents , alleging that Respondents had violated Section 8 (a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act Three complaints have been consolidated by the General Counsel as the basis for this proceeding. The first of these complaints (Case No. 16-CA-1492) was issued on July 5, 1961, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), upon a charge filed by the United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, on May 29, 1961 . The complaint named Automotive Proving Grounds, Inc., as Respondent and alleged that Respondent had engaged and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. The second complaint (Case No. 23-CA-1184 ) was issued by the Regional Director for the Twenty-third Region (Houston, Texas) on July 19, 1961, upon charges filed by Louie E. Wright and Herman Lloyd dated March 20, 1961 , and amended May 4, 1961 . Therein Armstrong Tire Test Fleet, Armstrong Tire and Rubber Company was named as Respondent and it was alleged that Respondent had engaged and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a) (1) of the Act. Thereafter, according to the ruling of Trial Examiner William F. Scharnikow dated January 5, 1962, said case was transferred by the General Counsel from the Twenty-third to the Sixteenth Region and thereafter was designated as Case No. 16-CA-1551. The third complaint (16-CA-1552-2---3) was issued on November 20, 1961, by the Regional Director of the Sixteenth Region upon charges filed by Louie E. Wright, dated August 22, 1961, Paul B . Smith, dated September 19, 1961, and Fred W. Geissler, dated September 27, 1961. Both Automotive Proving Grounds, Inc, and Armstrong Tire and Rubber Company were named as Respond- ents therein, and it was alleged that Respondents had engaged and were engaging in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the Act. On the 20th day of November 1961 , the Regional Director for the Sixteenth Region also issued an order consolidating cases and notice scheduling hearing thereon wherein he consolidated the three foregoing complaints and ordered that the complaints be heard in a single proceeding. The Respondents filed timely answers in which they denied the conduct alleged in the various complaints . Respondents, by way of answers, admit the filing and service of the charges, the commerce allegations of the complaints , and the fact that United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of the Act. At the hearing held before Trial Examiner John C. Fischer at San Antonio and Pecos, Texas. and Washington, D.C., on January 16 through February 2, 1962, the General Counsel, Respondents , and the Union were represented by counsel. All parties were afforded full opportunity to be heard , examine and cross-examine wit- nesses, and to file briefs . Since the close of the hearing, briefs were received from the General Counsel and the Respondents which have been duly considered Upon the entire record in the case, and my observation of the witnesses, I make the following- FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Respondent Automotive Proving Grounds, Incorporated , herein called Proving Grounds, is and has been at all times material herein a corporation duly or- ganized under and existing by virtue of the laws of the State of Texas. At all times material herein , Respondent has maintained its principal office and place of busi- ness in the city of Pecos, State of Texas, and is and has been at all times ma- terial herein continuously engaged at said Proving Grounds in the business of pro- 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD viding and performing tire testing services and related services. The Respondent's Proving Grounds located at Pecos, Texas, is its only facility involved in this pro- ceeding. During each of the months of April and May 1961, Respondent in the course and conduct of its business operations performed services valued in excess of $50,000 for B. F. Goodrich Company and Armstrong Rubber Company. During the first year of Respondent's business operations it will perform services pursuant to a contract for B. F. Goodrich Company and Armstrong Rubber Company, which services will be valued in excess of $500,000 . Both of said B . F. Goodrich Com- pany and Armstrong Rubber Company, each with principal office in Akron, Ohio, annually, individually, and separately sells goods and merchandise consisting prin- cipally of rubber products, outside of the States of Ohio and Texas, which goods are valued in excess of $50,000. Respondent Automotive Proving Grounds, Incor- porated, is now and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Armstrong Tire Test Fleet, Armstrong Tire and Rubber Company is a Delaware corporation having its principal office and manufacturing plant in Natchez, Missis- sippi, and has, at all times material herein, maintained a tire test fleet branch in San Antonio, Texas, where it was engaged, until on or about May 1, 1961, in the business of testing tires and other automotive equipment and products , manufactured by it and other manufacturing firms outside the State of Texas. During the past 12 months, which is a representative period, the Respondent manufactured, sold and caused to be delivered to points outside the State of manufacture , products valued in excess of $1,000,000. During the same period, the Respondent, in the course and conduct of its business operations at its tire test fleet branch in San Antonio, Texas, performed services for persons, firms, and corporations, each of which has an annual direct inflow and outflow of goods, wares , and merchandise, in interstate commerce , of a value in excess of $50,000. Now and at all times ma- terial to the issues herein, the Respondent is and has been an "employer" as defined in Section 2(2) of the Act and is and has been engaged in "commerce " and in oper- ations "affecting commerce " as defined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATIONS INVOLVED United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 657, herein referred to as the Unions, are and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Preliminary Legal Maneuvering For purpose of exegesis, the reader's attention is directed to certain conditions which prevailed in the progress of this case. Among these conditions were: the hearing was held over a 3 weeks' span in San Antonio and Pecos, Texas, and Wash- ington, D C. Considerably over 1,000 pages of testimony was taken, substantial documentary evidence was introduced, previously litigated cases involving Arm- strong were injected as background and numerous precedent decisions were cited, outstandingly able and competent counsel spiritedly represented the parties con- cerned and involved, and comprehensive and exhaustive briefs were submitted by counsel for the General Counsel, Whittaker; Automotive Counsel McGuiness; and Armstrong Counsel Keenan Further, the consolidated complaints were promptly attacked by Respondent Armstrong necessitating referral by the Regional Director for the Sixteenth Region to the Chief Trial Examiner, and by him to Trial Examiner Scharnikow for disposition. Trial Examiner Scharnikow forthwith issued his memo- randum decision and order dismissing Respondent Armstrong's motions-thus set- ting the stage for my advent to hear the case on its merits. Upon release, on Janu- ary 9, 1962, his decision, in which I concur, became part of the "public domain " Accordingly, I shall reap a profit is prendre from such public domain, and set it forth in haec verba, as necessary to a complete understanding of the case, as follows: On December 1, 1961, the Respondent Armstrong filed three motions bearing the respective captions, Motion To Dismiss, Motion To Strike, and Motion To Sever. By the joint effect of these motions, Respondent Armstrong attacks the Regional Director's consolidation of the three above-entitled cases for hearing and disposition, and also asks for the dismissal of the complaint against it in Case No. 16-CA-1552-2-3. The General Counsel has filed his opposition to the motions. But no statement of position has been submitted either by the Respondent Automotive Proving Grounds, Incorporated, or by any of the Charging Parties. Pursuant to AUTOMOTIVE PROVING GROUNDS, INCORPORATED 435 Section 102.25 of the Board's Rules and Regulations, the motions have been re- ferred by the Regional Director for the Sixteenth Region to the Chief Trial Examiner. In its Motion To Dismiss, the Respondent Armstrong asserts that the complaint in Case No. 16-CA-1552-2-3 concedes that the Respondent Armstrong and the Respondent Automotive are separate legal entities , and that by further alleging simply that the Respondent Automotive is the de facto alter ego or agent of Re- spondent Armstrong, the complaint improperly pleads "mere conclusions of law" without supporting them with necessary factual allegations . For this reason, ac- cording to Respondent Armstrong , "The complaint does not state a cause of action against Respondent Armstrong," and the complaint against it in this case should be dismissed. In reply, the General Counsel asserts that "as alleged in paragraphs 2 through 5 [of the complaint], Respondent Armstrong and Respondent Automotive Proving Grounds, Incorporated . . . are one and the same and therefore their separate corporate entities are but a ruse and a fiction ." The General Counsel fur- ther asserts that "the Complaint speaks for itself and ... [that its] allegations of facts setting forth the times, places and the joint commission of unfair labor prac- tices by Respondent Armstrong and Respondent Automotive are legally sufficient. The Board's Rules and Regulations do not require the pleading of evidence." The allegations of paragraphs 2 through 5 and 7 through 10 of the complaint in Case No. 16-CA-1552 support the General Counsel's position. In my opinion, they set forth with sufficient particularity the putative factual basis for the General Coun- sel's contentions that, in the commission of the alleged acts of unfair labor practices and in spite of their separate corporate identities , the Respondents Armstrong and Automotive acted either jointly as a single employer or as principal and agent. I shall therefore deny the Respondent Armstrong's Motion To Dismiss the complaint in Case No 16-CA-1552. In its Motion to Strike, the Respondent Armstrong asks that all reference to Case No. 16-CA--1551 be struck from the order consolidating the three cases. As its grounds for this motion , it asserts that the complaint in Case No. 16-CA-1551 was originally issued, "while the case still bore the designation 23-CA-1184 "; that this complaint was withdrawn on October 27, 1961, by order of the Regional Director for the Twenty-third Region; and that no other complaint has since been issued in the case. In reply to this motion , the General Counsel asserts that on October 6, 1961, the charge in this case was transferred by the General Counsel from the Twenty-third to the Sixteenth Region; that Respondent Armstrong was so notified on October 20, 1961; and that the complaint against the Respondent Armstrong is still pending and effective , since, in view of the prior transfer of the case to the Six- teenth Region , the order of the Regional Director for the Twenty -third Region pur- porting to withdraw the complaint on October 27, 1961 , was "inoperative, ineffec- tual, and of no legal force or consequence." The General Counsel's summary is accurate . The order of the Regional Director for the Twenty-third Region purporting to withdraw the complaint in Case No. 16-CA-1551 was issued on October 27, 1961, following both the General Counsel's transfer of the case to the Sixteenth Region and notice to the Respondent Armstrong of the transfer. The Regional Director's order of October 27, 1961, was therefore a nullity and the complaint originally issued by him on behalf of the General Counsel is still effective. Accordingly, I shall also deny the Respondent Armstrong 's Motion To Strike from the order consolidating the three cases, the reference to, and the in- clusion therein, of Case No. 16-CA-1551. Finally, in its Motion To Sever, the Respondent Armstrong asks for the severance of proceedings in Cases Nos. 16-CA-1492 and 16 -CA-1551 and rescission of the Regional Director's order of consolidation. In support of this motion, it contends that: (1) The "Board" has recognized the separate status of the Respondents Auto- motive and Armstrong by the issuance of separate complaints and by recitals in the order of consolidation of separate joinders of issues. (2) "The allegations [of the complaint against Respondent Armstrong] in Case No. 16-CA-1551. . relate to events in San Antonio, Texas, and it is not alleged that [Respondent] Automotive participated in or was in any way responsible for the activities therein related." (3) The Respondent Armstrong has not been served with a copy of the charge, complaint, or any other pleadings in Case No. 16-CA-1492. (4) The Respondent, however, is informed "that the allegations [of the complaint aginst Respondent Automotive ] in Case No. 16-CA-1492 relate to events in Pecos, Texas, and that it is not alleged that [Respondent ] Armstrong participated or was responsible for the activities alleged." 672010-63-vol 139-29 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) "No good cause has been shown why Respondent Armstrong should be put to the expense, inconvenience and prejudice involved in participating in the trial of Case No. 16-CA-1492, there being no assertion that it is in any way concerned with the matters alleged in the complaint therein, and no good cause has been shown why any of the above-captioned cases should be tried together." In reply to this Motion To Sever, the General Counsel asserts that "a copy of the Charge and Complaint in Case No. 16-CA-1492 are being served upon the Re- spondent Armstrong and upon other parties who have not previously been served. As alleged in paragraph 2 through 5, Respondent Armstrong and Respondent Auto- motive Proving Grounds, Incorporated ... are one and the same and therefore their separate corporate entities are but a ruse and a fiction." The Respondent Armstrong's Motion To Sever raises the general question of whether the three cases should be tried together as a matter of reasonable convenience or necessity, or whether they should be severed because their common trial would prejudice or involve unreasonable inconvenience or expense to the Respondent Arm- strong. To decide this question, I have considered the allegations of the complaints in each of the three cases in the light of the General Counsel's and the Respondent Armstrong's opposing arguments. From the complaints and the answers of the Respondents, it appears that the Re- spondent Armstrong's tires were tested at a proving ground in San Antonio, Texas [since the 1930's] until approximately May 1, 1961, but that, since then, they have been tested at a proving ground in Reeves County near Pecos, Texas. The Re- spondent Armstrong admittedly operated the San Antonio proving ground and is charged by the complaint in Case No. 16-CA-1551 with having threatened its em- ployees that they would lose their jobs because of union activities, when testing operations were moved to Pecos. The complaint against Respondent Armstrong and Respondent Automotive in Case No. 16-CA-1552, alleges that the Pecos proving ground has been operated either jointly by the Respondents Armstrong and Auto- motive or by the Respondent Automotive as the agent of the Respondent Armstrong, and that both Respondents have committed unfair labor practices by refusing to hire Respondent Armstrong's former San Antonio employees. The earlier complaint in Case No. 16-CA-1492, which was based on charges against Respondent Auto- motive alone, names only Automotive as the Respondent-Employer at the Pecos Proving Ground and charges it with unfair labor practices in discriminatorily dis- charging one employee for union activities and in otherwise interfering with its em- ployees' exercise of their organizational rights under the Act. From this brief summary of the gist of the allegations of the complaints, it is evi- dent that the complaints in Cases Nos. 16-CA-1551 and 1552 raise the question of whether the Respondent Armstrong, in the course of transferring its testing opera- tions, first threatened its San Antonio employees with the loss of their jobs because of their union activities, and then, after the transfer, carried out its threat as joint or principal employer at the Pecos Proving Grounds by refusing to hire its former em- ployees. The possible continuity of such alleged acts by the Respondent Armstrong, has a bearing upon the decision of each of the cases and logically requires their con- solidation for trial and disposition. The complaint in Case No 16-CA-1492 is not directed against the Respondent Armstrong Nor was this complaint or the underlying charge, served upon it. It would appear therefore that no finding of unfair labor practice could properly be made against Armstrong in that case. But, in view of the allegations of the com- plaint in Case No. 16-CA-1552 and the possible proof thereunder that the Re- spondent Automotive was and is the Respondent Armstrong's agent, the acts of the Respondent Automotive must also be regarded as material background to the com- plaint against the Respondent Armstrong in Case No. 16-CA-1552. For this reason, the consolidation of the trial of the case against Respondent Automotive in Case No. 16-CA-1492 with the trial of the cases against the Respondent Armstrong in Cases Nos 1551 and 1552 was reasonable and proper Upon the foregoing considerations, I hold that the consolidation of all three cases for trial and disposition was proper, that the order consolidating the cases does not prejudice the Respondent Armstrong nor subject it to unreasonable inconvenience or expense, and that the Respondent Armstrong's Motion To Sever should be denied. (With this, I am in accord.) Background of Automotive and Armstrong Likewise, the voluminous brief of Respondent Counsel McGuiness now falls into the area of the "public domain " Because of the importance, complexity, and in- terest of this case, and for the further reasons that possibly, if not probably, it will end up in the courts, and because there is presently outstanding an enforced Board AUTOMOTIVE PROVING GROUNDS, INCORPORATED 437 cease-and-desist order handed down by the U.S. Court of Appeals, Fifth Circuit, the Trial Examiner will incorporate in this report such portions of the briefs of various counsel as he feels are necessary in the proper narration of the events and facts. Counsel McGuiness, a former distinguished General Counsel of the National Labor Relations Board, between pages 4 and 22 of his comprehensive brief, has narrated certain facts with which the Trial Examiner is in accord, the record supports, and about which there can be little or no disagreement. Being unable to improve on this recitation, the Trial Examiner adopts it as his own, and makes it a part of this report as follows: For many years all major tire manufacturers have conducted extensive testing programs. Two general types of tests are used-laboratory or indoor testing and highway or road testing. Laboratory tests are performed in laboratories at tire plants and consist of mechanical tests which are designed to simulate highway testing. They are also used to evaluate fabrics, compounds, materials, extrusion smoothness, strength, durability under heat, and adhesion of one material to another. Though such tests are necessary and useful, they must be supplemented by actual controlled highway testing on vehicles operating on roads. Consequently, all major tire manufacturers have operated highway test fleets of var- ious types to perform this important function. B. F. Goodrich Company (hereinafter referred to as Goodrich) has operated such a fleet for the last 10 or 12 years, and Armstrong began such tests during the 1930's. During this period most road testing was done on regular highways. A typical test fleet operation appears to have consisted of a central garage from which the test fleet operated on highways in the adjacent area. Goodrich maintained such a fleet at Kerrville, Texas, for a number of years, and Armstrong operated its fleet out of San Antonio since the early 1940's. In recent years, both the necessity for highway testing and the mechanical problems of such testing have become more critical due to the higher speeds at which automobiles are operated and the fact that tires break down much more rapidly at high speeds. The advent of nylon in the con- struction of tires and the increasing number of different grades of competitive tires have also contributed to this need. Automobile companies therefore began to run high-speed tests requiring tires which would stand up under such conditions, in- cluding, for example, the requirement that a tire go a certain distance at 90 m.p.h. prior to failure. Normal highways were not available for such tests because of speed limits and the only way that they could be carried out was to ask that the police block off a byroad for a certain period. Obviously, this could be done infrequently and only for limited times. In addition to these problems, highway traffic was becoming increasingly heavy and both accident and insurance rates were rising. Although these were the principal reasons for use of tracks, the companies also believed there would be substantial savings in fuel costs as no tax is levied on fuel purchases for use in vehicles which do not operate on highways. As one means of solving these problems tire companies turned to test tracks where there were no restrictions on speed, and operating companies had complete control over all vehicles. By the late 1950's all major tire manufacturers except Goodrich and Armstrong were doing track testing; and by 1957 officials of Goodrich had given sufficient serious thought to building a high-speed test track that their real-estate people undertook a survey of Texas, California, and Arizona searching for suitable tracts of land. They looked at abandoned airfields, Army, and Air Force installa- tions, and, finally, in August of 1959, took an option on the site near Pecos, Texas, where Automotive's track is now located. After the option was taken, J. W. Brandt, Goodrich manager of property, lease- hold investments department of controller, treasury division, prepared a financial study to evaluate the need for a test track, the estimated cost, and the best method of acquiring and operating the facility. Upon completion of the analysis, Brandt made an oral report to officers of Goodrich which included estimated costs and which proposed to set up a separate operating company to operate the track on the premise that a track of any size would be difficult to utilize efficiently by even a large company such as Goodrich. By using a separate operating company Brandt felt there would be a good possibility of selling services to others and thereby minimizing testing costs for Goodrich. It was believed that no tire manufacturer would be interested in using a test facility operated by another tiremaker, but that such concerns would be satisfied to use a test track operated by an independent company even though other manufacturers also purchased services from the in- dependent operator. Goodrich officials gave a general approval to the plan outlined by Brandt in August of 1959. 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Background of Armstrong's Test Fleet As stated above, Armstrong has operated a test fleet in San Antonio, Texas, since the early 1940's when it took over a fleet it was then running for its principal customer, Sears, Roebuck and Co. Tires for both trucks and automobiles were tested on high- ways in the San Antonio area . The test vehicles operated out of a building located on San Pedro Avenue, which was on the outskirts of the city when built in 1948, but which has since become a metropolitan area. In addition to testing its own tires and those of competitors for comparison purposes , Armstrong did a substantial amount of testing other automotive parts and accessories for manufacturers of such products . The companies for whom such tests were run were called "partici- pants," and, because their tests could be run in conjunction with those of Armstrong, their participation served to reduce the Armstrong testing costs. By the mid-1950's Armstrong, like Goodrich, was under pressure to provide a facility for high-speed testing. The development of turnpikes, freeways and through- ways had increased the need for testing truck and bus tires at speeds in excess of those possible on the highways in the San Antonio area. In addition , participants whose products were being tested had begun to demand high-speed tests, and several important companies , such as Phillips Petroleum, American Viscose, and Enjay Division of Standard Oil, had taken their testing elsewhere because of this need. Attempts were made to secure police approval of using higher speeds on highway tests but they were not successful. Beginning about 1956 Armstrong was continually on the lookout for a test-track location. A number of sites were investigated, including land at Blanco, Lampasas, and Fredericksburg, Texas, independent test facilities , an abandoned airfield, and existing tracks once used by Packard and Ford. Either because of cost or in- adequate size, none of these possibilities provided a workable solution and Armstrong was still searching for an answer when a meeting with Goodrich in October 1959 took place. Armstrong's Agreement With Goodrich At the time the Goodrich directors approved the plan for a track at Pecos, Brandt, who was responsible for the project, had had no discussion with any outside company as to their participation in the track. Sometime during the fall of 1959 Mr. E. F. Tomlinson , divisional president of Goodrich, informed Brandt that Armstrong was interested in acquiring time on a test track to do high-speed and other testing. At Brandt's request Mr. Tomlinson arranged a meeting with Arm- strong in October 1959 at the Armstrong home office in West Haven , Connecticut. The meeting was attended by Armstrong's board chairman, president, treasurer, and executive vice president. At the meeting Brandt outlined the Goodrich plan for a test facility, including setting up an independent operating company to sell services from the test facilities independently of Goodrich. The proposal was well received and further meetings were held to work out de- tails. One major problem was the manner in which costs were to be allocated, par- ticularly an administrative and overhead charge to be made by the operating company on all fixed charges and operating costs of that company. Armstrong management felt if such an overhead charge was made on all expenses , including drivers' wages, which were a very substantial cost item, Armstrong would be better off to get away from the concept of a centrally controlled operation and furnish its own drivers. Goodrich on the other hand felt very strongly that it was unworkable to have several different companies controlling drivers on a single track because of confusion which would inevitably result . Consequently Goodrich relinquished its demand for the 10-percent overhead charge on certain operating costs and it was agreed that the operating company would be in full control of all test-track personnel. As finally worked out and set forth in Automotive 's testing agreement with Arm- strong (General Counsel's Exhibit No. 3), Automotive agrees to maintain the Pecos test track, provide property where Armstrong will construct certain buildings and service facilities, furnish minor maintenance to the Armstrong buildings, provide drivers necessary for Armstrong's test purposes, and provide Armstrong with necessary utilities . Armstrong is given the right to use up to 50 percent of the track capacity and such additional capacity as is agreed upon by the parties, and has the right to conduct and collect fees for testing done on the test track as required by Armstrong contracts with certain named companies ; but provides that, if the contracts are canceled or become inoperative for 9 months , future testing for the listed companies shall be handled directly between that company and Automotive. Armstrong further agrees to own and maintain its own trucks and vehicles required for Armstrong testing, to provide other than minor maintenance for its own buildings, AUTOMOTIVE PROVING GROUNDS , INCORPORATED 439 and to make its own test readings and test reports, reimbursing Automotive for the cost of Automotive personnel used in making such tests . It also agreed to abide by Automotive's rules and regulations necessary for proper administration or maintenance of the track and to perform custom -testing contracts assigned to it by Automotive which do not interfere with Armstrong's other testing . Armstrong has the right to remove any structures or facilities which it has erected upon the Automotive property within 120 days after termination of the agreement. Off- track testing in the sense of tests conducted by placing tires on commercially op- erated fleets of trucks and which do not use Automotive facilities in any way are not covered by the contract . On the other hand, highway tests which do operate out of the test track are covered. The contract makes clear that Automotive hires, pays, and has final authority over the retention of all drivers , mechanics, and other personnel necessary for the testing to be conducted on the track , regardless of the company for whom the tests are run. Armstrong agrees to pay one -half the operating expenses of the track until the track is in operation, and thereafter a rather complicated formula is set forth which amounts to splitting the total costs of operating the test facility between Armstrong and Goodrich on the basis of the proportionate share of testing performed for each company. Testing fees collected from customers other than Goodrich and Armstrong are deducted from the total operating costs prior to the computa- tion of the amount paid by each . The contract is irrevocable for a term of 5 years with an option on the part of Armstrong to renew for an additional 10 years. The contract also contains certain billing provisions, a right to reasonable audit of Auto- motive's books and records by Armstrong, a typical force majeure clause , and a re- striction on the right of either party to assign the agreement without prior written consent of the other. Formation of Automotive While discussions with Armstrong were taking place Goodrich had steadily progressed with planning and construction of the track itself. The many details of design and engineering, the letting of bids, and other problems common to any major construction project delayed actual commencement of construction , however, until July 1960. Goodrich built the entire facility except for certain garage and fueling installations which were constructed by Armstrong . Part of the latter were put in by the Goodrich contractor, but subsequently billed to Armstrong. In order to carry out the concept of an independent operating company, steps were taken by Goodrich in early fall, 1960 , to find someone capable of operating the track . When Frank E. Harper, then director, employee relations, of Good- rich was asked to suggest a candidate he expressed interest in the project himself, and when he demonstrated substantial experience in testing work , as well as the other necessary qualifications , he was selected. On December 2, 1960, Harper filed a charter to establish Automotive as a Texas corporation through his Pecos counsel, Russell and Tomlin, with himself as sole owner of the capital stock of 100 shares . Although the record does not disclose the initial capital investment, that sum is now $75,000, all of which Harper secured through a loan from Goodrich by putting up his stock es collateral . The corpora- tion has five directors . These are Harper, who is president and treasurer; W. W. Scull, chairman of Automotive and vice president of manufacturing of Goodrich; Jack Brandt, referred to above; William F. Billingsley , technical director of B. F. Goodrich Tire Co.; and Harold J. Fast, secretary of Automotive and Counsel for Goodrich. (Mr. Fast's name was sometimes incorrectly spelled in the record as "Bass" or "Vass.") Thus all are presently employed by Goodrich with the exception of Harper. At present Automotive leases the test facilities at Pecos from Goodrich (General Counsel's Exhibit No. 2). Most of the details had been worked out by the time the corporate charter was filed but the lease itself was not executed until March 18, 1961. Under its terms Goodrich leases the entire facilities which it has constructed at Pecos, including the test track, buildings, and other installations , to Automotive for a 5-year term at an amount computed from the annual depreciation of the track and other facilities (the depreciation schedules are set forth ), 5-percent interest on the total net fixed capital investment and a 10-percent overhead charge on the foregoing and certain of Automotive 's operating expenses . The lease also provides that Automotive repair and maintain the test track and other facilities , and pay all utilities, insurance, and taxes. Automotive may not assign the lease without the written consent of Goodrich and it agrees to enter into a contract to test Goodrich products. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Automotive Test Facilities at Pecos Automotive is located 22 miles southeast of Pecos, Texas. The test center con- tains approximately 6,000 acres of land including a circular track 9 miles in circum- ference. The track is 24 feet wide and consists of two lanes. Adjacent to the track is a U-shaped building which includes an office at the bottom of the U approximately 100 feet long, and one arm of which is 165 feet by 60 feet and the other 185 feet by 60 feet. In addition there are storage facilities for 91,000 gallons of fuel, a fuel blending plant, and 15 fuel dispensing pumps. In the center of the office portion of the building is a large drivers' room and ad- jacent to that is the office of the foreman who supervises all of the drivers, a small dispensary, storage and restroom facilities. At one end of the same building are found the Automotive offices and the office of the single Goodrich employee stationed at the test track on a permanent basis. At the opposite end of the office building are the Armstrong offices where two of the four employees of Armstrong permanently assigned to the track work. The arm of the U adjacent to the Automotive offices contains shop facilities and storage areas where Goodrich equipment and tires are maintained and stored. The other arm of the U has similar facilities for Armstrong. Commencement of Operations at Automotive In November 1959 Harper made his first trip to Pecos to conduct a general survey of the area, including a study of wage rates and the availability of personnel. In making the survey he interviewed every employer where he felt comparable work was being done, obtaining wage rates, hours, and fringe benefits in order to determine a wage scale which would be competitive in the area, but not so high that it would "pirate" labor from others. However, he did not decide on the basic rate of $1.15 per hour which was finally used until very late in December, shortly before he left Akron for Pecos permanently. On December 7, 1960, Harper met with officials of Armstrong in West Haven, Connecticut, for a general discussion of the manner in which Automotive would operate and to pass along the information obtained from the survey. Armstrong was particularly interested in whether or not secretarial help and tire technicians could be hired. No questions were asked about other job categories as Harper had stated that both mechanics and drivers were available. He estimated that wage rates would be from $1.90 to $2 10 per hour for mechanics and $1 15 to $1.35 for other personnel. Harper moved to Pecos on January 3, 1961, prior to completion of the track, to take care of the many details necessary in commencing operation of a new business. He opened a temporary office in the Chamber of Commerce Building in Pecos and one of his principal activities soon became that of interviewing applicants for em- ployment. He left applications with the Texas Employment Service in Pecos, which serves both Pecos and the nearby town of Monahans, and also informed the local newspapers that the office in the Chamber of Commerce Building was open and ap- plications were available. Also, prior to leaving Akron, he had received a request from Forrest Pape, the Goodrich representative at its test operation in Kerrville, advising him that some of the Kerrville drivers were interested in making applica- tion. Harper responded by sending application forms to Pape. The first employment interview was held about January 10, 1961. The usual pro- cedure was to have a man fill out an application and be interviewed. Thereafter the information on the application was checked and before being hired he was re- quired to pass a physical examination. Prior to the openig of the track most of the applicants were seen by Tommy Beauchamp or Harper. A few may have been inter- viewed by Automotive's former track manager, Dave Evans. In hiring employees Harper was looking for automotive mechanics with rounded experience as they would be required to work on many different types of automo- biles and both gasoline and diesel trucks. With respect to tire technicians, it was not expected that any experienced technicians would be found in the area and therefore the requirements were that the applicant write a legible hand and have sufficient in- telligence to be taught the details of the job. Drivers constituted the principal personnel requirement. Harper did not feel that test driving experience was a necessity although he did feel it would he helpful and paid a premium of 10 cents an hour ($1.25 as compared with $1 15) for experienced test drivers. Drivers had to have an active Texas drivers license, read and write English, pass a physical examination and be 21 years of age. At first qualified applicants from any area were hired and approximately 45-50 were employed from other than the Pecos, Monahans, and Fort Stockton areas, the three towns closest to the track. About the middle of January, Harvey Haidet, manager of the Armstrong test fleet in San Antonio, came to Pecos and spent a couple of days. His assignment was AUTOMOTIVE PROVING GROUNDS, INCORPORATED 441 primarily to check the progress of the track, but he also discussed preliminary plans as to movement of the Armstrong fleet to Pecos and asked some questions about the possibility of Armstrong employees being hired by Automotive. Prior to this time Harper had given no though to the question of hiring San Antonio drivers as he had assumed none would be interested at the lower rates being paid in Pecos and because of the distance from San Antonio. The point had not even been discussed in Harper's meeting with Armstrong officials in West Haven. Haidet was informed by Harper that he would be glad to interview the Armstrong people, but that Harper could not conceive that they would make happy employees moving from a high wage level area such as they had in San Antonio into jobs at the wage offered in Pecos. The rate in San Antonio was $2.08 to $2.13 per hour as compared to $1.15 to $1.25 per hour then contemplated by Harper for the Pecos operation. Russ Beichlin, the Armstrong tireman, in San Antonio, and Sam Hartley, the maintenance foreman at the same location, also came to Pecos prior to the opening of the track. This was in early March 1961. Beichlin and Hartley were to be the Armstrong manager and maintenance foreman respectively at Pecos when Auto- motive began operations. The purpose of their visit was to find housing but Hartley did ask some questions of Harper as to whether he was finding diesel mechanics. There was also a discussion of the progress of track construction. Beichlin, like Haidet earlier, stated that some of the San Antonio drivers had asked about the possibility of employment. He was told by Harper that he would be happy to interview them if they came to Pecos. There was some discussion of wage rates, with Harper again expressing doubt that the Armstrong drivers would be interested in moving from an area where they could earn better than $2 into one such as Pecos, and in addition having to move their families a long distance. Neither Haidet nor Beichlin requested any application forms to be carried back to San Antonio, and Harper did not offer any because he could not bring himself to feel that the San Antonio drivers would be interested The track was opened on March 18, 1961, when some 36 drivers and part of the mechanics were on hand for an orientation and training day. The first tests were be- gun on Monday, March 20, when these drivers began operating for test mileage, and approximately 30 drivers were added each week until a full complement was on hand. The records contain no testimony as to the movement of the Goodrich vehicles and equipment from its former operation at Kerrville, but Armstrong units were brought from San Antonio in groups of five units each week for a period of about 6 weeks beginning Friday, March 17. The automobiles came over by commercial auto livery and drivers were sent from Automotive to pick up the six or eight trucks which were transferred. One week prior to movement of each unit of equipment the Armstrong drivers affected were notified they would be laid off the following week. Current Operations at Automotive Within a few weeks after the test track at Pecos was opened, both Goodrich and Armstrong closed down their operations at Kerrville and San Antonio respectively. Although the proportion of business done with each company varies somewhat, the billing for the month preceding the hearing was 54 percent to Goodrich and 45 percent to Armstrong. The remaining 1 percent covered tests run for Moog In- dustries. Some tests have also been run for Heckthron, Inc. Most tests are run on the track, but some have continued to be performed on highways. To date less than 20 percent of the testing has been done on the highway. The tests all consist of performance runs on automobiles or trucks, and no labora- tory testing is done. The majority of the testing on the track is at speeds in excess of highway limits. The week prior to Harper's testimony, for example, tests were being run on the track at 50, 60, 65, 70, 75, 80, and 85 m.p.h. Tests have been run at 90 m.p.h., and it is expected that tests will be run at least as high as 120 m.p.h., the speed required for qualification tests on highway patrol tires. This particular test necessitates 80 sustained miles at 120 m.p.h., and 4,000 miles at 85 m.p.h. A typical track test is set up when the company representative at the track, Mr. Beichlin for Armstrong and Mr. Pape for Goodrich, receives written instructions from the company which outlines the procedures to be followed for the test. These include instructions as to the inflation of the tires, the speed at which the test is to be run, whether it is to be run on the track or highway, the frequency of switching and measuring the tires , and other details. The company representative then issues in- structions to the tire technicians as to which vehicle will be used for the test and the tires are mounted at the appropriate time. These preliminaries are similar whether the item being tested is tires or whether it is some other kind of an automo- tive part or accessory. In each instance the instructions come from the company requiring the tests. Uniformly, the installations or the setting up of the tests are 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD observed or supervised by that company whether it be Armstrong, Goodrich, or one of the "participant" companies. The tire technicians or other personnel setting up the tests are employees of Auto- motive. Once the test vehicles are ready to operate Automotive then supplies the drivers. The drivers make reports at the close of each shift which are turned in to the Automotive supervisor, and a portion of the report is retained by by Automo- tive for accounting purposes, and the balance is given to the company for whom the tests were run These reports include gasoline records, information as to switches, measures, or pressure checks if the test is of tires, any mechanical difficulty en- countered during the shift, and other similar information. The same procedure is followed for both track tests and road tests. The only difference is that in the latter case the drivers leave the track at the beginning of the shift and do their driving on prescribed highway routes in the adjacent area, returning to the track at the end of the shift. All personnel at the test track are employees of Automotive, except for Forrest Pape, the Goodrich representative, and four Armstrong employees: its manager, Russel Beichlin, office manager, William Lincecum, equipment and maintenance foreman, Sam Hartley, and chief tire technician, Curtis Rucker. All Automotive employees punch one timeclock while the Armstrong employees have a separate clock of their own. Preliminary to making a work assignment, representatives of Goodrich or Arm- strong inform Automotive management of the number of vehicles and types of vehicles which they wish to run. Automotive then determines the number of drivers required and assigns the individual drivers. This is done by the Automotive foreman in charge of the track for the particular shift. The foreman does not check with either Armstrong or Goodrich before he makes the assignments, and while ordinarily the same driver will drive steadily for one company in order that he may become familiar with the test and the vehicle, changes in assignment are made whenever appropriate. Since the track has been in operation there has been con- siderable interchange. Three drivers are assigned to each vehicle in order that it may be operated 24 hours a day, 6 days a week. There is but one driver-foreman on each shift and he supervises all drivers whether they are operating Armstrong or Goodrich equipment. In addition, on the 4 o'clock to midnight and midnight to 8 o'clock shift, the foreman is in charge of all personnel at the track. Actual driving assignments are made at the beginning of each shift when the shift foreman assembles the drivers in the coffeeroom and hands them their car daily report (General Counsel's Exhibit No. 16), or truck daily report (General Counsel's Exhibit No. 17), which gives the driver full information about his par- ticular vehicle and the manner in which he is to operate it during the shift. Other personnel, mechanics, tire technicians, and clericals are assigned on a more permanent basis. Thus Armstrong and Goodrich both indicated to Harper, prior to the opening of the track, the number of mechanics who would be required to main- tain their equipment. Harper hired the required number and assigned them to either Armstrong or Goodrich, according to his judgment of their qualifications. Neither Armstrong nor Goodrich interviewed the mechanics prior to their assignment. At present Armstrong has three mechanics on the day shift, one on the 4 to 12 o'clock shift and none on the 12 to 8 o'clock. Hartley, the Armstrong shopman, works on the day shift and directs the work of the Automotive mechanics assigned to Arm- strong while he is present at the track. The work of the night shift mechanic assigned to the Armstrong side is directed by the Automotive track foreman. Tire tech- nicians and clericals were assigned in the same manner. Armstrong and Goodrich gave Harper their requirements for such job classifications prior to the opening of the track and applicants were interviewed and hired by Harper and assigned to Good- rich or Armstrong work without prior consultation with Pape or Beichlin, respectively. As the operation at Automotive has "shaken down" the line of authority over employees has proven to be as intended by Goodrich. All employees have been hired by Automotive without prior consultation with Armstrong personnel regard- less of their assignments after commencing employment. The Alter Ego and Agency Theories The de facto alter ego and agency theories advanced by the General Counsel are unsupported by the evidence of record and therefore untenable. However, having been first inveighed, they will first be disposed of. The allegations and arguments advanced that Respondent Armstrong and Respondent Automotive Proving Grounds are one and the same and therefore their corporate entities are but a ruse and a AUTOMOTIVE PROVING GROUNDS, INCORPORATED 443 fiction are erroneous. As heretofore outlined Armstrong and Automotive are separate legal entities. General Counsel submitted some 22 former Armstrong employees as witnesses purportedly to establish that former Armstrong employees were dis- criminatorily refused employment or blacklisted by Automotive and that Armstrong was equally responsible with Automotive for such alleged discrimination . A study of this welter of testimony demonstrates that local San Antonio supervisors knew no more than the drivers themselves of top management 's prior economic decision to move the testing operation to Pecos. In fact, the drivers themselves learned of the proposed move before Haidet and his assistants were alerted by Akron and Westerley officials. Haidet, Beichlin, and Hartley were caught by surprise and were as much discomfited by it as were the drivers. Their replies to employees when the move was in the rumor stage, and later when they were officially informed , are the basis of the alleged 8(a)(1) violations, including the "blacklisting." They will be treated in more detail hereinafter . Neither can Armstrong be held responsible for any unfair labor practices which Automotive may have committed. As herembefore described, Automotive was purposely created by Goodrich as an independent corporation to road-test its own tires . Armstrong was importuned and invited by Goodrich, at its own expense, to share the track facilities for its testing under a contract with an independent company, Automotive. All three companies are independent entities and all three were separate employers. Automotive is in no sense the successor of Armstrong. The only relationship between them is that established by the testing agreement, a copy of which is attached hereto as an Appendix. The successorship rationale in my Alamo White case (122 NLRB 1174) which holding was affirmed by the Fifth Circuit in a decision written by Judge Wisdom is applicable and controlling here although the facts are different. 273 F. 2d 238 (C.A. 5). Language in the Local 19, International Brotherhood of Long- shoremen, AFL-CIO (Chicago Stevedoring Co., Inc.), 125 NLRB 61, applies: "The record shows that neither corporation has any financial interest in the other; no officer, stockholder, or director is the same; there is no interchange of em- ployees; different skills are exercised by the employees of each company; and the only relationship between the companies is that established by the written lease agreement." Automotive and Armstrong do not, jointly, constitute a single employer. Lan- guage in Dearborn Oil and Gas Corporation, et al., doing business as Diamond Operating Service, et al, 125 NLRB 645, is applicable in the resolution of this question. "Generally speaking, in those unfair labor practice cases in which the Board and the courts have held that a legal entity may be held for the acts of another, because both constituted a single employer, it appeared that both were not only subject to common control , but also that a controlling ownership interest in both companies was held by the same individual or group of individuals . We believe that it is proper to require that both elements-common ownership and common control-coexist before we assess joint responsibility." Armstrong Counsel Keenan aptly states the reasons and assigns 10 examples supported by the record, as follows: In the case before the Trial Examiner both of the criteria necessary for de- termining Automotive and Armstrong to be a single employer, and thus mu- tually responsible for the unfair labor practices of either , are lacking. There is neither common ownership nor common control . Armstrong, as stated above, owns no part of Automotive directly or indirectly. It has no representation on the Board of Directors. None of its employees or former employees are employees of Automotive. In the most important aspect of control, that of control of labor relations , the testing agreement makes it perfectly clear that Armstrong has no control over the wages, hours , hiring or firing, or of any other conditions of employment of Automotive employees. . Actual practices are in conformity with the contractual provisions . Beichlin and other Armstrong employees at the track do not control in any way the labor relations of Automotive . Automotive has set the rates and has made such changes in rates and benefits as it, Automotive , thought proper. Arm- strong was not consulted . No Armstrong employee has ever recommended a wage raise. Automotive has done all of the interviewing of applicants for hiring, and the hiring. Automotive's employees, new or old, are assigned to Armstrong's vehicles or office or technical force upon requisition by Arm- strong. Armstrong does not have and does not exercise the right of rejection. Armstrong is not accorded the opportunity to interview the employees so assigned prior to assignment. Automotive can and has transferred employees assigned to Armstrong's vehicles without consultation with Armstrong . Beichlin of Armstrong has registered complaints with Automotive as to the 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD performance of employees assigned to Armstrong's vehicles. In this connec- tion he has recommended that employees be reprimanded. At times Harper of Automotive has followed Beichlin's recommendations. At times he has not. In all cases there has been an independent investigation by Automotive of the complaint before any action is taken. Armstrong has no right to discharge Automotive's employees. On three, and on only three, occasions, Armstrong through Beichlin, recommended that drivers be removed from assignment to their vehicles. No recommendation was made as to the termination of these employees. On two occasions Automotive's drivers were found to have driven Armstrong's vehicles while intoxicated. Beichlin told Harper that he didn't want them driving Armstrong's vehicles any longer. He made no recommendation as to discharge. However, Harper did discharge these individuals. Armstrong's employees at Pecos were Beichlin, superintendent; Hartley, shop foreman; Lincecum, offce manager; and Rucker, tire technician. The extensive testimony adduced by General Counsel of incidents and statements of employees purporting to show that Automotive has been controlled, directed and guided in its managerial capacity, and its labor relations by Respondent Armstrong falls far short of proving that Armstrong controlled or participated in any important aspect of Automotive's labor relations and operations. In the words of Counsel Keenan, "No one reading the record can doubt but that Harper and Harper alone, controlled all important aspects of labor relations at the Pecos track." And from his appear- ance during the 3 weeks of the trial at the counsel table and in the courtroom, and the way he handled himself on the witness stand under direct and cross-examination, and from his background and experience, there could be no question in the mind of an objective onlooker but that he was the final authority on all matters involving Automotive. Certainly he gave no indication of being the alter ego of Armstrong. Neither was he one likely to cross the lines of authority of another, nor one to assume another's responsibilities. Neither did Armstrong cause Automotive to refuse to hire former Armstrong employees, nor was Automotive made the agent of Armstrong. General Counsel contends that Armstrong caused Automotive to refuse to hire former Armstrong employees. On the contrary, it will be recalled that during the contract negotiations between Goodrich and Armstrong and prior to the incorporation of Automotive, that Armstrong proposed to utilize its own drivers for testing purposes but Goodrich rejected Armstrong's proposal and forewent a percentage overriding charge in order for Automotive to retain employment control over drivers and track personnel. Thus Automotive would be free to take advantage of Pecos area's lower wage scale, i.e., $1.15 to $1.25 against San Antonio's $2.10 scale. In their first conference at Pecos, Harper agreed with Haidet to interview any Armstrong applicants, but frankly stated that such applicants, accustomed to San Antonio wage scales, would not be able to get along on his proposed rates and would not make happy employees. This reasoning is borne out by the fact that only one Armstrong driver was willing to accept Harper's terms and move to Pecos. General Counsel's Contentions There are two phases to Counsel Whittaker's case (a) San Antonio activities, and (b) Pecos activities. His consolidated complaints are predicated on the theory that Respondent Automotive is the alter ego, and agent of Respondent Armstrong, and as such the two Respondents prevented, frustrated, and refused to permit Armstrong drivers to be placed on the payroll of Automotive at Pecos, where Armstrong's tire-testing operation had been transferred from San Antonio on or about March 18, 1962. The thrust of his contention is that whereas Goodrich, in October 1959, had a legitimate objective of reducing costs by inviting Armstrong and other participants to share its proposed testing facilities at Pecos, Armstrong also had an objective, an illegal one, to avoid collective-bargaining processes with its driver personnel at San Antonio. General Counsel contended that Armstrong was accommodated in the scheme by having Automotive handle all labor and personnel problems as part of the testing agreement. The argument was that this mechanism was intended to shield Armstrong from the operations of the National Labor Relations Board, and the motivation was in part due to the Fifth Circuit Court of Appeals having two outstanding decrees against it for previous unfair labor practices. A further assumed reason was because of the consistent recurrent organi- zational programs put on either by Teamsters Local No. 657 or by the Rubber Workers. AUTOMOTIVE PROVING GROUNDS, INCORPORATED 445 Examiner's Ruling and Reasons The Trial Examiner has hitherto disposed of the alter ego and agency theories, and finds, after a careful study of the entire record, that these arguments are fal- lacious. My reasoning is that Armstrong had good, valid, and subsisting reasons for moving, that it had been nationally organized by the Rubber Workers Union for years, with collective-bargaining agreements covering its operations overall- except for this handful of drivers, and for 10 years its San Antonio employees had voted down any unionization. My final reason is that I simply did not believe Gen- eral Counsel's witnesses during the San Antonio phase of the hearing when their testimonies conflicted with that of Respondents' witnesses, together with the fact that Respondents' supervisors were as much in the dark about the prospective move as were the drivers and these were merely personal opinions or speculations not violative of the Act. On the other hand, the majority of General Counsel's witnesses impressed the Trial Examiner as being as angry as a swarm of hornets- they were going to sting somebody. In some instances their testimonies were "patterned," embellished, and distorted. It is only fair to add that some of Arm- strong's supervisors were nettled at the rumor of and the belated verification of the move. All counsel delineated in detail the testimonies of the 24 various witnesses in their excellent briefs, together with their legal arguments, explanations, justifications, credibility factors, including the weight of or lack of preponderance of the evidence. Suffice to say all three of their versions cannot be incorporated in this report. With reference to the 8(a)(1) allegations arising out of the San Antonio phase of the case, the Trial Examiner concludes that the General Counsel did not sustain his burden of proof of the allegations of the complaints by a preponderance of the evidence. It would be futile to attempt to answer them all in detail, and unfair to partially cover them in a report as necessarily limited as this needs be. The credibility resolution has been drawn, and the briefs are available, and, in this narrow area of interference and "blacklisting" are made a part of this report by reference by the Trial Examiner. General Counsel's witness Rogers attributed to Haidet: "that the union had hounded the test fleet until it just had to go." Haidet denied this and the Trial Examiner credit his denial. Driver Clarence Calhoun attributed to Beichlin the statement that none of the drivers were going to Pecos (no doubt true) and assigned the reason that they did not want to be bothered with the union out there. Beichlin's denial is credited. John Condrin quoted Beichlin as express- ing his opinion that but for "this damn union activity we wouldn't have to move." If true, this is not actionable in this context. Ralph Siler quoted Beichlin as saying to Harper that he would not hire anybody from Armstrong on account of the trouble out there. Beichlin's denial is credited. Silas Smith quoted Haidet as saying a cou- ple of weeks before the move: "You know what is causing this, the move out here?" to which Smith replied, "them union activities caused it." Held denied and not actionable. Herman Lloyd, an official of Teamsters Union, after leaving Armstrong quoted Haidet's reason for the move as "the company is tired of employees trying to tell them how to run their business." He also quoted road supervisor Stallneck's reason for the move as being the court costs involved in "these labor board cases." This is found, in context, not to be actionable. The following is a portion of the compelling argument of Automotive Counsel McGuiness adopted by the Trial Examiner: Obviously there was a great deal of talk among the San Antonio employees about the move, and it would be perfectly natural that many questions would be asked of Haidet or Beichlin. It also seems obvious that some differences as to detail would arise when the recollection of a large number of witnesses as to conversations occurring months earlier is tested. Nevertheless, the sub- stance of what was said appears when the testimony is considered as a whole, and it confirms the testimony of both Haidet and Beichlin. Thus, until the actual move commenced, Haidet was under instructions to keep it quiet. Therefore, when approached by the men with questions he would tell them, "Well, I just don't know. It's rumored so, but I just don't know." Later after the move started Haidet answered the questions by telling the men Armstrong was not taking any men; another company was going to operate the track; and if they wanted a job in Pecos they would have "to go up there and see." He also told some questioners that Harper did not think they would be satisfied with the wage rate to be paid. Prior to commencing the move Beichlin answered questions by telling the drivers that most of the information he got was from them. Thereafter he told them Armstrong was going to contract the work out; the drivers would not be 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken along; and they would have to see Harper about jobs. He discussed wages with some, told them what the rate would be and said that if they were not satisfied with what they were getting in San Antonio, he was afraid they wouldn't be satisfied with wage scale in Pecos. Accordingly, it will be recommended that those counts in the consolidated complaints be dismissed. The Armstrong 8(a)(3)'s There are three treatments of the alleged failure to hire Armstrong drivers Louie E. Wright, Silas B. Smith, Fred W. Geissler, and any former employees of Arm- strong, in the briefs of respective counsel-Whittaker, Keenan, and McGuiness. Of these skillful treatments, the one by Respondent Counsel McQuiness appeals to the Trial Examiner as most completely my requirement. This is in no sense a disparage- ment of the efforts of other counsel. After more than 40 years of experience in the practice, and having sat on every bench from justice of the peace to chief justice, I know that "every lawyer is the prisoner if not the gaoler of his witness." Because of the aptness of his recitation of the facts as found by the Trial Examiner in this particular phase of the case, such recitation is adopted as my language as follows: The Failure To Hire Louie E. Wright In support of his allegation that the Respondent refused and failed to hire Louie E. Wright, the General Counsel relies entirely on the testimony of Wright, one of the Charging Parties. Wright testified that he went to Pecos about May 1, 1961, to apply for employment. The first person he saw was Hartley, 'and he then talked to Beichlm who introduced him to Harper. Harper gave him an application, which he filled out, and, subsequently, there was some discussion about the wage rate which Wright wanted. Wright's own testimony shows that he was interested in at least $1.75, or the rate for journeymen truckdrivers in the area, which was between $1.70 and $1.90 per hour as compared with the $1.15 to $1.25 then being paid by Automotive. Wright asked to be notified of Harper's decision as to his application. About 30 days later Harper wrote him that his application had been investigated and if his services were required, he would be notified. Neither party thereafter communicated with the other. There is no testimony whatsoever in the record which shows that Wright's status as a former Armstrong driver from San Antonio had anything to do with his failure to secure a job at Automotive. Instead his own testimony demonstrates that the wage rate he was seeking immediately caused Harper to express doubt about his interest in working at Pecos. Wright, though questioned as to what he would take, chose to be coy about the matter and said he ". . . might come to work for less than you think I would." However, Wright refused to commit himself and left without offering to work at the wage scale being paid. By the time Wright was interviewed, about May 1, Harper had begun to be very skeptical about hiring applicants who had held higher paying jobs, both because of his previous experience and that which occurred at Automotive. This skepticism was demonstrated in his immediate questioning of Wright on the subject, and Wright's failure to express willingness to work at the going rate undoubtedly added to Harper's doubts. Where the General Counsel has failed to produce any testimony showing a discriminatory motive, and, in addition, there is direct testimony as to sound economic considerations for the conduct in question, the General Counsel has failed to prove his allegation. The Failure To Hire Silas B. Smith In support of his allegation that Respondents refused and failed to hire Silas B. Smith, the General Counsel again relies solely on the testimony of the alleged discriminatee. Smith called Harper in late April 1961, and asked about going to work in Pecos. Harper told Smith it was his understanding the San Antonio men would not come to work at the wages being paid, but, when Smith indicated his willingness to come, Harper said that if he would come up he ". . was satisfied we can work out something." About May 12, Smith went to Pecos; Beichlin intro- duced him to Harper; and, after some discussion about the job, Smith was given an application to fill out and return by mail. Smith claims he was given two applica- tions but Harper distinctly recalls giving Smith but one application on which he noted the Pecos address of Automotive. Smith also claims both applications were returned, one by Smith and one by his son, in the same envelope. However, Harper, whose testimony was corroborated by Beauchamp, was certain that only a single ap- AUTOMOTIVE PROVING GROUNDS, INCORPORATED 447 plication-the one he had given to Smith with the address written in the corner- was returned and that was filled out by Smith's son. Subsequently, Smith or his son called Harper twice to check on whether work was available, and on both occasions Harper stated that no application had been received from Silas Smith. Though Smith admitted he was told no application had been received from him, he never requested or submitted another application and, at the time of the hearing, none had ever been received from him. Smith admitted that he was treated nicely by Harper and that he was encouraged to apply for a job. His testimony is devoid of any indication that Harper was unwilling to hire San Antonio drivers who were sincerely interested in working in Pecos. The simple and un- contradicted fact of the matter is that Smith either never applied for a job or, if he did mail in an application, took no steps to mail another when informed none had been received. Thus, the General Counsel's position becomes that of claiming that a San Antonio driver who was encouraged to apply for a lob and failed to do so was discriminatorily treated. Again the General Counsel has failed to sustain his. burden of proof. The Failure To Hire Fred W. Geissler The third specific allegation of an individual whom Respondents refused and failed to hire is Fred Geissler. Little need be said about Geissler. In addition to being a most unconvincing witness whose demeanor was such that he could not be credited, he admitted that he never applied for a job at Automotive and in fact never even asked for an application. Geissler's testimony is loaded with inconsistencies . For example he claimed that Harper knew him from having seen him at the Armstrong Test Center in San Antonio in March 1961, yet Harper has never been at the Test Center; he testified that he talked to Smith at the Proving Grounds while there on May 13, yet Hartley testified they were not there the same day; and he testified to a conversation with Haidet in which Haidet spoke about the $1.15 per hour rate to be paid in Pecos, which took place before the rate was ever established. The testimony of a witness who failed to apply for a job because he ".. . knew it wasn't no use," falls far short of the burden of proof required of the General Counsel, particularly where there is no showing whatsoever of a discriminatory motive on the part of Harper. The Failure To Hire Any Former Employees of Armstrong In addition to the three individuals specifically alleged to have been refused em- ployment, the General Counsel includes a general allegation of a refusal and failure to hire any former Armstrong employees. Other than Wright, Smith, and Geissler, only one Armstrong employee ever came to Automotive to discuss employment. This was Robert Storms who made a trip to the Proving Grounds in September 1961 and talked to Harper. He was offered an application but, after looking over the area and living conditions, Storms decided he was not interested and never filled out the application. Thus, out of over 100 employees in San Antonio, only 1 (Wright) ever actually filed an application at Automotive and he never offered to come to work at the wage rate then in effect. The contrast with the hiring of former Goodrich employees from Kerrville is significant. Between 20 and 25 made application and approximately 20 were hired. In effect, the General Counsel is attempting to show a general refusal to hire Armstrong employees through the experience of a single individual who filed an equivocal application. This is indeed a new concept of an employer's duty . . In any event, Respondent Automotive vigorously contends that it has not refused to hire former Armstrong employees. Based on his long experience in personnel work, Harper did not feel that employees from higher paid jobs would be interested in or satisfied with the rates at Automotive. Experience after the test track opened confirmed this view and, in addition, emphasized that employees who came from long distances were unlikely to stay. Even Kerrville drivers, who were hired at a rate in excess of that they were receiving in Kerrville but who had to move a long distance, did not stay. Of approximately 20 hired, only 10 stayed. Thus, from the time he first began thinking of employment problems, Harper had no reason to seek out the Armstrong employees, and when none of them even appeared at the track until well after it opened, his belief that they were not seriously interested was con- firmed. He had no duty to seek them out and he did not do so; but, when asked, as by Haidet and Beichlin, he advised that he would be glad to interview any who, were interested. 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner's Concept The Trial Examiner has heretofore, in writing this report, incorporated germane and cogent portions of briefs of the three eminently qualified counsel. He has done this for three reasons: First, they succinctly stated what I found to be the facts in the particular situation from a careful analysis and study of the whole record and which I could not have stated better . (In no instance have they usurped my fact- finding function.) The second reason is that they have cited cogent testimony which I had credited and which I would have written down in haec verba. This method was endorsed, advocated, and urged in resolution of the Administrative Law Section, written by its chairman, the late Clarence Miller, Esq., at the Blue and Gray Con- vention of the American Bar Association held in Richmond, Virginia, spring of 1953. The background of this action by the delegates was the contention of A.B.A. lawyers that N.L.R.B. Trial Examiners paraphrased the testimony in narration to such an extent and in such a manner that legitimate defenses and answer to Trial Examiners' version was difficult or impossible. The A.B.A. consensus was that the cogent evidence relied on by the Trial Examiner should be quoted "insofar as prac- ticable"-the qualification of the application of the rules of evidence in unfair labor trials. (This Trial Examiner has followed such practice since.) My third reason is that counsel in this case have met my qualifications in this respect, and such quota- tions help me shorten the report and should help the parties and any reviewing authorities. Further, I specifically requested all counsel to write briefs with findings and conclusions adaptable to this report. This they did. Union Activity at Automotive and Discharge of Billy Ray Griffin The treatment of union activity at Automotive and the discharge of Billy Ray Griffin is taken from the comprehensive brief of counsel for the General Counsel, Whittaker. My study of the record testimony, evidentiary exhibits, and observation of the witnesses on direct and cross-examination led me to the inescapable conclusion that the facts were as recited, in this phase of the case, by Counsel Whittaker. The simple principle is that herein, the truth lay with the General Counsel's witnesses, all of whom I credited. Respondent Counsel McGuiness' version, rejected by me, ap- pears in his brief, pages 23 to 25, 68 to 81. Adopted and incorporated as the Trial Examiner's language: Along the first week in May, Billy Ray Griffin, a mechanic, working under Deb Snyder in the Goodrich shop, telephoned the Chamber of Commerce at Fort Stockton to inquire if the Rubber Workers is located in that area. Although there was no union there, the Chamber of Commerce took his name. Griffin then tried unsuccessfully by long-distance telephone to San Antonio to reach the Rubber Workers. After this, Griffin went to his next door neighbor, Mr. Brown, who was a member of the Communications Workers, and through him got in contact with Steinke. In the early hours of May 18 a meeting was held at Griffin's home with Willis, Brown, and Steinke present. Two other meetings were held that day at the Travel Lodge Motel one at 1:30 p.m. and the other at 7:30 p in. At this time, Griffin was working a 4 p.m. to 12 midnight shift. Between this date and May 25, Griffin signed up some 26 cards which he de- livered to Steinke at that time. His best estimate is that he signed a total of 35 out of the overall total of 85 to 100 cards. Griffin was open in his solicitation and the Respondents were aware of it. On Wednesday, May 24, Griffin reported as usual to work at 4 p.m. He had just started to put away some of the equipment stripped from one of the automobiles when Deb Snyder in an apologetic way told him they were going to have to lay him off and fire him. He stated "Mr. Harper had kind of requested him to do that." Snyder expressed his regrets at having to see Griffin go. Griffin requested the reason but received no answer. Respondent Automotive was insistent that Griffin leave immediately . He gath- ered his tools. Deb Snyder and C. D. Evans drove him into town. At first the car windows were down and nothing could be heard by way of conversations . Reach- ing the main highway Snyder asked: "What's this I hear about the union?" and I told him, I said, "Well, I've heard some kind of rumors about the union," but that I did not know whether there was anything to them or not. He asked me what I thought about the union, and I told him that anything that would better my salary and get me some benefits out of the job that I had, I was 100 percent for it. Well, when the word "union" first came up, Mr. Snyder rolled up his window, and Mr. Evans rolled up his window, and we could hear each other real good. Mr. Evans said, well, that he didn't want the union out there; that he didn"t AUTOMOTIVE PROVING GROUNDS, INCORPORATED 449 think they had any business out there, that when you get a union in a place like that, that the union will run it according to their rules and regulations, and not the company's. He said that that place out there, well, they wanted it run according to them and not "according to some union." When we was talking about the union, and Mr. Evans first said something about it, that they wanted to run their place according to them, I told him that I thought there was room for quite a bit of improvement out there as far as I was concerned. Both Snyder and Evans were quite polite to Griffin. Evans said, "Is there any- thing I can help you with-well, he said that if I'd holler, that he'd try, he'd do his best." Snyder asked him when he delivered him to his home if he had another job lined up and Griffin told him he felt sure he could go back to work for Caterpillar, the Company he had worked with before coming with Respondent Automotive. "I shook his hand, and he said that if there was anything he could help me with, well, he would be glad to do it." Not being satisfied with the reasons he had been given, that evening Griffin called Tommy Beauchamp, the office manager, and asked him as to the reasons for his layoff. Beauchamp told him it was something about a Mack truck. After this Griffin telephoned Harper and asked him the reason for his layoff. "About the first thing he said, `didn't Deb tell you?' And I said, `No, Sir. He didn't.' And he said, `Well, he'd like to have someone with a little more experience."' This came as a surprise to Griffin who at the age of 20 had done nothing all his life but mechanic work having started in his father's shop. The next evening, May 25, a meeting was held at Griffin's home again and was attended by Steinke, Haegel, and Bob Griffin among others. Griffin had sent his wife out for the evening and she went over to the home of a girl friend to invite her to dinner. It just so happened that the girl friend was the daughter of Shift Foreman Brown and he became extremely interested in Mrs. Griffin's explanation about her husband having a union meeting or something. He inquired thoroughly into the matter including her address and how he could find her street. After this Brown was observed by Billy Griffin, Bob Griffin, Haegel, and Steinke driving slowly back and forth in front of Billy Griffin's home in his car which was the only one of its kind in Pecos. Brown was positively identified in the testimony. In addition to Foreman Brown having stamped the discharge of Billy Griffin for his union activities and leadership, there were others. A day or so afterward, M. W. Miller heard Deb Snyder announce in the garage that he understood that the reason Billy Griffin had been let go was because he was the leader of the Union or trying to organize one. Tommy Beauchamp told Robert Reillly, "You see where it got Billy Griffin, that's where it's going to get all those boys if they don't smarten up. They're all going to lose their jobs " Beauchamp had long predicted to Reilly that supporting the Union would cost an employee his job. Reilly who took Billy Griffin's place on the night shift for handing out authorization cards was discharged within a week and Beauchamp meeting him several weeks later in town at the Safeway Store told him "'I told you that the union would get you.' " "'Well, I tried to warn you a dozen times. I told you that that union would get you.' And I said, `Well, I figured it was that.' And he said, `Well, I am sorry,' and walked off." Harold C. Wilson, Jr., had the following conversation with Shift Foreman Brown around the 25th or 26th of May about 1 a.m. in the morning, "Well, Mr. Brown said, `Do you know anyone that's having anything to do with the union, as far as you know?' They were getting signatures at the time, and I said, I don't know of anyone except Bill Griffin and I think that they fired him.' . . . Mr. Brown says, `Yes: He says, `And I understand I have about ten men on my shift doing the same thing, and, if they find out who they are they'll fire them, too."' Inquiries about union activities were not only being made by Beauchamp of Reilly. Shift Foreman J. T. Marsh was also asking Reilly about union activities of the employees and warning him that he should stay away from the Union if he wanted to keep his job. Because of his disappointment in Reilly, Marsh later dis- charged him over a trumped up charge. Track Manager C. D. Evans questioned George Washington Riggs about a conversation he had with Bob Griffin, and "wanted to know who among the boys was trying to organize the union." This was shortly after Billy Griffin's discharge. About the same time Pape, Goodrich's man, asked Haegel and a friend of his who was interested in the Union to get him any information they could about it. C. D. Evans also asked Bobby Joe Jones on or about May 26 if Billy Griffin had ever talked to him about the Union. Harper asked Charlie Lee if he had ever heard Vince Evans mention anything about the Union. 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing, Respondent advanced additional reasons for the discharge of Billy Ray Griffin. One of these was improper repair of a drive shaft of an F85 Oldsmobile. At the time of Billy Ray Griffin's discharge, this incident was not known about. In any event, this automobile had been worked on twice before by one of the top mechanics, Buck Ellis, and it did not work properly after he finished with it. Yet, the Respondent did not fire Buck Ellis. The other reason advanced was that Griffin did not turn in enough work. The Respondent admitted that it destroyed the cards by which a record was kept of all the work Billy Griffin and other mechanics had done. Griffin testified credibly that he had done all the work he was capable of doing during his hours and that he had received no com- plaints or reprimands about not completing enough work or not having properly performed it. To raise this defense at the time of the hearing, long after the dis- charge and after Respondents had destroyed any evidence to disprove their con- tention, is not done in good faith. There is a conflict in the testimony as to who was responsible for the arm of the fuel pump being broken. Griffin testified credibly that he removed the arm from the old fuel pump and placed it on the new fuel pump before making the installation. But whether Griffin broke the arm or Nace broke the arm, it was a minor breakage. Many other things happened of much greater significance. Harper's claim that Billy Ray Griffin lacked sufficient experience is disproved by two things. First of all, Griffin's credible testimony is to the length of experience he had had as a mechanic which extended through his entire life. And second, the failure of Re- spondent to show in the record that they replaced Griffin with anyone even of comparable experience. This case is a classic example of a contrived pretext for a discriminatory dis- charge-and I so find. On the evidence above set forth, Respondent Automotive violated Section 8(a) (1) and (3) of the Act. In Conclusion As this Trial Examiner said in his Intermediate Report in Roadway Express, Inc., 119 NLRB 104 affirmed by the Board with modification, and sustained by the Fourth Circuit: It is obvious that a finding cannot rest merely upon guess, suspicion, or specu- lation predicated upon inferences arising from widely separated and unconnected incidents. Particularly is this so when inferences are utilized to overcome direct and positive testimony. See Indiana Metal Products Corporation v. N.L.R.B., 202 F. 2d 613 (C.A. 7); A. E. Staley Manufacturing Company v. N.L R B., 117 F. 2d 868 (CA. 7), and Martel Mills Corporation v. N.L R.B., 114 F. 2d 624 (C.A. 4). In the last cited case the court refused enforcement of the Board's order against the Company for an alleged discriminatory discharge of an employee. The motivating cause was in issue as it is here. The Board had found an improper motive based upon circumstantial proof. In rejecting the finding as not substantially supported, the court stated, quite appropriate to the instant situation, as follows: "We do not lose sight of the fact that our inquiry is centered upon the motivating cause of the employer's action. The task is a difficult one. It involves an inquiry into the state of mind of the employer. Such inquiry is laden with uncertainties and false paths. Obviously our chief guide is the words of the witness under oath who under- took to disclose the workings of his mind. If his explanation is a reasonable one, the onus is upon the Board to establish the falsity of this explanation and the truth of its own interpretation." Although Mr Harper denies knowledge of union activity prior to his discharge of Griffin, and lack of antiunion motivation, I do not accept his denial Three of the sincerest and most likely credible witnesses who have ever testified before me were Mrs. Griffin who quoted Foreman Brown's reason for Billy's discharge; witness Reilly, who was discharged for his union adherence as a Yankee union troublemaker; and Billy Griffin himself. Foreman Brown's explana- tion was a pure fabrication. The Board and courts, also, have held in cases too numerous to mention that supervisors' knowledge of union activities is management knowledge. Certainly it would be true in this case with a superintendent like Mr. Harper The applicable principle of law that must guide decision here was expressed by the First Circuit Court of Appeals in N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883, 885, as follows: In order to supply a basis for inferring discrimination, it is necessary to show that one reason for the discharge is that the employee was engaging in protected activity. It need not be the only reason, but it is sufficient if it is a substantial or motivating reason, despite the fact that other reasons may exist. [Citing cases.] Although the discharge of an inefficient or insubordi- nate union member or organizer is lawful, it may become discriminatory if AUTOMOTIVE PROVING GROUNDS, INCORPORATED 451 other circumstances reasonably indicate that the union activity weighed more heavily in the decision to fire him than did dissatisfaction with his performance. [Emphasis supplied.] The allegations of interrogation, threats, and of surveillance are sustained in the instances herein cited by the evidence of record. However, as to all other allega, tions in the consolidated complaints, I find that the General Counsel has not sus- tained his burden of proof by a preponderance of the evidence of record, and it will be recommended that they be dismissed. On all the record, I am convinced, and I find, that Billy Ray Griffin's activities constituted a substantial and motivating reason for his discharge, and that, but for such union activities, the Respondent would not have discharged him when it did. I conclude that the General Counsel has sustained the complaint's 8 (a) (3) and (1) allegations of unlawful discrimination by a fair preponderance of the credible evidence. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Automotive set forth in section III, above, oc- curring in connection with the operations of the Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Automotive has engaged in certain unfair labor practices, it will be recommended that the Respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent Automotive unlawfully discriminated with regard to the hire and tenure of employment of Billy Ray Griffin. It will there- fore be recommended that the Respondent offer him immediate and full reinstate- ment to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of such discrimination, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during that period, such sum to be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289-294. As the unfair labor practices found above evince a studied intent to thwart the rights of employees in freely selecting their collective-bargaining representative, a broad 8 (a)( 1 ) cease-and-desist order will be recommended. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 The Unions are labor organizations within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Billy Ray Griffin, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1 Cease and desist from: (a) Discouraging membership in the Union, or in any other labor organization of its employees, by discharging its employees or by discriminating in any other 672010-63-vol. 13 9-3 0 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner in regard to their hire or tenure of employment, or any term or condition of employment. (b) Threatening employees with discharge or other economic reprisal if they join, retain membership in, or engage in activity on behalf of the Union, or any other labor organization of its employees ; and/or interrogating and threatening em- ployees as to their union membership , activities or desires, or as to the union membership and activities of other employees, or engaging in surveillance of union meetings in a manner constituting interference , restraint, or coercion in violation of Section 8 (a) (1) of the Act. (c) In any other manner interfering with , restraining, or coercing its employees in their right to self-organization , to form labor organizations, to join or assist the Union , 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 such activities , except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Billy Ray Griffin immediate and full reinstatement to the position he held at the time he was discharged , or an equivalent position , without prejudice to his seniority and other rights and privileges , and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in the manner set forth above in the section entitled "The Remedy." (b) Upon request make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards , personnel records, and reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Recommended Order. (c) Post at its track and garage at Pecos, Texas, copies of the attached notice marked "Appendix A." 1 Copies of said notice , to be furnished by the Regional Director for the Sixteenth Region , Fort Worth, Texas , shall, after being duly signed by a representative of the Respondent , be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith? (e) It is recommended that the consolidated cases, except the complaint in Case No. 16-CA-1492, be dismissed in their entirety. 'In the event that these Recommendations be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." a In the event that these Recommendations be adopted by the Board , this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any other labor organization of our employees , by discharging or otherwise discriminating against any employee in regard to his hire, tenure of employment , or any term or condition of employment. WE WILL NOT threaten our employees with discharge or other economic re- prisal if they join, retain membership in, or engage in activity on behalf of the Union, or any other labor organization of our employees. AUTOMOTIVE PROVING GROUNDS, INCORPORATED 453 WE WILL NOT interrogate or threaten our employees as to their union member- ship, activities or desires, or as to the union membership and activities of other employees, in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organi- zations, to joint or assist the above-named union or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by the National Labor Relations Act. WE WILL offer Billy Ray Griffin immediate and full reinstatement to the posi- tion he formerly held, or its equivalent, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him. AUTOMOTIVE PROVING GROUNDS, INCORPORATED, 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. Employees may communicate directly with the Board's Regional Office, Federal Center, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edison 5-5341, Extension 284, if they have questions concerning this notice or compliance with its provisions. APPENDIX B ARTICLE 1 * * * * * * * 1.4 Automotive will provide such drivers as are necessary for Armstrong's test purposes. ARTICLE 2 * 2.1 Armstrong shall have access to and use of the track for its own testing pur- poses on a 24-hour seven-day per week basis for its trucks and passenger cars subject to reasonable rules and regulations within the limits of 2.2. * * * * * * * ARTICLE 3 * 4.3 Armstrong will make their own tire test readings and their own test reports. Armstrong will reimburse Automotive for the cost of Automotive's personnel used in making of such tests. 4.4 Armstrong agrees to abide by all general rules and regulations promulgated by Automotive relating to track scheduling, track usage, safety, vehicle safety, insurance protection, and any and all rules and regulations promulgated for the proper administration or maintenance of the track. * * * * * * ARTICLE 5 * * * * * * * 5.1 Automotive will promulgate rules and regulations regarding track adminis- tration and maintenance including but not limited to the following: * * * * * * * (B) General rules regarding scheduling , including notification by various testing parties to Automotive of requirements and provisions for the timely promulgation of track schedules (C) Regulations relating to the number of vehicles and the speed and safety standards for such vehicles as well as all driver qualifications. * * * * 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5.2 Automotive shall promulgate the above rules and regulations and charges thereto in writing and supply all parties with copies thereof. 5.3 Automotive shall hire, pay, account for and supply all drivers and mechanics and other personnel necessary for the testing to be conducted on the track. Auto- motive shall be the final authority on the retention of any such employee. [Emphasis supplied.] Reichart Furniture Co. and International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, General Teamsters, Chauffeurs, Warehousemen and Helpers,. Local Union No. 697. Case No. 6-CA-2465. October 24, 1962 DECISION AND ORDER On July 11, 1962, Trial Examiner Frederick U. Reel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that Respondent had not engaged in cerain other unfair labor practices as alleged in the complaint and recommended dismissal of those allegations.' Thereafter, the Re- spondent and the General Counsel filed exceptions to the Intermediate Report, together with 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 Leedom, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the briefs, and the entire record in this case, and adopts the findings, conclusions, and the recommendations of the Trial Examiner as modified herein. ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order with the following modifications : 2 'As found by the Trial Examiner, the strikers who returned to work at the end of October 1961 did so pursuant to an understanding between them , the Union , and the Respondent that they would be treated the same , with respect to seniority, as the strikers who returned to work on October 9. These strikers did not receive the written Statement of Policy which was given the earlier returning strikers because, as appears in the Inter- mediate Report, the assurances of job security which were contained in the Statement of Policy were not necessary in their cases because they , unlike the strikers who returned on October 9, returned with union approval . In view of these facts , we agree with the apparent conclusion of the Trial Examiner that the Respondent did not establish one seniority system for the strikers who returned to work on October 30 and 31 and another policy, more favorable , for those who returned on October 9. 2 For the reasons given in Isis Plumbing & Heating Co ., 138 NLRB 716 , we also order that the Respondent 's backpay obligation include the payment of 6-percent interest on the backpay due Stillwell and Kovalsky . Member Leedom , however, for the reasons stated in the dissent in the aforementioned case, would not grant such interest. 139 NLRB No. 38.