Council Manufacturing Corp.

COUNCIL MANUFACTURING CORP. 101 affected by a lawful agreement requiring membership in a labor organization as a condition of employment. JAMES V. DEGEORGE, D/B/A DEGEORGE TRANSFER & STORAGE CO., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-I will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 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, 609 Rail- way Exchange Building, 17th and Champa Streets, Denver , Colorado, 80202, Tele- phone No. Keystone 4-4151, Extension 513, if they have any question concerning this notice or compliance with its provisions. Council Manufacturing Corp . and James N. Lott. Case No. 26- CA-1417. June 26, 1963 DECISION AND ORDER On April 17, 1963, Trial Examiner John P. von Rohr 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 Intermedi- ate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of those allegations of the complaint. Thereafter, the Respond- ent filed exceptions to the Intermediate Report and 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 Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report and the entire record in this case, including the exceptions and brief, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER The Board adopts as its Order the Trial Examiner's Recommended Order. I The Respondent's exceptions to the Intermediate Report and supporting brief are in large part directed to the credibility resolutions of the Trial Examiner . We will not over- rule the Trial Examiner's resolutions as to credibility , unless a clear preponderance of all relevant evidence convinces us that they are incorrect . Upon the entire record , such con- clusion is not warranted here Standard Dry Wall Products, 91 NLRB 544 , enfd. 188 F. 2d 362 (C A. 3). 143 NLRB No. 23. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge duly filed on November 29 and December 6, 1962, respectively, the General Counsel for the National Labor Relations Board for the Regional Director for the Twenty-sixth Region (Memphis, Tennessee), issued a complaint on December 28, 1962, against Council Manufacturing Corp., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The Respondent's answer denies the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held in Fort Smith, Arkansas, on February 26 and 27, 1963, before Trial Examiner John P. von Rohr. All parties were represented by counsel and were afforded full opportunity to adduce evidence, to examine and cross-examine witnesses, and to file briefs. Briefs were filed by the General Counsel and the Respondent and they have been carefully considered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Council Manufacturing Corp. is an Arkansas corporation with its plant and place of business located in Fort Smith, Arkansas, where it is engaged in the manufacture of icemaking machines. During the 12 months preceding the hearing herein, Respondent shipped products manufactured by it valued in excess of $50,000 from its plant in Fort Smith, Arkansas, directly to points and places located outside the State of Arkansas. During the same period, it purchased and received goods and materials valued in excess of $50,000 from points and places located outside the State of Arkansas. The Respondent concedes, and I find, that it is and has been engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Allied Industrial Workers of America, AFL-CIO, herein referred to as the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES James N. Lott, whom it is alleged was discriminatorily discharged on November 19, 1962, was in the employ of the Respondent since May 1960. From the period 1938-56, Lott was engaged in professional wrestling. However, during the period of World War II he was employed by various defense industries where he held classifications of machinist aid, class A machinist, and general machinist. Upon the basis of this experience and 4 years' training in vocational school during his early years, Lott was rated by the International Association of Machinists Union, of which he still is a member, as a general machinist.' When Lott first came with the Respondent in May 1960, he was hired as a common laborer at the rate of $1.25 per hour. Approximately 4 months later the Company's only machinist left its employ and Lott, after speaking to Respondent's president, Dansby A. Council, was given the position of company machinist. Three weeks thereafter his hourly rate was increase to $1.40. In latter 1961, Lott told Council that he had found a new job and that he was leaving the Company's employ because he had not received a raise which had been promised him. Upon being so apprised, Council promptly called his bookkeeper and granted Lott a raise to $1.75 per hour.2 In January 1962, Lott spoke to Plant Engineer Henderson and inquired as to the maximum rate a machinist could expect to earn at the Com- pany. Henderson replied that there was no set rate and asked Lott how much he wanted. Lott stated that he had been offered a job in excess of $2 per hour but that he would remain with the Company if he received a raise to $2. Henderson said he would check into it. He returned in about 15 minutes and announced that 1 The unrefuted and credited testimony of Lott. 2 Lott ^testifled that shortly thereafter Mrs. Council told him that if in the future he had any difficulty In getting a raise he should speak to her or Mr. Henderson, the latter then the plant engineer. COUNCIL MANUFACTURING CORP. 103 Lott was granted the raise. Lott remained employed at the hourly rate of $2 until his termination on November 19, 1962. In addition to his employment with the Respondent, Lott for the last several years has leased and operated the local sports arena in the city of Fort Smith. In the promotion of wrestling matches, Lott appears on a 15-minute weekly tele- vision program known as "Wrestling Interviews." This program was sponsored by the Respondent from January 1, 1961, to January 1, 1962. Lott also rents his sports arena for various types of public affairs, including union meetings. From March through the fall of 1962, the Allied Industrial Workers Union, who were then engaged in organizing the employees of the Norge plant in Fort Smith, held monthly union meetings in Lott's sports arena.3 In January 1961, a number of employees requested Lott to promote an organiza- tional campaign by the International Association of Machinists at Respondent's plant. For reasons which need not be detailed here, Lott discouraged any such move at this time and told the employees "to forget about it." 4 In September 1962 some employees again approached Lott about organizing Respondent's plant, this time indicating that they were interested in the Allied In- dustrial Workers Union. Lott thereupon contacted Clarence Gilmore, a representa- tive of the latter Union, who advised him that at the moment he was busy organizing the Norge employees but that in the meantime Lott should "go ahead and start things." On November 7 Lott called Gilmore and advised that Respondent's employees were desirous of having a meeting. Gilmore advised Lott to set up a date. Lott spoke to Gilmore again on November 14 and on this occasion it was agreed that a union meeting would be held at Lott's sports arena on November 19, a Monday, about 4:30 p.m., which was immediately after working hours .5 The employees were notified of the November 19 meeting via word of mouth at the plant by Lott and his helper, Clarence Taylor. About 3:45 p.m. on November 19, which was about 15 minutes before quitting time and just prior to the scheduled union meeting, Lott was called into the office of Respondent's new plant manager, Charles Beith, and was notified by him that he was being terminated. Concerning the conversation he had with Beith at this time Lott testified as follows: "He [Beath] said, `Jimmie, I am a new man here and I hate to do this, but I am going to have to let you go,' and I said `Why?' He said, `We are just going to close the machine shop entirely down, and contract all of the work out' I said, `Well, you are going to need a lot of help and I wish you a lot of help."' 6 Beith, while not seriously contesting Lott's version of the discharge conversation, testified that during this conversion he explained to Lott that the reason for his termination was, as he put it, "based on the fact that we did not have the workload there to maintain two men in the machine shop, and that his particu- lar rate of pay, I felt was not in line with the kind of work we had to do." While I am inclined to give full credit to Lott's version of this conversation, the ultimate decision with respect to Lott's termination, as will be hereinafter noted, does not turn on whatever Beith told Lott at the time of his termination. On November 20 Lott, upon returning to the plant to pick up his tools, encoun- tered President Council. While it is not necessary to set forth the entire conversation which ensued, Lott credibly testified that when he asked Council why he was re- leased, Council replied that he did not know, that Beith was running the plant. When Lott finally brought up the subject of the Union, Council replied, according to Lott, that it was not the Union at all but that "he did not like for racketeers to come in like they were on the south side of town." 7 Respondent's Defenses; Concluding Findings Charles Beith, Respondent's newly hired plant manager, assumed duties and reported to the plant for the first time on Thursday, November 15, 1962 8 Beith 3 Other unions utilizing the sports arena for union meetings were the United Auto Work- ers and the United Furniture Workers. 4 The credited testimony of Lott. e Lott's arena was a 10 to 12 minute drive from the plant. 6 The conversation ended with the note that Lott would receive a check for any vacation pay due him. 7 Council's version of this conversation did not differ substantially from that of Lott's, although it was not as detailed. As Indicated, Lott's testimony as set forth above is credited. 8 Beith, previously employed as plant manager of a company located in Helena , Arkansas, wa:s Introduced to President Council on November 7, 1962, while on a visit to Fort Smith Council engaged him as plant manager for the Respondent Company on November 9. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that he was put in complete charge of all production facilities and policies; Council testified that Beith was given carte blanche authority to operate the plant Beith spent November 15 and 16, the last 2 days of the week, in familiarizing himself with the plant. Lott credibly testified that he was introduced to Berth around noon of November 15 and that he did not see him again until the follow- ing Monday. With this background we turn now to a consideration of Beith's reasons or ex- planation for his termination of Lott on November 19, the believability of which must necessarily play an important part in resolving the issue of alleged discrimina- tion against this employee. It might be stated here that at various times through- out his testimony Beith advanced different reasons for Lott's termination. I shall begin with those mentioned by him in his direct examination Beith began his explanation of Lott's termination by stating that while making the rounds of the plant on November 16 and the afternoon of November 15 he observed a lack of activity in the machine shop. Continuing Beith testified that over the weekend he reviewed the Company's personnel records and ascertained that "Jimmie Lott was in the position of being fifteen cents an hour over the next employee to him, and was drawing more than his leadinan who was directing his work." The leadman in question, Beith said, was Jack Price. Continuing further, Beith testified as follows: "On Monday, I went over this situation with Jack Price and with J. T. Corbell, the plant engineer, and it was my decision that the work we had there was repetitive machine operator work rather than machinist, and for that reason, along with the inequitable position of wages, I decided on the termina- tion of Jimmie Lott. I had observed, not from a matter of watching this specifically, but from the fact it was so very obvious that the work being performed over the 2-day period that I had watched it, and on the following Monday, this work was primarily being done by Jimmie [Clarence] Taylor, who at that time was gen- erally recognized as Jimmie Lott's helper." So much for Beith's testimony on direct. Beginning with the first assigned reason for Lott's termination, i.e., that hinging on the alleged fact that Lott was in the inequitable position of receiving higher wages than Jack Price, described by Beith as "his [Lott's] leadman who was directing his work," this reason must be rejected because the quoted testimony concerning Price's status over Lott is not in accord with the credible evidence. Thus Lott, who testified before Beith, testified on cross-examination that "Mr. Price had no relation to me at all in the machine shop." Lott's testimony to this effect is credited. Price was not called upon to testify and there is no evidence at all to indicate that Price had any- thing to do with the operations of the machine shop where Lott worked.9 In fact, the record disclosed that other than Lott's being responsible to top manage- ment there was no one who directly supervised his work. If anything, Lott's status itself was akin to that of a leadman, for it is undisputed that Lott assigned work to Clarence Taylor, his helper in the machine shop Accordingly, the instant reason given by Beith for Lott's termination is not credited and is based upon a state- ment which is contrary to fact. As to the second reason which Beith gave in his direct testimony for terminating Lott, i.e., that Lott's work was more repetitive machine operator work than that of a machinist and that this work primarily was being done by Lott's helper, Clarence Taylor, Beith later testified that this conclusion was based largely from his personal observation of the situation while at the plant on November 15 and 16. I cannot but regard this testimony as incredible on its face. I have heretofore credited Lott's testimony that during these 2 days he saw Beith only on the brief occasion of being introduced to him. But even accepting Beith's testimony at its best, Beith first said he could not estimate the time that he observed Lott and Taylor in the machine shop. He finally conceded that it was less than an hour each day.10 To me it would strain credulity to believe that in this brief period Beith could make any judgment as to the nature or amount of work being performed in the machine shop; and this not to mention the fact that Beith did not even discuss the matter with either of the two men involved.il Moreover, Beith con- 0 Clarence Taylor, who took Lott's place, testified that Price is now his supervisor and now is in charge of the paint and machine shops 1" At another point Berth testified, "I observed them [Lott and Taylor] only as a part of my going around the plant. I did not specifically watch the machine shop " [ Emphasis supplied ] 111 can give little weight to Berth's testimony that at sometime prior to Lott's termina- tion on Monday he discussed the nature and extent of work performed in the machine shop with Jack Price and J. T. Corbell, the plant engineer. Beeth gave no details as to what COUNCIL MANUFACTURING CORP. 105 ceded that at the time of Lott's termination he did not know that Lott was a machinist or any of his background as a machinist 12 In short, I do not credit the second reason given by Beith for his termination of Lott. Turning now to the reasons which Beith added during cross-examination for his termination of Lott, Beith first cited "reducing costs" in the machine shop as a further reason for releasing Lott. At this point certain additional facts must be stated. Lott was the only employee in the plant who at the time of his termina- tion put in a full 40-hour workweek. For about a week prior to his termination, Lott and Taylor were engaged in salvaging parts of roller shafts. Lott described this as a dangerous operation and one which required experienced lathe work. Additionally, Lott testified that he was waiting for certain experimental parts on which he had started to work to be returned from Tulsa Lott's testimony is unrefuted, and it is found, that there was sufficient work to keep both Lott and Taylor busy at the time of Lott's termination. Returning to Beith's citing the cutting of costs as one reason for Lott's termination, Respondent points to the fact that subsequent to Lott's termination Taylor remained as the only employee in the machine shop until the latter part of January At that time a new em- ployee, one Rex Ritter, was hired as part-time helper for Taylor.13 Although it thus appears that for a period Taylor was able to handle the bulk of the ma- chine shop work, this in itself by no means is dispositive of the issue. Thus, and in addition to the other circumstances surrounding Lott's termination which are hereinafter discussed, the evidence reveals that: (1) Taylor testified that the jigs he was using had been made by Lott and that he was not certain of his ability to build new ones when these became obsolete; 14 (2) on at least one oc- casion Respondent was required to contract out the sharpening of tools, this work previously having been performed by Lott; and (3) there remains the undisputed fact that when work picked up Respondent was required to hire additional help for work in the machine shop. Moreover, assuming the temporary need for only one machinist, it would seem far more logical for Respondent to have let Taylor go rather than its senior and most experienced employee 15 On cross-examination Beith volunteered yet an additional reason for his ter- mination of Lott, this being in connection with the fact that Respondent was operating with a reduced work force at this time and that all of the employees, with the exception of Lott, had been cut back to 30 hours.16 Referring to this situation, Beith testified that one reason for terminating Lott was to impress his supervisors with the necessity of providing every employee with 8 hours' work. Lott was therefore terminated , he said, as an "example " to impress his supervisors of this fact. Whatever Beith had in mind, I find it difficult to comment on this testimony other than to say that I cannot comprehend how the termination of Lott could somehow improve the morale or effectiveness of the supervisory staff. If Beith wanted to impress his supervisors that all employees should work the same number of hours, this purpose could have been just as well accomplished by putting Price or Corbell allegedly told him at this time Significantly neither Corbell nor Price were called by Respondent 'to corroborate Beith concerning any such conversation 12 As indicated above, the evidence discloses that Beith was far too insufficiently ac- quainted with Lott's work in the machine shop to lend any credence to his testimony that a reason for terminating Lott was based on his judgment that Lott was not performing the work of a machinist But without belaboring the matter, the evidence discloses that Lott in fact spent a substantial portion of his time in engaging in what is generally recognized as machinist work. In addition to making jigs, sprockets, crusher shafts, and latches, Lott's unrefuted testimony shows that he engaged in various experimental work for the Respondent, the nature of which obviously entailed the skill of a machinist as contrasted to a machine operator. 13 Ritter continued in this capacity as of the time of the hearing. 14 While Taylor had some background in machinist work, his qualifications to fill various of Respondent's machine shop requirements were largely acquired through on-the-job train- ing from Lott 15 It is undisputed that Beith did not offer Lott the opportunity to remain on the job at a reduced rate 16 Respondent's business of manufacturing ice machines is of a seasonable nature Lay- offs of production employees and a reduction in hours worked customarily take place in the fall of the year. Significantly, Respondent began to increase its work force shortly after the termination of Lott. Thus, Beith testified that a buildup of Respondent's work force began on November 26 and that the total work force was increased by some 40 or 45 em- ployees since he started as plant manager. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lott on the same number of hours as the other employees rather than by the outright termination of his employment 17 Respondent's brief cites a number of cases supporting the familiar principle that the burden of proof is upon the General Counsel to establish by substantial evidence that the employer has been guilty of an unlawful act, not upon the employer to explain and justify his actions. On the other hand, the courts have recognized that in discharge cases indication of discrimination may be inferred from the failure of an employer's explanation of a discharge to stand up under scrutiny. N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275 (C.A. 5). It is also well settled that direct evidence of an intention to violate the Act is not a prerequisite to a finding of violation. Such evidence is rarely obtainable, and findings of discrminatory motiva- tion must frequently rest on inference. N.L.R.B. v. Piedmont Wagon and Manu- facturing Company, 176 F. 2d 695, 696 (CA. 4.); Hartsell Mills Company v. N.L.R.B., 111 F. 2d 291, 293 (C.A. 4); N.L.R.B. V. Bear Brand Roofing, Inc., 312 F. 2d 616 (C.A. 10). As heretofore indicated, and upon the entire record in this case, I do not credit the testimony of Beith as to his asserted reasons for terminating Lott. Not only do his reasons fail to stand up under scrutiny, but it is against all reason to believe that any employer, let alone a new man unfamiliar with either Respondent's opera- tions or Lott's qualifications, would so suddenly dispense with the services of such a competent, experienced, and skilled employee as Lott unless some outside reason existed therefor. As noted at the outset of this report, Respondent so valued the services of this employee that it granted him several and substantial wage increases to prevent him from leaving its employ. Further evidence of Respondent's thereto- fore high regard for Lott is the very fact that just before his termination it per- mitted him to work a full 40-hour workweek while that of all other employees had been reduced to 32. Upon the entire record in this case, I am convinced and find that Lott's abrupt discharge within 15 minutes of quitting time on November 19 came as a direct result of Respondent's ascertaining that a union organizational meeting of its em- ployees was to be held at Lott's sports arena just after working hours. Direct evidence of company knowledge attributable to the Respondent is shown by the ad- mission of John Tindle, whom I find to be a supervisory employee,18 that during a morning break on November 19 he learned about the union meeting to be held later that day at Lott's sports arena. Additionally, Gerald Thornton, an employee called by the Respondent, testified that Lott had advised him about the meeting and that on November 19 at "approximately quitting time" he discussed the matter with Jack Price and asked Price "whether or not I should go." Similarly, Gene Wood, also an employee called by the Respondent, testified that at "quitting time" he asked Price if he should attend the meeting. Beith, it will be recalled, testified having consulted with Price on November 19, purportedly concerning Lott's work in the machine shop.19 17I am convinced that this latter reason, at least, was added by Beith on cross- examination as an afterthought and was given in an attempt to further rationalize his action in terminating Lott. In fact the very diversity of reasons cited by Beith for taking this action casts all the more doubt upon his entire testimony. As a further illustration, Beith in the early part of his direct testimony said that he had a "very personal connection" with one Leon Dutcher, whom he identified as the head of a tool and die shop located near Respondent's plant. While Beith did not follow this up, this testimony came in immediately following his testimony that at the time of Lott's termination he told Lott that the experimental work in the machine shop would be "farmed out." Accordingly, Belth left the distinct impression of intimating that he in- tended to farm this work out to Dutcher and that this was a reason for releasing Lott. But here Beith's testimony was left in the air. The only other reference to Dutcher in the record was made during certain unrelated testimony of President Council to the effect that Dutcher now supervises the south side of Respondent's plant. I can therefore but regard Beith's confusing testimony concerning the farming out of work to Dutcher as but another example of his attempt to cover up the real reason for his termination of Lott. 11 For the sake of continuity, my discussion of Tindle's supervisory status is reserved for the succeeding section herein. 19 On the basis that Thornton and Wood as Respondent witnesses testified on direct examination that Price was their supervisor at the time of the above conversations, I find that Price was a supervisor within the meaning of the Act. However, this does not de- tract from my previous finding that Price was not, as Beith had testified, a leadman over Lott. To the contrary, the record is clear that neither Thornton nor Wood were em- ployed in Respondent's machine shop. COUNCIL MANUFACTURING CORP. 107 By reason of all the foregoing, and upon the entire record in the case, I con- clude and find that Lott was not terminated for the reasons assigned by the Respond- ent but because of his union activities, and that by so doing Respondent violated Section 8(a)(1) and (3) of the Act. This finding is based not only upon the specious and unbelievable reasons assigned for Lott's discharge, but by the fact that the very timing of Lott's termination coincided precisely with Respondent's be- coming aware of Lott's union activities. Further buttressing this conclusion is evi- dence showing that Respondent was opposed to the unionization of its employees. Thus Beith, whose decision it was to terminate Lott, conceded in his testimony that "personally, I do not want the union." Additionally, and as noted hereinafter, Plant Engineer J. T. Corbell told Lott about 3 weeks prior to his termination that "before we have a union here, Mr. Council would close it [the plant] down and put it on automation." 20 The Supervisory Status of John Tindle While conceding that John Tindle was a supervisor within the meaning of the Act after January 14, 1963, Respondent at the outset of the hearing challenged the General Counsel's position that Tindle was a supervisor prior thereto, particularly during the period of the several months preceding Lott's discharge. While the Respondent appears to have abandoned this latter position,21 there being no stipula- tion as to this matter it is incumbent that a finding be made. Strong evidence tending to prove Tindle's supervisory status is found in Lott's detailed and unrefuted testimony of a change which took place in Respondent's supervisory staff in July 1962, at which time Henderson, then the plant engineer, retired from Respondent's employ. Hartnell, then the Respondent's plant manager, resigned about the same time 22 But most pertinent hereto is the fact that J. T. Corbell was promoted to Henderson's position of plant engineer, at which time, according to Lott, Tindle told him that he [Tindle] was taking Corbell's place in charge of refrigeration. Neither Corbell nor Tindle, both of whom were called by the Respondent, refuted any of Lott's testimony as aforesaid. In veiw of this state of the record, I believe the foregoing is itself sufficient to establish Tindle to be a supervisor within the meaning of the Act. In addition, however, the unrefuted testimony of other General Counsel witnesses reveals that Tindle assigned work to the employees in the refrigeration department and reassigned them from one job to another; 23 he distributed paychecks to employees; he granted at least one em- ployee time off and requested at least one employee to work overtime; 24 and he advised an employee of his layoff and subsequently recalled the same employee.25 Accordingly, and in view of all the foregoing, I find that Tindle was a supervisor with- in the meaning of the Act at all times material herein. Alleged Interference, Restraint, and Coercion The complaint, as amended by the General Counsel at the outset of the hearing, charges the Respondent as having in two instances engaged in conduct alleged to be independently violative of Section 8(a) (1) of the Act. The first incident was testified to by Denver Parsons, a former employee of the Respondent who was discharged for fighting Parsons testified that on or about November 30, 1962, he was working by himself in the south plant when Tindle came over to his area with a group of employees whom he did not know26 Ac- cording to Parsons, he heard Tindle make a remark to these employees to the 20 Respondent points out that for the last several years its employees had engaged in union talk without molestation from the Respondent. However, the testimony reveals such talk to have been sporadic and of a general nature. The first real attempt to organize Respondent's employees occurred when Lott arranged the November 19 meeting at his sports arena, a matter which, as noted, came to Respondent's attention just prior to its termination of Lott. 21 This seems apparent because: (1) Although Respondent called Tindle as its witness it did not question him concerning his supervisory status ; (2) Respondent called no other witnesses to challenge the testimony of General Counsel witnesses on this subject; and (3) the Respondent did not raise or argue this issue in its brief 22 This is in accord with the undisputed evidence that Respondent had no plant manager for some time prior to Beith's being hired for this position. 27 Testimony of James Brewer. 24 Testimony of Robert Foreman and Thomas Buchanan. 28 Testimony of Thomas Buchanan. 20 Parsons said he recognized some of their faces but did not know their names 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect that "they had better watch out about talking about the Union, or it might mean their jobs." Tindle denied ever making the remark in kind. Four em- ployees called by the Respondent, all of whom worked in the north plant, testified of recalling a single occasion in November 1962, when they were taken by Tindle to the south plant to perform some particular work. All denied ever hearing Tindle make the remark attributed to him by Parsons. Parsons' testimony as aforesaid is not credited and I shall recommend that this allegation of the com- plaint be dismissed. As to the second incident, Lott testified that about 3 weeks prior to his termina- tion, he and Plant Engineer J. T. Corbell were discussing a newspaper item pertain- ing to a union. Upon the mention of a possibility of a union coming in Respond- ent's plant, Lott testified that Corbell stated, "Before we have a union here, Mr. Council would close it down or put it in automation." Corbell denied making such a statement to Lott, although he conceded having discussed unions with Lott on several occasions and that they might have discussed something about a news- paper item pertaining to unions. Beyond that, Corbell, who testified but briefly, needlessly colored his testimony by referring to abusive language allegedly used by Lott in front of a lady. I credit Lott's testimony and find that by speaking as he did Corbell interfered, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and that Respondent thereby violated Section 8(a)( 0 of the Act 27 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 as described 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 constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent offer to James N. Lott immediate and full reinstatement to his former or substantially equivalent position, without prej- udice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination against him to the date of offer of reinstatement, and in a manner consistent with Board policies set forth in F. W. Woolworth Company, 90 NLRB 289, with interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices herein found, it is further rec- ommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and the Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of James N. Lott, thereby discouraging membership in the Union, the Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 271 am cognizant that whereas Lott on direct examination placed this conversation as having occurred about 3 weeks prior to his termination, on cross-examination he stated that it occurred about 3 or 4 days before his release. Even so, I credit Lott's testimony. In crediting him here and in other instances in this report, it should be stated that not only was his entire testimony inherently plausible and in keeping with the undisputed facts in this case, but my impression gained in observing him testify was that he was an honest and forthright witness who was telling the truth. COUNCIL MANUFACTURING CORP. 109 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed to them by 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 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Respondent, Council Manufacturing Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees concerning their union activities. (b) Discouraging membership in Allied Industrial Workers of America, AFL- CIO, or in any other labor organization of its employees, by discharging employees or by discriminating in any other manner in regard to their lure or tenure of employ- ment, or any term or condition thereof. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist the above- named Union or any other labor organization, to bargain collectively through rep- resentatives 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 or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to James N. Lott immediate, full, and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suffered as a result of the discrimination against him in the manner set forth herein in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or appropriate in computing the amount of backpay due as herein provided. (c) Post at its plant in Fort Smith, Arkansas, copies of the attached notice marked "Appendix A." 28 Copies of said notice, to be furnished by the Regional Director for the Twenty-sixth Region (Memphis, Tennessee), shall, after being signed by an authorized representative of Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Intermediate Report and Recommended Order, what steps Re- spondent has taken to comply herewith.29 28 If this Recommended Order is 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. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order " 29 If this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX A 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 you that: WE WILL NOT threaten our employees with closing our plant to discourage their union activities. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in Allied Industrial Workers of Amer- ica, AFL-CIO, or in any other labor organization of our employees, by dis- charging employees , or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition thereof. WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-organization , to form, join, or assist the above-named labor organization or any other labor organization, to bar- gain collectively through representative of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to James N. Lott immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the discrimination against him. All our employes are free to become or remain or refrain from becoming or remaining members of the above-named or any other labor organization. COUNCIL MANUFACTURING CORP., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948 , as amended , after discharge from the Armed Forces. 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 with the Board's Regional Office, Seventh Floor, Falls Building, 22 North Front Street, Memphis, Tennessee, 38103, Telephone No. Jackson 7-5451 , if they have any questions concerning this notice or compliance with its provisions. Superex Drugs, Inc., and Superex Drugs of Kentucky , Inc. and Retail Store Employees Union , Local 1099, Retail Clerks Inter- national Association, AFL-CIO. Case No. 9-CA-2741. June 26, 1963 DECISION AND ORDER On March 29, 1963, Trial Examiner David London issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and 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 Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, 143 NLRB No. 20.