P.B. & S. Chemical Co.

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, in the manner required by the National Labor ' Relations Board, offer all our former employees in Little Rock, Arkansas, '.fall reinstatement to their former jobs if we should open another cafeteria in Little Rock, or sub- stantially equivalent jobs in other cafeterias in the - Morrison chain. There will be no loss of seniority or other rights by any employee. WE WILL give backpay to all our former employees to cover the earnings they lost because we closed the cafeteria in Little Rock and discharged them. WE WILL, in the event that we resume operations in Little Rock, bargain upon request with Local No. 200 as the exclusive representative of employees in the bargaining unit described below, and we will embody in a signed agree- ment any understanding reached. In the event that we should not resume operations in Little Rock, Morrison Cafeterias Consolidated, Inc., will bargain collectively with Local No. 200 con- cerning the transfer of employees to jobs in other cafeterias in our chain. The bargaining unit is: All dishwashers, cooks, busboys, waiters, counter employees, cleanup employees , and stockroom employees at our Little Rock cafeteria, exclud- ing confidential secretary, headwaiters, cashiers, guards, watchmen, and supervisors as defined in the Act. All our employees are free to become or remain members ,of Local No. 200, or any other union, and they also are free to refrain from joining any union. MORRISON CAFETERIAS CONSOLIDATED, INC., AND MORRISON CAFETERIA COMPANY OF LITTLE ROCK, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-If any of our former Little Rock employees are currently serving in the Armed Forces of the United States, we will notify them of their right, to full re- instatement or transfer upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended. 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. If the employees have any questions concerning this notice or whether the Em- ployer is complying with its provisions , they may communicate with the Board's office at 3507 Federal Building, 700 West Capital , Avenue, Little Rock, Arkansas, Telephone No. Fr. 2-4361, Extension 512. P.B. & S. Chemical Company, Hat-Ra Chemical Company, and Preston Chemical Company and Chauffeurs, Teamsters and Warehousemen's Local Union No. 215, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. P5-CA-1785. August 4, 1964 DECISION AND ORDER On April 30, 1964, Trial Examiner William Seagle issued his Deci- sion in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices violative of Section 8(a) (1), (3), and (5) of the Act, and recom- mending that they cease and desist therefrom and take certain affirlna- tive action, as recommended in the attached Trial Examiner's Deci- sion. Thereafter, Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief and the General Counsel filed a brief in support of the Trial Examiner's Decision. 148 NLRB No. 22. P.B. & S. CHEMICAL COMPANY, ETC. 153 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the 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 Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications noted below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondents, P.B. & S. Chemical Company, Hat-Ra Chemical Company, and Preston Chemi- cal Company, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. In view of our adoption of the other 8(a) (1) findings and the scope of the order, we need not pass upon the Trial Examiner's conclusion that Preston' s remarks at the July 15 meeting in the "coke room" were violative of Section 8(a) (1) of the Act. We believe that Respondents' rejection of the Union's demand for recognition was not motivated by a good-faith doubt as to either the appropriateness of the unit sought or the Union's majority status. In finding that Respondents violated Section 8(a) (5) it is therefore unnecessary to consider the applicability of Tom Thumb Stores, Inc., 123 NLRB 833, to the instant case. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed August 5, 1963, a, complaint dated October 4, 1963, was issued against the Respondents alleging violations of Section 8(a) (1), (3), and (5) of the Act. Issue having been joined by the answer of the Respondents, a hearing with respect to the allegations of the complaint was held before Trial Examiner William Seagle at Henderson, Kentucky, on November 19, 20, 21, and 22, 1963. Subsequent to the hearing counsel for the General Counsel and for the Respondents filed briefs which have` been duly considered. Upon the record as a whole, and based on my observation of the demeanor of the witnesses,' I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENTS P.B. & S. Chemical Company (hereinafter referred to as P.B. & S.), Hat-Ra Chemical Company (hereinafter referred to as Hat-Ra), and Preston Chemical Company (hereinafter referred to as Preston Chemical) are, and at all material 1 The declaration that my findings are based on my observation of the witnesses is in- tended to apply to the testimony of each and every witness, and my failure to comment on the demeanor of a particular witness is not to be taken to mean that in evaluating his testimony I have not taken his demeanor into consideration. Moreover, when I give logi- cal reasons for rejecting the testimony of a particular witness, either in its entirety or on a particular point, it should not be assumed that I rely exclusively on such reasons, and that the demeanor of the witness has not been considered in evaluating his testimony. When I have indicated that I regard a particular witness as generally untrustworthy, it is to be construed to mean that I reject his testimony as a whole, unless I explicitly in- dicate that I accept his testimony on a particular point. 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times have been, corporations organized under and existing by virtue of the laws of the State of Kentucky. P.B. & S. has been in business for approximately 16 years; Hat-Ra for approximately 3 years; and Preston Chemical for approximately 6 years. At all material times, P.B. & S. and Hat-Ra have maintained their principal offices and places of business at 1100 North Adams Street, Henderson, Kentucky, and Preston Chemical has maintained its principal office and place of business at 933 South 10th Street, Paducah, Kentucky. P.B. & S. has also maintained a branch office and warehouse at 810 East Fourth Street, Bowling Green, Kentucky, and Preston Chemical has also maintained a branch office and warehouse at 1445 Cali- fornia Avenue, Columbus, Indiana. P.B. & S. is basically an acid and solvents distributor, and maintains a very large acid farm, as well as a very large petrol farm. The acids and solvents are cut, diluted, and mixed according to customer specifications. The operations of P.B. & S. are slanted primarily toward the metal treating industry and the oilfield industry. Hat-Ra is a chlorine and anhydrous ammonia repacker and manufacturer of sodium hydrochloride. Preston Chemical is primarily a chemical distributing house, supply- ing other chemical manufacturers. Unlike P.B. & S. it maintains no storage but buys packaged goods. Products manufactured by Hat-Ra are distributed, among others, by P.B. & S. and Preston Chemical. During the year ending September 30, 1963, P.B. & S. and Hat-Ra, in the course and conduct of their business operations, each purchased, transferred, and delivered to their respective plants or facilities in Henderson and/or Bowling Green, Ken- tucky, goods and materials valued in excess of $50,000, of which goods and mate- rials valued in excess of $50,000 were transported to their respective plants or facilities directly from States of the United States other than the State of Kentucky. During the same period, P.B. & S. and Hat-Ra each manufactured, sold, and shipped from their respective plants or facilities in Henderson and Bowling Green, Kentucky, to points outside the State of Kentucky, finished products valued in excess of $50,000. During the same period, Preston Chemical. in the course and conduct of its business operations, purchased, transferred, and delivered to-its Paducah, Ken- tucky, and Columbus, Indiana,' facilities, goods and materials valued in excess of $50,000, of which goods and materials valued in excess of '$50,000 were trans- ported to said facilities directly from States of the United States other 'than the States in which such facilities were located. ' Raymond B. Preston is president of P.B. & S., Hat-Ra,2 and Preston Chemical, and his wife is secretary-treasurer of each of the three corporations. Raymond B. Preston and/or his wife also own all the capital stock of each of the three com- panies. H. J Paff, who is vice president of P B. & S and Hat-Ra, is the father-in- law of Raymond B. Preston, the- president of each of the three companies, but one Oscar T. Smith is vice president, as well as general manager, of Preston Chemical. The officers of each of the three companies also constitute the'board'of directors of each company. The personal. duties of Preston in P.B. & S. are'to act as chief executive officer and sales manager of the company. Although he is the corporate' head of Preston Chemical, he has practically nothing to do with the administrative end and little to, do with the sales end. As chief administrative officer of Hat-Ra, his'primary con- cern is with the financial structure of the company. Although each of the three companies have separate foremen,3 Preston does the hiring-of all the technical em- ployees for all three companies, these being the employees who are required to have college degrees. The working rules for the employees of all three companies have been approved by Preston. No large purchases may be made for any of the three companies without Preston's approval. Preston does not have a separate office in Paducah, Kentucky, and operates from a single office in Henderson, Kentucky. The payrolls for all three companies are prepared in the Henderson, Kentucky, office, and part of the accounting is also done there. The record as a-whole shows that the labor policies of all three companies are determined by Preston, and it is clear that as president and sole stockholder of each of the three companies, he-is in ulti- mate control of their affairs. I find that P.B. & S., Hat-Ra, and Preston Chemical constitute a single employer within the meaning of the Act. I also find, as stipulated by counsel for the Re- The name of this corporation is derived from the name "Hattie," the given name of Preston's wife, and from the first two letters of Preston 's own given name. ' 3 All foremen or subforemen have either been hired by Preston or promoted to their jobs with Preston 's approval. P.B. & S. CHEMICAL COMPANY, ETC. 155 spondents, that each of the three companies are employers engaged in com- merce within the meaning of the Act, and that the Board has, and should, exercise jurisdiction. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Warehousemen's Local Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as Local 215, or simply as the Union), is a labor organiza- tion which has sought to organize the employees of the Respondents. III. THE UNFAIR LABOR PRACTICES A. The union organizing campaign An attempt to organize Preston's employees was made by a local of the Inter- national Chemical Workers Union toward the end of 1960 but it was unsuccessful. The Union lost the election which was held on January 17, 1961, by better than 2 to 1. A second attempt to organize Preston's employees was made in June 1963 by Local 215 and it is this attempt that is involved in the present proceeding. The employee who took the initiative in launching this attempt was one of Preston's truckdrivers by the name of Paul Jones, who was on the payroll of P.B. & S. Early in June he began talking to various employees at both Henderson and Paducah about the Teamsters, and they agreed that he should make contact with the Union.4 Accordingly, Jones contacted James R. Foster, one of the Union's organizers, whose office was in Evansville, Indiana, and asked his assistance in organizing. Preston's employees. Jones came to Foster's home rather than to his office, however, and, they discussed the holding of a meeting of Preston's employees. This meeting was held in the early afternoon of Saturday, June 29; in the club- room adjoining the hotel bar on the ground floor of the Soaper Hotel in Hender- son. In addition to Foster, there were present at the meeting Glenn Wilkinson, the vice president of Local 215,5 and about 17 of Preston's employees, among whom was, of course, Paul Jones .6 It was' indeed Jones who made the opening state- ment at the meeting in which he told the men present that if they wanted a union they would have to stick together because they would be subjected to pressure and some of them would be fired: -Foster. and Wilkinson then proceeded to explain to the employees present what they considered to. be the benefits- of- union organiza- tion, and suggested that they sign union authorization cards. The employees at the meeting were,told that if as many as 30 percent of the employees signed such cards, the Union could petition the National Labor Relations Board for an elec- tion, but that if more than a'majority of the employees signed such- cards, the union could ask that it be recognized as bargaining agent.. All the employees who were present at the meeting signed ,union , authorization cards including Scott, the night watchman.? One other employee,. John D. Boldry, a P.B.' &S. truckdriver, signed a union authorization card the night of June 29. He had been' on a 1-day honeymoon at a motel at Kentucky, Lake, and returning.that Saturday 'night, he had hastened to Paul Jones' house and signed the union authorization card then and there. In all, 17 union authorization cards were signed'on June 29. Some of the employees who were present at the June 29 meeting at. the Soaper Hotel also took blank authorization cards along with them to get other employees to sign up, and by Monday, July 1, had obtained signatures to additional authoriza- tion cards. Most of these signatures were obtained from Preston Chemical em- ployees who worked in Paducah, Kentucky, and from Hat-Ra -employees. Paul Jones was also the most active of the employees in doing this soliciting. However, Boldry, and Robert Ray Perdue, another P.B. & S. truckdriver, who was subsequently discharged, were also involved in the soliciting, as was Jack Conner, a -Preston Chemical dockman, who eventually turned against the Union. 4 Among these employees were Richard Beals, Robert Ray Perdue, James Randolph, Andrew Kritzer; and Wallace Lawrence. 5 Wilkinson left, however, sometime before the meeting closed at 3: 30 p.m. 8 Foster could not remember the names of all of these employees. However, he did name Perdue, Beals, White, Conner, Bowling, Below, Scott, Randolph, Cruse, Kritzer, and Jones. Foster also names a Cavanaugh, who, however, had been terminated, apparently, on June 26 or prior to the meeting. Scott was a night watchman who was subsequently ex- cluded from the bargaining unit As he was not included in the bargaining unit, no card for him was offered In evidence. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD By July 3, the Union believed that it had obtained authorization cards from a majority of Preston's employees whom it wished to represent , and on that date, C K. Arden, president of Local 215 , sent a telegram to Preston , claiming that it had been designated as collective-bargaining agent by a majority of all the eligible employees of Preston's three companies , and demanding to be recognized as such bargaining agent. The telegram also concluded with the following statement: "Should you have any doubt of our majority status among the employees in the above unit, we offer to prove such majority by any means which may be mutually agreeable at our first meeting." The Union's telegram, which was apparently put into the mails, was not received by Preston until July 5 (the July 4 holiday intervening ). On that date, Preston replied to the telegram by a letter in which he acknowledged its receipt ; questioned the appropriateness of the bargaining unit suggested by the Union; asserted a good- faith doubt concerning the Union's claim of majority representation ; and offered to cooperate with the Board in the conduct of an election if the Union filed a repre- sentation petition . On July 5 the Union filed such a petition. B. Preston's knowledge of the union activities of his employees It is the position of the Respondents that they had no knowledge of the union activities of their employees before July 5 when the Union's telegram was received. Preston himself so testified, and in this testimony he was supported by Everett Mays, the P.B. & S. general foreman, and James C. Woolridge, the Hat-Ra general foreman, both of whom testified that Preston told them about the Union's activity on July 5, and by T. M. Maple, the solvents foreman at P.B. & S., and Robert R. Duncan, the foreman in charge of shipping and receiving at P.B. & S., both of whom testified that they were informed of the Union's activity by Everett Mays on July 5. The Respondents called as a witness, however, also Wilbur Pirtle who had been general foreman of Preston Chemical at Paducah for almost 7 years. Unlike Mays, Woolridge, Maple, and Duncan, who seemed markedly embarrassed witnesses, Pirtle's bearing was that of a serene, straightforward, and candid witness. Pirtle credibly testified that on Monday, July 1, "about noon, some place along there," Preston came down to Paducah, and in talking to him told him that a union meeting had been held-in Henderson the previous Saturday, and that the meeting had been attended by several of his men, whose names he had. Pirtle was pressed hard to retract the testimony which he had just given, but without success. Thus Pirtle testified: Q. I'd like to ask whether or not you're sure as to what date or day of the week-first, let me ask you if you know what day of the week he came down? A. Yes, sir, on a Monday. Q. On a Monday? A. He came in there hot and heavy, says, "Do you know about a meeting that was held in Henderson Saturday?" Q. I'm asking you if it was the Monday following that Saturday? A. He said, "last Saturday," which would make it the Saturday before the Monday he was down. Q. It's your impression it was the Monday after? A. Yes. [Emphasis supplied.] I reject the denial of Preston that he had any conversation with Pirtle on Monday, July 1, and also the testimony of Oscar Smith, vice president of Preston Chemical, who claimed that he picked Preston up at the Paducah airport, and then drove him to the Air Reduction Chemical Company plant at Calvert City, which is close to Paducah. I base this rejection on the demeanor of the witnesses but is is also of some significance that the Respondents called no representative of the chemical company or of the airline to support the testimony of Preston and Smith. In any event, even if it could be, assumed that Preston never said a word to hirtle, there is basis for assuming that the Union's telegram came as no great surprise to Preston. There is further independent testimony that several of the employees who had attended the union meeting of June 29 were reporting to Preston on the union activities of his employees. Furthermore, there is credible evidence that "Preston himself engaged in unfair labor practices before July 5. C. The plant coke room meetings Preston convoked a special meeting in the coke room of the plant before work commenced on the morning of July 2, and the meeting was attended by about 20 of P.B. & S. CHEMICAL COMPANY, ETC. - 157 his employees. Preston first spoke to the employees about a Government job-training program which offered opportunities for advancement, and then shifted to the subject of the possibility of selling his trucks to the drivers, and then leasing them back. He pointed out that he was in the trucking business by accident, and could just as easily get out of it. He definitely connected this subject, moreover, with the threat posed by the union drive by citing the case of Richard Wathen, a local grain dealer, who had succeeded in keeping the Union out by resorting to the same tactic. Darrell Thomas Hoover, one of the P.B. & S. truckdrivers who was present at the meeting, and who had also been present at the union meeting at the Soaper Hotel, where he had signed a union authorization card, asked Preston what he would-use for money to buy his truck and Preston replied that if he had a little collateral it could be ar- ranged. Some general discussion seems to have then ensued, and Preston unburdened himself on the subject of unions. He told the employees that if they wanted a union that was their privilege but that he certainly would not recognize a union, at least not the Teamsters union, which he denounced as a "bunch of gangsters, hood- lums, and rapists." On July 6, which was only 1 day after Preston was officially informed that the Union was requesting recognition, he convoked a second meeting in the plant coke room attended by his over-the-road drivers and their supervisors. Back in February 1963, as a result of ICC promptings, the over-the-road drivers, who had been paid on an hourly basis, had been put on a mileage basis, and had thereafter been paid at the rate of 6 cents a mile.. At the July 6 meeting, Preston announced an increase in the mileage rate from 6 cents to 61/4 cents a mile. There was still a third meeting in the plant coke room on a date which wag almost certainly Monday, July 15 8 At this meeting the main burden of Prestoil'§ remarks appears again to have been the undesirability of the Teamsters as a union for his employees. Apparently, the point of departure for these remarks was his announcement that the Union had filed a petition for an election. Although he again included in his remarks the statement that the employees had the right to vote as they pleased , he left them in no doubt that if they voted in favor of the Teamsters they would be issuing an open invitation to violence to "a gang of thugs and crooks " Preston's remarks on this subject were illustrated with chapter and- verse, consisting of newspaper clippings and documents . He quoted from Senator McClellan's book "Crime Without Punishment," and dwelt particularly upon the experience of a sand and gravel company in his area which had been forced out of business after it had been made the victim of violent tactics by Local 215 and its vice president, Wilkinson , who in the course of a strike against the company had had nails and tacks placed in the vicinity of its plants, fired pellets from an air pistol at its employees, and damaged an employee's automobile.9 In testifying concerning the coke room meetings , Preston did not attempt to deny the actions or statements attributed to him but he contended that there was no meeting on July 2, and that the subject of leasing the trucks was discussed at a meeting held on June 28, while the subject of the Government job-training pro- gram was not brought up until the meeting on July 15. It is impossible for me, however, to accept this reallocation of subjects and dates. According to Preston, the basis of his certainty that. the leasing of the trucks must have been discussed on June 28 was no more than that a safety meeting was regularly held on the last Friday of every month, the last few minutes of which were usually devoted to the discussion of a topic of current interest, which on June 28 happened to be the leasing of the trucks, since the ICC had long been complaining about the failure of his drivers to keep proper logs on their trips, and the leasing of the trucks suggested itself to him as a solution of this problem . But to believe this it is necessary to assume both that an ICC regulation requiring the keeping of logs represented an intolerable burden, and that by some extraordinary coin- cidence this burden became intolerable the very day before the union meeting at the Soaper Hotel . The threat to lease the trucks, which is a familiar device among employers desiring to prevent the union organization of their drivers, would hardly have been made by Preston unless ^a union drive were already underway, and Preston had no knowledge of any until after June 29. Once it is assumed, how- ever, that the leasing of the trucks was broached at a meeting of July 2,, it begins to make sense . Moreover, it is not true that the safety meetings were always held on the last Friday of every month. While this was the usual practice, safety 8 For the sake of convenience, this will be referred to as the meeting of July 15. 6I take official notice of the fact that Local 215 and Wilkinson were found guilty of their unfair labor practices . See Chauffeurs, Teamsters, etc., Local anion 215, I.B.T. (The Bedford-Nugent Corp.), 137 NLRB 573.. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' meetings were sometimes held on other days, as not only Boldry but Mays, one of Preston's own foremen, testified. While there may even have been a safety meeting on June 28, this does not rule out the holding of another meeting on July 2, but this meeting, as the witnesses for the General Counsel testified, was a special meet- ing. One of these witnesses was Boldry, who testified that he was present at the coke room meeting of July 2, and that Preston spoke not only about the Government job- training program but also about the possibility of leasing his trucks. Since Boldry was on his honeymoon on June 28, he could not have heard these matters men- tioned at a meeting held that day. It is not disputed by Preston that there was a meeting in the plant coke room on July 6, and that at this meeting he announced that the mileage rate of the truckdrivers would be increased from 6 to 61/a cents a mile. But he does contend that this announcement was only the implementation of a policy established when the truckdrivers were put on a mileage rather than an hourly basis on February 13, 1963. According to Preston, he assured the truckdrivers then that "they would not suffer any monetary loss as a result of switching from hours to mileage basis," and that the new basis of payment would be reviewed every 6 weeks. The first re- view, which Preston testified, occurred "somewhere around the first of April or middle of April," showed that "it seemed to be going pretty good and most of the fellows were pretty well satisfied with the arrangement." As for the July 6 meeting, Preston testified, he pulled out the pay records, and these showed that "the pay checks were bigger under the mileage arrangements," but the drivers, particularly the sleeper operators, pointed out that, since in driving on a mileage basis, they had to pay their own expenses, and since they were on the road continuously, they were incurring addi- tional expenses for hotel bills, food bills, and taking showers and they needed more money. So, concluded Preston in his testimony, he agreed to increase the mileage rate from 6 to 61/a cents a mile. Mays and Duncan also testified, although more briefly and sketchily, about the July 6 meeting, and in general their testimony agrees with that of Preston. Ac- cording to Mays some of the men said: "Well, we're doing pretty good but we should have a little more for meals." According to Duncan, the men said that "they felt they were making the same, pretty well the same amount of money." But neither Mays nor Duncan mentioned in their testimony that there had been any previous review of the problem in April. But, again, it would be carrying coincidence too far to believe that the increase in the mileage rate was announced to the over-the-road drivers on the very day after the Union requested recognition without any reference to this situation. As a matter of fact, the testimony of Preston and his foremen is inherently incredible. If the mileage rate was to be reviewed every 6 weeks, the first review should have occurred approximately April 1, a second review approximately May 15, and a third review approximately July 1. This would have been, certainly, a lot of reviewing. But even Preston, who was the only one of the Respondents' witnesses who even claimed that a review took place on or, about April 1, did not -testify that there was any review at all on or about May 15, and the July 6 date does not quite fit in the 6-week time schedule. It is apparent, moreover, not only from the testimony of Preston but also of Mays and Duncan that the mileage rate was increased even though the over-the-road drivers were making more money than they had been making when they were on the hourly basis. Preston thus gave them a raise without any real pressure on him to do so. Preston himself realized, evidently, the economic irrationality of this action, for he attempted to explain it by his testimony that the drivers claimed that they had increased expenses. But if they had such expenses, they would have had them also on April 1 and May 15 when the mileage rates were due for review. Yet nothing at all was then done to ameliorate the alleged situation. What is perhaps most difficult to understand is that Preston even included hotel expenses for the sleeper operators who slept on beds in the rear of their cabs, and represented them as the chief complainers! It is apparent that both of the coke room meetings of July 2 and 6 were directly related to preceding union activities. The same is really true also with respect to the July 15 meeting in the coke room. July 15 was a Monday, and on the previous Saturday there had been a union meeting in a restaurant in Paducah. The holding of the meeting was undoubtedly. reported to Preston immediately, for George Farley, one of the chlorine packagers on the Hat-Ra payroll, was asked by Woolridge, his foreman, on Monday whether he had had a good time in Paducah, and received from Farley an answer in the affirmative. Woolridge had then asked Farley whether he had seen a lot of his friends, and Farley had replied - "I saw a lot of people, I wouldn't call them my friends." Similarly, Roger T. Bowling, a P.B. & S. laborer, was told by Maple, his foreman, on the Monday following the Paducah meeting that he knew that Bowling had attended the meeting. P.B. & S. CHEMICAL COMPANY, ETC. 159 -While, superficially regarded, Preston's remarks at the July 15 .meeting seem to contain no overt threat of reprisal, or promise of benefit, they were not merely in- nocent expressions of opinion. In the first place, Preston did not tell the whole truth about the sand and gravel company case. Local 215 had been found guilty, to be sure, of committing unfair labor practices against The Bedford-Nugent Company but these unfair labor practices had been committed in the course of a strike precipitated by unfair practices of The Bedford-Nugent Company of which it had been found guilty.10 Preston did not mention these unfair labor practices, and to that extent his presentation was wholly one-sided. In the second place, there is nothing in the record to thaw that in stating that the sand and gravel company had been driven out of business, Preston was stating the truth." But, even if it be accepted as true that the company had been driven out of business, Preston's calling attention to the fact, in the context of the threats which he had made already, and the benefits he had already conferred, could only have emphasized to the employees the dangers to. which they were subjecting themselves by supporting Local 215. It is quite possible that, although the Government job-training program was discussed at the July 2 meeting, it may also have been mentioned at the July 15 meeting. As there is no allegation in the complaint that the timing of the dis- ,cussion was an unfair labor practice, and counsel for the General Counsel does not seem to press such a contention, there is no occasion to decide whether such a contention would be valid. However, the question whether the Government job- training program was discussed at the July 2 meeting rather than at the July 15 meeting has some bearing on the credibility of the witnesses among whom there seems to have been some confusion on the subject. It seems to me that the pre- ponderance of the evidence, as well as the logic of events, support the conclusion that the opportunities presented by the Government job-training program were discussed at the July 2 meeting.12 D. Interrogation of employees Preston, with the assistance of his foremen, supplemented the coke room meet- ings with interrogations of individual employees. As a rule, the interrogation would be opened with an expression of surprise and disappointment that the em- ployee being interrogated was having anything to do with the Union. As in the case of the meetings, Preston also usually combined the assurance that the employee interrogated could vote for the Union with the denunciation of the Teamsters as an organization consisting of "gangsters, hoodlums, and rapists"; with threats of reprisals, including intimations of industrial mortality; or with promises of bene- fits to come if the employee being interrogated abandoned his union activity. The first of the employees to be interrogated appears to have been Boldry, the newlywed truckdriver. On July 3, when he checked with Mays before pulling out of the parking lot, to determine whether there was anything else going, the foreman told him that Preston wished to see him in his office. When Boldry, accompanied by Mays, entered Preston's office, the latter said to Boldry: "You're the young man 101 take official notice of the Board's decision finding The Bedford-Nugent Company guilty of these unfair labor practices. See Chauffeurs, Teamsters, etc., Local anion 215, I.B.T. (The Bedford-Nugent Corp.), 137 NLRB 1030, enfd. In part 317 F 2d '861 (C.A. 7). n The decision of the Seventh Circuit in The Bedford-Nugent case was not rendered until May 29, 1963, and the company at this time was still contesting the issues. 12 The Respondents called as a witness Thomas J. Lisle, a representative of the Ken- tucky State Employment Service, who testified that on July 9 he visited Preston with someone from his office, who explained to Preston the provisions of the Manpower Develop- ment and Training Act. But Lisle also conceded that he had made the appointment lead- ing to this visit in a telephone conversation with Preston some time prior to July 9, and that he had no independent recollection of the date of this telephone conversation, which could well have been on or before July 2. Since the Manpower Development and Training Act was passed on March 15, 1962, and had thus been on the books for over a year before the July 2 meeting, there is nothing to show that Preston could not have had knowledge of it from some other source, such as a newspaper editorial. In an affidavit which Preston himself gave much closer to the event, he deposed that he "believed" that the Government job-training program was discussed at a safety meeting held on Friday, June 29,196'3. Although if the meeting was held on Friday, it would have been June 28 rather than June 29, Preston's affidavit does at least indicate that prior to the giving of his testimony he believed Mat the meeting at which the Government job-training program was discussed occurred much earlier than July 15. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I'd like to see, you're the one that started all this." Preston then proceeded to de- nounce the Union as a bunch of "murderers and rapists," and to dwell upon how he had built the company up, and to declare that "he wasn't going to have no person or union come in and run his company for him; that he'd kick the man's ass that started all this clear across the road." Preston also accused Boldry of having in his pocket a list of the names of the employees who had signed union cards, and when Boldry denied this, Preston conceded that he knew that Boldry had not been at the union meeting of June 29 because he had taken time out to get married but he added that Boldry had not wasted any time since he got back, and that he knew that he had been soliciting on company property against the continuation of which he warned Boldry. Roger T. Bowling, one of the P.B. & S. laborers, was interrogated several times during the first half of July by his foreman, Maple. These interrogations occurred in the solvents area of the plant where Bowling was working. On the first occasion, which was either July 2 or 3, Maple came up to Bowling and remarked that he was surprised that Bowling was backing the Union. When Bowling asked Maple how he knew that he was backing the Union, Maple replied that he knew that Bowling had signed a union card. When Bowling then asked Maple how he knew that, the latter told him just to take his word for it that he knew.13 On a second occasion, which was on or about July 9, Maple asked Bowling what he thought of the Union, and when Bowling replied that "there wasn't anything to think about," Maple re- marked that "there was quite a bit to think about if you thought anything of your job." At this point, apparently, Mays came in and, joining in the conversation, told Bowling that he could vote for the Union if he felt that they needed a union, but he also added that Preston, who worked side by side with his men, "wasn't going to have Hoffa and his gangsters and hoodlums coming in there and telling him how to run this plant." Finally, on the Monday following the union meeting in the restau- rant in Paducah, namely, on July 15, Maple, as already mentioned, again approached Bowling and told the latter that he knew that he had been to the union meeting in Paducah. After they had talked about the Union for a while, Maple expressed the hope that he would "come out with the right answer." 14 On the morning of July 6, Dorris Dixon, who was a chlorine packager at Hat-Ra and who was classified as a senior operator, was called to the desk of Woolridge, his foreman, and interrogated concerning his support of the Union. As Dixon credibly testified: Mr. Woolridge called me to his desk that morning about 10:00 o'clock and he told me, said "Dorris," said, "I'm really surprised and very disappointed in you." I said, "What you mean, Jim?" He said, "I would have thought you would have learned better after the first row we went through." And I said, "I don't understand what you mean." He said, "I mean I would least expect you to sign a union card after all the trouble we went through in the last union deal." "Who said I signed a union card?" He said, "It came through the office by two or three men that you signed a union card." "Don't nobody know that for a fact." He said, "It came through, as I said a while ago, had come through the office by two or three men. It surprised me very much that you had signed a union card; that I had heard you signed a union card." And he said, "You ought to know by now it's the man across the tracks that gives you the money and raises, and nobody else." 15 And he said-another thing he said, "If I should ever leave or get discharged or anything of that nature that I would be in line to step up as foreman, if this union came in he wouldn't know whether I would be or not." [Emphasis supplied.] Dixon further testified that Woolridge directly asked him whether he had signed a union card, and then when he evaded the question, Woolridge told him that it had come through the office that he, Roger Bowling, and two truckdrivers were the ringleaders of the Union. It is apparent in his conversation with Dixon that Woolridge was throwing out more than a broad hint that Dixon's promotion to a foremanship depended on keep- ing the Union out. A few days later Preston resorted to an intermediate measure of encouragement. Preston called Dixon in and informed the latter that he would 13 In fact, Bowling had signed a union card on June 29. "Bowling also had a number of conversations with Maple, as well as Preston , about a raise which Bowling considered to be overdue. These conversations are discussed infra. 1 This referred to Preston and to the fact that his office was located at an angle across the railroad tracks. P.B. & S. CHEMICAL COMPANY, ETC. 161 receive a 10-cent an hour raise. Preston explained to Dixon that the reason for giving him this raise was that when he had received his last raise the previous December, it had been assumed that he was making more money than he was. Preston then proceeded to deliver himself of his usual sentiments about Hoffa and the Teamsters and to express his hurt surprise that Dixon had turned out to be one of those who had signed a union card. Getting down to cases, Preston commented on the Bedford-Nugent case and Senator McClellan's book. On or about August 2, Dixon was scheduled to take his vacation. However, be- fore he could leave on this vacation Preston called Dixon into his office and talked to the latter again about the Union. Preston asked Dixon whether he thought that Hoffa could represent him, and to this question Dixon replied that no union was made up of only one man, that it was made up of a number of men, and that Preston ought to have enough faith in his employees to know that they would not wreck the company on which their living depended. But this piece of homely wis- dom on Dixon's part only led Preston back to the Bedford-Nugent case, which to his mind illustrated how in 2 years' time a company, which it had taken 82 years to build up, could be destroyed, and, added Preston ominously, he, himself, had "built his company brick by brick, and by God he'd tear it down brick by brick." Preston then went on to relate to Dixon how he had dealt with a union president in Chicago when he had been located there. It seems that once after a long hard day, the union president came storming in and Preston picked up a big wrench and threatened to crack him on the head. Ever since then, according to Preston, he and the union president had gotten along pretty well. In the concluding phase of the interview, Preston confided to Dixon that they had been grooming him all along for a foremanship and that Woolridge "was getting covered up in paperwork." Preston also mentioned the intriguing possibility that they might be starting a second shift. Nevertheless, toward the end of August Dixon quit his job. His successor as senior operator was another chlorine packager by the name of George Farley who had first been employed at Hat-Ra in July 1962, and who in the course of a year had received three raises, one of which came in the middle of July 1963. Farley was among those employees who had signed a union card on June 29. A few days later Woolridge called Farley into the boilerroom and talked to him about the Union. As Farley credibly testified: He called me in there and asked me if I knew this union was trying to come in. I said, "Yes, I heard something about it." He said, "Well, it doesn't make me any difference which way you go, whether you're for it or against it, I just want to fill you in on it. I reckon you knew the union had tried to get in be- fore, two years ago?" I said, "Yes, I heard that too." And that a man was fired around the time and since I was new to the company he just wanted to fill me in on what was going on. It has already been reported that Farley was interrogated by Woolridge on July 15 concerning his attendance at the union meeting held in the restaurant at Paducah. Toward the end of July, Preston himself summoned Farley to his office . After the usual greetings were exchanged, and Farley had sat down , Preston remarked that he was surprised and disappointed that Farley had anything to do with the Union. Defending himself, Farley explained that his going to Paducah had not meant any- thing; that having heard so much from one side and the other, he had decided to go and see for himself. In the course of. the conversation , Preston also asked Farley whether he knew how much money he had made since he had been em- ployed. When Farley replied that he had no idea how much he had made, Preston made a telephone call, and after he had thus obtained the figure, told Farley what it was, and stressed the importance of his loyalty to the company where he "had come so far in a short time." Farley himself brought up the subject of the em- ployee, who, according to Woolridge, had been fired during the previous union cam- paign, and Preston obtained the file on the case, which contained statements showing that this former employee, who was one-handed and badly in need of the job, had brought a weapon into the plant and jerked a man off a fork truck. At some point in the conversation, Preston also told Farley, as he had already told Dixon, that he had built his business "brick by brick" and that he could "tear it down brick by brick." Still a third Hat-Ra employee, David Lee Pruitt, whose job was to fill chlorine cylinders, and whose foreman was also Woolridge, was interrogated by the latter concerning his union activities on two different occasions . On the first of these occa- sion, which was during the first or second week of July, Woolridge accused Pruitt of being the ringleader of the Union at Hat-Ra. Pruitt seems to have denied the accu- 7 6 0-5 7 7-6 5 -vol. 148-12 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sation vehemently. "Never been a ringleader for nothing," he declared to Wool- ridge. But about a week later Woolridge again accused Pruitt of having attended a union meeting on Saturday "set up for the Moose down there." Pruitt, who at the time had been having his dinner at a cafeteria across the street from the Moose headquarters, again indignantly denied Woolridge's accusation. This incident is of particular interest because the meeting to which Woolridge was referring must have been the meeting held in the restaurant at Paducah. This meeting was, however, originally scheduled to be held at the Moose headquarters. Woolridge's accusation of Pruitt indicates how closely Preston and his foremen were following the union activities of the employees. It is also worth noting that the interrogations of Preston and Woolridge extended to no less than three of the four employees on the Hat-Ra payroll at the time. The fourth employee, Terry Gibbs, was discharged on July 5 because of his union activities, as will subsequently be shown. Sometime during the first half of July, Preston also had a conversation with Stephen Wilkerson, a warehouse utility employee and part-time truckdriver, in which Preston hinted that Wilkerson would have his due reward if he remained loyal. Shortly before this conversation, Wilkerson had stepped on a nail in the laboratory while Preston, apparently, was there. Preston had come over to look, solicitously, at Wilkerson's foot but found that the nail had barely broken the skin of his foot. Preston then asked Wilkerson to step into what passed for Duncan's office, and proceeded to reminisce about the days of his youth. As Wilkerson credibly testified: Mr. Preston started by stating that in his younger days that he had been a farmer and that he had plowed many a day behind an old mule; he wanted me to know that he had been in the same situation that I had; he had to grow by himself, come from a farm up to his present position, and he wanted me also to know that anyone that was loyal to his company would be rewarded for any such activities or action shown for him. He said that anyone that's loyal to his company he would protect them to his last penny and fight for them to his last breath. Also, if anyone was to threaten any of his employees he would do the same thing. Preston and his foremen denied, for the most part, the statements attributed to them by the interrogated employees, and attempted to represent whatever conversa- tions they did have with them as casual exchanges initiated , as a rule, by the em- ployees themselves. I reject, however, the denials and explanations of Preston and his foremen. They admitted enough to show that they had said everything with which they were charged, and they had already undermined their credibility in testi- fying about the coke room meetings. Furthermore, their testimony was contra- dictory. For example, Maple who was charged with interrogating Bowling on or about July 2, when first asked whether he had talked to any employees concerning union activities between July 1 and 9, denied it on the ground that he had been on vacation at Kentucky Lake at that time. But, on cross-examination, he testified that he worked through July 5, and that his vacation did not begin until July 8. Again, Maple testified on direct examination that he expressed the opinion to Bowl- ing that the Teamsters did not constitute "a very good organization" but on cross- examination he revealed that he had told Bowling that the Teamsters were a bunch of thugs. Maple also testified that the first time he had ever heard of the union meeting at Paducah was at the hearing, although he had given an affidavit the previ- ous September in which he had then denied knowledge of this meeting. Mays, when questioned about the conversation between Preston and Boldry, which, he ad- mitted, occurred in his presence, even denied that Preston characterized the Union as a "bunch of murderers and rapists," although it is an undoubted fact that this characterization was habitual with Preston. Moreover, Preston himself contradicted Mays by denying altogether that he talked to Boldry on July 3 about the Union but this denial of Preston was obviously only a reiteration of his position that he could not have known about the Union until July 5. Woolridge, who admitted talking to Farley about the Union and telling him that he would not find it to be "rosy," denied that he had told Farley about the employee who had been fired during the previous union campaign. Yet Preston himself admitted that he had discussed the case with Farley, and it is, in any event, obvious that Farley, who had not even been em- ployed by Hat-Ra at the time of the first union campaign, could not have known about the case unless Woolridge had told him about it. Preston also did not wholly deny the brick-by-brick statement attributed to him by Dixon and Farley, although he testified that he made it at the July 15 meeting. According to Preston, what he then told the employees was that "as far as I was personally concerned I-had P.B. & S. CHEMICAL COMPANY, ETC. 163 watched this business grow from the ground up; I had helped to build it brick by brick and I would not, under any circumstances, tolerate anyone within the com- pany or outside the company pushing any of my employees around whether they be white, colored, Jewish, Catholic, what have you." In so testifying, however, Preston not only compromised the truth but also ruined his own epigram. On the other hand, I perceive no good reason for not accepting the testimony of the interrogated employees. Apart from their demeanor, which inspired confidence, their testimony is entirely consistent with Preston's character and actions, and with the record as a whole. As the witnesses, except those who were the discharged employees, were segregated, the consistency of their testimony is, moreover, all the more striking, especially since they could hardly have invented the vivid expressions which they attributed to Preston. Counsel for the Respondents attack the credibility of Dixon on the ground that he was a disgruntled employee who had been dis- charged. The fact is, however, that Dixon quit his job of his own accord. E. Bowling's delayed raise A week or two before the meeting at the Soaper Hotel on June 29, at which Bowling had signed a union authorization card, Maple asked Bowling how long he had been employed, and told him that in a few weeks he would go in and see if he could get a raise for him. When Maple failed to do so, Bowling asked his foreman about a week later whether he had had a chance to talk to Preston. Maple replied that he did not feel that he could talk to Preston about a raise for him because he did not like the way Bowling felt about the Union. Bowling protested that this was not fair, and asked Maple whether his work was not satisfactory. Maple re- plied that his work was satisfactory, and that he deserved a raise but repeated that he could not talk to Preston about a raise for him because of the way he felt about the Union. The following -day Bowling again asked Maple whether he had seen Preston and this led, as Bowling put it, to "talking about the union and everything." In the course of this conversation Maple finally said to Bowling that he had come in off the street, then tried to organize a union, and that if he did not like what he was making, he could,"just keep on walking." At this juncture, Bowling, apparently, decided to resort to self-help, and asked Maple if he himself could talk to Preston. Thereupon, Maple arranged for Preston to see Bowling, and the interview took place July 27 or 28. Bowling complained to Preston that Maple had declined to recommend him for a raise because of the way he felt about the Union, and Preston explained that he was in a difficult situa- tion, and that if he gave him a raise, "it might implicate them in some way." How- ever, Preston called Maple into his office, and asked the latter if it would be in order to give Bowling a raise. Preston also remarked to Maple that he had always given Bowling a good recommendation, and asked Maple if he still felt the same way about Bowling. Maple replied that he would give Bowling his best recommenda- tion. Thereupon Preston told Bowling he was giving him a 10-cent an hour raise. The raise, which was in an amount Bowling would normally have received, was made effective as of Monday,-July 29, after a delay of at least 4 weeks. In testifying about Bowling's raise, Maple admitted that in the second or third week in June, he had talked to Bowling about it, and told him that his work was "very good" [emphasis supplied] but that he had said only that he "would consider him for a raise in 3 or 4 weeks if his work continued to make progress." Maple further testified that the next time he and Bowling talked about the raise was on July 5, and gave the following version of the conversation: He asked me' if I'd forgotten about the raise. I told him I'd just got back off of vacation and I had lots of work to do to catch up on my paper work. It slipped my mind, and I meant to do that but since this union come up-1 thought he still deserved a raise but I wanted to make it understood to him that the raise in no way influence his feeling one way or another; that I'd like to go to Mr. Preston and talk about it. I went in to see Mr.' Preston and talk about it. I went in to see Mr. Preston and when I got there-Roger Bowling was there. [Emphasis supplied.] - At this point in his testimony, Maple was asked the question, "What did you tell Mr. Preston in the presence of Roger Bowling ?" and his answer was as follows: I told him he had done satisfactory work and recommended him for a raise, and told him the same thing I told Bowling before; that I wanted to make sure I was on firm ground, didn't want to sway his feelings; that's what I told Mr. Preston. [Emphasis supplied.] 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Preston did not testify at all with respect to the delay in giving Bowling his raise. The choice is, therefore, between the testimony of Bowling and Maple, and I un- hesitatingly reject the testimony of the latter, insofar as it is inconsistent with that of the former. In his testimony, Maple seemed to be advancing the following propositions: (1) Bowling's union activity was not responsible for the delay in giving him the raise ; (2) Bowling's work was very good, and the delay was due to the fact that he, Maple, had been on vacation and needed to make sure that Bowling really deserved a raise; and (3) he had only promised to get Bowling a raise in 3 or 4 weeks, and since he received the raise in 3 or 4 weeks, he had in any event nothing to complain of. There are rather obvious contradictions in these propositions and in Maple's testimony as a whole. If Bowling spoke to Maple about the raise in the second or third week in June, it took 5 to 6 weeks rather than 3 or 4 weeks to get him the raise. If Bowling's work was "very good," why did it take so long? Why did Maple have to make sure that he was "on firm ground" if Bowling's work was "very good?" It is difficult also to perceive what Maple's vacation had to do with the delay in giving Bowling the raise. According to Maple's own testimony, he did not start his vaca- tion until July 8, and his vacation lasted only 1 week. If Bowling asked for the raise the second or third week in June, Bowling had 2 to 3 weeks to take care of Bowling's raise before he went on vacation. In fact, the real reason for the delay was the union situation . Bowling's testimony that Preston told him in the inter- view about the raise that the delay was related to the union situation is wholly undenied, and Maple's own tongue slipped when he attempted to explain the delay. He then indicated that he meant to give Bowling the raise and that he would have done so except for the fact that "this union come up." Of course, if Bowling's raise had only been delayed because Preston really feared that any action on his part might be misinterpreted , the delay might have been excusable. But since Preston had just given raises to all the truckdrivers, as well as to Dixon and Farley, although they had not asked for them, his motive was clearly discriminatory. F. The hiring of Leslie Smithhart In the latter part of July 1963, a youth by the name of Leslie Smithhart applied to Preston for a job as a laborer . In the employment interview, which took place in Preston's office, the latter could not resist unburdening himself again on the sub- ject of the Union. He asked Smithhart whether he knew that the Union was at- tempting to organize the plant, and as usual denounced the Union as "a bunch of crooks" which was seeking to ruin him. Preston also remarked to Smithhart that "if the union did get in that they had better bring ,their winter clothing because they will be there all winter; there would be one truck that would be running, if they did that, and that would be the truck he was driving." Smithhart assured Preston that he would not be voting for the Union, since he had just been married and needed a job. Smithhart was a friend of a son of one John Snyder with whom Preston was well acquainted, and he had used the name of his friend 's father as a reference. Indeed, Snyder's son had told Smithhart about the opening at P.B . & S. Preston, after interviewing Smithhart, called John Snyder to check on the applicant's ref- erence. After talking to Preston, Snyder called Smithhart and asked the latter to come over to his house. While Smithhart was at Snyder's home, the latter tele- phoned Preston in Smithhart's presence, and told Preston that he had talked to Smithhart and that the latter would not be voting for the Union; that he thought he would be all right. Smithhart was thereupon hired, and started to work 2 days later. He apparently proved unsatisfactory as an employee , however, and was dismissed during his probationary period on August 30, 1963. In addition to Smithhart himself, both Snyder and Preston (in the order specified) testified concerning his hiring. Snyder testified that since he was not himself very well acquainted with Smithhart , he decided, after Preston called him, to talk with him, and invited him over to the house. According to Snyder, Smithhart was very apologetic about using his name as a reference without prior permission but pleaded' that he needed a job so badly that he felt that he should do almost anything to get a job. "So," Snyder concluded his testimony, "I talked to him a few minutes and told him that I knew that Mr. Preston had some labor difficulties in his plant. He said, 'Well, that doesn't mean anything to me, I need a job.' So I called Mr. Preston and told him that so far as I knew the boy was all right; that I thought he should have a job." P.B. & S. CHEMICAL COMPANY, ETC. 165 Preston denied the "winter clothing" remark to which Smithhart had testified but he admitted that in talking to John Snyder , he told the latter that since Smithhart "was only a youngster I thought it would be only fair that he should know we were in the midst of some labor difficulties." It is evident from their testimony that Snyder and Preston were attempting to gloss over what had actually occurred . There can be no doubt that the hiring of Smithhart was made dependent on his not supporting the Union , and that Smith- hart correctly testified concerning his conversation with Preston, including the "winter clothing" remark, and concerning the telephone conversation between Preston and Snyder. Smithhart's youth was, of course, no justification of Preston's treatment of him. Even if it were true that one of Preston's motives was to safe- guard the applicant from exposure to unions because of his youth , his conduct would violate the Act, for its provisions apply to all employees covered by it, irrespec- tive of age. - G. The discriminatory discharges 1. The case of Paul Jones It is unnecessary to dwell upon the union activities of Paul Jones, for they have already been described in detail in connection with the story of the union organiz- ing campaign. There is no doubt that Preston obtained knowledge of Jones' union activities from the employees who were reporting on the union activities of their fellow employees . Significantly, Jones' troubles began a few days after the Union's request for recognition. During the afternoon of July 4, Jones had received a telephone call from Alliance, 'Ohio, telling him of the death of a close member of his family . After informing Mays, the P.B. & S. general foreman, of this event, he left to attend the funeral. He reported back to work the morning of July 8 , but, since the precise date of his return was not known , he had not been scheduled for that day. Mays offered to attempt to find a trip for him but Jones, who had not slept very well and whose nerves were on edge, declared that he would prefer to take some time off. Mays agreed but asked Jones to report at 4 p .m. that same day. When Jones telephoned Mays between 3:30 and 4 p .m. that day, Mays told him that Duncan, the fore- man in charge of shipping and receiving, had taken Jones' truck on a trip to Evans- ville, and "tore the back end out of it" in Evansville . Duncan suggested that Jones check with him again the following day but when Jones did so , he was told that the nature of the trouble with his truck had not yet been ascertained. In the past, when his truck had broken down , Jones would drive a No. 10 tractor-a gas tractor-on short runs . But now, although another truck was available, he was not put on any runs.16 Although Jones reported every day between July 9 and 18, he was not sent on any trips, but was told that his truck-a Mack tractor which still had an outstand- ing warranty from the Tisnor Motor Company of Evansville , Indiana-was still undergoing repairs. This Mack truck, which had had chronic trouble involving the housing and bull gear in the rear end , had broken down on three previous occasions and had , had to , undergo repairs. Now, however, Duncan, who was hearing noises in the rear end, took it, after he had completed his delivery, to the Valley White Motor Company rather than to the Tisnor Motor Company for repairs. Counsel for the General Counsel offered, through Jones , testimony which, if true, would tend to show that the repair of the Mack truck which Jones drove was de- liberately delayed. Since I have found that Jones could have been assigned to drive another truck which was available , I do not consider it necessary to evaluate this testimony which would establish in any event only that Jones was being subjected to dual forms of discrimination. Jones must have felt very much aggrieved by his enforced idleness. He was re- porting to the plant every day, and logging his idleness , in accordance with ICC regulations . When he came to the plant on July 17, and went into the coke room, he encountered Duncan, who was sitting at a desk examining some papers. Jones remarked to Duncan : "Boy, you sure messed me up when you tore the back end out of my truck." Jones again reported to the plant about 6 : 50 a.m., the following day, which was July 18. When he arrived at the parking lot , Duncan was sitting in his car, which was alongside the drumroom , and two of the P .B. & S. truckdrivers, James Randolph and Richard Beals, were in the vicinity . Jones had parked his car alongside the ' The testimony that another truck was available was not expressly denied by any of the Respondents' witnesses 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coke room, which was about 60 to 70 feet from Duncan's car. After getting out of his car, Jones took out his pocket knife and, as he walked toward Duncan 's car, he cleaned his fingernails with it. When he reached Duncan's car, Jones slid his finger along the blade of his pocket knife, and, sticking the blade close to Duncan 's neck, exclaimed : "Don't move, I got you." Duncan, who at least until he put Jones' truck out of commission, had been on very friendly terms with Jones, whom he called by a nickname "John Wally," turned around and looked at Jones. Grinning, Duncan remarked, "Hello, John Wally." After they had talked for a few minutes , Duncan and Beals went home, while Jones, accompanied by Randolph , went to a restaurant to have some coffee. About 7:50 a.m., Jones and Randolph drove back to the plant, and Jones in- quired about his truck . He then left but returned to the plant about 11:50 a.m. He was talking to Randolph in Mays' office when Duncan came in and told Jones that Preston wished to see him. When Jones entered Preston's office, Preston, red- faced, was sitting at his desk, and for a while he said nothing . Finally, he said to Jones: "Jones , I'm so damn mad at you I don't know what to do ." Jones asked to be told what he had done . "Did you, or did you not threaten Duncan with a knife?" Jones replied . "No, I did not, I'll explain to you what happened ." Preston's com- ment on the proffered explanation was that he did not "give a damn" what hap- pened, that one did not joke like that, if Jones had threatened him in the same way, he would either "run like hell" or he would kill him. At this point, Preston waved his hand over a group of folders he had on his desk-folders with material about the Teamsters seemed to have a permanent place on his desk-and intimated that Jones' conduct was akin to that of "those damn guys there, a bunch of hoodlums and gangsters." Then he declared : "There's only one thing left to do and that is to fire your ass right out in the middle of the street ." Preston then asked for Jones' credit card and expense account, and Jones left to get them. I have based the account of the knife incident on Jones' testimony, which I accept. Duncan himself also testified about the incident, of course, but his absurdly melo- dramatic account includes many obviously fictional elements. • He testified that while he was- talking to Beals and Randolph "Jones walked around beside my car and reached through the window, which I had down; and stuck a knife into my neck and said, `Don't' move,' I got you,' 'and I froze. I didn't move. ' Soon as he pulled the knife awiiy from'my,neck he stuck it to my face, pretty close to my face-I would say within -afoot-`I want you to see what I -could have stuck through your neck.' I had my 'car 'in gear, reverie, I motor running, and my foot on the clutch at the 'time. I got out of there, went home and told my wife to lock the door." [Empha- sis supplied.] Thus, Duncan attempted to create the impression that he was in such imminent peril and_ so terror-stricken that he was afraid that Jones would come after him, for otherwise he would hardly have told his wife to lock the door. But from Duncan's own testimony, it is apparent that Jones never stuck his knife into Duncan's neck. Since, moreover, according to 'Duncan himself, Jones shifted the position of the knife to the front of his face, and this position was only within a foot from his face, it is difficult to understand why he should have considered himself to be in such peril if the car was in reverse. If the knife was at Duncan's face , and the car started to-roll , it would roll away from the knife. Furthermore , Duncan in- spired no confidence in his powers of observation when he was asked to describe what the knife looked like, and testified: "This knife was a one-bladed knife; the blade of it was approximately six inches long and a very dangerous weapon." [Emphasis supplied.] As the knife, which was a Case pocket knife which Jones had inherited from his grandfather, was produced at the hearing, I had an oppor- tunity to examine it . Like the usual pocket knife , it had more than one blade-in this case two blades , one much narrower than the other, the wider blade being about 2-1/a inches long, and the narrower about 2 inches long, and overall the pocket knife was approximately 4 inches in length. However, Jones had only the narrower and shorter blade exposed during the incident By converting the knife into a one- bladed knife 6 inches in length, Duncan sought to create the impression that he had been attacked with something like a switchblade knife or even a stiletto, which, naturally, would enhance the supposed peril of his situation. The truth is, however , as Jones testified , that Duncan knew that Jones was joking, and that he was not at all frightened . Beals, one of the two truckdrivers who was present during the incident, and who was called as a witness by the Respondents, after attempting to exaggerate the seriousness of the incident , although in less ab- surd fashion than Duncan, was compelled in the end to admit that Duncan was grinning at the time. - P.B. & S. CHEMICAL COMPANY, ETC . 167 In addition, Stephen Wilkerson, who was also discharged by Preston on July 18, the same day as Jones, testified that when that very evening, accompanied by Robert Ray Perdue, who had already been discharged by Preston on July 6,17 he went to see Duncan at the latter's house, Duncan told him in the course of the conversation about his own and Jones' discharge, that when Jones came up behind him with his knife, he had first considered it to be a joke but that as he kept thinking about the incident, the thought occurred to him that if his feet had slipped off the brake, and the car had backed up, the knife would have gone into his neck, and he asked himself what good would he have been to his wife lying in a coffin? I accept the testimony of Wilkerson. I have myself very little use for practical jokes, and no use at all, certainly, for the particular form of practical joke in which Jones engaged. It is possible that it assumed this form because of Jones' feeling of resentment against Duncan. But the fact remains that Jones engaged in no more than a practical joke, and that Duncan knew that it was no more than that. At the time the knife incident occurred Preston was not in the plant. But when he returned to the plant some hours later, and Duncan told him about the incident, it can well be imagined that he had no difficulty in working himself into a state of righteous indignation. I cannot but conclude that this indignation was not in- spired by the practical joke per se but by the fact that Jones was the major cause of all of Preston's union troubles. Here, suddenly, was a golden opportunity to get rid of the chief troublemaker, and Preston was not the sort of man to ignore such an opportunity. Yet even then Preston and Duncan felt so unsure of their ground that they exaggerated the incident to the point of absurdity. Even Preston had no difficulty in getting himself to believe that Jones had stuck his knife into Duncan's neck. Moreover, Preston revealed what was passing through his mind at the very moment when he discharged Jones by pointing to the folders containing his material on the Teamsters. After all, he had-already declared that "he'd kick the man's ass that started all this clear across the road." He was now doing what he declared he would do. Jones' practical joke furnished no more than a ready pretext. 2. The cases of Gibbs, Perdue, and Wilkerson Between July 5 and 18, Preston discharged three other employees. These em- ployees were Terry Gibbs, the chlorine packager on the Hat-Ra• payroll, who was discharged on July 5; Robert Ray Perdue, the truckdriver, on the P.B.• & S. payroll, who was discharged on July 6; and Stephen Wilkerson, the warehouse utility em- ployee and part-time truckdriver, who, as already mentioned, was' discharged on July 18, the same day as Jones. - . - The union activity of Gibbs, Perdue, and Wilkerson is not to be compared, of course, to that of Jones. Gibbs and Wilkerson signed their union authorization cards on July 1 but they themselves did not engage in soliciting other employees. Perdue was, however, one of the more prominent of the union adherents, since he belonged to the small group of employees to whom Jones had talked 'about bring- ing in the Union. He not only attended the union meeting at the Soaper Hotel on June 29, and signed his union authorization 'card at the meeting, but he also engaged in the soliciting of other employees. There is no doubt'that Preston ob- tained knowledge of the union activity of Gibbs, Perdue, and Wilkerson from the same sources as in the case of Jones. Preston would hardly have chosen to read Wilkerson a lecture on loyalty if he had not at least suspected him of union sympathies. . 'I shall consider the cases of Gibbs, Perdue, and Wilkerson as a group. Although there are some dissimilarities in their cases, they also have strongly marked features in common. Gibbs was a youth of 19 when he was hired on November 1, 1962. When hired, Preston's employees had to go through a 90-day probationary period, and Gibbs successfully survived this period. At the end of his probationary period he received a 10-cent an hour raise, and about March 1, 1963, he received another 5-cent an hour raise. Woolridge, his foreman, conceded that when he was first hired Gibbs was considered a fairly good employee but also contended that "as time went on he more or less slacked off in his work." According to Woolridge, Gibbs was given to joking and playing around, and thus distracting other employees from doing their work. . There is no doubt that Gibbs had serious faults as an employee. He could be rather careless, and, in testifying about his work, Gibbs admitted to a number of such acts of carelessness. Among Gibbs' duties were loading and unloading 17 The discharges of Wilkerson and Perdue are considered infra. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drums, as well as labeling them, and he sometimes caused leaks by failing to tighten gaskets, or to install seals. Gibbs' carelessness and other derelictions are throughly documented in a series of lettergrams (each hereinafter referred to as an L-G) which, in accordance with usual practice, Woolridge addressed to Preston.18 In the first of these L-G's which was dated June 7, 1963, Woolridge informed Preston as follows: Today I had Terry Gibbs to fill and load 15 drums of bleach on a trailer for shipment, on completing this job. I went over and checked the drums and I found several drums that did not have seals under the buttress' and several of the 3/a" plugs were loose which made the material unsafe for transit. Upon talking to Terry Gibbs about the drums he displayed a very negative and sarcastic attitude and ended up by saying, "he couldn't think of everything." [Emphasis supplied.] I believe this matter and his attitude is very inexcusable. Also late [sic] he seems to show disinterest in his work and display a I don't care attitude. Under date of June 12, 1963, Woolridge also wrote to Preston a memorandum on a Hat-Ra letterhead in which he reported that Gibbs was showing 'negligence "in the handling and caring for paint, equipment, hoses, and etc.," and that he was therefore putting Gibbs on probation for a period of 2 to 4 weeks. Woolridge also stated that if Gibbs did not show improvement he would be discharged. Gibbs was informed that he was being put on probation. Soon after being put on probation Gibbs was sent to measure the caustic in the caustic tank but in removing the stick from the tank he allowed the caustic to drip and run down the side of the tank, which affected its asphalt lining. Under date of June 18, 1963, Woolridge sent still another L-G to Preston, in which he complained that on June 14, Gibbs, in unloading caustic with a suction hose, had carelessly left the hose lying in the road instead of disconnecting it and putting it on the trailer. As a result, Wilkerson pulled the caustic trailer over the unloading hose, and damaged the hose, which cost $5 a foot. On July 5, 1963, the date of his discharge Gibbs was the subject of two L-G's. In the first Woolridge reported to Preston that on July 2 he had had Gibbs load 15 drums of bleach on a trailer for shipment to TVA, and had asked Gibbs to check all the drums for proper labeling and buttress tightness. When the driver, Richard Beals, returned after making the delivery, Woolridge learned that one of the drums had not been labeled properly, and that the drum, moreover, had not been filled. "When told about it," concluded Woolridge, "he was very indifferent." 19 In the second L-G dated July 5, Woolridge informed Preston as follows: As you know I have had Terry Gibbs on probation since June 12, 1963, and of this date, July 5, 1963, I find it necessary to release him from the employ- ment of Hat-Ra Chemical Company for the following reasons: (1) Carelessness with equipment. (2) Carelessness in the shipment of material. (3) Reluctance to do what is asked of him. (4) Friction between him and fellow employees. (5) Disinterest in his work. [Emphasis supplied.] Preston endorsed his okay on this L-G in red ink, and signed his initials and Wilker- son discharged Gibbs that same day. Gibbs' testimony, which I fully credit, was that the reason given to him by Woolridge for his discharge was that someone had come to him and complained that Gibbs was keeping him from doing his work. When Gibbs asked Woolridge who had been complaining, Woolridge replied that he could not tell him, and banded him his check. When Woolridge was questioned on direct examination about the discharge interview, he denied, however, that in discharging Gibbs he had told him that it was because someone had complained about his work. Woolridge contended that he told Gibbs he was being discharged because his work had not improved since he had been put on probation, and because of his carelessness and the like. Woolridge was then asked the question: "In other words, as a result of these con- tinuous incidents," and replied, "Yes." [Emphasis supplied.] 18 The employee who was made the subject of an L-G would not, as a rule, have knowl- edge of it. 19 In testifying about this incident, Woolridge stated that it occurred on July 5 but his own L-.G shows that it occurred on July 2. P.B. & S. CHEMICAL COMPANY, ETC. 169 Woolridge further testified, however, that he had in fact received from Gibbs' fellow employees complaints about his work, naming George Farley and "several others." On cross-examination, when asked about Farley's complaints, he testified that the latter had complained "on several occasions" a month or two before Gibbs' discharge. When it was called to his attention that Farley himself had already testified that he had never complained to Woolridge about Gibbs, Woolridge in- sisted nevertheless that Farley had complained. Pressed further whether Dixon or Pruitt, the only other two Hat-Ra employees, had complained about Gibbs, Wool- ridge testified that Dixon had complained and "possibly" Pruitt. But Dixon, who had also already testified to a conversation with Woolridge about Gibbs, had de- clared that it was Woolridge who had brought up the subject of Gibbs, and who asked him (Dixon) whether he thought that Gibbs was keeping him from doing his work. To this question, Dixon had replied that "anything that Terry Gibbs was doing to keep me from doing my work was not intentional and strictly by an acci- dental mistake." Dixon was referring to an occasion when Gibbs in filling a cylin- der with chlorine had allowed some of it to escape with the result that Dixon had to leave the work area. According to Dixon, his conversation with Woolridge had occurred about a week before Gibbs' discharge. Unlike Gibbs, Perdue, although not entirely without faults-he could sometimes get into quite a temper-was in fact one of the better of Preston's truckdrivers. Preston himself in testifying about him declared: "Perdue is certainly an intelligent fellow," and Mays admitted that at least during his probation period he did "a pretty good job." Perdue himself testified that Preston had told him on numerous occasions that he considered him "one of his better employees" and that even Mays had told him that he was proud of his work. Hired late in 1961, Perdue acted as a relief driver, and thus drove both on an hourly and mileage basis. In less than 2 years, he had received repeated raises20 Perdue also had, however, some bad luck, which seems to have stemmed in part at least from the fact that as one of the newest drivers, he was assigned to drive the oldest equipment. It seems that in May or June 1962 he had wrecked a truck in Tennessee 21 but there is nothing to show that this was the result of negligence on his part. In fact, he was not charged with an offense. Mays had an almost com- plete blackout of memory about the accident, which is in itself an indication that he could not have thought the accident to be Perdue's fault Almost a year later-late in March 1963-Perdue was involved in another acci- dent while he was driving a load of acid to Greenville, Kentucky. On this occa- sion his trailer hit a telephone pole and ran into a lady's backyard. But Perdue, who was then driving an old tractor belonging to Richard Wathen, had complained the previous day that the brakes were defective. Although Mays claimed that the brakes had been checked, this does not rule out the possibility that they were defec- tive again when the accident occurred When Perdue told Preston about the acci- dent the following Saturday, the latter agreed that he did not have to drive anything that was unsafe. However, Perdue had aroused Mays' ire on the day of the acci- dent by calling him at 5 a m. to complain that the old tractor was not in good enough shape to be taken on a trip. Again, since Perdue was given a raise about a week after this accident, and made a diesel trainee, it could not have been regarded as a serious blot on his record In the latter part of May 1963, Perdue displayed his temper in an altercation with Duncan who had just been promoted to his subforemanship. Perdue was looking for some sodium nitrate to load, and had difficulty in finding it. Apparently, there were two warehouses-an old and a new. Perdue had looked in the old warehouse but he had been unable to find the sodium 'nitrate there "I wish to hell," Perdue said to Duncan, "you'd make up your mind which one of the warehouses you're going to keep it in." Some profanity was exchanged on both sides and Duncan demanded that Perdue show'him the respect due to a foreman but this only made Perdue throw his bill of lading on the floor, and remark to Duncan: "God damn you and the whole works, I don't have to work here " Duncan haled Perdue be- fore Preston but the latter did not fire Perdue, who indeed threatened to leave. 20 He was hired to work at $1 15 an hour but on March 5, 1962, his rate was increased to $1.25 an hour ; on September 4, 1963, he was put on a tractor-trailer ; and on April 1, 1963, he was raised to $1 40 an hour and made a trainee on diesel units, as well as a gas tractor driver. a The truck turned over and the cab was demolished but the cost of repairs did not exceed $500. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Preston asked the disputants to cool off and shake hands. In testifying about the incident, Preston himself explained that he had not fired Perdue on this occasion because Duncan too had lost his temper . Yet it is plain that Perdue had been the aggressor. Perdue's involvement in the wreck of a truck in Tennessee in May or June 1962 and his altercation with Duncan in May 1963 are not documented. However, the incident climaxed by Perdue's running into the lady's backyard was made the sub- ject of an L-G which is dated March 22, 1963, and in this Mays reported to Preston as follows: Bob Perdue called me at 5:30 a.m. on the morning of March 22, 1963. We had borrowed a tractor for him to drive he said the tractor wasn't run- ning right. He had said the day before he wasn't going to take this tractor. I had the tractor checked the day before and there wasn't anything wrong with it. I told him to go on and take it. Bob Perdue then got mad and gave me a bawling on the phone. I told him I wouldn't stand for this and that a repeat of this would result in his dismissal. After the advent of the Union, there were two later incidents in which Perdue was also involved, and both incidents were made the subjects of L-G's. The first of these two documents is dated July 3, 1963, and is signed not only by Mays but by Duncan. The two foremen reported therein to Preston as follows: Perdue had a tire on his tractor burning when he arrived at plant He said the tire blew out 3 blocks away from plant, at 12th and Green Sts. We had to put water on the burning tire to extinguish it. We had Henderson Recapping Co. to check the tire and they said that the tire was run on flat for several miles, that no tire is going to catch on fire by run [sic] flat in a distance of 3 blocks. This was also the oppion [sic] we had. Also another tire had the thread [sic] torn off it. This was due to the tractor being hooked up to [sic] close to the trailer thereby hitting the dollies taring [sic] off the rubber. None of this would have happened had not Perdue been neglecting his job. And he deliberately lied about both incidents. We the undersigned recommend reliev- ing Bob Perdue of his employment with this company immediately. [Empha- sis supplied.] In the second of the two L-G's, Duncan alone, under date of July 5, 1963, re- ported to Preston as follows: On July 3 Bob Perdue picked up at Hooker Chemical in Jeffersonville, Ind. The bill of laden [sic] we received from Hooker said Perdue picked up 245 bags Tripolyphosphate and 155 bags of Trisodium Phosphate signed by Bob Perdue. We actually received in our plant was [sic] 245 bag Tripolyphosphate and 145 bags Trisodium Phosphate, leaving a shortage of 10 bags. What hap- pened to these 10 bags? Perdue signed for 155 bag T.S.P. and the company will have to pay for same. There is no reason for this shortage other than neglectance [sic], carelessness or purposely done. I strongly suggest that we relieve Perdue of duty if he is found negligent again. [Emphasis supplied.] In his testimony, concerning the blowing out of one of his tires and the tearing off of the tread of another, Perdue himself gave a markedly different account than Mays and Duncan. Perdue had 50 bags to deliver to the State reformatory at LaGrange, Kentucky, and in pulling out between the gates of the reformatory, where the truck was checked for weapons, he had to traverse both an upgrade and a down- grade. In going up, the trailer dropped on the wheel because the tractor was lighter than the trailer, and thus the tread was torn off the right side of the right tire., Per- due's explanation is supported by the testimony of Boldry who had previously driven Perdue's truck, and who had torn the treads off two tires in a similar manner on a trip to Bowling Green . On this occasion, Boldry had not even been reprimanded, let alone discharged. When he reported the damage to Mays, the latter remarked philosophically: "Those things happen." Mays himself when being questioned about whether Tom Hoover, another truckdriver, had ever torn up any tires, conceded that "if a man drives a tractor much at one time or another a tire will go flat and be ruined." There is, therefore, no good reason to doubt Perdue's further testimony, that when he arrived at the plant with the blown-out tire, Mays never said a word to him . I do not believe that Perdue was telling the truth, however, when he told Mays that he had had the blowout only a few blocks from the plant. P.B. & S. CHEMICAL COMPANY, ETC. 171 Perdue also strenuously disclaimed any responsibility for the shortage in the Hooker Chemical load. The trip at the end of which the shortage was discovered began on July 2. Apparently, Perdue loaded 50 bags on the rear end of the trailer for LaGrange, Kentucky, and, after delivering these on July 3, left his trailer in the parking lot. Because of the July 4 holiday, the trailer remained in the P.B. & S. parking lot in Henderson from July 3 to 5, inclusive. Perdue testified that John Below, another one of the P .B. & S. truckdrivers , took 10 bags from the trailer on the morning of July 5 and put them on his own truck. Although Below was called as a witness by the Respondents after Perdue had given this testimony , he was not called upon to deny it. I accept Perdue's explanation of the shortage, therefore, despite the fact that I do not believe that he was always truthful. The afternoon of Friday, July 5, Mays had also asked Perdue to take a full trailer to Paducah the following morning, which would be Saturday, July 6, the day of Perdue's discharge, and then to pick up a trailer there. Perdue picked up the trailer but it proved to be empty, containing no caustic. When Perdue returned from this trip the afternoon of July 6, he was called to Preston's office, and Mays was present. Preston asked Perdue why he had brought back an empty caustic trailer from Paducah. Perdue replied that Mays had just told him to pick the trailer up, and had not specified whether it was to be empty or full. Preston thereupon remarked: "Well, Bob, looks like we've come to the end of a long hard road," and that he was going to let Perdue go. Perdue asked Preston whether he had a good reason, and Preston enumerated three reasons , one being that he had come back from Jeffersonville, Indiana, short of his load, and the second and third reasons being that he "blowed out a tire and tore the tread off another tire on the Chevrolet Tractor." Preston also remarked that "that tire deal was more than he could stand, and suggested that he find work where there was no supervision." Then harking back to the incident of the old tractor that Perdue had driven into the lady's backyard, Preston asked: "What did you mean by calling Everett Mays at 5:00 o'clock in the morning and asking him a stupid question?" Wilkerson was akin to Gibbs at least in age. Like Gibbs, Wilkerson was a youth of 19 when he was hired on December 27, 1962, and he went by the nickname of "Wheaties." Classified as a laborer, Wilkerson spent most of his time in the ware- house but on occasion he also drove trucks, making both pickups and deliveries. He made interstate trips without logging them, and carried caustic in Kentucky, although such activities were illegal because he was a minor. Wilkerson was not hired until December 27, 1962. On June 15, 1963, less than b months after he had been employed, Duncan sent an L-G to Preston about Wilker- son, in which he reported that he was laying Wilkerson off for 2 working days as a punishment for procrastinating in his work, and for pretending to be sick when he was not. Duncan accused Wilkerson of "goofing off," and disclosed his intention to watch him closely when he returned to work, and to relieve him of his employ- ment if he did not do better. Wilkerson's was the only punitive layoff in the whole history of P.B. & S. Under date of July 13, 1963, Duncan again sent an L-G to Preston in which he reported what he conceived to have happened when Wilkerson delivered a load of muratic acid to Halliburton in Henderson, in the late afternoon of the previous day. Duncan's report was as follows: He (Wilkerson) used #22, Tom Hoover's tractor Tom told me the next day that there were muddy foot prints all over his doors, seat & dash. Tom said he had just polished the inside of his truck the day before. Tom also said the chrome inside the truck was tarnished from acid fumes and there was a green matter in the floor which appeared to be acid. I saw the truck and then asked Steve. Steve denied doing this, but he was the only one to drive this truck. Also 7/13 Steve backed the acid trailer into the warehouse dock hard be- fore stopping. This bent the bumper on the acid trailer and the rack holding the lights on trailer. There is no excuse for this and Wilkerson has been warned about this type thing before. Under date of July 15, 1963, Duncan sent another L-G to Preston in which he reported as follows: Steve (Wilkerson ) was gathering material to be shipped out from a list I had given him, he gathered 4-400# drum sod nitrate and the list called for 4-100# bags Sod. nitrate of which I had in big letters and underlined. The truck was about to be loaded when I caught this mistake. It appears Dixon is not thinking at all about his work and he is entirely to [sic] careless. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In a final L-G, dated 'July 16, 1963, Duncan complained to Preston that Wilker- son, in preparing shipments of caustic, had on several occasions failed to weigh the truck empty and again after putting water in it , and also that in filling an order that called for -a 600-pound drum of nitric acid, he had loaded a 165-pound drum of nitric acid before he caught his own mistake . Duncan recommended that he be relieved of his employment before he injured an employee through his carelessness. Preston acceded to this recommendation by endorsing the word "Terminated" in red ink on the bottom of the L-G. On July 18, Preston called Wilkerson into his office, and discharged him. Preston told Wilkerson : "Wilkerson, we have come to the end of a long road." When Wilkerson asked why he was being discharged , Preston gave him four reasons, enumerating them as follows : ( 1) he had spilled acid in a tractor cab, and the acid had corroded the floormats and the seat of the cab ; (2) he had bent a fender of a trailer; and ( 3) and (4) he had on two different occasions loaded the wrong mate- rial to ship out. Wilkerson denied that he was responsible either for the acid in the cab or for the bent fender. As for the misloading of materials, he pointed out that on each occasion he had caught his own mistake and reported it to Duncan, who told him that it was a minor matter, and that he would not report it to Preston. Wilkerson was so incensed by Duncan's conduct that the same evening, accompanied by Perdue, he went to Duncan's house to upbraid him about it. Duncan could only explain that he had later changed his mind. Mays, Duncan, and Preston all testified about Wilkerson 's discharge . Mays dwelt particularly upon Wilkerson's carelessness, but, curiously; he revealed that in hiring Wilkerson, he had been warned by his previous employer that he was given to carelessness ! Duncan simply reiterated in his testimony what he had had to say about Wilkerson in his L-G's but explained that he had recommended that Wilker- son be terminated "in view of all his past record." [Emphasis supplied. ] Preston, in testifying about Wilkerson's discharge, declared: "The final crowning blow as far as Wilkerson was concerned was due to the fact he got acid in the cab of an $18,000 tractor." [Emphasis supplied.] This made him feel that "we'd probably gone further than we should in an effort to salvage him as an employee." Wilkerson did misload materials, and did fail to weigh trucks before putting water in them, and doubtless he had other faults. But, so far as damaging company property is concerned, he was innocent of wrongdoing. It was actually Perdue who was responsible for the bending of the fender, and, although Wilkerson drove the truck that was damaged by acid the day before the damage was discovered, it was not he who was responsible for the damage but some person unknown. On this occasion, Wilkerson drove Hoover's truck. Called as a witness by the Respondents, Hoover testified that "lots of people" drove his tractor on the lot, loading trailers with it. The reason for this was that the yard tractor was so old that it did not run half the time. Thus anybody engaged in loading would use Hoover's tractor if it was not out on a run and acid was on occasion carried in the cab in a glass bottle by the employee using the tractor. Despite the numerous reasons that are seemingly assigned for their discharges, it is a rather singular aspect of their cases, that it is difficult to determine with cer- tainty exactly why Gibbs, Perdue, and Wilkerson were discharged if the testimony of Preston and his foremen is accepted at face value. The nearest it is possible to come to a generalization that would fit all three of their cases is that they were dis- charged because of an accumulation of faults. This seems to follow from the fact that Woolridge enumerated in his L-G of July 5 no less than five categories of reasons for discharging Gibbs, and also from the fact that Preston in discharging Perdue and Wilkerson enumerated-with evident relish-a number of reasons for discharging each of them, and spoke of coming to the end of a long , hard road, or long road. It would also seem to follow from the fact that Woolridge conceded that he had discharged Gibbs "as a result of these continuous incidents" and that Duncan conceded that he had recommended that Wilkerson be terminated "in view of all his past record." No employer would suddenly terminate an employee, however, merely because of his past derelictions . The employee must be guilty at least of another dereliction immediately preceding his discharge; there most be, in other words, "a last straw." This is what Preston had in mind when he spoke, in the case of Perdue, of the tire deal being more than he could stand, and in' the case of Wilkerson , of the acid in the trailer cab being "the final crowning blow;" Preston and his foremen also sought, therefore , to provide these last straws but in attempting to do so they only made their conduct seem both unfair and irrational , for the evidence shows that the discharges were triggered either by derelictions which compared to previous ones, P.B. & S. CHEMICAL COMPANY, ETC. 173 were insubstantial if not trivial, or were in fact no derelictions at all. , The unfair- ness of Preston consisted precisely of his indifference to the facts. The most damag- ing evidence against him is that Preston instituted no inquiry at all to determine whether the charges of his foremen had any foundation in fact. He proved himself eager to take what he was told on faith, despite the denials of the employees concerned. These general considerations are illustrated even in the case of Gibbs who was the least satisfactory of the three employees involved. The dereliction immediately preceding the discharge of Gibbs seems to have been his failure to fill and label properly a single drum. But this dereliction was far less serious than Gibbs' previous ones, which included the loading of material in such a way that it was unsafe for transit and running over an expensive suction hose. Indeed, it is evident from Woolridge's handling of Gibbs' case that his most recent dereliction would not have been sufficient to justify his discharge. It was for this reason no doubt that he cited in his L-G no less than five categories of his past faults as justifications. When he came to testify about his discharge, he gave, however, as the reason one that was false, namely, that a fellow employee had complained that Gibbs was prevent- ing him from doing his work. As for Perdue, he was in fact a competent employee. But, if Preston and his foremen are to be believed, he had been responsible for wrecking one truck, running another into a lady's backyard, and bawling hell out of his foreman. Yet he was not fired. Even after he was accused, with some justice, of ruining two expensive tires, and of attempting to evade responsibility for his acts, he was not immediately fired, although both Mays and Duncan had recom- mended that he be fired immediately. When he was finally fired by Preston, it was, supposedly, for a mere shortage of 10 bags in bringing back a shipment, although Duncan had only recommended on this occasion that he be relieved of duty if he were found negligent again. He was not even responsible, moreover, for the short- age of which he was accused, as due inquiry would have revealed. The case of Wilkerson reveals pretty much the same pattern. Wilkerson received only a 2-day .punitive layoff in June, although he had deserved to be fired for procrastinating in his work and pretending to be sick. Wilkerson also was not fired on July 13, when he was supposed to have gotten acid into the cab of Hoover's trailer but 5 days later, although Preston considered that this was the "final crown- ing blow." Only when this was followed by relatively trivial and harmless offenses was Wilkerson fired. It is no wonder that Duncan and Preston were at loggerheads about the real reason for Wilkerson's dismissal, the former basing it upon his record as a whole, and the latter emphasizing "the final crowning blow," for which Wilker- son was not, however, in fact responsible. The discharges of Gibbs, Perdue, and Wilkerson must be considered, moreover, not only within their own terms but in the light of what the record reveals concern- ing Preston's employment problem as a whole. There has been an enormous turn- over of employees in Preston's three companies; the recruitment of new employees to replace them has been difficult; and as a result of these factors the degree of tolerance of the faults of employees has been at least as enormous as the turnover. Preston's three companies have operated normally with a complement of approxi- mately 45 production and maintenance employees, including the truckdrivers, but excluding the supervisors. Preston has had a hard core of very old employees but it is very small, consisting of only two of the truckdrivers, Robert Grish and Richard Beals, who have been employed approximately 9 and 8 years, respectively. There is also a small group of five employees who have been employed 3 or 4 years, two of whom are maintenance employees. For the rest the tenure of Preston's em- ployees has been from a few months to a year or two. The tenure of the chlorine packagers seems to have been particularly short. Of the 26 production or main- tenance employees who testified at the hearing, 7 had a tenure of 6 months or less and 5 had a tenure of 1 year or less. No less than 8 of these 26 employees had been hired in 1962, and 3 of them had been hired in 1963. There are in evidence two payroll lists of the employees of Preston's three companies; 22 the first of these reflects the employees of the three companies as the week ending July 6, 1963, and the second as of the week ending September 7, 1963. Excluding Johnnie Scott, the night watchman; there are 25 employees on the P.B. & S. payroll list for the week ending July 6, 1963, and 24 for the week ending September 7, 1963. However, no less than nine of the employees who were on the payroll list of July 6, 1963, including Jones, Perdue, and Wilkerson, were no longer on the payroll of September 7, 1963, and eight new employees appear on the latter payroll. Thus in a period of 2 months, P.B. & S. had lost approximately one-third of its employees. During the same period, 22 The two payrolls constitute one exhibit, General Counsel's Exhibit No. 4. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Preston Chemical payroll of 13 proved relatively stable but Hat-Ra, which only had 4 employees during the week ending July 6, 1963, had lost 2 of them-one of them was Gibbs and the other Dixon-by the week ending September 7, 1963. The great rate of turnover in employment in Preston's three companies is also reflected in a list of terminated employees covering a period of approximately 3 years-from August 26, 1960, to September 11, 1963.23 The list also indicates the reasons for the terminations 24 There are 70 names on this list, and no less than 49 of the employees listed left of their own accord, the most frequent reason for their departure being that they were leaving to seek or accept other employment. The record abounds, indeed, in indications how truly desperate was Preston's need of employees. These have already been mentioned-the hiring of Wilkerson, although he had a record of carelessness in his previous place of employment; allowing Wilkerson to drive, although forbidden by ICC regulations and State law; the retention of employees who were treating their foremen to profanity or sarcasm; and, in general, the failure to dismiss employees who had been guilty of grievous offenses. The difficulties being experienced by Preston in recruiting and retaining em- ployees is, moreover, not a mere matter of inference. Questioned about them, Preston agreed that his turnover in employment was great, and that the recruitment of new employees presented quite a problem. He attributed the turnover to the fact that his wage rates left something to be desired, and also to the fact that he em- ployed younger people who were inclined to move about more than older people. Asked finally whether, in view of the heavy turnover of employees and the diffi- culty of recruiting new employees, it would be fair to say that he was ordinarily inclined to be tolerant of the faults of his employees, he answered the question in the affirmative. The list of terminations is of even greater interest with respect to the frequency of discharges for cause than it is with respect to the turnover of employees. It shows that 21 of the 70 employees listed were terminated because their work was unsatisfactory, and among these 21 employees are included Jones, Gibbs, Perdue, and Wilkerson. So far as the year 1960 is concerned, the list is not very significant, since it covers only a few months of the year, and during these few months only two employees were discharged for cause. During the whole of the years 1961 and 1962, however, the list shows, significantly, that there were only five discharges for cause during each of these years. In 1961, moreover, the discharges were spaced over periods of 2 to 3 months, and not more than one discharge occurred in any 1 month. Of the five discharges in 1962, only two occurred in 1 month-the month of September. But in 1963, in a period of less than 8'/z months, there were no less than nine discharges for alleged cause; one of these discharges occurred in the month of January, two in the month of June, two in the month of August, and four in the single month of July, these four being made up of Jones, Gibbs, Perdue, and Wilkerson. Moreover, in July 1963, three other employees had left between July 3 and 18 to seek other employment, and the employment situation must have been particularly acute. The list of terminations is not of too great value in itself in determining Preston's standards of judgment in discharging employees. The reason for this is that such categories as "Probation," "Substandard work," "Unsatisfactory performance," or "Inability to handle job" in which the termination list abounds, are too vague, gen- eral, and conclusionary. But it is, nevertheless, not without some significance that where the reason given is somewhat more definite, it indicates gross misconduct, such as "reckless driving," "theft," "absenteeism," and even "carrying gun on com- pany property." One of the great puzzlements of the termination list, which also includes, of course, the names of Jones, Gibbs, Perdue, and Wilkerson, is the rea- son given on the list for the discharge of each of them. The reason given for the discharges of Wilkerson and Perdue is "Substandard work." The reason given for the discharge of Gibbs is "Terminated due to probation," and for the discharge of Jones "Violation of company rules, misuse of company funds!" While the reasons given in the termination list for the discharges of Gibbs, Perdue, and Wilkerson bears some relation to the particular reasons for their discharges, the reasons given for the discharge of Jones have absolutely no relationship to fact. There is not a scintilla of evidence that Jones was guilty either of violating company rules-unless there was a rule against practical joking-or of the misuse of company funds. 'a It is in evidence as General Counsel's Exhibit No. 23. 24When the reason given Is "Probation," it means that the employee In question had been discharged for cause. P.B. & S. CHEMICAL COMPANY, ETC . 175 In concluding that the discharges of Gibbs, Perdue, and Wilkerson were dis- criminatory, I am not unmindful of some of their faults as employees, nor of the latitude to be accorded to any employer in deciding whether to retain such em- ployees. I have myself recognized in another case that the patience of an employer need not be infinite, and that he may rid himself of an employee who has been guilty of repeated offenses when a final offense causes him to reach the breaking point 25 But Preston's conduct in the present case, especially when considered in the general light of his difficulties as an employer, seems to me to have been moti- vated by his union animus, and his desire to undermine or destroy the Union. So great was his animus and so intense his desire, that I am persuaded that he could not have made any personnel decision during the month of July 1963 that had no reference to the union situation. In the last analysis the most damaging piece of evidence against him is the Smithhart incident that occurred toward the end of that month. Despite the fact that he had already rid himself of four of the union sup- porters, including the leading one, and despite the fact that he had already intimi- dated many of his employees by threats of reprisals, and cajoled them with benefits or promises of benefits, he had to make sure in hiring a new employee that he would not vote in favor of the Union. The common argument is also made that, after all, the Union had a plenitude of adherents, and that Preston did not get rid of all of them. This argument never has much force, for an employer cannot, after all, get rid of his whole complement of employees, and still keep his plant in operation, and, in any event, it is only neces- sary to get rid of a few union adherents in order to intimidate the rest. In order to get rid of a union adherent, the employer must have, moreover, some semblance of a reason, and such a reason is not to be found in the work record of every em- ployee. The evidence in the present case suggests, indeed, that the very reason why Gibbs, Perdue, and Wilkerson were selected for dismissal was, precisely, that each of them had been the subject of at least one L-G prior to the advent of the Union. This made them particularly vulnerable. H. The refusal to bargain It is a violation of Section 8(a) (5) of the Act for an employer to refuse, upon request, to bargain with a union which has been designated as bargaining agent by a majority of his employees in an appropriate bargaining unit when such refusal is not predicated upon a good-faith doubt of the Union's majority status 26 An em- ployer who rejects the bargaining unit claimed as appropriate by the union does so at his peril.27 The same considerations that have led me to find that the Respondents constitute but a single employer for the purposes of the Act, also lead me to conclude that the unit claimed by the Union in its telegram to Preston of July 3 was appropriate. An employerwide unit was also the basis of the election in 1961, although the few employees at the branches in Bowling Green, Kentucky, and'Columbus, Indiana, were not then included. After the Union filed its petition on July 5, 1963, Preston agreed, moreover, to the unit claimed by the Union. The fact that he may have done so in order to expedite the election hardly seems decisive, since a finding that a unit is appropriate is not necessarily based on the agreement of the parties. By agreeing to the unit claimed by the Union, Preston at least indicated that he could live with it. Indeed, an employerwide unit is presumptively appropriate.28 I find, therefore, that the unit appropriate for the purpose of collective bargain- ing consists of all the production and maintenance employees of P.B. & S., Preston Chemical, and Hat-Ra at their plants and warehouses at Henderson, Paducah, and 25 See Valley Feed and Supply Co., Inc., 135 NLRB 778, especially at 796, in which my findings were affirmed by a majority of the Board panel 2s See Joy Silk Hills, Inc. v. N.L R.B., 185 F. 2d 732, 744 (C A.D C ), cert. denied 341 U.S 194, 195; N.L.R.B. v. Irving Taatel, et al, d/b/a Tastel and Son, 261 F. 2d 1, 4-5 (C.A. 7) ; N.L R.B. v. Piezo Manufacturing Corp., 290 F. 2d 455, 456 (C.A. 2) ; N.L R.B. v. The Howe Scale Company, 311 F. 2d 502, 505 (C.A. 7) ; N.L.R.B. v. Larry Foul Oldsmobile Co., Inc., 316 F. 2d 595 (C.A. 7) ; N.L.R.B. v. Daniel Crean, et al., d/b/a The Grand Food Market, 326 F. 2d 391 , 396-397 (CA. 7). =' See Tom Thumb Stores, Inc., 123 NLRB 833, 834-835 21 See Western Electric Company, Incorporated, 98 NLRB 1018, 1032 ; Maratile Manu- facturing Co., 124 NLRB 48, 49-50; Green Construction Company and Tecon Corporation, a Joint Venture, 133 NLRB 152, 153; Owens -Illinois Glass Company, 136 NLRB 389, 392. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bowling Green, Kentucky, and at Columbus, Indiana, including truckdrivers, but excluding office clerical, seasonal, and professional employees, guards, and super- visors within the meaning of the Act. Of course, a union claiming the right of representation is, ordinarily, under an obligation to offer to prove its majority status. Clearly, the Union fulfilled this obligation when in its telegram of July 3 it offered to prove its majority by any means "mutually agreeable." I am unable to perceive the force of the argument that is advanced that, since the offer presupposed mutual agreement, it was equivocal and indeed a cleverly contrived scheme of the Union to avoid having to prove its majority. Moreover, Preston was not relieved of his duty to bargain merely be- cause the Union on July 5 also filed a representation petition, nor by the fact that the Union subsequently withdrew the petition and filed charges. Furthermore, Preston by offering to consent to an election did not necessarily establish that he was acting in good faith 29 The Board has held that the date as of which a union's majority is to be deter- mined is the date of the receipt of its request for bargaining rather than the date when its request was sent.30 As Preston did not receive the Union' s telegram of July 3 until July 5, the Union's majority must be determined as of the latter date. As of the week ending July 6, 1963, there were 42 employees on the payrolls of P.B. & S., Preston Chemical, and Hat-Ra in the appropriate bargaining unit31 However, although the name of Leslie Smithhart appears on the P.B. & S. payroll list for the week ending July 6, his own testimony-subsequently given-shows that his name must have been erroneously listed, for he was not actually hired until the latter part of July. In addition, the termination list in evidence shows that the employee whose name is Dave Greenfield, and who appears on the Preston Chemical . payroll list for the week ending July 6, was actually terminated on July 3. As the determinative date is July 5, Greenfield must also be excluded. I conclude, there- fore, that when the Union's bargaining request was received, there were only 40 employees in the appropriate bargaining unit. To establish a majority, the Union must show that it had obtained authorizations from a majority of the 40 employees in the appropriate bargaining unit by July 5. A majority of 40 would be 21. Counsel for the General Counsel offered in evi- dence 29 cards that are not only applications for membership in the Union but also express authorizations to the Union to represent and bargain for the employees who signed them If the signatures are valid, and the cards were signed on or before July 5, the Union clearly would have a majority of eight. There are 22 cards in evidence that are dated June 29 32 The evidence clearly shows that 16 of the 22 employees who signed the cards were present at the meet- ing and signed the cards while they were at the meeting. All but 4 of these 16 card signers themselves testified at the hearing and identified their signatures.33 In addi- tion, as already mentioned, Boldry, although not present at the June 29 meeting, signed his card the evening of that day. Before the end of that day, therefore, 17 of the employees had signed valid union authorization cards. Although the authorization cards of McGregor, Major, Wilkerson, and the two Floyds are dated June 29, 1963, they were not, however, actually signed on that date. See Arts & Crafts Distributors, Inc., 132 NLRB 166, 169, and earlier authorities there cited. ao See Rea Construction Company, 137 NLRB 1769 , 1770, and earlier authorities there cited ii There are 44 employees on the 3 payroll lists (General Counsel's Exhibit No. 4) but counsel stipulated that Johnnie Scott, who is a night watchman, and Wilbur Pirtle, who is a supervisory employee, should be excluded. sz These are the cards of Robert Ray Perdue, Richard Hodges Beals, Norris Jackson White, Robert M Gish, Jr., James Randolph, Paul Jones, Roger T. Bowling, John Christian Below, Darrel Thomas Hoover, Jack Conner, James Wilson, James Reed Miller, Floyd S. Cruse, Andrew Kritzer, Jerry Bart McGregor, John D. Boldry, George T Farley, Jr., George D. Major, Edward Floyd, Thurman M. Floyd, David Lee Pruitt, and Stephen L. Wilkerson. The names italicized are those of the employees who actually signed their cards on June 29. 23 The employees who did not testify at the hearing are White, Randolph, Cruze, and Kritzer. Although Beals also testified, he was called as a witness by the Respondents and was not asked about the signing of his union authorization card. However, Foster testi- fied that all five of these employees were present at the June 29 meeting. P.B. & S. CHEMICAL COMPANY, ETC. 177 McGregor, the Preston Chemical janitor, worked in Paducah and he was not present at the June 29 meeting in Henderson. There is either a smudge or an erasure in the date line of McGregor's card, which he could not explain in his testimony. McGregor testified that he "believed" that he signed his card while a boxcar was being unloaded and while a couple of truckdrivers were in from Henderson, and that he was the last one to sign a card. This does not mean, how- ever, that he must have signed his card on some other day. He could have signed his card later than the others but on the same day. Counsel for the Respondents assume that McGregor testified that he signed his card on a Saturday, and pro- ceeded to deduce therefrom that he must have signed it on July 6, the Saturday following the meeting in the Soaper Hotel. Actually McGregor testified repeatedly that he could not remember on what day he did sign his card. There is evidence, however, explaining the misdating of the cards of Major and Wilkerson, both of whom testified concerning this matter. The cards signed by them were given to them by Jones on the P B & S. parking lot the morning of July 1, and both of them signed the cards at the same time but dated them June 29 at the suggestion of Jones, who told them they would be better protected if their cards bore the same date as the union meeting at the Soaper Hotel. Jones' sug- gestion must be considered as deplorable as the practical joke which he played on Duncan. Nevertheless, the evidence is clear and convincing that Major and Wilker- son did sign their union authorization cards on July 1, which was 2 days before the Union's request for recognition. The testimony of the two Floyds, who are kinsmen, is very confusing. Edward Floyd testified that the card which he signed was brought to his'home by Thurman Floyd, but he could not remember exactly what day that was. In attempting to fix that day approximately, Edward Floyd caused confusion by using the verb "to sign" when he should have used the verb "to fill out." Thus, he testified that he signed the card "approximately one day" after the meeting at the Soaper Hotel of which he was aware but which he had not attended. But, actually, he had filled the card out, except for the date, in the evening of the day of the Soaper Hotel meeting on June 29. When he came to turn his card in, he further testified, he discovered that he had not dated it, and asked Perdue for a pen to fill in the date, which he determined by looking at the calendar Apparently, he chose the date on which he had filled out the card rather than the date on which he had signed it. In his testimony, he did not himself indicate where or when he had encountered Perdue but Perdue testified that he received Edward Floyd's card from him the afternoon of July I in the drumroom of the P.B. & S. plant. Perdue further testi- fied that when he saw the card it was completely filled out except for the date; that Edward Floyd borrowed his pen in order. to fill in the date, and that after fill- ing in the date, Floyd stuck the card in Perdue's jacket pocket. Edward Floyd's card itself shows that it was filled out entirely in pencil in a very poor and wobbly handwriting except for the signature and the date of application, and that the sig- nature is in black ink, while the date is in blue ink. Since the signature and the date were written at different times, there is nothing remarkable in this. But, the date is so neatly written, and the figures in the 6/29/63 date simply do not look as if they were written by the same person who wrote the other figures on the card, such as the dates of birth and employment and the social security number. While I lay no claim to being a handwriting expert, it seems to me that the date of appli- cation was actually filled in by Paul Jones, and that Perdue was mistaken in testify- ing that Floyd himself dated the card. Thurman Floyd testified that the card signed by him was brought to his home by Boldry. Although he could not remember whether he received the card on a work- ing day or Saturday or Sunday, he did recall that Boldry told him that the men had had a meeting at the Soaper Hotel. Thurman Floyd further testified that after filling out the card, he carried it to Paul Jones' house. Jones testified that he found the card at home-it had been left with Jones' wife-on Sunday, June 30, and that finding that the "occupation" and "date of application" lines were blank, he filled in both in ink. The rest of the card had been filled in by Thurman Floyd himself in pencil, as he himself had testified, after he had been made to understand the questions being put to him. As Jones also testified in relation to the union authori= zation cards in general that he had put the dates on some cards himself, there is all the more reason to believe that he put the 6/29/63 date not only on Thurman Floyd's card but also on one or two other cards, such as McGregor's. There is also, a. group of six cards which are dated July 1, 1963,. the Monday following the Soaper Hotel meeting. These cards were signed by Richard S Barnard,, a laborer on the P.B. & S. payroll; by James B. Shaw, a lift-truck driver on the 7 60-5 7 7-6 5-v o 1 148-13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Preston Chemical payroll; by Robert Eual Kinsey and Wallace E. Lawrence, truck- drivers on the Preston Chemical payroll; and by Dorris Dixon and Terry Gibbs, two of the employees on the Hat-Ra payroll who require no further identification. Paul Jones had nothing to do with the signing or dating of these cards as appears from the testimony of the employees who signed them. Every one of the six employees whose card is dated July 1 testified clearly that he not only signed the card but that he himself dated it. It is true that Dixon was not sure of the calendar date on which he signed the card, which he thought was July 3, but he was sure that he signed the card on a Monday following the union meeting and this could have been only July 1. Thus Dixon testified: Q. What day did you sign the union card? A. On a Monday. Q. What date? A. 3rd. Q. What's that? A. 3rd. Q. 3rd of what? A. July. Q. You're sure about that? 'A. Not exactly, no. It was a Monday following the date the union cards were signed. Of the six employees who signed their cards on July 1, all but Gibbs testified concerning the circumstances under which they came to sign their cards, and there is nothing in their testimony that casts any doubt on the validity of their cards. Barnard, who, as a P.B. & S. employee, lived in Henderson, testified that it was Perdue who gave him his card on the plant parking lot, and asked him to sign it if he wished to apply for union membership. Dixon, who as a Hat-Ra employee also lived in Henderson, testified that he obtained his card from his wife and that he signed it at home. Dixon also testified that after signing his card, he took it, to- gether with three other cards, to Foster, the union organizer. , Shaw, Kinsey, and Lawrence, who as Preston Chemical employees lived in Paducah, testified that they obtained their cards at the Paducah plant when they were being passed around there by someone. Kinsey and Lawrence could not remember who that someone was but Shaw testified positively that his card was brought to him by Jack Conner. This testimony of Shaw is of particular interest in connection with the attempt of the Respondents to cast doubt upon the possibility that any of the truckdrivers who worked for Preston Chemical at Paducah could have signed any cards on July 1. It was for the purpose of attempting to establish this that Pirtle had really been called as a witness. Pirtle testified that the first truckdriver to visit the plant from Henderson during the week of July 1 came on July 3. But, obviously, it would not necessarily have to be a truckdriver from Henderson who would bring union authorization cards from Paducah. It could be one of the other Preston Chemical employees who attended the union meeting in Henderson on June 29. As June 29 was a Saturday, any employee who attended the meeting would naturally return home to Paducah Conner, who was a warehouse employee, himself testi- fied that he was at the June 29 meeting at the Soaper Hotel in Henderson. Shaw's testimony that he obtained the union authorization card which he signed from Conner indicates the way the cards no doubt reached Paducah. Moreover, Conner was not the only employee from Paducah, for he testified that he "took a couple of guys" along with him. Despite the misdating of the cards of Major and Wilkerson, there appears to be no good reason for rejecting them, since both of these employees had perfectly clear recollections that they signed their cards on July 1. If the evidence relating to the other misdated cards-those of McGregor and the two Floyds-were to be evaluated wholly without reference to the evidence relating to the union campaign as a whole and Preston's reaction to that campaign, the cards of these employees would have to be rejected. Such an evaluation would be, however, highly unrealistic. The Union's campaign was, clearly, a concerted effort made between June 29 and July 1,34 and by July 3 Preston himself was acting as if the Union had a majority. It would also have to be taken into consideration, moreover, that the misdating of the cards 31 Indeed, after July 1, the Union obtained only one other authorization card. It was the card of Franklin D. Eblen, a P.B. & S. truckdriver, who signed it on July 6 at a tavern called Bright Star when he was there with "some fellows." Eblen could not re- member who these fellows were. P.B. & S. CHEMICAL COMPANY, ETC. 179 was not motivated by any desire to establish a majority as of an earlier date but to afford greater protection to the signatories. However, this motive was not of a kind that had as its objective giving the Union either a greater majority than it already had, or giving it a majority as of an earlier date. There is, therefore, also no good reason for adopting the "infection" theory, and holding that Jones' mis- conduct deprived the Union of the majority which it undoubtedly had achieved for even if the authorization cards of McGregor and the two Floyds were to be dis- regarded the Union would still have a majority of 4, based on having obtained authorization cards from 25 of the 40 employees in the appropriate bargaining unit. Moreover, if all the misdated cards were to be disregarded, the Union would still have a majority of two. I conclude, therefore, that when on July 3 the union requested recognition, it represented a majority of the employees in the appropriate bargaining unit. The validity of the Union's authorization cards is also attacked on the familiar ground that the employees were told at the June 20 meeting that the only purpose of the signing of the cards was to get an election, and that they would then be free to vote against the Union if they so desired. Counsel for the Respondents sought to elicit such testimony through cross-examination of five of the General Counsel's witnesses but without success, and they then called five witnesses of their own, who in response to leading questions would testify on direct examination that they were told that the purpose of the cards was to get an election, and confess on cross- examination that this was really only what they understood.35 These witnesses also revealed what their motives may have been in signing the cards, such as that they did not want to be thought yellow; and some of them even declared that they intended to vote against the Union if there were an election. A strange aspect of the testimony of virtually all of these witnesses was that they kept on protesting that they remembered little or nothing of what was said at the June 29 meeting in the very same breaths that they were purporting to relate what they were told at the meeting. One of these witnesses, Jack Conner, who had actually taken cards back to Paducah to sign up other employees, as already mentioned, ended up by declaring that he would not even walk across the street to get into the Union, although he had traveled over 100 miles from Paducah to get to the union meeting of June 29! I credit none of the testimony of these witnesses insofar as it may suggest that mis- representations were made to the employees who were present at the June 29 meeting. What was really said at the meeting was finally well summarized by one of these witnesses, John Christian Below, when he testified during his direct ex- amination: "They told what all the union could do for us, what they would do for us and then they passed out the cards and asked if we would sign them. We signed them and that was it " Below also finally admitted that what the employees at the meeting were told was: "If they had 30 percent of the cards they could just .file for an election-if they had a majority they could ask for recognition by the com- pany. ." It was, of course, natural for both of these possibilities to be discussed at the June 29 meeting , since the Union had not as yet achieved a majority. Counsel for the Respondents also contend that Preston had a good-faith doubt that the Union represented a majority of his employees, and that this doubt could be based on the reputation of the Union. The conduct of the union in the Bedford- Nugent case is advanced as the basis for this contention. But, whatever the conduct of the union in that case may have been, it has no bearing on the rights of the Union in the present case. It is not shown in the present case that the Union was guilty of any act of coercion in achieving its majority status. Counsel for the Respondents were informed that they were at liberty to show any acts of coercion against any of the Respondents' employees, including even employees who had not signed union authorization cards, of which they had knowledge. Not a scintilla of such evidence was, however, produced. In any event, the Respondents could advance only a good- faith doubt based on numerical considerations. The general reputation of the Union could not be the basis of such a doubt 36 It -is of some interest that Preston did not mention the Bedford-Nugent case, or the general reputation of the Union in turning down its request for recognition in his letter of July 5 to the Union. These considerations were advanced only at the hearing, and must, therefore, be regarded as afterthoughts. as As one of these witnesses, Robert Grish, put it "For an election, yeah, what I under- stood " The motives and intentions of card signers are immaterial. See Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645, 648; Gorbea, Perez & Morell, S. en 0, 132 NLRB 362; Gary Steel Products Corporation, 144 NLRB 1160; Mary Chess, Inc., at al, 145 NLRB 1200 86 Compare Alto Plastic Manufacturing Corporation, 136 NLRB 850. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the last analysis, however, the contention that Preston's refusal to bargain with the Union, and his insistence upon an election were predicated on a good-faith doubt of the Union's majority status must be rejected because he had already embarked upon a course of unlawful conduct designed to undermine the Union. An em- ployer cannot embark upon an antiunion campaign and still claim that he is acting in good faith. As the Board has recently declared: While an employer may request a Board election as proof of a union's majority status, the right to do so is not absolute. Where insistence is motivated not by any bona fide doubt as to the union's majority status, but rather by the rejection of the collective bargaining principle, or a desire to gain time within which to undermine the union, such insistence is unlawful 37 IV. THE REMEDY As the scope of the unfair labor practices of the Respondents is extensive, I shall recommend a broad form of cease-and-desist order, designed not only to prevent the repetition of .the specific unfair labor practices in which the Respondents have engaged but also to effectuate all the guarantees of Section 7 of the Act. I shall further recommend that the Respondents take appropriate affirmative action to effectuate the policies of the Act. As affirmative relief, I shall recommend that the Respondents offer Paul Jones, Terry Gibbs, Robert Ray Perdue, and Stephen Wilkerson immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing, if necessary, any employees who may have been hired to replace them. I shall further recommend that each of them be made whole for any loss of pay he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his dis- charge to the dates of the Respondents' offer of reinstatement, less his net earnings during said period. The amount of backpay is to be computed on a quarterly basis in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be computed on the amount so determined in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. I also recommend that the Respond- ents shall make whole Roger T. Bowling for the loss of pay which he sustained as the result of the 4 weeks' delay in granting him the raise to which he was entitled. When the amount has been determined, interest shall also be added to such amount at the rate of 6 percent per annum. CONCLUSIONS OF LAW 1. The Respondents, P.B. & S. Chemical Company, Hat-Ra Chemical Company, and Preston Chemical Company, are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and are jointly and severally liable for the redress of the unfair labor practices committed by them. 2. Chauffeurs, Teamsters and Warehousemen's Local Union No. 215, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating their employees concerning their union membership, activities, and desires; by threatening to tear their business down brick by brick; to discontinue their trucking operations; to withhold benefits from disloyal employees; to discharge employees or to engage in other forms of reprisal if their employees became or remained members of the Union; by granting a mileage increase to their over-the-road truckdrivers and by promising or conferring other forms of benefits upon their employees if they refrained from becoming or remaining members of the Union, the Respondents interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby com- mitted unfair labor practices affecting commerce within the meaning of Section 8 (a) (l) of the Act. 4. By discharging Paul Jones, Terry Gibbs, Robert Ray Perdue, and Stephen Wilkerson because they had joined or assisted the Union or engaged in other con- certed activities for their mutual aid or protection or because the Respondents be- lieved that they had engaged in such activities, the Respondents discriminated with respect to the tenure of employment of these employees, and thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (t) of the Act. 37 Arts and Crafts Distributors, Ina, supra; to the same effect are Elliott-Williams Co. Inc., 143 NLRB 811,"; arid.Mid-West'Toae'el & Linen Service, Inc., 143 NLRB 744. P.B. & S. CHEMICAL COMPANY, ETC. 181 5. By withholding a wage increase from Roger T. Bowling for a period of 4 weeks, and by conditioning the hiring of Leslie Smithhart, an applicant for employ- ment, on his refraining from supporting the Union, the Respondents discriminated with respect to the terms or conditions of their employment, and thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) of the Act. 6. All production and maintenance employees of P.B. & S. Chemical Company, Hat-Ra Chemical Company, and Preston Chemical Company at the plants and warehouses of these Respondents at Henderson, Paducah, and Bowling Green, Kentucky, and at Columbus, Indiana, including truckdrivers, but excluding office clerical, seasonal, and professional employees, guards, and supervisors within the meaning of the Act, constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 7. At all relevant times since July 3, 1963, the Union has been the exclusive representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 8. By failing and refusing to bargain with the Union as the exclusive representa- tive of the employees in the aforesaid appropriate unit, the Respondents have com- mitted an unfair labor practice affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. RECOMMENDED ORDER Upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is hereby recommended that the Respondents, P.B. & S. Chemical Company, Hat-Ra Chemical Company, and Preston Chemical Company, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating their employees coercively concerning their union membership, activities, and desires; threatening to tear their business down brick by brick, to discontinue their trucking operations, to withhold benefits from disloyal employees, to discharge employees or to engage in other forms of reprisal if their employees became or remained members of the Union; granting mileage increases to their over-the-road truckdrivers and promising or conferring other forms of benefits upon their employees if they refrained from becoming or remaining members of the Union. (b) Discouraging membership in Chauffeurs, Teamsters and Warehousemen's Local Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. or any other labor organization of their em- ployees, by discharging or in any other manner discriminating against employees or applicants for employment with respect to their hire or tenure of employment or any term or condition of their employment. (c) Refusing to bargain collectively with the Union with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment in the bargaining unit hereinbefore described as appropriate. (d) In any other manner interfering with, restraining, or coercing their employees in the exercise of the rights euaranteed in Section 7 of the Act. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Offer to Paul Jones, Terry Gibbs, Robert Ray Perdue, and Stephen Wilkerson immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay he may have suffered by reason of the Respondents' discrimination against him in the manner and to the extent set forth in the section of this Decision entitled "The Remedy." (b) Make Roger T. Bowling whole for the loss of pay which he sustained as a result of the delay in granting him a raise in the manner and to the extent set forth in the section of this Decision entitled "The Remedy " (c) Upon request, bargain collectively with the Union as the exclusive repre- sentative of the employees in the bargaining unit hereinbefore described as appro- priate and embody in a signed agreement any understanding which may be reached. (d) 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 to analyze and compute the amounts of backpay due under the terms of this Recommended Order. (e) Post at its places of business, plants, or warehouses at Henderson, Paducah, and Bowling Green, Kentucky, and at Columbus, Indiana, copies of the attached 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice marked "Appendix." 38 Copies of said notice, to be furnished by the Regional Director for Region 25, shall, after being duly signed by the president of the Respondents, be posted by the Respondents immediately upon receipt thereof, and be maintained by them 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 the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision and Recommended Order, what steps they have taken to comply therewith.39 Ps In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to carry out the policies of the National Labor Relations Act, we hereby notify you that: WE WILL NOT interrogate our employees concerning their union member- ship, activities, or desires in any manner which violates Section 8(a)(1) of the Act. WE WILL NOT threaten to tear our business down brick by brick, or to dis- continue our trucking operations, or to withhold benefits from disloyal em- ployees, or engage in any other form of reprisal if our employees become or remain members of the Union. WE WILL NOT grant mileage increases to our over-the-road truckdrivers or promise or confer other forms of benefits upon our employees upon the con- dition that they refrain from becoming or remaining members of the Union. WE WILL NOT interrogate applicants for employment concerning their attitudes towards union organization or activities. WE WILL NOT discourage membership in Chauffeurs, Teamsters and Ware- housemen's Local Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor orga- nization of our employees, by discriminating with respect to the hire or tenure of their employment or any term or condition of their employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act WE WILL offer to Paul Jones, Terry Gibbs, Robert Ray Perdue, and Stephen Wilkerson immediate reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL also make whole Roger T. Bowling for his loss of pay when his raise was delayed for a period of 4 weeks. WE WILL, upon request of Chauffeurs, Teamsters and Warehousemen's Local Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, bargain collectively with the said Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody the terms of such agreement in an appropriate contract. All our employees are free to become or remain or to refrain from becoming or remaining members of any labor organization of their choice. P.B & S. CHEMICAL COMPANY, HAT-RA CHEMICAL COMPANY, PRESTON CHEMICAL COMPANY, Employers. Dated------------------- By------------------------------------------- (President) (Title) METAL ARTS COMPANY 183 NOTE.-We will notify 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 and the Universal Military Training 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. Any employee having a question concerning the above notice or what it requires may inquire by mail, telephone, or in person at the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Mel- rose 3-8921. Metal Arts Company and Richard W. Johnson. Case No. 23-CA- 1703. August 4, 1964 DECISION AND ORDER On May 6, 1964, Trial Examiner William Seagle issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief ; the Respondent filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the 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 Trial Ex- aminer's Decision and the entire record in this case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' [The Board dismissed the complaint.] 1 Contrary to contentions made here, we do not find sufficient basis in the record, con- sidered as a whole, for rejecting the Trial Examiner's credibility resolutions . Standard Dry Wall Products, Inc., 91 NLRB 544. We adopt the conclusions of the Trial Examiner which are based upon the credited testimony , but do not adopt or pass upon opinions included in his Decision which assume facts different from those found. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner William Seagle at Houston, Texas, on January 20, 21 , and 22, 1964, upon a charge filed on October 24, 1963, and a complaint issued on December 5, 1963, alleging that the Respondent had violated Section 8 (a) (1) and (3) of the Act . Subsequent to the hearing counsel for the Gen- eral Counsel and for the Respondent filed briefs , which have also been considered. 148 NLRB No. 18.