Bourne Co.

BOURNE CO. 805 Respondent Union engaged in an unfair labor practice in violation of Section 8(b) (2) of the Act ; thereby restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8(b)(1)(A). 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 business operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and, such of them as have been found to be unfair labor practices , tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Union has engaged in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2 ), I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Planet Corporation, Lansing, Michigan, is an employer within the meaning of Section 2(2) of the Act. 2. Millwrights' Local Union 1102, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By restraining and coercing employees of Planet Corporation in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By attempting to cause Planet Corporation, an employer, to discriminate against its employees in violation of Section 8(a)(3) of the Act, Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended order omitted from publication.] Bonnie Bourne, An Individual , doing business as Bourne Co. and John Nardoni. Case No. 2-CA-8402. September 26, 1963 DECISION AND ORDER On August 15, 1962, Trial Examiner Benjamin B. Lipton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report, together with supporting briefs. In addition, the Respondent filed a motion to reopen the record for the purpose of enabling it to adduce certain newly discovered evidence. Thereafter, the General Counsel and the Charging Party filed opposition to the Respondent's motion to reopen the record. 144 NLRB No. 75. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 6, 1962, the Board granted the Respondent's motion and issued an order reopening the record and directed that a further hearing be held for the limited purpose of adducing such additional evidence relevant to the discharge of John Nardoni. The Board also ordered the preparation of a supplement to the Intermediate Report containing findings of fact, conclusions of law, and recommendations which the Trial Examiner found warranted by the additional evidence received during the course of the reopened hearing. On March 19, 1963, the Trial Examiner issued his Supplemental Intermediate Report, also attached, finding that no evidence has been adduced at the reopened hearing which would warrant modification of his original findings, conclusions, and recommendations. Thereafter, the Respondent filed exceptions to the Supplemental Intermediate Re- port together with a supporting brief. 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 Fanning and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Supplemental Intermediate Report, the excep- tions and briefs, and the entire record in the case, and finds merit in certain of Respondent's exceptions. Accordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only insofar as they are consistent with the following : 1. The Trial Examiner found that the Respondent violated Section 8(a) (1) of the Act by interrogating employees concerning their union activities; by creating an impression among employees that their union activities were under surveillance; by instructing employee Crawford to dissuade other employees from joining the Union; and by giving money to Crawford as an inducement to report to Respondent anything she heard or saw regarding the Union, and to dissuade em- ployees from joining the Union. In addition, that Trial Examiner also concluded that the Respondent did not engage in unlawful surveil- lance of employees during their working time in the bookkeeping office as alleged in the complaint. For the reasons set forth in the Inter- mediate Report, we agree with, and adopt, these findings and conclu- sions of the Trial Examiner.' 2. The complaint alleged, in pertinent part, that the Respondent discriminatorily discharged John Nardoni because he joined and assisted the Union. The Respondent asserts that Nardoni was dis- charged from his bookkeeping position for incompetence. Bottoming 'We agree that Supervisor Shenk unlawfully interrogated Nardoni concerning union activity among the employees. Our determination rests on Shenk's admission of such interrogation. BOURNE CO. 807 his findings and conclusions principally on the credited testimony of Nardoni, the Trial Examiner rejected Respondent's defense; he found that Nardoni was a qualified bookkeeper and was not discharged for incompetence but was in fact discharged for engaging in union activities. The Respondent takes exception to these findings of the Trial Examiner, and argues, inter alia, that the newly discovered evidence introduced during the reopened hearing impugns Nardoni's veracity and the unfair labor practice findings based on his testimony must be set aside. We find merit in these exceptions of the Respondent. The Respondent hired Nardoni as a bookkeeper. He was discharged some 3 months later, because, according to the Respondent, he was incompetent and was unable to function as a bookkeeper. In order to overcome Respondent's defense, and to show his competence as a bookkeeper, Nardoni testified during the original hearing in support of the General Counsel's case that he had been graduated from the University of Wisconsin, and had majored in bookkeeping and ac- counting. With respect to his previous employment as a bookkeeper, Nardoni also testified that prior to being employed by the Respond- ent, he was employed by Kenroy Press and by Levy Insurance as assistant to the office manager. He testified further that in both posi- tions of employment his duties involved- bookkeeping, and that he worked on "cash books, sales books, journals, trial balance, ledger, subledgers, almost every book conceivable in bookkeeping." Nardoni also testified that he had 22 years' bookkeeping experience and had been engaged as a bookkeeper "since 1940." We consider first Nardoni's testimony that he had graduated from the University of Wisconsin and had majored in bookkeeping and accounting; during the reopened hearing Respondent introduced into evidence an affidavit from the associate registrar of the University of Wisconsin stating that the University had no record showing that Nardoni had ever enrolled in, attended, or been graduated from the University of Wisconsin. Countering, Nardoni testified at the re- opened hearing that he had not enrolled at the University of Wiscon- sin but had taken certain bookkeeping and accounting courses through the United States Armed Forces Institute, herein called USAFI, and that the University of Wisconsin had made up the texts and "graded" the courses. Nardoni also testified that USAFI had issued a "certifi- cate" showing he had completed the course. However, in this regard, Respondent introduced affidavits from the registrar of USAFI stating that certificates of completion were awarded only to those students who had successfully completed courses after having been enrolled with USAFI, and that USAFI had no record of Nardoni's enroll- ment in any of its courses anywhere in the world. On this point, 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nardoni again altered his testimony and stated that he had not for- mally enrolled in any course offered by USAFI, but had studied and completed such courses "on his own." We consider next Nardoni's testimony that he had been employed by Kenroy Press and by Levy Insurance as assistant to the office manager, and that in both positions of employment his duties involved bookkeeping : During the reopened hearing Frank Cole, office manager of Kenroy Press, testified that Nardoni was employed as a general office worker, and that Nardoni's principal duties were answering the telephone and making out orders for printing and stationery. Moreover, according to Cole, Nardoni was not employed as a book- keeper and never performed any bookkeeping work for Kenroy Press3 Also during the reopened hearing, Isac Levy testified that for a period of some 15 months from February 1, 1956, to April 1957, Nardoni served in his employ, not as an assistant to the manager or in book- keeping work as previously testified to by Nardoni, but as a "janitor and caretaker of a furnished room [sic] house." As for Nardoni's testimony that he had 22 years' bookkeeping ex- perience, Respondent also introduced evidence showing that Nardoni had been employed from February 1955 to August 1957 as a packer by William F. Mayer Company, and that his duties consisted of packing merchandise for shipment and did not entail any bookkeeping work. Moreover, other evidence introduced by the Respondent shows that during the 22-year period testified to by Nardoni, he was em- ployed by Marlo Realty as a rental agent, and Nardoni also admitted that he worked for the Pennsylvania Railroad as a checker and payroll clerk. It is long-established Board policy that we will not overrule a Trial Examiner's credibility resolution unless the clear preponderance of all the relevant evidence convinces us that such resolution is in- correct 3 In such circumstances the importance of the demeanor factor is greatly diminished, and we are impelled to substitute our own credi- bility findings for those of the Trial Examiner 4 This is such a case. Here, in our view, the entire record evidence clearly preponderates against crediting Nardoni's testimony. Thus, as illustrated above,5 documentary and other credible evidence completely refutes Nardoni's testimony relating to his qualifications and work experience as a book- keeper. Moreover, a careful examination of the record also reveals 2 Kenroy Press did employ a regular bookkeeper. 3 Standard Dry Wall Products , Inc., 91 NLRB 544, enfd 188 F. 2d 362 (C.A 3). * Valley Steel Products Co., 111 NLRB 1338, 1345. 5 we further note, in passing, that Nardoni 's testimony was inconsistent not only as Illustrated above, but also as to other matters. Thus, Nardoni testified that, prior to being employed by the Respondent, his base salary while employed by the William B Mayer Co was about $134 a week. Evidence submited during the reopened hearing shows , however, that while so employed Nardoni's highest base salary was $78 per week. BOURNE CO. 809 that Nardoni himself repeatedly contradicted or retreated from his earlier testimony and that his testimony is generally confused, dis- ordered, and inconsistent. Accordingly, unlike the Trial Examiner, we do not find Nardoni's testimony in this case to be credible. Without Nardoni's testimony which served as a foundation for the Trial Examiner's finding that the Respondent unlawfully discharged him, there is insufficient evidence remaining to refute Respondent's defense herein and establish that Nardoni was discharged for union activity.' We therefore find that the General Counsel has failed to prove that the Respondent violated Section 8(a) (3) and (1) of the Act by discharging Nardoni. We shall dismiss those allegations of the complaint. ORDER Upon the entire record in the case, and, pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bonnie Bourne, An Individual, doing business as Bourne Co., New York, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from creating an impression among employees that their union activities are under surveillance; instructing em- ployees to dissuade other employees from joining or engaging in ac- tivities in behalf of a labor organization; giving employees money or other benefits to influence them in regard to their union activities ; interrogating employees concerning their union activities; or in any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the Union herein or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. e The evidence adduced at the reopened hearing lends credence to Respondent' s position that Nardoni was an incompetent bookkeeper . Although Jean Crawford testified to the effect that she never heard anyone criticize Nardoni and that there were no more problems with Nardoni than with other bookkeepers previously employed by the Respondent, this limited testimony of Crawford , standing alone, is insufficient to support a finding that Nardoni was discharged for engaging in union activity Moreover, we note that her con- tact with Nardoni's work was minimal since in addition to functioning as secretary to the controller she worked only on accounts receivable and thus worked rrith Nardoni only "tying out" a figure at the end of the month. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its plant in New York, New York, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being signed by Company's representative, be posted by the Company imme- diately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Second Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminatorily discharged employee John Nardoni in violation of Section 8(a) (3) and (1) of the Act, or otherwise alleges violations of the Act other than those found herein, be, and it hereby is, dismissed. In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "A Decision and Order " the words "A Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT create an impression among employees that their union activities are under surveillance; or instruct employees to dissuade other employees from joining or engaging in activities on behalf of the above-named or any other labor organization; or give employees money or other benefits to influence them in regard to their union activities; or interrogate employees concerning their union,activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized, in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. BONNIE BOURNE, AN INDIVIDUAL, DOING BUSINESS AS BOURNE Co., Employer. Dated---------------- By------------------------------------- (Representative) (Title) BOURNE CO. 811 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, 745 Fifth Avenue, New York, New York, Telephone No. Plaza 1-5500, if they have any questions concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, which was heard before Trial Examiner Benjamin B. Lipton in New York, New York, on April 16 and 17 and June 4 and 5, 1962, involves allega- tions by the General Counsel that Bonnie Bourne, An Individual, doing business as Bourne Co.,' herein called Respondent, committed violations of Section 8(a)(1) and (3) of the Act.2 All parties were represented and participated in the hearing and, at the close thereof, the General Counsel argued orally on the record in lieu of filing a brief. Respondent filed a brief which I have duly considered. Upon the entire record in the case, and from my observation of the witnesses,3 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, at her principal office and place of business in New York, New York, is engaged in the licensing and distribution of copyrighted music and related products. During the year preceding issuance of the complaint, Respondent sold and distributed products valued in excess of $50,000 directly in interstate and foreign commerce. It is admitted, and I find, that Respondent is engaged in commerce within the mean- ing of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 153, Office Employees International Union , AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues Alleged independent Section 8(a)(1) violations involve coercive interrogations of employees, surveillance of their union activities, and creating among the employees the impression that their union activities were under surveillance. One discrimnatory discharge is alleged, of John Nardoni, the Charging Party, in violation of Section 8(a)(3) and (1). Respondent denies the alleged violations and defends as to Nardoni on the ground that he was lawfully discharged for gross incompetence. B. Supervisors It was stipulated that the following individuals are supervisors within the meaning of the Act: Sidney Fox, controller; Joseph Zerga, assistant to president; 4 Kermit Walker, educational director and sales manager; Adele Sandler, head of the copyright department. In addition, I find that Sam Shenk, head of the stock and shipping department, is a supervisor.5 1 Company name corrected at the hearing. 2 The charge was filed on January 18, 1962, and complaint was Issued on February 28, 1962. 3 All credibility findings herein are based at least in part on demeanor of the witnesses on the stand. 4 Mrs Bonnie Bourne, the sole proprietor, has been referred to asp the company president 5 In 2ts answer, Respondent admitted, and at the outset of the hearing stipulated, that Shenk is a supervisor. By agreement of the parties In the Board consent election held on February 23, 1962 (see infra), Shenk was excluded from the voting unit as a supervisor. During the course of the present hearing, Respondent requested and was permitted to with- draw Its stipulation as to Shenk and testimony was taken regarding his supervisory 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. General background 1. Concerning the Respondent Respondent's music publishing business involves specialized clerical and bookkeep- ing operations relating, among other things, to foreign and domestic royalty payments for use of copyrighted music. Bonnie Bourne, the Respondent, testified that there had been a "terrible turnover" in the past year because of the "complexity" of the business, and specifically, that at least 10 employees in this period had occupied the 2 jobs of controller and chief bookkeeper. An accounting firm, long in the re- tain of the Company, audits the books on a quarterly basis and frequently at other times has auditors in the plant working with the employees.6 On February 15 and August 15 of each year, royalty payments have to be made to authors and composers under contract. The "royalty period," for about 2 months before the deadlines, has entailed unusual pressure and activity in the bookkeeping department to update the books so that payments could be made on time. Sidney Fox testified that, when he took over as controller in November 1961, there was a lag of 3 to 5 months in various activities of the books-which he said were "really in a state of mess." Nardoni similarly testified as to the condition of the books when he commenced employment as chief bookkeeper on September 26, 1961. 2. Concerning the union movement Early in October 1961, Nardoni and two other employees 7 began talking with each other about having union representation of the employees and expressed themselves as favorably inclined in that direction. They continued to discuss the subject in casual meetings outside the plant. About December 15, 1961, Nardoni undertook concrete action by communicating with Robert Dowd, business representa- tive of the Union. Nardoni, along with employees Fred and Frank McSweeney, met with Dowd at the union offices. After a review of working conditions, benefits to be derived, and procedures to follow, Nardoni obtained from Dowd union designation cards 8 for the purpose of soliciting signatures from the employees. The next day, at Respondent's plant, Nardoni approached various employees for signatures and also gave Pagano a quantity of the cards to pass out. That evening Nardoni brought to the Union's offices signed cards of 11 employees.9 Subsequently, Nardoni was in con- stant contact with Dowd concerning steps to obtain recognition of the Union and with the employees in the plant to keep them informed of developments. Bourne was away on a Christmas vacation, returning on January 2, 1962. On January 2 Respondent received a telegram from the Union claiming majority representation of the office and clerical employees and requesting a meeting to discuss contract terms. On January 3 an election petition was filed with the Board and served on Respondent. On January 4 Respondent received a notice of conference to be held on January 9 respecting the Union's petition. On January 18 Respondent received a notice of representation hearing to be conducted on January 26. On February 13 Respondent signed an agreement for consent election in a unit of its office clerical employees; and on February 23 the election was conducted. The tally of ballots showed 12 eligible status. However, in Respondent's brief to the Trial Examiner , Respondent appears to have reverted to the position that Shenk is a supervisor. Shenk is in charge of the department, orders its supplies , and directs three employees engaged principally in filling orders and shipping In his own discretion , he assigns the work functions of these employees Among other things , he determines their vacation schedules . He is paid $125 per week, plus $480 bonus, which is about twice the earnings of the next highest paid employee in the department . Respondent looks to Shenk to report on the character of the employees' work performance I find that Shenk, although he does not hire or discharge, responsibly directs employees within the meaning of Section 2 ( 11) of the Act. e About seven employees are in the bookkeeping department 7 Anthony Pagano and Donald Rothbaum. 8 These were actually envelope forms designed for mailing the designation directly to the Union. 8 Nardoni, Pagano , Rothbaum , Arden Gross Slu'tsky, Jean Crawford, Eve Levy, John Conway, Frank and Fred McSweeney , Judith Bell, and Reginald Coy (night porter). Gloria Seigel , telephone operator , was not solicited because she was considered unsym- pathetic. Helen Raymond, a part-time comptometer operator , who was brought in by Sidney Fox, was paid by Comptometer Operators in Chicago , and was not on Respondent's payroll. BOURNE CO. 813 voters, with 5 votes cast for and 7 votes cast against the Union. On March 5, a certification of results was issued accordingly. D. Interference, restraint, and coercion 1. Crawford Sidney Fox, controller and head of the bookkeeping department, admitted that Bourne, shortly after receiving the Union's telegram of January 2, asked him to find out "who is at the bottom of this," and that he subsequently asked his secretary, Jean Crawford, "if she knew who was at the bottom of this particular movement." Crawford gave credible testimony in substance as follows: Fox told her that he had been summoned to Bourne's office, that she had gotten the telegram and wanted to know from him what he knew about it, who was responsible, which particular individual was in back of it, the "people's reaction to it," and that she let him know that she was "pretty damn mad" about it. Fox said that Bourne was putting pressure on him and Joseph Zerga (Bourne's assistant) to try to find out about union activities in the office. Fox stated that he was very much in sympathy with the Union, that "he has seen unions work in other places but our place was so loused up that we needed something like that." Crawford had later conversations with Fox during business hours in the bookkeeping office in which he reiterated that Bourne was up in arms and wanted to get to the bottom of this union business and to find out who was in charge. He said Bourne "wanted him to question people, but he wasn't going to bother to do it." He also mentioned that Zerga had questioned him about the Union. Fox spoke to other employees in the business office about the Union and the employees thought he was in sympathy with them. He asked Crawford questions and Crawford answered him "whatever he wanted to know," as for example, when there were meetings concerning the Union, if everyone signed, if everyone was still going along with it." Fox asked and was told when Dowd, the union agent, telephoned the office (to speak to Nardoni) and "so he knew that John [Nardoni] was involved with it." Crawford estimated that she had more than 5 and less than 10 conversations with Bourne relating to the Union. The first occurred about January 4 when Crawford was called into Bourne's office. Crawford was asked if she had heard about the rumors pertaining to the union activities, if she "had seen or heard anything or ... signed" for the Union, and she replied in the negative. In the course of the conversation, Bourne started to cry, and she pointed out reasons for her opposition to the Union, e.g, there would be people coming in and telling how to run the business, whereas before there was always a happy family. Crawford was asked if she would let Bourne know when she saw or heard anything, and Crawford agreed to let Bourne know right away.1e On later occasions when Crawford was in Bourne's office on business matters, Bourne made similar inquiries about union activities, but was given no information. Crawford was also told by Bourne to "try to dissuade anybody from going into such a thing as a union," to which Crawford assented. One evening,il while Crawford was working late at the office, Bourne came over and spoke to her of various things, including the Union. Crawford asked for an advance of $1, as she needed carfare. Bourne gave her two $10 bills. Crawford protested she could not pay it back. Bourne said it was a gift as she was grateful for Crawford's help during the particular busy season and "especially with the union problems we have been having." Joseph Zerga, assistant to the president, met Crawford coming through the ship- ping room one day and asked her if she knew or heard about the Union.12 He re- ceived a negative reply. On a "couple of occasions" (preceding Nardoni's discharge) Samuel Shenk, shipping department head, asked Crawford how the Union was going or what was new with the Union, and Crawford would tell him briefly, e.g., "slow or good." 13 10 Testimony of some corroborative weight, although hearsay, is supplied by Nardoni In a direct reply to a question put by Respondent's counsel, he testified that Crawford said "'I was in Mrs. Bourne's office and Mrs. Bourne questioned me about the union' and she said Mrs. Bourne was crying. She was upset." On further specific questioning by Re- spondent, Nardoni indicated that he was also told by employees Pagano, Slutsky, and Combes that Bourne had interrogated them concerning the Union. "Crawford gave no specific date. Bourne stated that it was the latter part of January 12 Admitted by Zerga. 13 Undenied by Shenk. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Nardoni and Combes Shenk admitted that he probably asked Nardoni and Combes how the union affair was coming. Nardom credibly testified that early in January the organizing employees spoke freely about the Union with Shenk and Kermit Walker, particularly at coffee breaks, and that these supervisors exhibited sympathy toward the union movement. Nardoni stated that Shenk would "always" question him concerning developments, for example, how the Union is coming and when there would be elections. Other employees would often be present. Shenk was told at one time by Nardoni that a union agent was coming to see Bourne, but was later informed the agent did not come. Bourne asked Combes, while he was in her office early in January, whether he belonged to a union, but before he could answer she said, "Never mind." 14 3. Bell Early in January, Kermit Walker, educational director and sales manager, asked his secretary, Judith Bell, if she knew anything about the Union, or had been approached, and she said yes, she had been approached but knew very little about it.15 Bell was also interrogated by Adele Sandler, an agreed supervisor, as to whether she knew anything about the Union, and she replied she knew very little i6 4. McSweeney Sandler also spoke to Fred McSweeney, a shipping department employee, when he came to pick up the mail in her office. She asked if he knew what the union dues were going to be, and said that it was understood that most of the boys in the shipping room were going to be in the Union. He replied he knew nothing about that or about the Union. 5. Concluding findings The foregoing testimony 17 plainly establishes that Respondent engaged in a per- vasive course of interrogations of employees concerning their union activities. That certain of these supervisors were apparently friendly or sympathetic toward the employees' efforts with regard to the Union does not in the circumstances here relieve the unlawfulness of their conduct. It was known among the employees (Crawford and Nardoni at least) that Respondent, Bourne, was strongly opposed to the union movement. Bourne hereself was actively seeking to obtain information from employees and supervisors as to the employees' personal participation in and who was "at the bottom" of the union drive. It is properly presumed that the super- visors are loyal to the interest of management vis-a-vis the employees; 18 and their conduct and knowledge concerning the matters in question are imputed to Respond- ent.19 The outward appearance of friendliness by the supervisors and trust by the employees cannot be controlling of the issue 2° In the context here, it is sufficient that the interrogations engaged in by Shenk,21 Walker, and Fox were of a character and pattern which tended to coerce the employees in regard to their organizational rights. Although at a later time the Union and Respondent stipulated that Judith Bell was ineligible to vote in the consent election on the basis that she was a confidential 14 Admitted by Bourne. is Admitted by Walker. le Sandler was not called to testify. 14 As further indicated infra, the testimony of Fox and Bourne, except for admissions, is generally discredited. 18 Cf. N L R B. v. News Syndicate Company, and New York Mailers' Union No 6, ITU, AFL-CIO, 279 F. 2d 323, 330-331 (C.A. 2), affd 365 U S. 695. 1e Standard Industries, Inc., Aggregate Division, 133 NLRB 320. 20 See Star Cooler Corporation, 129 NLRB 1075, 1076, footnote 3. 21 As earlier noted, there was a question, which was resolved, as to Shenk's supervisory status The General Counsel alleged alternatively that if Shenk is found to be an em- ployee, a separate violation was committed around the second week in January when Bourne Interrogated Shenk. I would so find. As he credibly testified, Bourne asked him whether he had any knowledge about the Union being organized, and he told her he had heard about it after the employees had already signed for the Union, but did not know who had signed BOURNE CO. 815 employee,22 I find that she was nonetheless an employees under the protection of the Act and that her interrogation by Walker was unlawful. In sum, I conclude that in each of the instances of employee interrogation recited above Respondent breached Section 8(a)(1) of the Act. In addition, I find Respondent committed Section 8(a)(1) violations by creating an impression of surveillance in the matters which Fox described to Crawford concerning Bourne's requests and pressures upon Fox and Zerga to engage in surveillance of the employees, and also in Bourne's request of Crawford to report if she "heard or saw anything" regarding the Union. Bourne's instruction to Crawford to dissuade employees from going into "such a thing as a union" was a further violation 23 Against the background of Bourne's earlier con- versations with Crawford and in view of the specific mention of the Union at the time, I cannot find that the $20 which Bourne gave to Crawford on the night she was working late was an act of pure generosity or reward for work, and infer rather that it was intended at least in part as an inducement to cooperate with Bourne with regard to the union problem. This was therefore an added violation of Sec- tion 8(a)(1)24 The allegation is made that Respondent engaged in unlawful surveillance of em- ployees during their working time in the bookkeeping office. Credible testimony was given by Nardoni, Crawford, and Combes to the effect that, after Respondent's receipt of the Union's telegram (on January 2), Bourne, Zerga, and Sandler greatly increased their visits to and the amount of time they spent in the bookkeeping depart- ment. In early January, particularly in the week preceding Nardoni's discharge (January 12), the employees in the department discussed the Union more openly and at times in loud tones. There was apparently no rule prohibiting such discus- sions on the job. The inference may be drawn that these increased appearances by Respondent at the employees' place of work were prompted in part by an awareness of union organizational activity going on in the plant. Nevertheless, while there may be exceptional circumstances, not evident here, such as calculated eavesdropping on employees, I cannot otherwise accept the proposition that the Act restricts an employer from freely entering upon its own premises to observe employees while they are at work.25 Accordingly, the allegation is rejected. E. Discharge of Nardoni 1. The evidence On Friday, January 5, Fox spoke to Nardoni near Fox's desk.26 He said, "John, be careful. Mrs. Bourne is up in the air about this. She wants to knock you off. . She wants to see you in her office." 27 Nardoni reported to Bourne. His conversation with Bourne in substance was that she made specific inquiries as to what the employees were doing in the bookkeeping office and stated repeatedly that she was "overpadded" and would have to let some of them go. Of the impression that he had been impliedly threatened by Bourne, Nardoni described the interview to other employees and to Fox. Fox said, "I told you to be careful." That week certain of the employees got raises 28 On Monday afternoon, January 8, Fox came up to Nardoni near the latter's 22 The stipulation in the election proceeding is in no event binding as to Bell 's status in the present complaint case Liberty Coach Company, Inc, 128 NLRB 160 The evidence taken shows that Bell's duties were principally secretarial and as an assistant to Walker in certain administrative functions . However, it was not shown that she was employed in a confidential capacity to an official engaged in handling or effectuating labor relations policy ( i e, the Board's test ; see Seattle Automobile Dealers Association , 122 NLRB 1616 ) or that she had managerial responsibilities ai E g, The Babcock & Wilcom Company, 128 NLRB 239, 248. 24 The issues concerning the instruction to Crawford to dissuade employees and the $20 payment, while not expressly set out in the complaint, are sufficiently related to the Section 8 ( a) (1) allegations therein and were fully litigated at the hearing. 25 Cf. NLRB. v. Davidson Rubber Co , 305 F. 2d 166 ( C A. 1) (July 13 , 1962). 26 Based on Nardoni's testimony. 2T Crawford , Fox's secretary, testified that she overheard "very sketchily" that Fox told Nardoni "he had better watch out . . . that Mrs Bourne was up in arms in the air " 26 Fred and Frank McSweeney, Anthony Pagano, and Arden Gross Slutsky told Nardoni they had received raises. Bourne testified that the raises were given pursuant to her policy of reviewing salaries at the first of the year but that Controller Fox had recom- mended no increases for the bookkeeping department because most of the staff had only been there a few months. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desk. He said, "John, do you know that Mrs. Bourne asked me to get rid of you and that I told her no, he is a family man. And if you want to get rid of him, do it your- self." 29 Later that day, Walker told Nardoni that Bourne "is burned up about the whole deal and is threatening to move the plant." 30 Early that week, during the coffee break in the shipping department, there was discussion of a rumor that Bourne was going to move to Pennsylvania and farm out the work there. Walker, Fox, and Shenk were among those who made the statement. Walker also told Nardoni to be careful that Bourne was up in the air about the Union.31 And Zerga advised Nardoni to "watch it." On January 11, Zerga called Nardoni aside, to the hallway outside the bookkeeping department. Zerga said, "John, can't we handle this union business ourselves between us right here? . Mrs. Bourne is all up in the air. She is threatening to move the place and what have you. Jobs are in jeopardy. Let's settle this union business right here between us." Nardoni answered that he was surprised at the question but he was not going to sell the employees short. Zerga said, "There will be more harmony if we settle this way. Things will be better in the future. I assure you, John, we will try to straighten the place out. We will have it running good." Nardoni declined.32 That afternoon during the coffee break, Combes, Shenk, Walker, and Nardoni were discussing the Union. Walker remarked to Nardoni, "Does Mrs. Bourne know that you are the head of this union? Does she know you are one of them? You are the one?" Nardoni said, "I don't care if she knows." A minute or two later Bourne was noticed standing behind them about 8 or 9 feet away. There was an apparent movement to disperse, and Nardoni said, "Don't run, let's not be afraid of her." 33 On January 12, shortly before 6 p.m., Fox told Nardoni he had to let him go. When Nardoni asked why, Fox said, "You know why, John." Bourne testified concerning the discharge on January 12, viz: She was in the bookkeeping department to see what was going on. Fenton, her accountant, was in the house. She walked over to where Helen Raymond was working and asked Ray- mond what she was doing. Raymond said she was correcting Nardoni's work. Bourne called Fenton over and suggested getting rid of this bookkeeper. She said she was sick and tired of having people that should be working on royalties correcting Nardoni's work. Then she called over Fox, told him the same thing, and that she wanted Nardoni dismissed. Fox agreed, saying that he too had had enough of cor- recting Nardoni's work.34 Fox testified that Bourne was in the backroom with Ray- mond who was doing over some breakdowns which Raymond indicated that Nardoni "must have gave [sic] her some wrong instructions in breaking it down." Bourne saw that, called Fox over, and said, "We can't just fool with him much longer. Let's get rid of him right now." Fox "more or less consented this time " He then told Nardoni he was laid off "due to your inefficiency, the many errors you have made." Nardoni indicated "this won't be the last that you will hear from me." 35 29 Combes, who was present, asked Fox who said that, and Fox said Bourne Em- ployees Crawford, Sucher, and Slutsky were also in the immediate area 80 Combes and Shenk were present. n In view of the weight and plausibility of countervailing evidence, Walker's testimony that he never discussed anything with Nardoni about the Union is not credited (Walker had left Respondent's employ as of the time of the resumed hearing in June ) ° Zergo denied this conversation or any discussion of the Union with Nardoni How- ever, he admitted he had "good conversations" with Nardoni concerning various problems and complaints about Respondent . Although Zerga was "second in command" and had particular responsibility in personnel matters, he testified that he had at the time no concern regarding the Union because he had then already decided to leave his position with Respondent. He left at the end of March 1962, giving 2 weeks' notice . I do not credit Zerga. He gave evasive and innocuous responses and impressed me as studiously avoiding in his testimony getting implicated on the subject of the Union. °° While I do not credit Bourne's denial that she was there at all , I make no finding that she overheard the conversation described. °4 On cross-examination , Bourne contradicted her testimony on direct . Among other things, she stated that Fenton stood beside her on January 12 watching Raymond, that she did not know what Raymond was actually doing, and that Fenton could supply these answers. 35 Fox testified he did not know anything about Nardoni 's union activity at the time of the discharge, and that, other than his secretary, Crawford, he never heard employees discuss unions at all. BOURNE CO. 817 Respondent's position is that Nardoni was discharged after an accumulation of many errors reaching the climax on January 12 when Bourne found Raymond re- doing Nardoni's work. Fox and Bourne testified at considerable length concerning various mistakes and misdeeds of Nardoni almost from the beginning of his em- ployment and also concerning earlier discussions between them on the subject of terminating Nardoni. No useful purpose would be served to attempt to construct herein all the testimony of Fox and Bourne regarding Nardoni's asserted miscon- duct.36 In major respects, their versions are in conflict 37 and, as I find, the testimony of each is self-contradictory, vague, confused, implausible, undocumented, and uncorroborated by witnesses who were present and not called or questioned by Respondent. Fox said he had criticized Nardoni many times for errors. Fox's main criticism, apparently, was that, beginning in November 1961, Nardoni had been giving wrong instructions to Helen Raymond, Eve Levy, and Levys' predecessor, Reva Cohen, on how to post from royalty statements into certain record books, and that, as a consequence, there was an imbalance in total figures and the work had to be redone. However, Fox stated at one point that the girls were properly instructed by him sometime in December and that it took about 2 weeks to redo the work. Thus, even assuming the fault was Nardoni's, which I do not find, the alleged error was caught and rectified in December substantially before Nardoni's discharge. As they testified, Fox was in close touch with Bourne regarding Nardoni's work; she knew the bookkeeping system and procedures "fairly well"; and on her own she had been watching the work on the books. Bourne's explanation is incredible that she was in effect taken by surprise on January 12 when Raymond told her she was redoing Nardoni's work and that this precipitated Nardoni's discharge. Raymond, Levy, nor any of the accountants (Fenton was present in the hearing room) were called by Respondent to testify on this matter.38 Raymond and Levy were part-time Inter also ( a) Being absent in October 1961 for about a 3-day period during which Nardoni had taken home certain of the books. Nardoni credibly showed that Respondent was notified of his valid personal reasons for the absence, that he was specifically in- structed by his supervisor, the controller, to work on books at home, for which lie was paid overtime. ( b) Erasures and errors in preparing checks for Bourne's signature; fail- ure to obtain approval of department heads before preparing checks for payment of bills , not checking to see if bills were previously paid ; not taking discounts ; not properly re- cording petty cash withdrawals ; errors in handling social security deductions in prepar- ing the payroll ; and mishandling of the cash receipts book These alleged mistakes, on Respondent's own testimony, had ceased in and before December 1961. In the main they were denied by Nardoni. A factor to be considered was the conceded "mess" in Respond- ent's bookkeeping operations, not the doing or fault of Nardoni, under the conditions of which he had to perform his functions . ( c) Nardoni, on his own initiative , had made daily handwritten notes from October 23 to 30, 1961, in an attempt to analyze the diffi- culties in the bookkeeping department and recommend a course of corrective action He sent these notes in to Bourne The notes appear to be strongly critical of certain employees and auditors on the premises for laxity and stated, among other things, that the accounting firm was ",bleeding" the Respondent He also noted that he had decided to leave Respond- ent's firm because it was run in such a "slipshod manner" and "we would always be con- fronted with this mess ," unless certain action was taken. He said his notes were "written incoherently " and requested permission to explain orally to Bourne Thereafter he saw Bourne and discussed the matter , which she agreed to keep in confidence . Nardoni testified that Bourne said she liked what he had to say, thanked him, and prevailed upon him not to leave. I need not and do not pass upon the truth or falsity of Nardoni 's notes, although there is enough evidence elsewhere that he was in an onerous position of having to cope with a "mess." Suffice it that I credit Nardoni and reject Respondent's conten- tions that the incident marked Nardoni as unreliable and a "neurotic" and was a definite factor in his discharge. For example there is conflict and confusion in their testimony as to which one, Fox or Bourne, wanted to discharge Nardoni at various times before January 12 and the other sought his retention at the time. Also to be noted is Bourne 's testimony that "somewhere between January 2 and 5," Fox wanted to let Nardoni go, but she did not agree-because "We were coming into the royalty period, the firm had made a big investment in Mr. Nardoni in trying to get him to understand some of the workings of the firm and if there was a possible chance that he would straighten out . . . I was quite willing to let it hap- pen." However, she also testified that as early as November 8 and again in December, it was she who favored discharging Nardoni but Fox wanted to wait. 38 Nor was Combes , who, according to Fox and Mrs. Bourne, complained to them about Nardoni's work. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clericals with no knowledge or skill in bookkeeping. Their functions were of a routine nature. Admittedly they were instructed in the particular work on royalties by others, including Fox, Tannenbaum (an accountant), and Combes, as well as Nardoni. Yet both Fox and Bourne stated that they accepted the word of these girls, without consulting Nardoni, that the errors were those of Nardom. Nardoni was discharged after about 31/a months' employment as principal book- keeper. His salary was $100 per week. Although he assisted and was assisted by other employees, Nardoni was not a supervisor-the controller having that respon- sibility. He majored in bookkeeping and accounting at Wisconsin University and had held positions in this field since about 1940. He was hired by Bourne after being interviewed by Michael Manning, then controller, and Fenton, head of the accounting firm. On January 24, 1962, Fox signed a letter of reference, prepared by Nardoni on Fox's authority, which stated in substance that he found Nardoni "an energetic, efficient, loyal, dependable and intelligent individual." 39 Bourne said she could not answer as to Nardoni's proficiency in keeping the books (other than the cash receipts book) and that Fenton could better testify on this question. Crawford, a bookkeeper and secretary to the controller,40 credibly testified: She never heard Fox nor anyone else, including Bourne and Fenton, criticize Nardoni. She had to work closely with Nardoni concerning various bookkeeping matters. Nardoni assisted her in her work. There were no more problems with Nardoni than with any of his predecessors. She was experienced in the bookkeeping procedures regarding royal- ties; it was discovered that a lot of the errors stemmed from the previous period. Everyone made mistakes in the bookkeeping department. Nardoni, whom I credit generally,41 denied the bulk of the errors alleged against him, including those involving royalty statements and giving the girls erroneous instructions. He admitted to certain minor errors substantially before his discharge. Others, including his predecessors, made mistakes 42 He was never criticized-in the sense of a reprimand, direct or indirect-or warned of discharge, and in fact had at times been complimented by his superiors. 2. Concluding findings In view of the interrogations ; the attempts at surveillance, in particular Bourne's determination to find out who was "at the bottom" of the union movement ; the open- ness of the union activities in the presence of supervisors ; the smallness of the plant; and the express and implied threats of discharge conveyed by supervisors to Nardoni, I have no difficulty in finding that Bourne, despite her insistence to the contrary, had actual knowledge of Nardoni's union leadership, and in any case that such knowledge by her supervisors is properly imputed to her, the Respondent . On the record as a whole, including the evidence that Respondent committed other unfair labor prac- tices demonstrating union animus; that Nardoni was discharged summarily, with no prior warning, at a critical point in the union drive and at a time when Respondent was under the pressure of its royalty period; and that Respondent dredged up a multitude of pretextuous grounds for his discharge , I conclude that Nardoni was discriminatorily terminated in violation of Section 8(a) (3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operation of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and foreign countries, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. In his testimony, Fox retracted the adjective "efficient," stating that he had signed the letter because he did not want to deter Nardoni from getting another job 41 Crawford held this job for about 3 years with Respondent and had been terminated In February 1962 for alleged cause 41 Apart from their admissions , I attach no credence to the testimony of Fox and Bourne-for reasons already indicated-because in general their statements were at odds with the plausible and corroborated evidence In the entire record, and because , as wit- nesses, I found them evasive and shifting in their testimony. 42 There is no evidence, apart from Nardoni, that anyone was discharged for making mistakes. BOURNE CO. V. THE REMEDY 819 Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it case and desist therefrom 43 and take certain affirmative action designed to effectuate the policies of theAct. It will be recommended that Respondent offer John Nardoni immediate and full reinstatement to his former and substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would normally have earned, absent the dis- crimination, from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. It will be further recommended that Respondent preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 153, Office Employees International Union, AFL-CIO, is a labor or- ganization within the meaning of Section 2(5) of the Act. 2. By discriminating against John Nardoni in regard to his hire and tenure of em- ployment, thereby discouraging membership in the above-named labor organization, Respondent has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] "With respect to the broad order recommended upon findings of Section 8(a) (1) and ( 3) violations , see N.L.R.B. v. Express Publishing Co., 312 U.S. 426; N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). SUPPLEMENTAL INTERMEDIATE REPORT On August 15, 1962, Trial Examiner Benjamin B. Lipton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action. Inter alia, I found that Respondent had discrimi- natorily discharged John Nardoni, the Charging Party, in violation of Section 8(a) (3) of the Act. On September 17, 1962, the Respondent filed with the Board a "Motion To Reopen the Record." On November 6, 1962, the Board issued the following order, in es- sential part: the Respondent filed a motion to reopen the record for the purpose of en- abling it to adduce certain newly discovered evidence relating to the credibility of John Nardoni, whose testimony the Trial Examiner had credited in making certain unfair labor practice findings. Thereafter, the General Counsel and the Charging Party, John Nardoni, filed opposition to Respondent's motion. The Board having duly considered the matter, IT IS HEREBY ORDERED that the record in this proceeding be, and it hereby is, reopened, and that a further hearing be held before Trial Examiner Benjamin B. Lipton for the limited purpose of adducing such additional evidence relevant to the credibility of John Nardoni. [Emphasis added.] On January 14, 1963, pursuant to the Board's order, a further hearing 1 was held before me in New York, New York. All parties were represented, and were afforded I Attorney Beck for the Respondent and Attorney Lovinger for the Charging Party made formal appearances for the first time at this reopened hearing, both actively participating in the trial of the case. 727-083-64-vol. 144-53 820 DECISIOI" S OF NATIONAL LABOR RELATIONS BOARD full opportunity to participate in the hearing , to introduce evidence relevant to the issues, to engage in oral argument on the record , and to file briefs with the Trial Examiner. Respondent's motion to dismiss the complaint is disposed of in ac- cordance with the findings below. Briefs received from the Respondent and the General Counsel have been fully considered. Upon the entire record of the case, I hereby make the following additional or supplemental findings of fact and conclusions of law: A. Introduction and review John Nardoni was hired by Respondent on September 26, 1961 , and discharged on January 12, 1962. His salary was $100 per week. Although the record in the case indicates that Nardoni occupied a position of "assistant chief or chief bookkeeper," he had no supervisory powers over the several employees who performed particular bookkeeping and clerical functions in Respondent 's specialized music publishing operations. Effective immediate supervision was exercised over Nardoni and the other employees in the department by Sidney Fox, who carried the title of controller. Respondent contended that Nardoni was discharged for incompetence, after he had made a series of alleged errors, when, on January 12, 1962, Mrs. Bonnie Bourne, the Respondent, discovered that Helen Raymond, a part-time temporary clerical em- ployee, was redoing Nardoni's work. In the Intermediate Report previously issued, the various grounds asserted by Respondent as reason for Nardoni's discharge were examined in detail and rejected as unfounded and pretextuous. The ultimate con- clusion of a Section 8(a)(3) violation was rested upon a finding that Respondent's true motive for Nardoni's discharge was his union activities.2 As noted, the Board had ordered the record reopened for the "limited purpose of adducing such additional evidence which Respondent had specified in its Motion To Reopen as being newly discovered. The asserted evidence which Respondent sought leave to adduce was set out in its Motion, in substance, viz: (a) He testified that he had graduated from the University of Wisconsin, majoring in bookkeeping and accounting. (Record p. 648). The Registrar of the University, as indicated in the attached telegrams, states that their records show not only that he was never graduated but that he was never enrolled as a student. (b) Nardoni testified that he had been engaged as a bookkeeper since 1940, and that he had been employed by Kenroy Press where his duties entailed book- keeping and working on cash books, sales books, journals, trial balances, ledgers and sub-ledgers. (Record pp. 648-649). An executive officer of Kenroy Press, however, will testify that Nardoni was employed as an order taker at Seventy ($70) Dollars a week. His duties in no manner related to bookkeeping and he left without notice. In his "Employment Record" which is attached, Nardoni admits that in two of his three previous jobs, involving five of the ten years covered, he had not been engaged in bookkeeping. (c) Nardoni further testified that he had worked at Levy Insurance doing bookkeeping work until three months before he worked for Respondent. (His application for the Kenroy job states that he worked at the Levy firm for five and one-half years.) He testified that his earnings there, after including his com- missions, amounted to as much as Two Hundred ($200) Dollars a week. He further stated that his average earnings had been more than One Hundred Thirty-five ($135) Dollars per week during the last six months of his prior employment. (Record p. 688). 2 The concluding findings in the Intermediate Report were as follows: In view of the interrogations; the attempts at surveillance, in particular Bourne's determination to find out who was "at the bottom" of the union movement ; the openness of the union activities in the presence of supervisors ; the smallness of the plant; and the express and implied threats of discharge conveyed by supervisors to Nardoni, I have no difficulty in finding that Bourne, despite her insistence to the contrary, had actual knowledge of Nardonl's union leadership, and in any case that such knowledge by her supervisors is properly imputed to her, the Respondent. On the record as a whole, including the evidence that Respondent committed other un- fair labor practices demonstrating union animus; that Nardoni was discharged suminarily, with no prior warning, at a critical point In the union drive and at a time when Respondent was under the pressure of its royalty period ; and that Re- spondent dredged up a multlude of pretextuous grounds for his discharge, I conclude that Nardoni was discriminatorily terminated in violation of Section 8(a) (3) and (1) of the Act. BOURNE CO. 821 Mr. Levy, however, will testify that Nardoni's only work at Levy Insurance was as a janitorial superintendent of his rooming house and that he had no bookkeeping duties. (d) He also testified that in 1958 he earned approximately One Hundred Thirty-four ($ 134.) Dollars a week in base salary from the William B. Mayer Company. (Record p. 687). Records of the Mayer Company will show that Nardoni was employed there for two and one-half years from 1955 to 1957 as an order packer in the Shipping Department , with no bookkeeping duties and at a salary far below the One Hundred Thirty -four ($ 134.) Dollars to which he testified. He was released from this position after an absence of one week without notice. As is evident, Respondent's motion to reopen is an attack upon Nardoni's credibility relating to his earlier testimony concerning aspects of his education and employment before he was hired by Respondent . Respondent does not contend that Nardoni was discharged because he misrepresented his qualifications as a bookkeeper . It remains the essential issue in the case whether, as alleged in the complaint, Nardoni's dis- charge was motivated by reason of his union activities , in violation of the statute. However, the further evidence taken on remand has a bearing upon ( 1) Respond- ent's defense that Nardoni was discharged for incompetence , and (2 ) Nardoni's credibility to the extent that it affects the findings previously made that Respondent committed the unfair labor practices alleged. B. The original testimony of Nardoni which is presently challenged as incredible In the General Counsel 's rebuttal toward the close of the prior hearing , Nardoni testified briefly concerning his past experience in bookkeeping . It is well to examine the substance of this testimony in total context before considering it in relation to the further evidence taken on remand. Q. (By GENERAL COUNSEL'S ATTORNEY.) Mr. Nardoni, previous to working for Bourne Company, have you had any experience in bookkeeping? A. Yes. Q. And could you tell us what experience you did have in bookkeeping? A. Well, you might say since my high school days, I worked as a bookkeeper, assistant bookkeeper, clerical work. Q. How many years is that? A. 1940. Q. Since 1940 you have been engaged- A. As a bookkeeper. Q. What schooling did you have in connection with bookkeeping or accounting? A. I graduated from Wisconsin and majored in bookkeeping and accounting. TRIAL EXAMINER: Wisconsin University? The WITNESS' Yes. Q. And what was your job previous to your position at Bourne Company? A. I was working for a printing company for a short period of time, Kenroy Press and prior to that, I worked for Levy Insurance and Brokerage House, Realty Company. Q. And what was your capacity in these two jobs? A. Office Manager. Or Assistant to the Office Manager. Q. You were assistant to the office manager. And did your duties entail bookkeeping at all? A. Yes Q. What types of books did you work on? A. Cash books, sales books, journals, trial balance, ledger, sub -ledgers, almost every book conceivable in bookkeeping. Q. (By RESPONDENT'S ATTORNEY.) And how old were you when you gradu- ated from college? A. I was in the Army. I took that extended course in the Army. Wisconsin University supplied us with that course. [Emphasis supplied.] In addition , on cross-examination, Respondent was permitted to question Nardoni concerning the highest salaries he had earned .3 Nardoni was apparently unclear as i Overruling the General Counsel's abjection , the Trial Examiner noted that it had "some relevance" but that it was "a question of weight." 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to what Respondent meant by "base salary" and gave his testimony, reasonably con- strued, in terms of total weekly earnings, including overtime. He testified that in a position he held with Pennsylvania Railroad as a checker and payroll clerk, he earned as much as $300 a week when he worked "around the clock." With William B. Mayer Company, his highest weekly earnings were $134. At Levy Insurance Company, Nardoni estimated that they were more than $100-"with commissions, which were entailed with this job, I would say sometimes $175, sometimes $200." The subject of Nardoni's education and prior employment was only collaterally relevant in the case and, as can be seen, was not explored in any depth by either side.4 Considering the nature of the above-described testimony, as well as Nardoni's de- meanor on the stand, I do not view the testimony for purposes of credibility with the degree of strictness which Respondent in its motion so strenuously asserts.5 More- over, it is apparent, even from a literal reading, that Respondent has not fairly repre- sented the character and content of Nardoni's testimony. At the original hearing, Nardoni's reference to Wisconsin University was clarified by him to show that he was in the Army at the time taking extended courses which, as he said, were supplied by Wisconsin University. Clearly, Nardoni did not mean that since his high school days in 1940 he had consistently been employed as a book- keeper in a strict or formal sense, but rather that during this period he had done bookkeeping and clerical work. At Kenroy Press, he worked for a short period of time as assistant to the office manager. Reasonably, his answer to the question which immediately followed concerning the types of books he worked on-"almost every book conceivable in bookkeeping"-was intended to cover his entire experience in bookkeeping. Nor, for purposes of credibility, is there sufficient basis for holding Nardoni to having testified that he was employed in a bookkeeping capacity at Kenroy Press, William B . Mayer Company, or Levy Insurance.6 C. The additional evidence taken on remand 7 1. Regarding Nardoni's USAFI studies Nardoni testified that during his Army service, from 1943 to 1946, he took self- teaching courses in bookkeeping and accounting at Camps White, Callan, and Pendle- ton under the aegis of U.S. Armed Forces Institute, herein called USAFI. There were no classrooms with teachers ; he studied entirely on his own during off-duty hours. The men who participated in the program were furnished text books and materials for self-study ,8 under the guidance of an educational director, who held * Respondent itself made no attempt at the previous hearing to litigate the subject of Nardoni's general qualifications as a bookkeeper , even though , as it later stated in its motion, it was aware that Nardoni's employment application had been removed from the Company's premises at the time Nardoni was discharged and had filed charges with the Board. 5 Particularly as to Respondent's questions relating to the highest salaries Nardoni ever earned. 6It may be noted, in connection with its motion and its own investigation conducted after the original hearing, that Respondent has not challenged Nardoni's testimony that he was employed as a payroll clerk with Pennsylvania Railroad ; nor has it raised any ques- tion relating to Nardoni 's work experience during the rest of the 20-odd years mentioned, apart from the specific companies mentioned. 7 Respondent's first witness at the reopened bearing was John Nardoni, who was in- tensively cross-examined by Respondent . Prior to the hearing, Respondent obtained a subpena against Nardoni to appear and produce various documents , including his income tax returns and records pertaining to his attendance at Wisconsin University . Respond- ent's counsel stated that efforts were made, without success, to serve the subpena. Nardoni was not served with the subpena at the hearing ; nor was there a motion to quash the subpena. Without objection from any party , Nardoni testified as Respondent's (adverse) witness and supplied certain records In addition, Respondent sought to call Fenton, its accountant, to testify generally concerning the merits of the case , but it was not permitted to do so as it was clearly an attempt to relitigate matters beyond the scope of the re- opened hearing. 8 Particular textbooks and study kits which he bad used were identified by Nardoni from a pamphlet issued by USAFI in 1944 entitled , "How To Study Correspondence and Self- Teaching Courses." This pamphlet and other literature in evidence ( General Counsel's Exhibit No. 14(d)) explain in detail the nature and the various types of self -teaching courses which could then have been taken, with or without formal enrollment or pursuit of credits toward a college degree. BOURNE CO. 823 meetings with the men once or twice a week. Nardoni had no recollection whether the "GI's" were given applications to fill out for the USAFI studies or were merely advised by the commanding officer to go down and take the courses, nor whether they received grades or report cards in their studies. He testified that the educational director or instructor informed the servicemen that if they took the USAFI courses, it was like taking courses out of Wisconsin University, and that if they completed the USAFI courses, it was "similar to" graduating from the University.9 Apart from his reference to "graduation," Nardoni nowhere indicated he took the USAFI courses for purposes of obtaining any certification or credit toward a degree; and it is apparent that he did not. At the further hearing, the General Counsel placed in evidence, without objection, a letter dated December 21, 1962, from William H. Dicks, registrar of USAFI in Madi- son, Wisconsin, to Nardoni, in response to a letter of inquiry from Nardoni. Nar- doni's letter to USAFI was not available at the hearing and Respondent insisted, and it was agreed, that the letter be furnished and sent to the Trial Examiner to be ad- mitted in evidence.10 Respondent adverts to this letter in its brief; although it con- tains certain self-serving statements, the letter (in Nardoni's apparently rushed hand- writing) is set forth to clarify the USAFI reply. USAFI, DIRECTOR OF EDUCATION, Madison 3, Wisconsin. DEAR SIR: I have a problem . I was in W W II and during my hitch, (1944), I took advantage of study course[s] provided by Educational facilities on the post, however, no records where [sic] kept, the Educ-Dir there on the post, gave us the Books or Manuals with workbooks attached. I study [sic] many courses, just read the books and got the most out of the instruction, however, for reading purposes-(without record of completion). Also, I study [sic] Bookkeeping-Accounting I & II and I noticed Wisconsin University made up the texts. Am I correct? Now I'm in a litigation over whether or not I'm an efficient Bookkeeper (something I have done for 16 years). Will you be so kind to establish for me that the Army did offer these course[s] at that time; and, that Wisconsin University texts [tested] or corrected the work paper for those that desired certificates. Secondly that Bookkeeping I & II at that time was offered to the G I. during those years-also, that those Books were available on the post for the G.I. to read or study without requesting certificates, and I know no Thank you very much, record of my taking (S) JOHN NARDONI. the course exist[s] Please Rush Urgent is because I study by myself-[sic] The USAFI reply to Nardoni's letter, in pertinent part, follows: UNITED STATES ARMED FORCES INSTITUTE Madison 3, Wisconsin DEAR MR. NARDON[I]: We are glad to provide the confirmation which you requested in your recent letter to us relative to the educational opportunities available to military personnel through the facilities of the United States Armed Forces Institute (USAFI) at the time you were in the active Military Service in 1944. You are assured that USAFI offered a number of courses in bookkeeping and accounting in 1944. We are inclosing an extract from the USAFI Catalog, Second Edition, published in March 1944, which lists all of the USAFI course offerings in this field in 1944. You are further assured that the education offices at many military installa- tions, both in the Continental United States and at U.S. military stations over- seas, carried stocks of USAFI course materials for local use by military personnel at the military installations. All Servicemen had the opportunity to obtain 9 On being asked what the educational Instructor meant by this statement, Nardoni re- plied, "I wouldn't know, sir." io Nardonl's letter dated December 14, 1962, was received after the hearing and is ad- mitted as General Counsel's Exhibit No 15, which was reserved for this purpose 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD USAFI courses on a loan basis from their local education libraries, for inde- pendent individual study. This practice has never been discontinued and USAFI courses have at all times been frequently utilized in this way through the facili- ties of local education libraries at individual military installations. You are also correct in your understanding that nearly all lessons for USAFI correspondence courses are reviewed and graded through the University of Wisconsin by instructors appointed by the University Extension Division. This contract arrangement with the University of Wisconsin for USAFI lesson grad- ing has existed since the beginning of the USAFI program in 1942. To obtain a USAFI Certificate of Completion for a USAFI course, the student had to enroll formally with USAFI in the course concerned and accomplish completion by passing the USAFI end-of-course test. * * * * * * * Sincerely yours, WILLIAM H. DICKS, Registrar. Nardoni also indicated that, beginning in 1957 for a period of a year or two, he pursued new courses in accounting practice and bookkeeping-"by correspondence in the Army and on my own."" Also placed in evidence, in the course of Re- spondent's cross-examination of Nardoni, was a diploma showing that in May 1960 Nardoni had graduated from and was conferred the degree of Bachelor of Laws by the Blackstone School of Law, a correspondence institution in Chicago, Illinois.12 Certain affidavits obtained by Respondent were admitted in evidence with the stipulation of the parties that, if the affiants were called, their testimony would correspond in all respects to their affidavits. In net effect, the affidavit of W. J. Harris, associate registrar at the University of Wisconsin, indicated that there was no record John Nardoni was ever registered or enrolled in any course at the University. Sim- ilarly affidavits of William H. Dicks,13 registrar of USAFI,14 stated in substance that Nardoni's name does not appear in the comprehensive files kept of all students who were ever enrolled in or tested by the Institute in connection with courses made avail- able to members of the Armed Forces through USAFI, "regardless of where in the world such students may have studied such courses." For reasons earlier noted, I find no material contradiction of Nardoni's testimony furnished by Associate Registrar Harris' affidavit. Fairly considered, Nardoni's testimony, as clarified in the reopened hearing, does not reflect that he was ever registered or enrolled at the University of Wisconsin, but rather that he undertook certain self-teaching courses provided by USAFI while he was in the Army during World War II. Nor do I find that the evidence Respondent obtained from Registrar Dicks is by any means conclusive that Nardoni did not pursue the USAFI studies to which he testified. Among other things, there is no indication that the records of USAFI referred to in the affidavits embraced those students who took self-study courses in Army camps without formal enrollment or seeking credit toward a degree 15-as appears to be the manner of Nardoni's USAFI studies. 2. Regarding Nardoni's past employment The office manager of Kenroy Press testified for Respondent that Nardoni was employed with this company for about 3 months in 1961 as a general office worker and an assistant to the office manager at a starting salary of $70 which was increased to $80 a week. I find no inconsistencies in Nardoni's testimony. A foreman of William F. Mayer Company testified for Respondent that Nardoni was employed from February 1955 to August 1957 as an order packer. Payroll 11 He identified textbooks be used, and the General Counsel introduced examples of accountancy study problems in Nardoni's writing. 12 Nardoni said he was not a member of the bar and had not taken any bar examinations. At the time of the hearing, he was engaged In studies for Saris doctor at the Blackstone Law School. 13 One such affidavit was obtained by Respondent and sent to the Trial Examiner after the close of the hearing, with a stipulation for its admission on the same basis as the others. 14 The same person who corresponded with Nardoni, supra. 15 See Registrar Dicks' letter to Nardoni, supra. BOURNE CO. 825 records of this company show that Nardoni frequently had weekly earnings, including overtime, of $120 to $140 a week. This evidence reconciles with Nardoni's testimony that he earned as high as $134.16 Isac Levy testified for Respondent that beginning in February 1956 Nardoni was employed by him and his wife, Diane B. Levy, in the capacity of superintendent and caretaker of a furnished rooming house having 25 tenants,17 and that Nardoni received $60 a month in cash and the cost-free occupancy of a furnished apartment, in which Nardoni resided with his family, valued at about $20 a week. Nardoni arranged for the technical maintenance of the property, and his duties included the rental of apartments, collection of rents, and keeping records of the same. The Levys owned or managed three other apartments and rooming properties in the locality, employing three or four employees. Levy conceded that Nardoni "may have" helped him in making out tax forms concerning these employees 18 The question herein, as already described, relates to Nardoni's original testimony in which he cited his Levy employment, in reply to Respondent's query, as an instance of his highest weekly earnings exceeding $100 with commissions-"sometimes $175, sometimes $200." At the remand hearing, Nardoni testified that he received extra compensation 19 for doing bookkeeping work for the Levys-by which he meant payroll and assorted tax matters. He said he also received commissions for renting out apartments. And he referred to a promise of $2,000 from Levy and a buyer 20 as commission for arranging the sale of the building in which he worked Nardoni said Levy failed to pay him this commission. Levy testified he considered it a "gratuity" rather than a commission, and he would have given it to Nardoni "if he would have abided by a verbal agreement . . . to take care of the tenants." Levy denied that Nardoni received any commissions from him for renting out apartments, but said that "maybe" Nardoni did from the tenants Earlier in his direct examina- tion. Levy answered negatively to the question of Respondent's counsel-"Did [Nardoni] ever act in any capacity which then entitled him to receive or did he ever receive any form of compensation in the form of commissions for any services rendered in the real estate or bookkeeping field?" It is evident from the record that there was existing hostility between the Levys and the Nardonis. The latter were involved in various actions against the former for alleged violations under the rent control, workmen's compensation, and wage and hour regulations. As it stands, I do not find Levy's testimony provides a sufficient ground for discrediting Nardoni. Moreover, as I regard Levy as an unreliable witness,21 I would in any case credit Nardoni insofar as any material conflict may appear between the testimony of the two. D. Concluding findings and recommendations Nardoni is the Charging Party, the alleged discriminatee, and certainly an inter- ested witness in the proceeding. Adversary positions were strongly stated on both sides of the controversy, and it was reflected at times from the witness stand-which Nardoni occupied for a major part of the hearing 22 However, my observation of Nardoni's demeanor, especially as pertains to the general merits of the case, leaves me with the same impression of his credibility as I had initially determined. The issue was not a critical one when Nardoni made the statement, in the course of General 19 After he was hired at Kenroy Press, Nardoni filled out a form captioned "Employment Record," Indicating certain of his employment experience Without objection, Respondent placed this document in evidence Respondent also obtained a stipulation that Nardoni, in applying for a loan in 1957 at Household Finance Corp., indicated he was engaged as a shipping clerk for William F. Mayer Co. I can assign no probative weight to either of these items as a basis for discrediting Nardoni on the issues herein. 17 Diane B. Levy, who did not testify, was engaged in an insurance brokerage business at these premises Ownership of the real property was in the name of Diane B Levy but, at the time it was sold in November 1961, it was in the names of the husband and wife. 18 Levy explained that they were good friends then , that he admired Nardoni "for his capabilities," but indicated that "after a while" their relationship changed 19 Estimated at $20 , $30, or $40 at a time. 29 The transcript at page 40, line 9, is hereby corrected to read "buyer" instead of "Mayer." 21 In view of, inter aiia, his demeanor on the stand and contradictions in his own testimony. 22 Consuming about 1 ,000 pages of transcript. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel's rebuttal, that he had "graduated from" the University of Wisconsin, major- ing in accounting and bookkeeping. Originally and in the remand hearing, Nardoni clarified that he was referring to the courses he took through USAFI as to which there is indication of a connection with the University of Wisconsin. 23 In addition, Nardoni was advised at his Army camp that completion of USAFI courses were "similar to" graduation from the University. He did not need an education or degree in accounting to qualify as a $100-a-week bookkeeper. And the fact that at times he took employment other than bookkeeping does not establish a lack of capacity as a bookkeeper. There is enough evidence relating to his self-teaching and cor- respondence courses as well as his prior employment to dispel any contention that he was unqualified as a bookkeeper, as would arguably lend weight to Respondent's defense that he was discharged for incompetency. From the facts described in the prior Intermediate Report and those further shown in the remand hearing, it is clear to me that Nardoni had not practiced any deception upon Respondent with respect to his qualifications for and ability to perform the bookkeeping job 24 How- ever, even assuming for argument's sake that Nardoni engaged in an exaggeration or falsification in the portion of his original testimony under challenge, I would not find any justification thereby for discrediting him generally or rejecting his entire testimony 25 Indeed, even accepting only that part of Nardoni's testimony which is uncontradicted or corrobrated by circumstances and other witnesses (e.g., Crawford), there is ample evidence, in my opinion, to support the Section 8(a)(3) finding that he was discharged for discriminatory reasons-26 Accordingly, I adhere to my original findings of fact and conclusions of law, as supplemented or modified herein, and recommend the same Order against Respond- ent as previously set out in my Intermediate Report 27 23 Registrar Dicks' letter to Nardoni, supra. 24 There is no contention that Nairdoni, in his employment application and interview, did not truthfully advise Respondent of his qualifications for the job he was given. It was previously shown, inter alla, that he was interviewed by the firm's accountant, the controller, and Respondent herself ; that Respondent prevailed upon him to stay after Nardoni had noted in a report his decision to leave because of the "mess" he was con- fronted with in the bookkeeping department; and that Controller Fox gave Nardoni a letter of reference stating that he found Nardoni "an energetic, efficient, loyal, dependable and intelligent individual." 25 See, e.g., N.L.R.B. v. United Brotherhood of Carpenters and Joiners of America, AFL- CIO, Local 517, AFL (Gil Wyner Construction Co.), 230 F. 2d 256 (C.A. 1) ; N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2) ; Local 212, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-AFL- CIO (Chrysler Corporation), 128 NLRB 952; Florida Steel Corporation (Tampa Forge and Iron Division), 131 NLRB 1179. 26 E.g., Colonial Shirt Corporation, 96 NLRB 711; The Post Printing and Publishing Company, 90 NLRB 1820. 27 However, the Recommended Order its modified to include the payment of interest at the rate of 6 percent per annum as an addition to the backpay, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America and Milwaukee Cheese Com- pany. Case No. 13-CE-5. September 26, 1963 DECISION AND ORDER Upon charges filed by Milwaukee Cheese Company, herein called the Charging Party or Milwaukee Cheese, the General Counsel of the National Labor Relations Board, by the Regional Director for the Thirteenth Region, on September 15,1961, issued a complaint alleging that Chauffeurs, Teamsters and Helpers "General" Local Union No. 144 NLRB No. 81.