Ed White Junior Shoe Co.

ED WHITE JUNIOR SHOE COMPANY 403 Notify the Regional Director for the Fourth Region, in writing, within 10 days from the date of this Intermediate Report, what steps the Respondent has taken to comply herewith.5 5In the event that this Recommended Order shall be adopted by the Board, this provi- sion shall be modified to read* "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, I notify my employees that: I WILL, upon request, bargain collectively with Furniture and Allied Workers Union Local No. 37, Upholsterers' International Union, AFL-CIO, as the ex- clusive bargaining representative of all employees in the following unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees of the United Store Fixture Mfg. Co., exclusive of office clerical and supervisors as defined in the Act. I WILL offer to all strikers, upon their application, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing, if necessary, any employees hired after July 18, 1962, to replace these employees, and I will make each employee whole for any loss of pay suffered by him as a result of my failure to reinstate him within 5 days after his application. DOMINIC J. CALABRESE T/A UNITED STORE FIXTURE MFG., CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Philadelphia 7, Pennsylvania, Telephone No. Penny- packer 5-2612, if they have any question concerning this notice or compliance with its provisions. Ed White Junior Shoe Company i and Boot and Shoe Workers Union, AFL-CIO. Case No. 26-C.4-1,311. Marche 13, 1963 DECISION AND ORDER On November 27, 1962, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and rec- commending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found the Respondent had not engaged in certain other unfair labor practices and recommended that the com- I The name of the Respondent appears as amended and will be so reflected in the notice. 141 NLRB No. 32. 708-006-64-vol. 141-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint be dismissed as to such allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a brief in support of the Intermediate Report. 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 Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error has been committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclu- sions, and recommendations as modified herein? ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the modification noted below 3 2 The General Counsel excepts to the Trial Examiner's failure to Include in his Recom- mended Order and proposed notice any remedy for his finding that Respondent violated Section 8 ( a) (1) by creating the impression among its employees that their union activity and meetings had been placed under Respondent 's surveillance. We find merit in this exception and shall modify the Recommended Order and notice accordingly. 3 The Trial Examiner's Recommended Order is hereby modified by deleting paragraph (c) thereof and substituting therefor the following: Engaging in surveillance of any union activity or union meetings , or creating the, impression of surveillance of such activity or meetings , by telling employees the Employer has a recording of union meetings. The third paragraph of the notice is also similarly modified. The Employer's name In the notice is amended to reflect its correct name. INTERMEDIATE REPORT Upon charges filed by Boot and Shoe Workers Union, AFL-CIO, herein called the Union, a complaint was issued against Ed White Shoe Company, herein called the Respondent, on August 3, 1962, alleging violations of Section 8(a)(1) and (3) of the Act. The violations are alleged to consist of discriminatory discharges of two employees, surveillance, threats, and interrogation . Respondent denies that it has committed the alleged violations . A hearing was held before Trial Examiner Ramey Donovan on August 21 and 22, 1962, in Paragould, Arkansas. Both the General Counsel and Respondent were represented by counsel , participated in the hearing, and filed briefs. Upon the record and briefs , and based upon my observation of the witnesses, I make the following: FINDINGS OF FACT AND LEGAL CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Ed White Junior Shoe Company is an Arkansas corporation operating a plant in Paragould, Arkansas , where it is engaged in the manufacture of shoes. In the most recent 12-month period, Respondent, in the course of its business, purchased and received, at the above-mentioned plant , materials valued in excess of $50 ,000 directly from points outside the State. During the same period Respondent manufactured , sold, and shipped from its Paragould plant finished products valued in excess of $50,000 directly to points outside the State of Arkansas. Respondent is engaged in commerce within the meaning of the Act and within. the purview of the Board's jurisdictional standards. ED WHITE JUNIOR SHOE COMPANY 405 II. THE LABOR ORGANIZATION INVOLVED The Union, Boot and Shoe Workers Union , AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background According to the uncontroverted testimony of Respondent 's president, White, the Company commenced operations in 1944. From 1946 to 1950 or 1951 Respondent's production employees were represented by a CIO union, otherwise unidentified in the record . The parties negotiated yearly contracts including a checkoff provision for union dues. White testified , "We had no problems" with the Union. According to the witness, the Union simply petered out and after a period when it failed to call for the checked-off dues that the Company had deducted , the dues were returned to the employees. The foregoing meager evidence is not of material significance but it is at least not a picture of an employer traditionally and resolutely battling against the very concept or the possibility of having a union in its plant. Having noted what is known of the past we now come to our principal or sole concern, namely, the evidence regarding events in 1962. In the latter part of May 1962, Cloinger and other union representatives com- menced organizational efforts among Respondent 's employees.' The union people contacted certain employees whose names they had, met with them, advised them regarding the Union and organizational procedure , and in effect set up an employee committee of about nine employees who were given union cards to distribute to their fellow employees . Conger and Janes, the two alleged discriminatees in this case, were not among the first group that Cloinger contacted but they became members of the organizing committee around June 9, 1962. B. Statements and other acts by Respondent's agents Employee McPherson testified that he was a "rush boy." He worked out of Respondent's office which was approximately in the center of the factory. As the name implies , the office was where White and various other officials as well as the office personnel worked. Heston was described by McPherson as the office foreman which I take to mean that he was the office manager. When an order came into the office McPherson would receive ceiain instructions from Heston and would convey the order to various departments in the plant , particularly the shipping department, whose foreman was Morris . McPherson testified that he took orders from both Heston and Morris. On June 7, during the course of work, Greuel , foreman of the lasting department (one of the production departments ), spoke to McPherson. According to the latter, Greuel said, "Bob, can you sign a union card?" and McPherson replied, "Well, I guess I can." Greuel then said, "Well , I can't sign one and I just wondered if you could sign one." McPherson testified, "Then he [Greuel] turned around and backed off. That is all that was said." 2 Greuel testified that he did ask McPherson whether he could sign a union card. He said he thought McPherson was a "company man" by which he explained he meant that McPherson was on the straight-time or salaried payroll and therefore not eligible to belong the Union. The witness, who had been with the Company about 12 years , said that previously, when there was a union in the plant, he was under the impression that certain employees were not eligible for the Union. I am not persuaded that Respondent, through Foreman Greuel , whom I find to be a supervisor, was in violation of Section 8(a) (1) of the Act by asking McPherson whether he could sign a union card . I do not regard the terminology on its face to be coercive or to constitute interference . If the words used are not taken literally, 1 Respondent employs approximately 350 to 400 production employees This was McPherson's testimony on direct examination by the General Counsel and this is the testimony of McPherson that Is cited In the General Counsel's brief The General Counsel does not refer to the witness' testimony on cross-examination when be stated that Greuel asked, "If I had signed a union card and I said, 'yes, I have signed one' He said, 'Can you sign a union card?' I said, 'I guess I can ; I have already signed one ' " I credit McPherson's testimony of direct examination, previously de- scribed, as what was said to hint by Greuel, and to the extent that his testimony on cross- examination varies therefrom I discredit it as not being an accurate version. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they are at worst, ambiguous. Greuel's explanation at the hearing is, in my opinion, consistent with the words used to McPherson, and is not unreasonable or implausible. McPherson did work out of the office. Arguably, he was not a production worker. The record does not show whether he was paid on an hourly basis or received a weekly salary but as a matter of surmise I would be inclined to believe that he was salaried and Greuel could reasonably have so believed. During the period of the CIO incumbency in the plant the Board had conducted an election and, presumably, with respect to bargaining unit there had been questions and rulings on the eligibility of certain classes of employees. A not uncommon differentiation is to exclude sal- aried office workers from a unit of hourly paid production workers. Whether McPherson's job would be included or excluded in a production and maintenance unit is not before us and is not the issue. The point is that Greuel's explanation of his question is not lacking in plausibility. I find no reason to speculate regarding possible subjective aspects since the Board has consistently rejected this approach in evaluating whether or not a statement on its face was or was not coercive or otherwise illegal. Accordingly, dismissal of this allegation of the complaint is recommended. The foregoing admitted incident illustrates, however, that as early as June 7 Respondent was aware that there was union activity among its employees. As far as appears there had been no union activity for about 10 years until the 1962 effort which commenced in the latter part of May 1962. Greuel's interest in employee eligibility on June 7, 1962, was surely in response to some awareness of the current union activity. When there is an absence of union activity for 10 years no one like Greuel would normally ask the type of question propounded by Greuel as an abstract concern about the principles of labor law. It was clearly related to the current union activity and the interest of Greuel in at least the aspect of McPherson's eligibility. I mention this factor since it bears, I believe, on the evaluation of certain subsequent alleged conversation in which Greuel was said to have participated. Gray, an employee in the lasting department, testified that on June 8 Greuel came up to him and asked, "Have you heard anything about Gerald [Conger] pushing union cards." Gray said he had not. At the hearing Greuel denied having made such an inquiry. Gray impressed me as a credible witness and I credit his testimony. Among other factors I note that on the previous day Greuel displayed his interest in the current union activity when he admittedly inquired about McPherson's eligi- bility. Apparently union matters were on his mind to the extent shown, including what I regard as Gray's credible testimony. I interpret Greuel's question to Gray as an inquiry as to whether Conger was active in the union movement by soliciting signatures on union cards or by asking em- ployees to sign such cards. The question was not directed to whether Conger was doing such things during working hours, which might well have been a subject of legitimate inquiry but was directed to whether, in effect, Conger was active in the Union. The probing and interrogatory nature of the question is particularly evident since Conger had nothing to do with the Union until the evening of June 9, as we shall see below. There could, therefore, be no basis for inquiry regarding the propriety of the manner of his union activity or suspected activity but only an inquiry as to whether he was engaged in such activity. I fail to see any legitimate basis for such an inter- rogation and the inquiry cannot be regarded as any type of an expression of opinion regarding the Union by Greuel. Such an interrogation disclosed to the employee that the foreman suspected or wanted to know whether another named employee was active in the Union and whether he was handing out cards. Under the circumstances, the interrogation had an inhibitory effect on employee activity and interfered with the exercise of employee rights and I see no legitimate basis for such interrogation. I therefore find a violation of Section 8 (a) (1) of the Act. It is to be observed that Greuel's interrogation of Gray would foreseeably have been calculated to elicit one of the following types of responses: (1) Yes, Conger is pushing union cards; (2) no, he is not; (3) I do not know; (4) no, Conger is not pushing the cards, Jones and Smith are doing it. In any event, the interrogation itself disclosed that the identity of who was pushing union cards was of interest to the Employer and it is difficult to believe that any employee would equate this interest with a casual inquiry similar to a question about the score of yesterday's baseball game. This I believe is true regardless of what may have been the intent of the foreman-interrogator. As to why Greuel suspected Conger of being an active protagonist of the Union when, in fact, at the time, this was not the case, I believe the following is an accurate diagnosis. Preliminarily, however, the salient point is that, as Gray's testimony reveals, Greuel suspected Conger for whatever reason he may have had. This is confirmed by Greuel's conversation with Conger himself on June 9. But as to why ED WHITE JUNIOR SHOE COMPANY 407 this was the case, my observation of Conger as a fairly lengthy witness impressed me that he was intelligent, mentally alert, articulate, a versatile and competent worker, and a man of strong conviction. Among the employees whom I observed as witnesses, the nature of the work in Respondent's plant, and what I could discern of the overall picture, I would regard Conger as a leader-type or at least a potential leader among rank-and-file employees. I believe that Conger's fore- man, Greuel, probably believed that there must be some sparkplug among the em- ployees who was behind the union activity and he quite evidently and not unreason- ably suspected a man such as Conger and wanted to find out if such was the fact .3 While Conger was working on June 9, his foreman, Greuel, came up to him and said, "Gerald, I would like to talk to you a minute." According to Conger, whom I credit on this matter, Greuel then said, "Gerald, I would like to ask you something. Would you be for the Union." CONGER: Union? I don't know. What about it. GREUEL: Would you like to get a union down here? CONGER: Well, I hadn't thought nothing about it. If we could get a union like they got up north, it would be all right, but this place I hadn't heard nothing about it. GREUEL: Well, what I am getting at, I want to know if you have signed a union card. CONGER: No, I didn't sign a union card. Why? GREUEL: I want to know if you signed a union card or if you are shoving union cards and getting them signed up. CONGER: I told him again that I hadn't signed a union card and then he just turned around and walked off.4 The foregoing interrogation of Conger by Greuel is found to be violative of Section 8(a)(1) of the Act. McPherson, an employee witness referred to earlier in this report, testified without contravention and credibly that on June 14, while he was doing some work in the shipping department, after the end of the morning break, Assistant Foreman Cox of that department came up to him and said, "Bob, how's the Union going." McPherson said, "It's going pretty damn strong" and Cox remarked, "Well, someone is going to lose their job." McPherson observed, "Well, you can make $1.15 an hour any place you want to work." Cox again said, "Well, someone is going to lose their jobs over it." Respondent's foremen, according to President White, possessed the power and authority to discharge employees and to direct them in their work. The foreman was responsible for the work in his department. Assistant foremen shared the responsibilities of the foremen. Morris, foreman of the shipping department, testified that Cox saw to it that work was properly performed in the department, that em- ployees were allotted work, directed employees in their work, corrected and repri- manded employees, and had the authority of Morris in the latter's absence due to illness, vacation, or otherwise. Accordingly, I find that Cox was a supervisor within the meaning of the Act and that his uncontroverted remarks to McPherson on June 14 were violative of Section 8(a) (1) of the Act. The Union held its first general open meeting on June 19, in Reynolds Park, Paragould, a public park, between about 6:30 and 8 p.m. The meeting had been widely publicized by word of mouth and there was no secrecy about the fact that it was to be held. In fact, the evident purpose was to have as many employees as possible aware of the scheduled meeting in order to secure maximum attendance. 9I find some confirmation of my belief that Respondent regarded Conger as possessing some distinguishing qualities in Conger's uncontroverted testimony that around the middle of June 1962, White summoned Conger to his office. White suggested that they take a ride and then drove Conger out to White's home White told Conger that he, Conger, had been with the Company quite a while and asked him about his house and his farming. White complimented Conger that he was trying to get ahead with his farming and said he had watched Conger and that he was a good worker and that White was interested in someone that did good work for the Company and good work for himself at home. 4 Gruel's denial of this conversation was confined to stating, in reply to Respondent's counsel's question whether he had asked Conger if he had signed a union card, "I don't remember that if I did." The testimony of Ward, a witness of Respondent, jibes with that of Conger. She stated that one day in the plant Conger came to where she was working and told her that Greuel had just accused him of working for the Union and of pushing union cards Conger told Ward that he, Conger, had informed Greuel that such was not the fact. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cook, who had worked for Respondent for 7 or 8 years, had resigned voluntarily about a month and a half before the hearing. He had been active in the Union while still an employee but thereafter had ceased his activities. The day before the hearing he had a chance encounter with counsel for the General Counsel and in the course of the conversation he was asked if he knew anything about the impending case.5 Evidently he furnished the matter of the Reynolds Park incident since he testified thereon at the hearing. The complaint, alleging surveillance of the Reynolds Park meeting by Respondent's Superintendent Akins, had, of course, issued well before the time when Cook furnished information on the matter to the General Counsel. Since the only other witnesses besides Cook who testified regarding this matter were Janes and Conger it is evident that the complaint of surveillance had been based on the testimony of the latter two individuals. It appeared on cross- examination that Cook, before August 20, had told no one what he knew about the instant case or about the Reynolds Park matter and he had had no contact with Janes or Conger. These circumstances, credibly testified to by Cook and not con- troverted, plus my impression of Cook as a witness, have led me to credit his testimony notwithstanding the rather sharp testimonial conflict regarding the June 19 incident in the park. The meeting was held in an open shed in the park. The structure had a roof and open sides and was apparently used for picnics and related purposes. Cook arrived late for the meeting and since most of the seats within the structure were taken he stood on the outside. About 7.30 p.m., while Cook was looking toward the road that runs within about 10 or 15 feet from the building he saw a car come down the road. In the car was Elwanda Johnson, manager of Respondent's payroll depart- ment, who was sitting beside her husband, a nonemployee of Respondent, who was driving. There were three other people in the car whom Cook did not know.6 The car was proceeding slowly and it followed the road around the shed and departed. Cook testified that a car, as did the car in question, "had to circle around the place to get out." A few minutes later Cook saw a car driven by Akins come down the road slowly and pursue the same course as had the preceding car. Cook recognized Akins, one of Respondent's two superintendents, a supervisor, and testified that there was someone sitting next to Akins but he did not look at this person or recognize him. Cook stated that the lights had been turned on in the shed and in the park at the time. Employee Janes testified to substantially the same effect as Cook. He was sitting on a bench at the edge of the shed when he saw the two cars in the order afore- mentioned. Employee Conger testified that he was sitting within the shed when he saw Elwanda Johnson in a car and then a car that he recognized as Akins' drive by. He said that the man driving the car resembled Akins but he could not positively recognize him as Akins. Both Johnson and Akins denied that they had engaged in the foregoing actions or that they had been in the park on June 19. Akins, in some respects, impressed me as a reliable witness but on this aspect of his testimony I was not persuaded. He testified that he had gone to Reynolds Parks once that summer and on that occasion he had his two small sons. He stated that he had no way of knowing when this visit to the park occurred but did say they had gone out to the park before dark and it was later in the evening when they returned. Respondent's counsel asked the witness whether he had checked with his wife or in any other way had endeavored to pinpoint any happening on June 19. The witness replied, "No, sir, I have not." The complaint, issued well before the hearing, had specifically alleged that Akins on June 19 had engaged in surveillance of a union meeting or meetings. Cook, Janes, and Conger testified on the first day of the hearing regarding Akins' presence near the meeting. Akins testified on the second day. There was therefore ample advance notice of what the issue was with respect to Akins and June 19. Since Akins went to the park only once in the entire summer and on that occasion was accompanied by his 7- and 8-year-old boys, I have difficulty in understanding why this uncommon event would not have enabled him to fix the date thereof. Even if he could not remember the day of the week or the day of the month it is hard to understand why he could s This background was adduced in cross -examination by Respondent 's counsel. 6 The General Counsel has not alleged nor does he claim that Johnson engaged in any violation of the Act and there is no showing that she was a supervisor. 7In its brief Respondent points to this factor as implausible. However, in the absence of specific evidence as to weather conditions on June 19, 1962, it is not implausible, in my opinion, that between 7 :30 and 8 p.m., standard time, lights would be turned on in a public place, either as a matter of normal co :rse or because of cloudy or other conditions. ED WHITE JUNIOR SHOE COMPANY 409 not at least name it as occurring in June, July, or August. But Akins said that he simply did not know when this excursion occurred. Further, faced with this specific issue on June 19, if Akins himself did not remember June 19 or the one time when he had gone to the park, it would seem likely that he would have asked his wife about the matter.8 If his wife had no recollection of June 19, she would probably know at least the approximate time when their father took the two children to the park. The excursion might well have been at her suggestion. In any event, in my view, the witness would have carried more conviction in his testimony if he had testified to at least the approximate time when he had been in the park. But his testimony was that he was in the park one evening during the summer but that he could not place the time either as to day or as to month. However plausible it might have been, if so testified, I do not have before me testimony that Akins took his children to the park on June 19 and drove by the union meeting at the park. What is in the record is a denial by Akins that he was in the park and drove by the meeting on June 19. I have credited the testimony of the Government's witnesses for the reasons previ- ously stated and I also find Akins' denial unconvincing in view of all the circum- stances. In the absence of explanation by Akins for his presence on the road immediately adjacent to the union meeting on the particular evening of June 19 and during the particular time of the meeting, I find that his presence was an act of surveillance vio- lative of Section 8(a)(1) of the Act. While a number of plausible and legitimate explanations might have been produced I cannot supply explanations that are not offered. Many people go to parks but Akins was not a frequenter of the park and in fact was only there once. There is no evidence that the park was on his normal route of travel or any evidence why he drove slowly by a specific shed, on a bad road, at the specific time and on the specific night of a publicized union meeting. On June 21, 1962, according to employee Underwood, his foreman, Morris, asked him how was the union meeting that you had. Underwood said he had not attended but as he saw employee Donnie Janes approaching he said, "Here comes Donnie, I'll ask him." When Janes came up to Morris and Underwood the latter asked him how the meeting was. Janes said, "Oh, it was good." The conversation terminated with Morris remarking, "Well, it doesn't matter anyhow because Mr. White has a tape recording of the whole thing." Janes' testimony regarding the above incident cor- roborates Underwood. Respondent's counsel asked Morris whether he recalled asking Underwood about a union meeting on June 21. The witness said, "Do I remember asking him, yes, I remember the discussion." He then proceeded to state that they were discussing the Emerson situation,9 that he did not remember the date, and "I don't know if it was the date they [Emerson] had a meeting or not because I have never heard of them having a meeting-as far as I knew they didn't have a union. . I find Morris' above testimony to be unconvincing and I credit Underwood' s testi- mony. The interrogation was calculated to reveal the status or the success or failure of the union meeting as well as whether or not the employee who was questioned had or had not atttended the union meeting. I find a violation of Section 8(a)(1) of the Act thereon. About June 23, a group of employees, as well as Assistant Foreman Cox, during their break period, were on the platform or dock of Respondent's plant. Under- wood testified that they were discussing unions in general and also the strike situa- tion at the Emerson plant in Paragould. According to the witness, "then that discus- sion [unions and Emerson] was dropped, you know, when we started talking about the union at the factory, and we were trying to `egg' Cox on, you know, because he gets nled up pretty easy, and we were trying to show how brave we were then and that we weren't afraid to let them know we were working for the Union and we [were] showing off in front of Mr. Cox and let him know we weren't afraid." When this conversation ended and the break period was up, Cox said, "I can tell you one thing, there's going to be some people lose their jobs over this union." Both Under- wood and Janes testified to substantially the same effect regarding the foregoing. They both state that Cox's statement was not made during the Emerson part of the conversation but was made after the discussion had gone into the union situation at Respondent's plant. Cox admitted that he had made the statement attributed to him but he said it was in conjunction with the discussion of the Emerson situation and that the latter was the sole topic of conversation. According to Cox, Janes had remarked about the Emer- 8 Respondent's counsel apparently thought this a reasonable assumption since he ques- tioned Akins about this. The witness said he had not consulted his wife. 9 The record shows that Emerson was a plant in town which was on strike. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD son employees going on strike and had expressed the view that the strikers would get what they were asking. Cox testified that he had heard that Emerson had sent out a letter which was also going to be published in the morning paper, to the effect that if the strikers did not come back to work by Wednesday, they would be replaced or fired. It was therefore in this connection and in the context of the Emerson discus- sion that Cox made his statement about some people losing their jobs. There are some aspects of the June 23 incident that resemble the June 14 incident, above, testified to by McPherson. I have considered the possibility that there was only one such incident and that there was a mistake as to dates. However, I have re- jected this possibility for several reasons. McPherson was quite definite in fixing the incident to which he testified as June 14. His testimony was not controverted. Also, no witness, including Cox, has denied that there were two separate incidents. Underwood, Janes, and Cox all were in agreement that the date of June 23, give or take a day, was the date of the occurrence to which they testified. The two Govern- ment witnesses had additionally several points of reference by which to fix the June 23 date. The union meeting was June 19. On June 20 or 21 Morris had ques- tioned them about the meeting and the Cox incident on the dock was a few days later. Returning now to the June 14 affair, I note that McPherson said that during the break on the dock there was discussion about Emerson which was a general and frequent point of discussion among Respondent's employees and probably in the Paragould community. On the dock on June 14, according to McPherson, Cox did say that he did not think that the Emerson strikers would get back their jobs. The break then terminated and McPherson returned to the shipping department and started work on some orders. As previously described, Cox also came back to where McPherson was after the break and asked him how the Union was going "Here at the factory." When McPherson said it was going strongly Cox remarked, "Well, someone is going to lose their job." This remark is almost identical to Cox's admitted statement on June 23. The uncontroverted testimony is clear that on June 14 there was a definite dichotomy between the Emerson discussion and the aforesaid statement of Cox. It is my belief that in a parallel situation on June 23 the testimony of Underwood and Janes is credible and that Cox's remark on June 23, as on June 14, was made in conjunction with the discussion of the Union in Respondent's plant Certainly this would be reasonable interpretation on the part of the employees who were present, regardless of whether Cox in his own mind was speaking only of the Emerson situation.'° The statement, "I can tell you one thing, there's going to be some people lose their jobs over this Union," in context and sequence, reasonably appeared to be a threat with respect to union activity among Respondent's employees and as such was violative of Section 8 (a) (1) of the Act. C. The discharge of Gerald Conger Conger had worked for Respondent since July 1957. He was discharged June 25, 1962. Testimony in the record satisfies me that Conger was a competent employee and, in many respects, because of his versatility in being able to perform different operations and indications that he was a rapid worker, he was a good and perhaps a better than average performer. Respondent has not impugned or sought to impugn either the quality or the quantity of Conger's work Although the union effort commenced in the latter part of May 1962, Conger was not among the original contacts that the Union made among Respondent's employees. He was not a member of the employee organizing committee when the Union commenced its drive and there was activity and solicitation among the em- ployees prior to June 9 when Conger joined the organizing effort. On the latter date, June 9, as previously described, Conger's foreman, Greuel, who quite evidently was aware that union activity was going on among the employees, queried Conger. He asked Conger if he had signed a union card and if he was "pushing" union cards among the employees. Conger asnwered truthfully and in the negative. However, he did indicate that he was not opposed to the idea of a union as a matter of principle and opined that a good union would be all right. As I have heretofore observed, Conger impressed me as an alert individual, articu- late, and strong in his convictions. His reaction to Greuel's questioning was a feeling of some resentment because he regarded the questioning as in effect an unfounded 10 Moreover, it is difficult to see how on June 23 when Emerson had evidently given its strikers a future deadline within which to return or be replaced or discharged, Cox could have or would have made such a positive statement that Emerson stinkers (as he con- tended he meant) would lose their jobs The strikers might decide to return to work immediately or by the deadline date and presumably would not lose their jobs. ED WHITE JUNIOR SHOE COMPANY 411 accusation and an unwarranted expression of suspicion on the foreman's part. This feeling was apparently compounded by Conger's belief that after talking to Conger, Greuel had asked some other employees about Conger, thereby indicating in the latter's eyes that Greuel had not believed his denial of union participation.ii As a result of the foregoing, Conger signed a union card on the evening of June 9 and immediately and actively associated himself with the union organizational effort. His activity consisted of attending all meetings of the organizing committee of about 11 employees, including Conger, as well as the open meeting of the Union on June 19. He secured approximately 75 signatures on union cards from employees and devoted considerable time to the union drive.12 The other members of the committee were advised by the union representative that anytime that they could not personally come out to the motel where the union representative was staying they should give any cards they had secured to Conger or Janes who would deliver the cards to the motel. Respondent has had and does have a rule posted on the bulletin board and other- wise communicated to employees. The rule provides, "No kidding or talking during working hours. That is what your rest period is for. When you talk you make mistakes and bad shoes." The evidence in the record persuades me that Respondent and its supervisors sought to and did enforce this rule and that the employees were aware that such was the fact. I also find that in the past employees had been dis- charged for violating this rule. However, there is also credible evidence that while the employees did not openly violate the rule, at least when detection by a supervisor was possible, they or some of them did speak to each other during working hours about nonwork subjects. Conger testified that he did not talk to any employees about the Union during working time. Although in many respects I found Conger to be a credible witness I am not persuaded that his testimony on this matter was accurate. Conger's work entailed that he move to various points in his department as well as, on occasion, to points in other departments. His work entailed some conversation with other employees. I find it difficult to believe that in the course of such conversation during the June 1962 period Conger did not make some reference to the union drive then in progress or that he ignored any question that might have been asked him about the Union. We have seen that Conger was a person of strong conviction; he had thrown himself wholeheartedly into the union campaign and as time went on he admittedly worked harder and devoted more time and effort to securing union adherents. Aside from this general inference there is specific evidence that Conger did make reference to union matters during working hours. He talked to Ward, a fellow employee, about how Gruel had questioned him about the Union and his activity therein; either on this or another occasion during the relevant period Greuel saw Conger with Ward during working hours under circumstances that indicated that they were not engaged in or discussing work and he directed Conger to go back to his work elsewhere in the department; employee Hale testified that Conger had spoken to her and others about the Union during working hours but there is no evidence that any supervisor was aware of these particular facts; employee Leslie Johnson stated that Conger had spoken to him about the Union during working hours and that in the same period he had seen Conger talk to others and he told Conger that if he was not careful he would be discharged; employee Clements stated that Conger had spoken to him about the Union during working hours; Morris, foreman of the shipping department, testified that in the several weeks before Conger's discharge he observed Conger talking to employees on matters not per- taining to the work; he stated that one occasion was an incident in which McPherson, who took orders from Morris, and Conger were talking together; Morris spoke to McPherson about this and the employee admitted that he and Conger had been "goofing off"; this testimony was not controverted other than by Conger's general denial aforementioned. Chronologically speaking, it is pertinent to mention at this point that around the middle of June there had been a layoff in Conger's department. The only witness who testified about this was Conger and the details were meager. I would surmise that the layoff was of brief duration but evidently there was little or no production "I make no finding that Greuel, after questioning Coneer, then checked with other employees about Conger. However, I do find that Conger believed that Greuel had doubted his word and had checked with others. Thus, on June 22, Conger, referring to the June 9 incident, said to Greuel, ".. . I gave you my word then I hadn't signed a union card, and you wouldn't trust me and you had to go and ask two more of the other guys-they told me that.. . ." 12 The Union had obtained about 190 signed cards overall. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going on in the lasting department and it may not have operated for a day or two. I say this because Conger's uncontroverted testimony is that he was not laid off but was doing some plumbing work in the plant during the layoff. It is doubtful that this would have been the situation for a valuable employee such as Conger if his department was operating, at least in the absence of a claim or even an intimation of discrimination in this respect. It was during this episode that White drove Conger out to his home and had a friendly conversation, previously described, with him. For reasons discussed below I believe that Respondent, through its supervisors, was aware of the union activity during this period, including Conger' s prominent role therein. Conger had been retained during the layoff and White made no mention of the Union to him on the occasion of the drive and conversation at the latter's home. It is accurate to say that on this occasion White spoke well of Conger as an employee and as an individual. If White had in mind that Conger might conclude that his best interest lay with the Company rather than in union activity he did not say this and the incident conveys no impression of hostility toward the Union or toward Conger himself. On Friday, June 22, according to testimony of Conger that I credit, Greuel, Conger's foreman came to him while he was working and told him that if he wanted to continue working he had better straighten up and do right; that Conger was on his "s-t list" to get rid of and not to ask him why because he know the reason. When Greuel turned and went to another section of the department Conger followed him and in effect asked him what he meant. Greuel repeated that Conger knew the reason and said that it was about the Union. Conger then told Greuel how the latter had refused to believe him on June 9 when Conger told him truthfully that he was not in the Union and how Conger, incensed, had then joined the Union and had been working for it since that time. Conger told Greuel if he wanted to discharge him over the Union to go ahead. Greuel replied that he did not have to do it because of the Union but could call it something else. Greuel then went on to tell Conger that the people in his department had turned against him, Greuel, and that ever since the Union started he could not get anything done. Conger said that the employees had not turned against Greuel and, when asked by Conger, Greuel admitted that Conger had not slowed down in his work and that his work was satisfactory. Greuel said that he was under a lot of pressure and then left. Parker, an employee in the department, was near Conger during the first part of the Greuel conversation and he made it a point to follow the two men and to overhear the latter part. He corroborates Conger. Later on the same day, Greuel said to Conger that he should forget about what had been said and that Greuel had been upset at the time and that Conger should just go about his work. Greuel testified that on June 22 he had told Conger that he had better straighten up if he was going to work there and that he was on his s-t list and not to ask him why because he knew. Greuel testified that he so spoke because Conger was leaving his place of work too much and would spend more time than necessary at other points with various employees. Greuel did not definitely deny that when Conger told him that Greuel had been on him about his union activities before and challenged him to discharge him after that, Greuel said he would not have to discharge him for that but could call it something else. Greuel testified that he was again referring to Conger's spending too much time away from his place of work and that he did not mean he would fire him because of the Union or say that he would fire Conger for his union activity. Conger testified that on Monday, June 25, he had been working about a half hour when Superintendent Akins came to him and asked him to come with him.13 En route to the office Akins took Conger's timecard from the rack and gave it to White when they arrived. White said to Conger that he had been hearing bad reports about him, that Conger had been threatening White's employees. Conger said that White knew him better than that. White reiterated the reports that Conger had been threatening employees and making them sign union cards. When Conger denied this White said he had a witness to the fact. White said he was discharging Conger for that reason. Elwanda Johnson was apparently within hearing distance and White instructed her to prepare Conger's check. White then said to Conger that they did not have communism and that he would not tolerate anyone running over his em- ployees. Conger again denied running over people but White said he had witnesses. During a brief interval while White was out of the room, Johnson, who knew Conger, said that she would not have thought he would have gotten into such a mess; 18 The account of the events of June 25 Is not controverted in any material respect. ED WHITE JUNIOR SHOE COMPANY 413 she said that we do not have communism and you cannot force people around here to do things. Conger denied forcing anyone . Johnson said that Conger went to church and then went and did what he had done. Conger said he lived up to his church's principles but Johnson advised him to brush up on his Bible reading. She then gave him his check. On June 29 White sent a letter to all employees with regard to their impending vaca- tion and also referring to the union drive. He mentioned , inter alia, that in the past a union had represented the employees and had won two elections . But, "they simply dropped out, quitting because you employees were not interested in their methods." The letter also stated that the union issue in the current campaign would ultimately be settled if and when the Government held a secret election; the readers were told "no one has a right to put pressure on you or to threaten you in any way. I fired Gerald Conger because he was threatening physical violence to some of our employees and I will never tolerate that from anyone." White, who made the decision to discharge Conger and who did discharge him, was the key witness on this matter. There were variations and inconsistencies in parts of his testimony on direct and on cross-examination and in statements made in a July 20, 1962, affidavit. For instance, whereas at one point White said that he had talked to Brown and Clements before discharging Conger, he ultimately admitted that this was not the fact. I have taken into consideration these variations in testimony and have set forth hereinafter White's definitive and ultimate contentions regarding the factors in the discharge. The consistent position of White has been that he discharged Conger for threat- ening physically other employees to force them to sign union cards or to support the Union. This is what was told to Conger by White on June 25; it was stated in the June 29 letter and in White's affidavit of July 20 as well as at the hearing. Variations occurred with respect to the sources of White's information and as to whether White was basing his action on one, two , or more instances of what he regarded as Conger's misconduct. White testified that he handled the Company's labor relations and he received reports every morning from his two superintendents , one of whom was Akins. He stated that he was well informed as to what was going on in the plant. The witness ultimately testified that he discharged Conger because of information received from employee Liva Jones ". . . that cinched the case. . White was then asked if he could "recall any other source of information which was involved in your decision, or was it solely Mrs. Jones." A. Well, it would be hard to explain, so I will just leave it that way-Liva Jones. Q. And she was your only source of information? A. No, but I can't answer for the reason that it is so complicated . I mean, it would-over a period of time, you know, you hear things. The witness then went on to state that he regarded Jones as reliable and he said that the week before he had heard that employee Clements had considered that he had been threatened. The reason he did nothing regarding Conger when he heard about Clements was, "Well, I just didn't believe all of it then" but that the report he received from Jones on Monday , June 25, was the "clincher" since he regarded Jones as wholly reliable . It may also be mentioned that in the course of his testimony, White had stated, without specificity, that he had received reports that Conger had been talking and "goofing off" a lot and had been threatening people. Since White has referred to Clements as a background factor as distinguished from the proximate or real factor in the discharge we will consider the evidence regarding Clements. Clements is an employee of Respondent who has also been a preacher for 8 years and pastor of a local church for 1 year. My impression of Clements as a witness was that he endeavored to tell the truth . He appeared to me to be a man of limited formal education and to be relatively unsophisticated, neither of which characteristics is any reflection upon him as an individual . He had told Conger early in the union campaign that he did not want to join the Union because he was a pastor and because of his loyalty to White. Thereafter, while Conger may not have asked Clements directly to sign a union card , I find that on several occasions he did talk to Clements about the Union. Synthesizing the testimony of Clements and Conger, I find that in a period shortly before the latter 's discharge, he and some other em- ployees, including Clements, were on Respondent's dock during the break period. With the exception of Clements those present were apparently union adherents. Conger told a story about another plant where a nonunion or antiunion employee was discharged as the result of a letter ; the discharge came about when the union people 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wrote a letter to the employee, addressed to the company office, thanking him for his help in promoting the Union, which was, of course, an untrue statement. After telling this story Conger or one of the other men asked Clements what he would do if that happened to him. This story, aforedescribed, caused genuine concern in Clements personally and when the break was over and he had returned to his place of work, he reported the conversation and story to his foreman, Greuel. He told Greuel that some of the boys were trying to scare him into the Union and were trying to get him to sign a union card.14 Greuel confirms this testimony and states that while Clements did not name Conger he pointed to where Conger was working. Greuel states that he then reported the matter to Akins but did not name Conger. Akins testified that he relayed the report to White. White testified that he had many reports from Akins but believed that he had learned about the Clements matter from Elwanda Johnson.15 We come now to the Brown incident which White states was the proximate and real cause of Conger's discharge. Brown was an employee in the same department as Conger. He was called as a rebuttal witness by the General Counsel. As a witness he was discernibly nervous and appeared conscious of the conflicting factors that were present in the issue of Conger's discharge. He testified that one day before the discharge of Conger, he and others, including Conger, were on the plant steps, apparently during a break period.16 Conger came over to Brown and said he had something for him. He then produced a union card. Brown said he did not want "to get mixed up in that stuff." Conger replied, "Well, we have ways of making you sign." Brown testified that he again stated that he did not want to sign the card and after some conversation about the Union he did sign it.17 Apparently later on this same occasion, Brown said that he told the group, "If you get a union, the first thing they are going to do is call a strike, I figure." Someone in the group said, "Well, we might" and Brown said, "Well, if you do I couldn't strike with you." As Brown proceeded to leave someone in the group, whom Brown could not identify said, "Well, if you don't by the time we are through with you, you would wish you had." Brown then left. Conger denied that he told Brown that if he did not sign a card, "By the time we get through with you, you will wish you had." 18 Conger stated that during a dis- cussion of the Emerson strike Brown had said that if Respondent's plant was struck he could not afford to strike and asked if that would hurt the Union. Conger said it might but if they all went along with the Union it would help them and he expressed doubt that there would be a strike. The witness said he did not recall any statement being made that if Brown did not strike he would wish he had before they were through with him. Although Conger's version of some of the details of the strike discussion may be correct, I credit Brown's testimony regarding what Conger said to him when Brown expressed an unwillingness to sign a union card. I also credit Brown's testi- mony as to what someone in the group said when he had stated that he would not join a strike. An important factor in this credibility resolution is Brown's testimony, substantially corroborated by Liva Jones, as to what occurred in the home of Brown's mother apparently a few days after the above Conger-Brown incident and shortly before Conger's discharge. Present on the aforementioned domestic occasion were Brown, his wife, his mother and father, Liva Jones, and her husband. Mrs. Jones was an elderly lady who was ' After Conger's discharge, he chanced to meet Clements in town. In the course of the conversation, according to Conger, he told Clements that he did not understand where White got the idea that Conger had threatened anybody. Clements said, "You threatened me" and reminded Conger of the story incident above. 15 As has been mentioned, Johnson was manager of the payroll section in the main office. Her place of work was apparently close to or adjacent to White's office She appears to have been close to and well informed as to what was going on generally in the Company. 10 Practically none of the witnesses appeared able to fix the dates of various incidents. They clearly occurred between June 9 and 25 , 1962, and I would infer that the principal Clements and Brown incidents occurred within approximately the week prior to June 25. "At this juncture the General Counsel, who was examining Brown on direct examina- tion, then asked, "Was there joking going on, and all?-A I took it just kidding" Is The testimony reads as follows: A. No sir. Q. You did not? A. No sir, I don't recall. ED WHITE JUNIOR SHOE COMPANY 415 a close friend of the Brown family for many years. She lived about three doors from the Browns and was a frequent visitor. For the past 10 years she had been a cook's helper in Respondent's plant cafeteria or lunchroom. Brown states that on this occasion he told Liva Jones what Conger had said to him about having ways to make him sign a union card when Brown had expressed to Conger a reluctance to sign.19 According to Brown, Liva Jones then suggested to him that he tell White about the matter but he said he did not want to do this. In all essential respects the testimony of Liva Jones corroborates that of Brown as to what transpired in the Brown home. She testified that when she told Brown to report Conger's statements to White, Brown said he was afraid to do so. Liva Jones impressed me as a credible witness 20 and her corroboration of Brown has been a factor in my crediting Brown as to what Conger had said to him. I find it hard to believe that Brown, in the privacy of his mother's home and with his closest relatives (mother, father, and wife), and old and close family friends, would have stated that Conger had said to him what Brown and Jones testified to, if such was not the fact. Having considered what transpired between Conger and Brown and Brown and Jones we now turn to Respondent and its agents. Brown testified that Akins came up to him and said that he had heard that Brown had been threatened. Brown replied that "they" told me that if there was a strike the ones who did not strike would be the first to lose their jobs. Shortly after the Akins conversation, according to Brown, Greuel asked him why he had not told him about this. Brown replied that he had not considered it that important. Since Brown did not fix the date of the foregoing it may be that it occurred prior to the weekend of the Brown-Jones conversation but subsequent to the incident between Conger and Brown above described. I have some difficulty in knowing how Akins would have known anything that would lead him to say to Brown that Akins heard that Brown had been threatened. A question also arises as to why neither Akins nor Greuel would not has asked Brown who was involved or who "they" were, unless Brown had mentioned a name or names. Possibly, it was as- sumed that the union adherents in the department were involved, including the leader, Conger. Greuel testified that Brown told him about Conger's remarks or threats, that they would fix it so that Brown would be sorry if he did not sign a card, and about Brown's statement regarding strikes. Greuel states that he reported Brown's remarks to Akins. The latter confirms this and states that he in turn reported to White who told him to check the story with Brown. Akins states he then talked to Brown who told him that Conger had warned him that they would make it rough on him if he did not sign up in the Union. Akins asserts that he reported this to White. White testified in a rather general way that he was sure that Akins had reported the Brown matter to him but he did not believe that he had asked Akins to check with Brown. From the foregoing testimony of Brown, Greuel, and Akins there were admittedly conversations between Brown and Greuel and Brown and Akins on the subject of threats to Brown. How much Brown told the two supervisors is in dispute but I am persuaded that whatever it was it was reported to White by Akins. This is the way Respondent operated, with the superintendents meeting and reporting daily to White. In view of White's testimony, there is substantial doubt that he asked Akins to talk with Brown. I have some doubt as to exactly what Brown had told Greuel and Akins but it was at least on the topic that union adherents among the employees had said things to Brown designed to pressure him into signing a union card or going along with the Union in such course of action as the Union might initiate. On a conversational subject like the foregoing I find it difficult to believe that Brown would have not mentioned some names either in the course of his remarks or that he would not have been asked for names if he did not use them originally. Moreover, in view of Respondent's knowledge of Conger's conspicuous role in securing adherents for the Union, it is doubtful that Respondent would not have suspected Conger in the foregoing connection. In any event, aside from raising definite questions of credibility in my mind, the Brown-Greuel-Akins conversations were not the crux of this case, and this is so whether Brown's conversation was as limited as he claims or was as testified to by the supervisors. White's testimony is principally that on Monday, June 25, he had heard from Elwanda Johnson that Liva Jones had referred to what Brown had said to her '° Brown's reference to what Conger had said, occurring as it did in a private meeting with his family and old family friends, does not indicate to me that he regarded Conger's statement as "kidding" or that he had taken the matter lightly 21The General Counsel elected not to cross-examine Jones in any respect. 416 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD over the weekend 21 White then, personally , went and talked to Liva Jones. He asked her to tell him what had happened at Brown's house or at Brown's mother's house. White states that Jones told him that Brown was worried over threats from Conger because Conger had threatened him with trouble and that she used the term "beating him up" in describing this. Liva Jones testified credibly that White asked her if she had heard Brown say anything about Conger and that she replied that Brown said "Gerald Conger tried to get him to take and sign a union card and told him that he might as well sign it because they would make it so hard on him that he would wish he had." At the hearing the witness said that Brown had told her that Conger warned him that if he did not go along that he would whip him. D. Conclusionary findings regarding Conger's discharge The evidence persuades me that Conger, when Brown expressed an unwillingness to sign a union card, told Brown, "Well, we have ways of making you sign." There- after Brown signed . It is my opinion that Brown was subjected to more than per- suasion and that he regarded the remark as a threat, the potency of which was probably greater in view of its lack of specificity. For Brown , as the individual that he was, and he appeared to be a fairly average member of the community and of Respondent's work force, Conger's statement was a threat, either physical or of some other undue and unwarranted nature. Brown subsequently brought up the matter in a family gathering . It also appears that the surrounding circumstances in which Conger's statement was made were not reassuring to Brown. Someone in the union group that was present, after Brown said that he would not join a strike, said he would wish he had before they got through with him. The speakers were not identified and it could have been Conger or anyone of a number of people present. But, in context, the remark was in the setting in which Conger had first made a some- what similar remark to Brown when the latter was unwilling to sign a union card and Conger was the leader among the union adherents and the principal union activist. I also believe that White, despite the diversity and variations in his testimony, became informed of the Brown incident, that he believed it was true, and that his belief was reasonable in all the circumstances . In my opinion , White was genuinely incensed, not because Conger was a union adherent or because he espoused the Union to others, but because he had exerted undue pressure and had threatened an employee in order to promote the union cause. I find that Conger was discharged for the aforementioned reason. In analysing the evidence regarding Conger's discharge I have given careful consideration to the violations of Section 8(a)(1) of the Act that have been found. While Respondent is legally responsible for the statements of Assistant Foreman Cox, the record as a whole has not convinced me that Cox's statements were crucial indicia with regard to Conger's discharge nor was Akins' action on June 19. Greuel's remarks to Conger on June 22 were on their face, and, as explained or unexplained to Conger by Greuel, violations of Section 8(a) (1) and I so find. I am aware that the discharge took place on the following Monday, June 25. Greuel, however, at that time, in my opinion, had in mind either the report he had received from Clements about what Clements, at least, considered to be Conger's undue pressure upon Clements; or he had in mind what he believed was the fact that Conger was discussing or promoting the Union during working hours; or both of the foregoing; or Respondent and Greuel were planning to discharge Conger because he was one of the leaders in the union movement; or Respondent and Greuel did not like what they heard regarding the pressure exerted on Clements nor did they like the union talking during working hours in violation of a rule that super- vision took seriously and sought to enforce in the plant; and, in connection with the last-mentioned hypothesis, the further logical hypothesis is that Respondent and Greuel had determined to discharge Conger if and when they secured firmer evidence that Conger thereafter unduly pressured employees into the Union or violated Respondent's rules and standards. It is my opinion that the evidence shows that as early as June 9, Respondent sus- pected Conger of promoting the Union. This was prior to Conger's union alignment. Respondent was aware of the union movement and I am convinced that Conger's activity was known. Conger did not seek to conceal his union activity after he joined the Union on June 9. He was not laid off during a departmental layoff about a week before his discharge. Nothing was said to him until June 22 and by that time Respondent had had reports that Conger was exerting pressure on at least 211 have taken cognizance of White's version of this aspect in his July 20 affidavit, which is different from the above testimony ED WHITE JUNIOR SHOE COMPANY 417 one reluctant employee who did not want to sign a union card and that Conger was talking during working hours about the Union. and I It is my opinion that White did not want the Union to organize his plant 22 believe that as far as possible he was endeavoring to have as much information as he could obtain about the status or the success or failure of the union drive and of the participants therein. I am not convinced that White would have discharged Conger on June 25 on a pretext or otherwise simply because he knew, as he did, that Conger was outstandingly active in the union campaign. In my view it may be that White was not sorry or was glad that he had been given a valid reason for the discharge but I am not persuaded that the reason for the discharge was a pretext. It was a genuine reason and White actually was incensed about the Brown incident and but for that reason, in the background of the Clements affair, he would not have discharge Conger when he did.23 There is obviously no point in speculating whether, if events did not occur as they did, Respondent would or would not have discharged Conger in July or August or some other time for some specious reason or whether the contrary would be true On all the evidence and for the reason stated, I recommended dismissal of the complaint allegation with respect Conger. 5. The discharge of Donnie Janes Janes commenced working for Respondent on July 10, 1961. He was discharged July 12, 1962. When he first started with Respondent he was an order filler in the shipping department. Janes testified that he believed that he was an order filler for 3 or 4 weeks although it was possibly longer. Thereafter he became a checker in the same department. The duties of the checkers, as the name implies, is to check the orders for accuracy. Thus, an order for a certain number, size, color, and style of shoes is received by Respondent from a customer. The order filler fills this order and the checker compares the items specified on the order with the items that the order fillers have compiled in response to and in fulfillment of the order. In other words, if an order is for 50 shoes there are a certain number of sizes, styles, 0i See, for instance, the June 29 letter. =3 The following is an observation regarding the conversation between Conger and Elwanda Johnson (as described by Conger) when they were alone in the office on June 25 at the time of the discharge. In itself it is a minor incident but one of many factors that I have weighed. I regard Johnson as a loyal adherent of White and I would not expect that she would do or say anything inconsistent with White's position regarding Conger. On the afore- mentioned occasion, described earlier in this report, I would have expected that Johnson would either have had no conversation with Conger or would have simply said, hello, or something like that The most I would have expected would have been some remark like, you should not have threatened employees or something similar that simply echoed White's position. Johnson, of course, did do the latter but not merely this. Instead, she launched into a rather private and personalized rebuke to Conger As is true in many communities like Paragould, most of the people knew a good deal about each other. Johnson knew that Conger was a churchgoer She said to him on June 25, "Gerald, you go to church and everything and claim to be a lot" morally and then you get involved in something like this She stated, "This is not communism and you cannot force people to do things here" When Conger replied that he did go to church and lived up to his religion, Johnson told him that he had better brush up on his Bible. The point is, of course, not whether Johnson was right or wrong in what she said but that her personalized exegesis to Conger bespoke an actual belief on her part that Conger had tried to force people to sign a union card or to force people into the Union and that that was why he was being discharged. She did not say that she did not believe that a religious man like Conger would have joined the Union or would have worked for the Union. She chided him about forcing people and told him, in effect, that the company did not tolerate such action. I doubt that Johnson would have gone into this ad hominem discussion of principles and religion and Conger's need to brush up on the Bible if she believed or knew that the entire matter of Conger's action was untrue and was a sham being used by the Company. This conclusion has nothing to do with assigning any accolade of character to Johnson I simply believe that her conversation with Conger appears to have reflected her actual views. Her views would not in themselves be any more signifi- cant than those of some other employee except for her strategic location in the office, her awareness of what was going on, and her proximity to the seat of decisions and power, President White. Further, if her private conversation with Conger was a contrived and planned matter intended to result in the kind of analysis that I am here making, it would indicate a mind of awesome prescience. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and colors specified and it is the duty of the checker to verify that what the factory is prepared to ship is in conformity with the order . After completing his work the checker signs the order sheet or some comparable document . There are also daily work sheets for each of Respondent 's approximately 400 employees. Janes joined the Union on June 9 and thereafter he was on the organizing com- mittee together with Conger and nine other employees . Janes testified that he talked to all the people in his department about the Union and secured 25 signed cards. He attended all committee meetings in the motel that served as headquarters for the union representatives and he also attended the June 19 open meeting. The committee members had been told by Cloinger , the union organizer, that, if anyone could not attend a committee meeting and had signed cards to turn in, they should give them to Janes or Conger for transmittal . Assistant Foreman Cox admitted that he knew that Janes was working to promote the Union and the June 21 conversation, between Underwood . Foreman Morris , and Janes , illustrates that Morris was aware of Janes' attendance at the June 19 union meeting and that Janes was prounion. As Janes described his discharge on June 12, 1962, Morris came up to him and said another order that Janes had checked had been returned by the customer. Morris said that White was not pleased about it and Morris was discharging Janes. Janes states that Morris said he always liked Janes and he was a good worker but there was nothing he could do about it. Janes asked to see the order referred to and Morris showed it to him. In an order of 200 or 300 shoes 1 pair was wrong. The witness , Janes, testified that in the entire period when he worked as checker no more than 15 orders checked by him had been returned . Janes stated that the only thing ever said to him by Morris when a wrong order came back was that he should be more careful. He also said that when any checker had been discharged in the past the individual had always been warned beforehand except in one instance when a checker had shipped a whole order wrong and had been terminated on the spot. Before July 12, Janes asserted that his last wrong order was about a month previous. Regarding that occurrence , he was asked whether Morris or Cox had spoken to him. He replied: Well, I don't remember . Generally they tell us to be more careful I wouldn't say he said it then He might have just showed it to me, but I don 't remember exactly if he said anything or didn't The witness then denied that he had been warned about being discharged . He stated that he did not believe that he had any more wrong orders than other checkers. In the past, he stated , Morris had told him on one occasion that he had 11 wrong orders returned and on another occasion that the number was 21. Janes testified that on the day of his discharge he was not actually checking but was working in the stockroom . This, he said, was because it was a slow period.24 During this period Janes testified that he was given other duties but would be as- signed to do checking at intervals when the department got behind in checking. He was then asked , "How many others were checking at the time you went in there to help out in checking. A. Either one or two One really, that I really know of that was doing it all the time " The witness likewise testified that on the day of his termination there were two other returned orders besides his own. Mary Martin has been employed by Respondent over 10 years . She worked in the returned goods department and her assistant was Wanda Smith. When a customer returns an order or part of an order as incorrect . Martin or Smith investigate to see whether Respond- ent had made an error . If this is so, they ascertain where the responsibility rests and uncover the fact by consulting various documents. Then, if, for instance, the error is found to have occurred in Morris' department , one of these women calls the matter to his attention and he advises the employee responsible Martin maintains a record of returned orders and had a record of Janes' returned orders, i.e ., wrong orders for which he as checker was responsible. Martin's records show, and her testimony is, that Janes, as checker , was responsible for 24 wrong orders that were returned She testified that this was a much greater number of mistakes than those made by any other checker they had ever had. The witness , Martin, stated that on June 15, 1962 , Respondent received back from a customer 12 pairs of shoes that did not conform to the customer 's order. The original order had been shipped by Respondent on March 27, 1962.25 Janes 21 According to Janes, the rush period was about July to October W The period of time that elapsed between the time of shipment to a customer and the time of the latter's return of the incorrect order varied . Some customers would speedily discover an error whereas others would not discover one or call it to Respondent's atten- tion for several months. ED WHITE JUNIOR SHOE COMPANY 419 had been the checker on this order. Martin's assistant, Smith, took the above re- turned order to Morris as was customary in such circumstances. Smith later told Martin that on the June 15 order that she took to Morris he instructed Smith that if another wrong order of Janes came back it should be investigated thoroughly and if the error was confirmed it should be brought to Morris himself. Morris told Smith that if that occurred he would have to let Janes go because of the number of errors he made. Smith's testimony corroborates Martin on the last-mentioned matter. Smith states that when she brought Janes' June 15 returned order to Morris he told her to bring the next mistake to him, Morris, and that he would have to let Janes go for so many errors.26 Morris also, on this occasion, told Smith that he was going to talk to Janes about the matter. Later, Morris advised Smith that he had spoken to Janes as he said he would. As we have seen, Smith reported to Martin what Morris had said regarding any future returned orders of Janes Smith said she did this in case, she, Smith, might not be at work when the next returned order of Janes came in. Foreman Morris testified that when Wanda Smith called Janes' June 15 returned order to his attention he told her to bring the next one to him and he would have to discharge Janes. Morris also advised his assistant, Cox, of the foregoing and testified that he warned Janes on the same day that the next returned order would result in his discharge. Cox testified that Morris did speak to him as aforedescribed. Martin and Morris state that the last wrong order of Janes had been shipped to the customer in California on January 5, 1962. Wanda Smith testified that after she received the above-mentioned instructions from Morris regarding the June 15 returned orders she took the next returned order to Morris and that was when Janes was discharged.27 One pair of shoes was wrong on this last order. Morris testified that he discharged Janes because of the excessive number of mistakes he had made as a checker and for no other reason. He stated that he had tolerated Janes as long as he did because of personal reasons Morris said he was a personal friend of Janes, that Janes' mother and sister went to the same church as Morris, and that Morris had gone to church with Janes and had played baseball with him.28 The foreman said that Janes' next to last mistake was particularly bad and Morris then decided that he would not be able to tolerate subsequent mistakes. He stated that at least three other checkers had been discharged in the past because of mistakes, the last one, Spicer, about a month before Janes.29 Martin's office record of returned goods was identified as a General Counsel exhibit but was not offered in evidence. However, Martin referred to the book in the course of her testimony and it was inspected by both counsel in the course of the hearing. The testimony of Martin and Morris, on the whole, satisfies me that Janes made more mistakes than other checkers and that two discharged checkers, Spicer and James, had made fewer mistakes than Janes In the course of cross-examining Martin, the General Counsel adduced testimony that Martin kept only a record of returned goods, including the names of the em- ployees responsible, but she had nothing to do with daily production records Re- spondent did have daily production records of each of its employees and these production records of the checkers would show how many shoes each checked per day in any given period. The General Counsel then asked counsel for Respondent, while Martin was on the witness stand, to produce records showing daily production of each checker and the number of orders shipped. Counsel for Respondent stated, inter alia, "It is our understanding that the Board has power of subpoena duces tecum These gentlemen have known for several weeks we were going to have a hearing today, and if there was any records to which they are legally entitled, they have the power to produce them by subpoena duces tecuin, and have not done so. Also, we do not at this time know how accessible these records are. .. .30 So, under those 20 Ordinarily Martin or Smith brought rejected orders to either Morris or Cox , whoever was available. "Martin was on vacation from June 30 to a Wednesday after the July 4 week. This would presumably be July 11. At one point in her testimony Martin said that the last returned order of Janes was in June but she eventually said it was July She admitted not knowing the exact date of the discharge. 28 These assertions were not disputed 29 Janes testified that checkers Spicer and James had been discharged and that checker Martin had quit during the year that he had been employed 00 Respondent's representatives estimated that it would take about 2 days to secure and compile the records This would have entailed a postponement of the hearing since the aforementioned matter first arose on the second day of the bearing which concluded in a total of 2 days 708-006-64-vol. 141-28 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances, we feel that we should not be obliged to produce the records, but we will do so if the Examiner so orders." The Trial Examiner stated : "Well, I won't so order. I will assume that both counsel are familiar with the processes to which they must resort if they want to have the documents." Thereafter the General Counsel did not subpena the records nor did Respondent produce them Also, thereafter, Morris testified, without objection, that checker Crawford had been checking 2 years, and while Janes was employed, and that Craw- ford checked more shoes daily, weekly, or monthly than Janes. Crawford's mistakes totaled five or seven. Called as a rebuttal witness Janes stated that he checked more shoes than the others, including Crawford. In surrebuttal Morris testified that the work was distributed evenly among four checkers. Respondent's counsel then asked him if the record of all the full-time checkers, during the same period, showed that Janes' record was better or worse than the others. The General Counsel objected on the ground that the records would be the best evidence . Respondent's counsel stated that since the witness was familiar with the records he believed that he should be allowed to testify what his recollection was of the records. The Trial Examiner sus- tained the objection on the ground that the records themselves would be the best evidence. Respondent then made an offer of proof that Morris had compared the records of the checkers and that they showed that Janes made many more errors than other checkers performing substantially the same amount of work. In his brief, the General Counsel states, arguendo, that it is no defense that Janes made a greater number of mistakes than other employees unless it is shown that the latter performed the same amount of work as Janes. The General Counsel asserts that an adverse inference may be drawn from Respondent's failure to submit the checkers' production records. He also states that Respondent's evidence has not overcome the prima facie case of the General Counsel. The making of a prima facie case, in my opinion , is not a circumstance that is dis- positive in all situations . Depending on the issues, a prima facie case may some- times consist of limited evidence. The concept is simply that the protagonist has made out enough of a case to warrant its submission to a jury, or, in an administra- tive proceeding, such as here, that a motion for dismissal at the end of the General Counsel's case in chief would be denied. Unless the Respondent thereupon offers no defense or a defense of any relevancy or probative value, the prima facie case concept is no longer meaningful. What we are ultimately interested in is whether the Gen- eral Counsel has sustained his burden of proving by substantial evidence on the rec- ord as a whole that the alleged violation has occurred. Prescinding for the present from the General Counsel's alternate contention that regardless of Janes' errors they were not the real reason for his discharge or that there was a mixed motivation on Respondent's part, the question of Janes' errors was a principal issue. The precipitating cause of the discharge was the July 12 return of an order. Janes was so informed by his foreman when he discharged him. I credit Martin, Smith, and Morris that on the prior error of June 15 Janes was warned and that this was more than a routine warning. The June 15 error of 12 pairs of shoes in one customer's order appears to have been substantial . Errors in the orders obvi- ously were in the important area of customer relations and could or would affect the customer's business which in turn would affect the Respondent's business with the customer. From July 12, the date of discharge , therefore , Janes was aware that Respondent had taken its position on his errors as checker . In interviewing Janes pursuant to the charge that had been filed the General Counsel must have become aware of Respond- ent's position. Further, in the investigation of the charge I am confident that in inter- viewing Respondent for its side or for its response to the charge , Respondent stated that Janes' errors as a checker were the reason for his termination. There is no indi- cation in this record that Respondent refused to discuss the case with the General Counsel prior to the hearing and, such indication, as there is, to the contrary. In the instant case both parties were represented by competent counsel . The issue of the production records of the checkers was brought into focus at the hearing and the parties elected to make the record in its present form. Under these circumstances I was not disposed nor am I disposed to tell counsel how they should try their case. Nor was I disposed to postpone the hearing, absent a request by either party, to secure evidence which either party could have produced or could have secured both prior to the hearing or at the hearing. The General Counsel's case with respect to Janes was that he was an active union protagonist. Judging from the number of signed union cards that he secured, Janes was second to Conger in this activity since between them they accounted for slightly more than half of the signed cards procured by the Union. There is no evidence to show that Respondent knew precisely that Janes was as active in the Union as he ED WHITE JUNIOR SHOE COMPANY 421 was but the evidence satisfies me that Respondent knew he was prounion and was closely associated with the union activity.31 Janes' discharge is in the context of all the other evidence in the case previously discussed. Respondent's position is that Janes was terminated because of his excessive number of errors as a checker . In my opinion the evidence shows that Janes made substan- tially more errors in checking in the year or 10 months in which he performed this work than did the other checkers. At least two and possibly three checkers had been discharged for fewer errors than Janes' total. I find that on the occasion of the return of an order checked by Janes, in which there were 12 wrong pairs of shoes, he was warned by Morris on June 15. He was discharged when the next order he had checked was returned on or about July 12. There was one wrong pair of shoes in that order. The General Counsel apparently contends that if Janes made errors they were con- doned by Respondent and that previously tolerable errors or one error on July 12 were or was seized upon as a reason for the discharge because of Janes' union ac- tivity. I find plausible Foreman Morris' explanation that for personal reasons, in- cluding church association with Janes and members of his family and personal asso- ciation, he had been tolerant of Janes. It is difficult to conclude that Morris was satisfied with a continuance of errors and I find that the relatively serious error of June 15 led him to warn Janes as he testified. There is of course room for suspicion but on the whole I do not believe that the suspicion prevails. Then there is the contention, based on Janes' rebuttal testimony, that he checked more shoes than any other checker. He stated that he and, apparently, Crawford were the only full-time checkers although at another point he stated that in the slow season he did other work and only helped out on checking when "they" got behind. I also note that in his testimony prior to rebuttal Janes said that when he was hired there were four full-time checkers and Morris testified that at the time of the hearing there were four full-time checkers. Because of discharges various checkers were no longer in Respondent 's employ but it would seem that if the ap- parently normal complement was four this would be the norm . Respondent had busy seasons and slack seasons and presumably all checkers did, on occasion, per- form other work. Other checkers, exposed to these normal conditions, had been discharged because of errors . I would assume that they did approximately the same amount of work and Morris so testified regarding the work distribution among the full-time checkers. He also testified that one checker, Crawford, at all times per- formed more checking than Janes . Aside from an occasional glance at another checker's worksheet (there is no evidence or intimation that such information was freely disclosed or that the employees had a practice in this nonunion plant of com- paring worksheets ) or general observation, an employee would have little basis for knowing the comparative production records. Also, on occasions when Janes was performing other work and he returned from time to time at brief intervals to help out on the checking, it would seem that someone else had been or was checking and for the day had performed checking in an equal or greater amount than Janes. Although in some respects I did not regard Morris as a reliable witness , I am not persuaded that Janes' testimony on comparative production warrants credence. We come now to the matter of whether Respondent's failure to produce records showing whether or not Janes performed more checking work than other checkers and, hence, his errors were not proportionately high, warrants an adverse inference as to what the records would show. It is my opinion that such an inference is neither automatic nor mandatory but depends upon all the circumstances of the particular case. In many situations such an inference is validly made but the cardinal con- sideration, I believe, is whether the trier of fact concludes that the natural and most logical reason for the nonproduction is the fact that the records are adverse to the party that does not produce them.32 81 E g., the conversation between Underwood , Morris, and Janes ; also , the conversation on the dock when Janes did some "popping off" about the Union and Cox made a remark about someone being discharged because of the Union. 11 ". . . the failure to bring before the tribunal some circumstance , document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference , that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure , cannot fairly be made except upon certain conditions ; and they are always open to explanation by circumstances which make some other hypothesis a more natural one than the party's fear of exposure. . . . " Wigmore, Evidence $ 285, p. 162, vol. II. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have considered the fact that Respondent did not produce the aforementioned records. This fact has been weighed in the context of the entire record and I do not conclude that the reasonable or most reasonable inference is that the records were adverse to Respondent. I obviously do not know what the records would show but from evidence admitted in the record I am not inclined to believe that of all Respondent's checkers in the last year or two, some of whom have been discharged, the records would show that Janes was the outstanding checker in amount of work assigned to him and performed by him. As to why Respondent did not produce the records I find some light in the cir- cumstances. In my opinion it was reasonably apparent that when the General Coun- sel, in the course of the hearing, asked Respondent to produce such records, Re- spondent's counsel declined because he was irritated that the General Counsel had not previously called upon Respondent to produce the records nor had he subpenaed them before the hearing for production at the hearing. The records were not im- mediately available; they would have to be compiled and a postponement of the hearing for 1 or 2 days would have been entailed. While I do not agree that the aforedescribed reaction of counsel was a legally sound position, and I believe that he would have been in better posture if he had produced the records after such adjournment as was necessary (or better still, if he had the records with him), I do not infer that the above reaction was because the records were adverse to Respond- ent's position. In the same connection and in the same context counsel stated that the General Counsel could subpena the records if he wanted them and he also stated that he would produce the records if ordered to do so by the Trial Examiner. I cannot conclude that these last-mentioned assertions were but a well-calculated bluff on Respondent's part. The odds were substantial, in my opinion, that either alternative would have been acted upon and that the records would thereby have been produced. Again, regardless of whether the alternatives were adopted, the Re- spondent would have been better served if it had produced the records in support of its position, but I do not infer that failure to do so in the circumstances of this case was because the records were known to be adverse 33 With regard to the contention that regardless of Janes' record as a checker it was not the cause of his discharge or that there were mixed causes for such action, one being his union activity, I am not persuaded by the evidence. Suspicion there may be and I have endeavored to scrutinize the record with care and with discernment. I find the evidence inadequate and that the burden of proof has not been sustained by the General Counsel with respect to Janes and dismissal is recommended. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. s3 It is perhaps well to make clear that the production records consisted of daily work- sheets of all Respondent's employees Among these were the worksheets of about 1l checkers over a period of a year or more that would show the number of shoes checked by each The records in the returned goods department, which were used by witness Martin and, to some extent by Smith, were referred to at the hearing and were on hand There was another (a third) set of records on the checkers that Foreman Morris himself kept Morris testified that he had gone over these records before the hearing but that when he had looked for them the day before the hearing they had disappeared from his desk in the plant. I can only say that I have carefully considered this aforementioned circumstance. Whatever question arises, I believe, must be considered in the light of the fact that no witness of the General Counsel had alluded to any records kept by Morris, and, so far as appears, the existence of such records would not have been disclosed If Respondent had not brought out, through Morris, that he had maintained such records If Respondent had desired to act less than forthrightly it would seem that no mention at all would have been made of Morris' records rather than to mention the records and then falsify about their disappearance. ED WHITE JUNIOR SHOE COMPANY 423 Upon the basis of the foregoing findings of fact and conclusionary findings, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By engaging in the conduct set forth under section III, above, and found therein to be violative of the Act, Respondent has interfered with, restrained, and coerced its employees and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent has not violated Section 8(a) (1) and (3) of the Act by discharging employees Gerald Conger and Donnie Janes. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusionary findings, and conclu- sions of law and upon the entire record, it is recommended that Respondent, Ed White Junior Shoe Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any employee with respect to any employee's activity, mem- bership, or interest in any labor organization in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (b) Threatening or stating to any employee that any employee would lose his job because of the union activity. (c) Engaging in surveillance of any union activity or union meetings. (d) In any related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted protection, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its plant in Paragould, Arkansas, copies of the attached notice marked "Appendix." 34 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region of the Board, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Respondent shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (b) Notify the said Region Director, in writing, within 20 days from the receipt of this Report, what steps Respondent has taken to comply therewith 35 "In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursuant to a Decision and Order." 5 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate employees about the union activities of employees in a manner constituting interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten that any employee will lose his job because of union activity. WE WILL NOT engage in surveillance of any union activity or union meeting. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist any labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted'. activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become , remain, or refrain from becoming or remain- ing members of any labor organization. ED WHITE JUNIOR SHOE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Seventh Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No. Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. Local 282, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and J. J. White Ready Mix Concrete Corp. Case No. O-CC-652. March 13, 1963 DECISION AND ORDER On March 30, 1962, Trial Examiner Paul Bisgyer issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Intermediate Report. The Trial Examiner also recommended that the complaint be dismissed insofar as it alleged certain other unfair labor practices. Thereafter,. both the General Counsel and the Respondent filed exceptions to the Intermediate Report together with supporting briefs. The Board his 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 the briefs, and the entire record herein, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the exceptions and additions noted below. The basic facts are not in dispute. As found by the Trial Examiner,. the Respondent sought to further its primary dispute with White by picketing at various construction sites and business establishments of neutral employers while White's trucks were on their premises and by otherwise appealing to such employers of their employees to co- operate with Respondent in its dispute with White. The alleged violations occurred at 11 different sites or locations. Picket lines were established at certain of these sites, namely, at the 141 NLRB No. 31.