Plains Cooperative Oil Mill

PLAINS COOPERATIVE OIL MILL 1003 Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, Eastern Columbia Building, 829 South Broadway, Los Angeles, California, Telephone No. 688-5206. Plains Cooperative Oil Mill and United Packinghouse, Food and Allied Workers, AFL-CIO. Case No. 16-CA-016. Septem- ber 7,1965 DECISION AND ORDER On April 16, 1965, Trial Examiner Rosanna A. Blake issued her Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. She further recommended that the complaint be dismissed inso- far as it alleges that the Respondent engaged in conduct violative of the National Labor Relations Act, as amended, other than that found in her Decision. Thereafter, the General Counsel and the Respondent filed, respectively, exceptions and cross-exceptions to the Trial Exam- iner's Decision, with supporting briefs.' Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modifications.2 1 The General Counsel also filed a motion to strike Respondent 's exceptions, brief, and brief index on the ground of untimeliness , and a motion to strike a portion of Respond- ent's brief as exceeding the scope of the exceptions . Respondent moved to strike Gen- eral Counsel's exceptions and supporting brief for lack of specificity . The motions to strike lack merit and are hereby denied. Respondent's exceptions are clearly intended to serve as cross-exceptions, within the meaning of Section 102.46 ( e), Rules and Regu- lations and Statements of Procedure , Series 8, as amended , and will be treated as such. 2 We concur in the Trial Examiner's conclusion that Respondent's use of a questionnaire among its employees concerning the unfair labor practices with which it was charged was unlawful and violative of Section 8(a) (1) because of Respondent 's hostility toward the Union and the further fact that employees were neither told that their participation in answering such questionnaire was voluntary nor were they assured that no reprisals would result. Joanne's Poultry Co ., 146 NLRB 770, 775. Accordingly , we find it un- necessary to consider or rely on additional reasons cited by the Trial Examiner to the effect that employees chosen for questioning were arbitrarily selected or that a question as to whether employees had given a statement to anyone had "nothing to do with the facts in issue." 154 NLRB No. 86. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. In concluding that L. C. Williams was discharged in violation of Section 8 (a) (3), the Trial Examiner found that the false saw-sharpen- ing report allegedly submitted by L. C. Williams to Supervisor Adams never, in fact, existed. The testimony of employees Slay and Rafe that, on the day of Williams' discharge, Adams showed them two reports in explaining to them the reason for the termination of Wil- liams, makes it seem plausible that they were shown a report which contained a falsification. As we understand the reporting system used by the Respondent, if Adams had merely been telling the two employ- ees that that report showed that Williams had failed to change a saw, as surmised by the Trial Examiner, he would have had to display only one report. In order to establish that a. false entry had been made, however, it would have been necessary to compare the suspect report with a prior one. Since Adams showed the employees two reports, it seems likely that he was pointing out such a falsification, and Rafe's testimony indicates that this was the purpose of the comparison. On the other hand, Respondent's failure to retain the report is a surpris- ing departure from its demonstrated practice of preserving evidence in cases involving potential unfair labor practice charges, and perhaps warrants the Trial Examiner's conclusion that the report contained no falsification which could be attributed to Williams. At any rate, we believe that the other relevant evidence, including Williams' favor- able attitude toward the Union, known to the Respondent ; his activity on behalf of the Union shortly preceding his discharge; the conflicts in the testimony of Respondent's witnesses Adams and Slay relating to the same events; Respondent's union hostility, as exemplified by its interrogation, threats, and creation of an impression of surveillance of the employees' union activities, which the Trial Examiner found violative of Section 8(a) (1) ; and the inconsistencies in Adams' sev- eral explanations of the reason for Williams' discharge, afford a suffi- cient basis for the finding that Williams was terminated for reasons proscribed by the Act. 2. The Trial Examiner found that Respondent discriminated against employee George Williams, and thereby violated Section 8(a) (1) and (3), by assigning him to duties which isolated him from other employ- ees, for the purpose of frustrating his organizational efforts on behalf of the Union. Although the complaint alleged that Respondent began an intermittent pattern of job discrimination as early as September 23, 1963, the Trial Examiner found violative only certain assignments given to George Williams on and after the middle of February 1964, i.e., those discriminatory assignments occurring within the 6-month period prior to April 30, 1964, the date on which an amended charge, specifically alleging such discrimination against Williams, was served on Respondent. However, we note that the original charge, served on March 17, 1964, alleged that Respondent had engaged in unfair labor PLAINS COOPERATIVE OIL MILL 1005 practices within the meaning of Section 8(a) (1) and (3) by discharg- ing a designated employee and by committing "other acts and conduct ... [which] interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act." The quoted language sufficiently encompasses the allegations relating to Williams' job discrimination which were later specified in the com- plaint. Since the original charge was served on March 17, 1964, it per- mits a finding that all of the discriminatory assignments, which began September 23, 1963, and continued, at the times alleged, until the hear- ing, were in violation of Section 8 (a) (1).3 Although we reject the Trial Examiner's finding that only the job assignments to Williams commencing in mid-February 1964 were vio- lative of the Act, it is nevertheless unnecessary to revise her recom- mended remedy on this point, since the remedy for the additional vio- lation of Section 8 (a) (1) which we are finding is the same as that for the violations of 8 (a) (3) and (1) which the Trial Examiner has found. However, in accordance with the above, we hereby modify the Trial Examiner's fifth conclusion of law by substituting a semicolon for the period at the end thereof, and adding the following: "and by mak- ing such job assignments to George Williams beginning September 23, 1963, until mid-February 1964, the Respondent further violated Sec- tion 8(a) (1)." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Plains Cooperative Oil Mill, Lubbock, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Paragraph 1(a) is amended to read : "(a) Coercively interrogating employees concerning their attitude toward the Union and its adherents, coercively questioning employees about what they are going to testify about, coercively directing employ- ees to fill out a questionnaire concerning alleged unfair labor practices pending before the National Labor Relations Board, without inform- ing the employees of their right to refuse to fill out the questionnaire or that no reprisals would result from their doing or so failing to do so, threatening employees with discharge and loss of benefits if they engage in union activity, limiting the exercise by employees of their right to talk to union adherents and about the union during nonwork- 8 Sam Main and Sons, 127 NLRB 776; Crosby Chemicals, Inc., 121 NLRB 412, reversed on other grounds 274 F. 2d 72 (C.A. 5). 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time, directing them to say that they are against the Union, and creat- ing the impression that the Company is keeping employee union activ- ity under surveillance." 2. Delete from the third full paragraph of the Appendix 4 the final clause, beginning with the words "or about" and ending with the words "the Board," and substitute therefor the words "or about whether they have knowledge of, or have given any statements regarding, matters alleged to be unfair labor practices pending before the Board." & The telephone number for Region 16, appearing at the bottom of the Appendix at- tached to the Trial Examiner 's Decision, is amended to read: 335-4211. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on March 17, and amended charges filed on March 31 and April 29, 1964, the General Counsel, acting through the Acting Regional Director for Region 16, issued a complaint on April 30, 1964, in which it was alleged that Respond- ent had engaged in conduct which violated Section 8 (a) (3) and (1) of the Act. An amendment to the complaint was issued on June 5 and the complaint was further amended at the hearing.' Respondent's answer admitted certain allegations of the complaint, such as the commerce allegations, but denied that it committed any unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner Rosanna A. Blake at Lubbock, Texas, beginning on June 23 and ending on July 1, 1964. The General Counsel and Respondent were represented throughout by counsel and the Charging Party was represented during some sessions by a field representative. All parties were given full opportunity to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. The parties waived oral argument. Counsel for the General Counsel filed a brief as did counsel for Respondent. Upon consideration of the entire record, the briefs, and upon my observation of the witnesses while testifying, I make the following: 2 FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS AND CONCLUSIONS; THE LABOR ORGANIZATION INVOLVED Respondent, a Texas corporation, has its mill and place of business at Lubbock, Texas, where it is engaged in the handling of cottonseed oil and the manufacture of cottonseed products. In the 12 months prior to the issuance of the complaint, a representative period, Respondent manufactured and shipped directly to points out- side the State of Texas products valued in excess of $50,000. Upon the foregoing undisputed facts, Respondent admits and I find that it is, and at all times material herein was, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that United Packinghouse, Food and Allied Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues The issues to be decided are primarily, though not entirely, factual. The com- plaint, as amended, alleges, and Respondent denies, that the Company engaged in X The General Counsel's motion to amend was granted without objection. Respondent's answer is automatically amended either to deny that the events set forth In the amend- ments occurred or, if they are admitted, to deny that they constituted violations of the Act. The General Counsel's motion to correct record and request for leave to withdraw General Counsel's exhibits is granted. The exhibits are those which were to be furnished the court reporter after the close of the hearing. 2 All credibility determinations made herein are based in part upon my observation of the demeanor of the witnesses while testifying. PLAINS COOPERATIVE OIL MILL 1007 conduct which constituted interference, restraint, and coercion and that it discharged employees L. C. Williams and Jesse Spencer because of their union activity and for the same reason, assigned employee George Williams less desirable work and work which kept him isolated from the other employees. Counsel for the General Counsel introduced, without objection, evidence concern- ing events, such as the discharge of employee George Williams in August 1963, which occurred more than 6 months before March 18, 1964, the date on which the first charge was served on Respondent. Although counsel for the General Counsel recognizes that no unfair labor practice findings can be based on the earlier events, he argues that Respondent's conduct during this period establishes that it is hostile toward the Union and therefore sheds light upon events, such as the discharge of employees L. C. Williams and Jesse Spencer, which occurred within the statutory period. As in many Board cases, the conclusions reached depend in large part upon whether the Examiner credits the witnesses for the General Counsel or those for the Respond- ent. Having observed the demeanor of the witnesses and having considered the testimony in the light of all the circumstances, including conduct which was admitted by Respondent, I have concluded that some of the witnesses for each party testified truthfully in some respects and untruthfully in others. Although the general impres- sion seems to be that a witness is either completely truthful or completely untruthful, "nothing is more common in all kinds of judicial decisions than to believe some and not all" of the testimony of a witness. N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2). As a result, "It is no reason for refusing to accept everything a witness says, because you do not believe all . . ." that he says. (Ibid.) B. Background 1. Respondent's surveillance of the union meeting on August 15, 1963 In July 1963, some of Respondent's employees became interested in obtaining union representation and, on separate occasions , several employees, including Jesse Spencer and George Williams, met with a representative of the United Packinghouse, Food and Allied Workers, AFL-CIO, herein called the Union. They asked and were told what they had to do to organize the employees. Spencer and Williams signed union authorization cards and were given cards to distribute to other employ- ees. Thereafter, Spencer "contacted" about 40 employees and "signed up" about 30 and George Williams obtained about 20 signed cards. The cards were given to the union representative and a union meeting was sched- uled for the afternoon of August 15 at the Carpenters' Hall in Lubbock. As Spencer, George Williams, and a number of other employees were standing outside the hall waiting for the union representative to arrive, Personnel Director Wayne Martin, Assistant Plant Superintendent Bob Thomas, and Supervisors Clyde (Doc) Adams and Warren Hastings drove by several times.3 One of the employees said, "There come the supervisors," and James Johnson and B. W. Swanson left. Swanson, how- ever, returned a few minutes later. After the employees went inside, the car in which Martin, Thomas, Adams, and Hastings were riding was seen in the parking lot next to the hall and Adams was seen to point with his finger at various cars in the lot. The car remained in the lot only a minute or two 4 2. The events of August 17 Two days later, on August 17, the Company held employee meetings at the plant. Plant Manager Roy B. Davis testified, "We heard of some extra union activities so we 8It is undisputed that Martin, Thomas, and Adams are supervisors within the meaning of Section 2(11) of the Act. S Supervisor Adams testified that he drove his pickup truck to the vicinity of the hall, parked it, and "went there in the parking lot and sat there with Wayne [Martin] and Bob Thomas and Warren Hastings." [Emphasis supplied.] He explained that he "heard they were having a meeting so I went up there." When asked if he wanted to see who was there, he answered, "I guess." Martin testified, "We had heard through the plant that they were going to have a meeting, so I was interested in how many they would have there . .. In view of the testimony of Respondent's witnesses I conclude that the witnesses called by the General Counsel were mistaken when they testified that Hollis Reeves was in the car. The findings set forth above are based on the generally nnd'enied and credited testimony of employees Spencer and George Williams and the admissions of Assistant Superintendent Thomas, Personnel Director Martin, and Super- visor Adams. 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called a meeting of our employees." 5 The speakers were Manager Davis and Plant Superintendent H. D. "Pete" Reeves. Davis told the employees that he knew that some of them were trying to organize a union, that he did not see why they needed a union , and that they had a committee to carry their troubles to.6 Davis also told the employees that they would get a pay increase in September and a 6-cent increase was granted on September 6.7 Apparently there had been some change in the sick leave system and Davis also told the employ- ees they would "get [their] sick leave back." 8 Davis told the employees that they were free to speak and it "wouldn't be held against" them. Employee George Williams spoke up to say that there were two sides to the statements made by Davis and that "before we start criticizing the Union," the employees should hear both sides. He also pointed out that the employees would elect their own officers and committees and that "there wouldn't be any third party involved." 9 After the meeting closed, Assistant Superintendent Bob Thomas told George Williams that the Company had heard that Williams was the leader of the Union at which point Superintendent Reeves told Williams that the Company was not going to have anybody telling it how to run the mill and added, "If you don't like it you can leave." 10 As set forth more fully infra, Williams was discharged the next day. 3. The discharge of George Williams on August 18, 1963 George Williams began working for Repondent on July 15, 1963. He was assigned to the yard section of the yard and maintenance crew which is supervised by Claude Green.ll Between July 15 and August 18, when he was discharged, Williams spent most of the time in the "seed house, feeding seeds and cleaning the seed house." Occasionally, Williams was assigned to chopping or cutting weeds in the plant grounds and it is undisputed that, prior to his discharge, he spent not more than a total of 3 days on this assignment. In other words, the weed cutting assignment was 5 Davis explained that "you hear it around the office there, just general things about cards being passed out, meetings being held , this, that and the other." The above findings are based on the credited testimony of employees Spencer and George Williams . I do not credit the testimony of Respondent's witnesses that no refer- ence was made to a committee. The record discloses that there was an employee com- mittee and it would be only natural for Davis to refer to it when stating the reasons why, in his opinion , the employees did not need a union. 7 Davis admitted that he mentioned a wage increase but testified that he added that it would be granted, "in line with other mills in town." Although I do not believe that Davis referred to the other mills in his talk , I credit his testimony that the two compet- ing mills usually grant increases in the fall , when a new season begins , and Respondent gives its employees the same increase . The 1961 increase was granted on September 29, the 1962 increase on November 2. There is no evidence that in previous years the Com- pany announced the increases several weeks before they were put into effect. 9 Davis testified that he mentioned sick leave "because we had considerable trouble with the sick leave program which we had in effect at the time . We felt like it was being abused and I told [ the employees ] that we would study the matter and try to come up with something fair to the men and something fair to the [Company]." As set forth infra, Respondent pointed out at the hearing that the early prehearing statements of several of the witnesses for the General Counsel do not refer to conversations set forth in later affidavits and about which the witnesses testified . For example, there is no reference in any of Spencer's statements to any mention by Davis of sick leave. Yet, Davis' own testimony discloses that he did talk about sick leave. 91 credit Williams' testimony that he was the only employee who spoke at the meeting which he attended. There is no evidence that any employee spoke in favor of the Union at the other meeting. 10The above findings are based on the credited testimony of Williams . Although his prehearing statement, dated August 24, 1963, does not refer to the conversation set forth above, it 1s clear from the testimony of Assistant Superintendent Thomas that there was a conversation although his version differs somewhat from that of Williams '. According to Thomas , he heard Williams say that "he wasn't the one who was getting the Union in," that it was the employees, to which he ( Thomas ) commented, "I heard that you was the one that was the head of It." Thomas also testified that he and Williams were talking about sick leave and Williams asked why the Company did not penalize only those employees who were abusing the sick leave plan instead of all employees and that Superintendent Reeves asserted that no one was going to tell him how to run the plant. u The complaint alleges and Respondent's answer admits that Green is a supervisor within the meaning of Section 2 (11) of the Act. PLAINS COOPERATIVE OIL MILL 1009 rotated among the yard employees who were sent out in groups with the result that no employee was assigned to the job 8 hours a day, 6 days a week, week in and week out.12 Williams was given an 8-cent-an-hour "automatic" wage increase on August 16.13 Williams was one of the employees standing outside the union hall on August 15 when the supervisors drove by and, as set forth, supra, on August 17 he spoke in favor of the Union at one of the meetings called by management because of the "extra" union activity. After the meeting, Assistant Superintendent Thomas told Williams he had heard that Williams was the "head" of the union group and Superintendent Reeves asserted that no one was going to tell him how to run the mill and if Williams did not like it he could leave. At the close of work on August 18, Supervisor Green took Williams to the office, gave Williams his check, and told Williams that he "didn't want to see [Williams] on the mill yard anymore." 14 Supervisor Green was on vacation between August 1 and 15. He testified that on August 18 he saw Williams "playing with a horney-toad [sic]. He was taking his hoe down and sticking it up in the ground ... I watched him about twenty minutes " Green stated that he was "about a block and a half" away from Williams and when asked how many yards away Williams was, replied, "Oh, I imagine it was about 360 yards." 1' On August 19, Respondent obtained statements from several employees concerning Williams' work. Each stated that Williams would not work when the foreman was absent and complaint about his job assignments.16 One of the employees, Billy J. Morrison, Jr., testified without denial that Superintendent Reeves and Supervisor Green came to where he was working and Superintendent Reeves told Morrison "They'd like to get a statement from [him] saying that George [Williams] wasn't fired because of union activities, [but] because he was a slow worker, loafer, and such as that." "Williams ' testimony concerning his job assignments prior to his discharge is undis- puted and is credited I also credit his testimony that the weed cutting assignment was rotated and discredit Green's contrary testimony . Green did not dispute Williams' testimony concerning his job assignments before August 18 and did not testify that it was his practice to assign the same man or men to cutting weeds for days or weeks at a time Tloreover , there is no evidence that any employees except Williams and Brown ( see infra ) were assigned to weed cutting for long periods. 13 The raise is so designated on Respondent 's Exhibit No . S. However , the designation "automatic" is nowhere explained . The only other "automatic" increase listed was given employee L C Williams about a month after he was hired Other increases , such as the one on September 6, 1963 , are designated "millwide." It seems probable , therefore, that an "automatic" increase is one given an employee after he has served a probationary period 14 Although Williams' prehearing statement dated August 24, 1963, does not refer to the above conversation, Williams' testimony on which the above findings are based is undenied and I credit it 15 After Respondent 's counsel commented, "You can't see a borne -toad [sic] 360 yards away," Green explained that after watching Williams for "about twenty minutes," he got in his truck, drove out to where Williams was and saw holes which he said were made by a hoe handle and "about that time " saw a horneyfrog and told Williams that he had been punching at the frog. After Green repeatedly estimated the distance to be 360 yards, I expressed doubt that Green could see what Williams was doing with the hoe at that distance Thereafter , Respondent called Assistant Superintendent Thomas who testified that he had measured the distance from where Green said he was standing and where Green said Williams was playing with the frog. Thomas testified: A. Well , from this place here where the pickup was at to the fence and four feet beyond is 312 yards. Q. Three hundred and twelve feet A. Three hundred and twelve feet, four feet past the fence. Q. So it's 312 feet rather than yards A. Yes In determining the weight to be given to testimony, I have considered whether it was elicited by means of question which stated the critical facts concerning the event about which the witness was being examined and/or suggested the answers given. 16 One of the statements was given by Isaiah Johnson who was working near Williams on August 18 It contains no reference to the frog incident. Johnson was not a witness. 206-446-66-vol. 15 4-6 5 1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Personnel Director Wayne Martin was also present and asked Morrison if Williams was a loafer or a good worker and Morrison replied that Williams was "slow." 17 Martin then told Morrison that "He wanted [ Morrison] to sign a statement against George [Williams], that he was a slow worker." Martin wrote out a statement which he read to Morrison and which Morrison signed. Morrison was not told that he could refuse to sign the statement , he was not told that no action would be taken against him if he did not sign it , and he was not told that the Company was not interested in his union activity . He was told , however, that the statement "wouldn't be shown." 18 At the hearing, Respondent 's counsel asked Morrison if he had ever seen Williams sit down and loaf when the supervisors left. He answered, "At some times we'll all kind of relax." When asked if he had heard a foreman say anything about Williams' sitting down and not doing his work, Morrison answered , "No, I didn't ." Although the statement signed by Morrison described a conversation between Williams and Supervisor Adams, it is clear from Morrison's testimony that he did not hear the conversation but knew only what Williams and another employee told him immedi- ately thereafter. Supervisor Green testified that he had checked on "several" occasions and had found all of the employees sitting down . He explained that when they saw him they would get up and go to work but that Williams would be the last to do so. It is clear that loafing by employees , including Williams, was not unheard of. Furthermore, I do not believe that Williams would have been given an 8 -cent-an-hour wage increase on August 16, no matter how it was designated , if his loafing had generally exceeded the amount tolerated by the Company Manager Davis testified that Superintendent Reeves told him on August 19 that Williams had been discharged. Reeves assured Davis that the Company was "in the right" but Davis reminded Reeves that the employees had been told that they could speak on either side of the union question "without fear" and that he was "concerned" lest the employees feel that the promise had not been kept 19 As a result, according to Davis, a decision was made to rehire Williams. On or about August 30, i.e , about 12 days after Williams' discharge , a charge was filed alleging that Williams was discharged because of his union activity. On September 3, Respondent sent Williams a letter in which it asserted that he knew that he was discharged for cause but "in order to make sure that no one will get a mistaken idea about this matter, we now offer you reemployment doing the same type of work you were doing previous to your discharge ." Williams was out of town when the letter was delivered but went to the mill about the middle of September and talked to Manager Davis and Superintendent Reeves. Davis repeated that Williams could have his old job back and assured him he would not be "discriminated against." Williams returned to work on September 20. Sometime in October or November 1963, Supervisor Adams had a conversation with employee L. C. Williams at which employee James Beaty was present. George Williams passed by and Adams asked L. C. Williams, "What do you think about George Williams?" L. C. Williams answered that he thought George Williams was doing what he thought was right, that he was trying to get the Union "in" in order to "help the workers." Adams expressed the opinion that Williams came to the Com- pany in the first place "for trouble ." L. C. Williams disagreed and asked why George Williams was fired . Adams did not answer Williams ' question but stated that "more 17 Having been told that the Company wanted a statement to the effect that Williams was a loafer, I think that Morrison cooperated and told 'lIartin that Williams was "slow." My observation of Morrison makes me doubt that he would have argued the matter On the contrary, I believe that he would have given his superiors the answer they had indicated they wanted. Accordingly, I do not credit Morrison's testimony that he told Martin that Williams ' work was "all right." 1s The statement of Edward Brown, dated September 2, asserts that Williams would stop working when the foreman left and "would get the others working with him to stop also." When Brown, a witness for Respondent, was asked on cross-examination bow he came to sign the statement , he answered, "I don't recall how it was myself." He was also asked if he knew what the "paper said" and his reply was, "No , I didn't read it " Brown could not recall who gave him the statement but said that it was neither Super- intendent Reeves nor Personnel Director Martin. 19 Davis testified that he "didn 't want [Williams ] or the men to think that just be- cause a man spoke up that he would be discharged . We didn't feel like that at the time that was the reason. We knew that wasn't the reason he was discharged, but we thought there might be a possibility that Mr. Williams felt that and the other employees " PLAINS COOPERATIVE OIL MILL 1011 guys" would be "fired" if "this union business kept up." Adams also asked L. C. Williams if he would sign a card if the Union came in or an election was held and Williams said he would sign a card "if [the Union] came to the mill." 20 C. Respondent's conduct within the statutory period 1. George Williams' job assignments after his reinstatement Williams returned to work on September 20 and was assigned to the seedhouse where he had worked for the greater part of the time before his discharge. On September 22 or 23, Supervisor Green assigned Williams and employee Edward Brown to chopping weeds and they continued on that job until November 8.21 Williams testified without denial that only he and Brown cut weeds during this period. Supervisor Green did not explain, either to Williams or at the hearing, why he assigned Williams and Brown to cutting weeds for more than 6 weeks or why he assigned Williams to the jobs described below. As stated supra, there is no evidence in the record of similar, long-time assignments in the past. Between November 8 and 11 , Williams and Brown were assigned to cleaning a ventilation hose. From about November 11 until the second week in February 1964, Williams and Lester Winters were assigned to the dump; i.e., they dumped seeds, an inside job. About the middle of February, Williams and three or four other employees were assigned to padding seeds, an outside job, and Williams and R . H. Coleman continued to pad seeds for about a month . The others were transferred to other jobs after 2 or 3 days.22 From about the middle of March to April 1, Williams and three other men 20 The above findings are based on the credited testimony of Williams and Beaty. Although Beaty testified that Adams asked Williams if he would vote for or against the Union and Williams said he would vote for it, I think that at that stage of the union campaign Adams would be more likely to ask about signing a card than about voting in an election. However, Beaty's testimony establishes that Adams asked Williams a ques- tion the answer to which would reveal Williams' attitude toward the Union. I do not credit either Adams' denials that he made the statements or asked the questions about the Union attributed to him by witnesses for the General Counsel or his denial that he knew that Williams was "Union." He admitted that he opposed the Union and that he had "discussed" it a time or two with "some" of the employees. When asked if he had ever asked any employee what he thought about the Union, Adams answered, "Not directly, no, sir." As set forth supra, Adams admitted that he heard about the union meeting on August 15, wanted to see who was there , went down to the area , parked, and joined other supervisors in the parking lot beside the hall in which the meeting was held. It is clear, therefore, that Adams had more than a casual interest in learning the identity of the prounion employees . There is no evidence that, following the events in August, the supervisors were instructed not to ask questions about the Union and to limit them- selves to factual statements or expressions of opinion . Under these circumstances, I do not believe that Adams discontinued his efforts to identify the possible union adherents. Furthermore, I find it probable that the discharge and reinstatement of George Williams would be discussed and, from the Company's point of view, George Williams has caused "trouble" from the time be was hired . Almost immediately , he went to see a union representative and when he was discharged , a charge was filed with the Board. I find it credible, therefore, that Adams would express the opinion that George Williams had come to cause "trouble" and that, when questioned about Williams' discharge , would predict that others would be fired "if this union business keeps going on around here." As the court said in Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F. 2d 100, 103-104 (C.A. 5), "When, as done here, an employer sets out to campaign against a union, one of the risks is that out of zeal , ignorance, or otherwise , foremen , supervisors , and similar representatives in championing the antiunion cause will overstep the mark." Finally, for the reasons set forth infra, I have concluded that Adams did not testify truthfully when he claimed that L. C. Williams falsified a report on January 14, 1964. a The charge alleging that Respondent violated the Act by assigning Williams to cutting weeds was served on Respondent on April 30, 1964 ; i.e., more than 6 months after he was first assigned to cutting weeds. 22 Williams testified , without denial, that Green told him the seeds needed to be padded "before it snowed" and that Green was in a hurry to get the job done. Supervisor Adams testified that he saw R. H. Coleman at the union meeting on August 15. 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cut corners in the seedhouse. On April 1, Williams began working on the trash truck with J. R. Warren. Williams was transferred to another job in late June; i.e., after the hearing opened.23 The union activity between January and May 1964 is set forth infra. 2. The union activity in early 1964 and Respondent's reaction to it There is no evidence of any union activity between George Williams' discharge in August 1963 and late December when L. C. Williams signed a card. In January 1964 employee Jesse Spencer signed a second card and in early 1964 "contacted" about 15 employees of whom "about six" signed cards. The Union distributed union literature on three occasions in February, it filed a representation petition on April 8, and George Williams and others distributed litera- ture at the mill gates on April 9. A Board election was scheduled for May 8 but the Union withdrew its petition, "with prejudice," on May 6. In the early part of February, Supervisor Adams talked to Spencer about the "bad" things about the Union and showed Spencer an Oklahoma oil mill contract which, Adams said, showed that Spencer would make 20 cents an hour less if the employees had a union. Adams also told Spencer that he knew that Spencer was "participating" in the union and was for it. Adams further asserted that he knew "most" of the employees who had signed cards. When Spencer asked who told Adams that he [SpenceiFJ was working for the Union, Adams said that no one had told him but that "they" had told Plant Superintendent Reeves.24 In the middle- of-February, Spencer went to Plant Superintendent Reeves to borrow money. Reeves told Spencer that several of the "guys" had said that Spencer was keeping them to talk about the Union and that Reeves did not want it to continue. Spencer admitted that he had been "participating in the union" and Reeves stated that men from all over the plant had told the Company what had gone on. Reeves said that if Spencer continued to talk, Reeves "would find some little excuse to let a worker go." When Spencer asked who was telling Reeves that he (Spencer) was keeping up the talk about the Union, Reeves refused to tell him.25 24 As noted supra, the General Counsel contends that Williams was assigned to less desirable, outside jobs away from the mill where the other employees worked, because the Company wished to penalize him for his union activity and to reduce his opportunities to talk to his fellow employees about the Union during nonworking time, particularly lunchtime. 24 The above findings are based on Spencer's credited testimony. Adams' contrary testimony is discredited including his denial that he showed Spencer an Oklahoma mill contract. Attorney Price admitted that he asked management to obtain a copy of such a contract but said that it was much later ; i.e., about the end of April or early May. It is clear, therefore, that the Company had such a contract and that it was to be used in connection with the election. Although it may be that Spencer was mistaken about the date, he could not have known that the Company had such a contract if he had not seen it. Adams admittedly told the employees he would have "no part" in the Union, that he talked to them about "what they had, what they might get," and pointed out "It was something worth thinking about, looking out for [themselves]." Adams, of course, did not need to be told that Spencer was "participating" in the Union because Spencer was one of the employees outside the Carpenters' Hall on August 15, 1963, when Adams and other supervisors admittedly were not only in the area but drove into the adjoining parking lot. Under these circumstances, it would be natural and probable for Adams to tell Spencer that he knew that Spencer was for the Union and for him to assert, truthfully or untruthfully, that he knew most of the employees who had signed cards. The above findings are based on the credited testimony of Spencer. Reeves testified that he told Spencer that employees had complained that Spencer was "bothering" them "with union talk" during working hours and that Spencer denied that he was "keeping up the union talk." Reeves' only purpose, he said, was to warn Spencer not to engage in union activity on the job. Reeves admitted that Spencer could have asked where Reeves got his information but denied having told Spencer that he would find an "excuse" to discharge an employee. Spencer had been seen outside the union hall and I doubt that he would deny that he was working for the Union. Moreover, not even one of the many witnesses called by Respondent testified that he heard or saw Spencer engage in union activity on company time. Finally, as set forth infra, I have found incredible Reeves' testimony concerning his alleged conversation with Adams on January 15, 1964, with respect to L. C. Williams. In sum , I do not believe that any employee reported to Reeves that Spencer was talking about the Union during working hours and do not credit Reeves testimony concerning what was said in his conversation with Spencer. PLAINS COOPERATIVE OIL MILL 1013 A day or two later, Spencer told Supervisor Adams that Superintendent Reeves had been talking to him about the union "deal" and Adams asked Spencer what it was all about. Adams also told Spencer that the employees "didn't have any business fooling with the Union." Spencer explained that Reeves refused to tell him who was reporting that Spencer "was keeping the union up" and asked if it was Adams who told Reeves. Adams answered "no" saying that no one had told him about Spencer's role in the Union but repeated that "they" had told Reeves.26 Sometime in February George Williams, Spencer, and employee B. C. Coleman were talking about organizing a quartet for the church and Supervisor Grady Morris came up and told them, "Okay, let's break it up; this kind of church you're talking about is no good." Either on this or another occasion during the same period, Spencer, Williams, and Coleman were talking and Morris called Spencer aside to say that he should not be talking to George Williams because he (Morris) knew what Williams was talking about. Spencer told Morris that he was wrong, that he did not believe Morris knew what the conversation was about.27 About the first week in March, Adams called employee Willie Griffin into the office after Griffin had been talking to employee James Beaty who the Company admittedly knew was prounion. Adams told Griffin that if anybody said anything to him about the Union, to say that he "wasn't for it," it was no good because it could not give him any more than he already had. About a month later, Adams called Griffin into the office a second time and again told him to tell any of the "boys" who talked to him about the Union that he would have nothing to do with it because it was no good. On this occasion, Adams had a report about company benefits and told Griffin that the Union could not get him any- 28 As noted supra, no one needed to tell Adams about Spencer's union activity in view of Adams' admitted surveillance of the union meeting. Adams admitted that Spencer told him that Reeves had talked to Spencer about the Union and that Spencer asked him (Adams) if he had told Reeves about Spencer's union activity. 2' Morris , who is admittedly a supervisor within the meaning of Section 2(11) of the Act, was called as a witness by Respondent but was not questioned about the above con- versation or conversations. Accordingly, the testimony of Spencer and Williams in this respect is undenied and I credit it. Spencer gave three prehearing statements. The first was an unsworn statement given a union representative on March 16, 1964; the second was an affidavit, which incorporated by reference the March statement, given Board Agent Gibson on April 7, 1964; the third was an affidavit, dated June 17, 1964, taken by Board Attorney Eckhardt. Respondent pointed out that the second statement contains information not set forth in the first and that the third one likewise contains new material. According to Respondent, this proves that some one decided to improve the case by having Spencer, each time, add material which is, presumably, per se, untrue. I do not agree. Spencer can barely read and write and his level of intelligence is such as to make him an unlikely person to be involved, on his own or some one else's initiative, in such a scheme. Far more important is the fact that some of his "new" testimony, such as his testimony about his conversation with Supervisor Morris, is undenied. There is also reason to doubt the competence of the person who took the first statement for it is clearly incorrect in at least one respect. Thus, it is dated March 16, 1964, i.e., 2 days after Spencer's discharge, yet it states that Spencer was discharged on March 7. Finally, even if I credited Spencer's testimony only with respect to matters which were contained in his first statement and/or are undenied, the ultimate findings, conclusions, and order would not be materially different. Thus, Spencer's March statement refers to his visit with the union representative in July 1963, his efforts to get others to sign cards, the surveillance of the union meeting, Davis' speech to the employees on August 1.7, the re- newed union activity in early 1964, and the circumstances under which he was discharged. It also sets forth the following conversations with Superintendent Reeves and Supervisor Adams: About four weeks ago I went to the plant superintendent, Pete Reeves, to borrow some money and he asked me in his office. At that time he told me that several of his workers had told him that I was keeping up the talk about the union and that lie didn't want that to continue. He said he had men all over the mill who told him what was going on but when I asked him who he wouldn't tell me. He told me that if it continued (the talk about the union) that he could find any little excuse to let a worker go. A few days later the foreman talked to me about the union and point[ed] out the bad things and at that time he said he knew that I was for the union. I asked him who told him and be said that no one told him, that they had told the plant superintendent but that he (Clyde Adams, my foreman) knew every man that had signed union cards. 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing more than the Company already gave him. Adams also showed Griffin a report about Griffin having been late and mentioned having looked for Griffin for 30 minutes one day without being able to find him.28 3. The discharge of L. C. Williams on January 15, 1964 L. C. Williams began working for Respondent in May 1962. In early 1963, he became a saw changer and shortly thereafter received a 5-cent-an-hour wage increase. The only adverse report in his personnel file is the termination report; i.e., the report made by his supervisor, Clyde Adams, concerning the reason or reasons for his dis- charge on January 15. He signed a union card in late December 1963, and thereafter talked about the union to "several of the guys." Williams testified without denial that one of those he talked to was Respondent's witness Zeb Slay and that the latter did not sign a card. As set forth supra, in a conversation with Supervisor Adams in October, L. C. Williams expressed the opinion that George Williams was trying to organize the employees in order "to help the workers" and, in response to a question by Adams, said that he would sign a card if the Union "came in." za In January 1964, L. C. Williams and employee Slay were saw changers, Williams being the operator and Slay the helper. Their primary job during the day was to change 43 large saws; i.e., to remove dull saws and replace them with sharpened saws.3° They marked on a saw changer report the saws changed with Williams making about 50 percent of the entries and Slay about 50 percent.31 The report is signed by the operator, in this case Williams, and is left for the foreman to pick up. L. C. Williams testified that he and Slay failed to change one saw on January 14. According to Williams, after he and Slay had finished 42 of the 43 saws, he reminded Slay that they had only 1 more saw to change and twice asked Slay if he was going to change the other saw.32 Slay said, "No," that he was tired and did not feel like changing it. As a result, Williams signed the report which showed that one saw had not been changed and left the report in the usual place.33 The next morning, Williams had been working only a short time when, according to Williams' undenied testimony, Adams told Williams he was discharging Williams because he failed to change a saw.34 Williams admitted that one saw had not been changed and explained that he could not get any help. As yet forth more fully infra, Respondent claims that when Supervisor Adams checked the report after 4 p.m. on January 14, he found that it has been falsified, i.e., that a saw which had not been changed was entered as changed, and Adams testified at one point that this was the "only" reason for Williams' discharge. At other times, Respondent claimed that Williams was also discharged in part for having left the mill on January 14.35 Supervisor Adams and his brother, employee Willie E. Adams, ride to and from work together. According to Supervisor Adams, as he and his brother rode home The above findings are based on Griffin's undenied and credited testimony. 83 Earlier in the fall, Superintendent Reeves spoke to employees L. C. Williams and Slay about not changing all the saws and added, "I do not know if you boys are in with this Union business or not, but we have always been able to stop the Union." Respond- ent's witness Slay was not asked whether or not Reeves made the above statement about the Company's past success in stopping the Union. I credit Williams' testimony and discredit Reeves' denial that he made any such remark. 31 After changing all of the saws, the two men clean the machinery and the room generally. az Slay admitted that he had marked "something like" half of the entries on the morn- ing of January 14. Respondent's witness Rafe, who was a saw changer at the time of the hearing, testified that the operator makes about half of the entries and the helper about half. 82 It is undenied that it takes two men to change a saw. 38 My reasons for crediting Williams' testimony upon which the foregoing findings are based is set forth tnfre. a4 Adams did not testify about what he told Williams when he notified Williams that he was discharged. 35 In view of Respondent' s assertion that Williams was discharged because of his actions on January 14, it Is unnecessary to discuss in detail Respondent's earlier com- plaints against him including his disciplinary layoff in November 1963. According to Williams. this followed a complaint to Supervisor Adams that his side "was kind of hurting." Respondent admitted that Williams claimed he was "sick" but that he would not go to the doctor. I note, however, that Adams' first description of the lmdfimt contains the statement that Williams "wanted to go to the doctor, and I had to get them saws In there and had to do something about it." PLAINS COOPERATIVE OIL MILL 1015 together on January 14, he was very angry and told his brother that L. C. Williams had signed a "false report." 36 Willie Adams then told Supervisor Adams that Super- visor Hollis Reeves had told him that he (Reeves ) had seen Williams leave the mill- yard that day. Willie Adams could not recall what time it was that he talked to Hol- lis Reeves.37 Supervisor Adams went on to say that he talked to Hollis Reeves the next morning and Reeves said that he had seen Williams leave the mill the day before. When Adams was asked if he found out what time Williams left, he replied that Reeves "didn't know. I didn't ask him." [Emphasis supplied.] 38 Supervisor Reeves testified that he saw Williams leave the mill on January 14. He admittedly did not report what he had seen to any management representative because, he said, he did not have time 39 He was unable to recall what time of day it was that he saw Williams leave and did not assert, even generally, that it was during working hours. After talking to Hollis Reeves, Adams assertedly went to Superintendent Reeves and told him that Williams had made out a false report . In Superintendent Reeves' words, Adams told him that Williams had "falsified" the report, had left the millyard the day before , and "they could not find him for several hours." Reeves thereupon told Adams to discharge Williams.40 The report which Williams supposedly falsified is not in evidence , the explanation being that it had been thrown away. Personnel Director Martin testified that the reports were "discarded" "probably within three or four days" after they were made out in accordance with the practice at that time ." He added that Respondent began to keep the reports about March 1 but did not explain the reason for the change 41 Although Martin claimed that the practice in January was to destroy the reports within a few days, Supervisor Adams testified, "We kept [the reports] there in stacks." He went on to say that the "false" report was in a "stack ," which he estimated was 3 or 4 inches high, and then "one day before this [case] came up," he threw the entire lot in the trash. Adams admitted that the report would have been "evidence" if "we'd thought to keep it" but he just did not think about doing so. Obviously, neither did Superintendent Reeves nor Personnel Director Martin. Respondent is not a Company without experience in such matters and without experienced counsel. Thus, on August 19, 1963, the day after George Williams was discharged and long before a charge was filed, Superintendent Reeves and Personnel Director Martin asked several employees to sign statements about the quality of Williams' work so that it would have "evidence" to support its action in case a charge was filed. Although a charge was filed, no complaint was issued ; nonetheless, Respondent saved the statements and produced them at the hearing the following June. Moreover, Respondent had experienced counsel throughout the entire period who understood the need to keep all documents and records which might be useful in case unfair labor practice charges were filed. Under these circumstances, I believe that if Williams had falisfied a report and if, as claimed by Adams and Superintendent Reeves, Adams so reported to Reeves, that Reeves would not have left the documen- tary proof in Adams' possession so that it became one of a 3- or 4-inch stack with the result that Adams later threw it in the trash42 On the contrary, I believe and find 16 Willie Adanis testified only that Supervisor Adams "said something about L C. not filling in his saw filing report correctly " He could not recall "exactly how" or "what manner" Williams "failed to file his saw filing report correctly " At no point did Willie Adams use the word "false " although it is a word which he would be likely to remember if it had been used. 37 Supervisor Itollis Reeves should not be confused with Superintendent "Pete" Reeves. i Later Adams said he might have asked Reeves the time of day but could not recall whether he did or not. 00 Reeves did not refer in his testimony to any conversation with Willie Adams on January 14. lU Respondent does not claim that Williams would have been discharged had his mis- conduct on January 14 been limited to failing to change a saw Thus, when I stated at one point that Respondent was apparently contending that Williams was discharged "at least in part" because one saw was not changed , Respondent's counsel stated, "No, that is not what he was fired for. It so happens that he didn't change every saw that day. He also filed a false report and he also left the mill yard." 41 The charge with respect to L. C Williams was filed on March 31, 1964. 40 Adams supposedly wrote out a report on January 15 stating the reasons for Williams' discharge and it presumably was sent to Personnel Director Martin who put it in Wil- liams' file. It would seem that if Adams had made such a. report, Martin would have read it and would have taken steps to preserve the "falsified " saw report as evidence that Williams was discharged for cause. 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the report was not saved because there was no false entry and because, on Janu- ary 15 and for a considerable period thereafter, Respondent's alleged reason for the discharge was the one Adams stated to Williams, i.e., failure to change a saw, a charge which Williams admitted. In my opinion, the falsification charge is clearly an after- thought, my reason again being the one just stated, i.e., my belief that if there had been a false entry, the report would have been preserved even assuming, arguendo, that it was the practice in January to throw the reports away. Although Adams did not claim that he showed the report to Williams or accused him of falsifying the report, Adams and employees Slay and Rafe testified that Adams showed the report to Slay and Rafe on the morning of January 15. In Slay's words: Well [Adams] called us in the office there and he had two reports where it said the saw had not been changed and that it had been filled in and L. C.'s name signed to the report and Mr. Doc. spoke to us and said, "I don't want this to hap- pen to you all. I have been getting after you all all the time about these saws, and we really got to get them changed because Mr. Keith [Reeves2] is riding me about them," and I walked out of the office and I asked Bobby Rafe, I say "What is the trouble, the saw not being changed," and Bobby Rafe said Mr. Adams have [let] L. C. go. [Emphasis supplied.] Upon analysis, Slay's testimony shows that he understood Adams to be talking primarily about the failure to change one saw and management's insistence that all 43 saws be changed. Furthermore, the half dozen words in Slay's testimony which indi- cate that Williams had marked the saw as changed do not appear in Slay's preheating affidavit The version set forth in the affidavit makes it clear that what Adams was talking about was the missing saw not a falsified report. Thus, Slay's affidavit reads in relevant part: At about 8:15 or 8:20 A.M. on the day that L. C. was discharged, Adams called me and Bobby Rafe into his office and he showed us two saw changing reports. One was a report of the day before bearing a signature which appeared to be that of L. C. Williams. Adams said, "I do not want this to happen to you and Bobby Rafe." I didn't say anything and Bobby didn't either. We were the only persons present. After Bobby Rafe and I left Adams, 1 asked Rafe, "What did he mean7" Rafe said, "Didn't you know he gave L. C. his check." I asked, "what fors" and Rafe said, "Didn't you see where he missed that saw." I did not say anything further. [Emphasis supplied.] 43 I also note that Slay did not claim to have seen Williams make the "false" entry or that he knew, until allegedly told by Adams the next day, that a "false" entry had been made. On the contrary, Slay's testimony in this respect is the same as that of Wil- liams, i.e , that when he last saw the report on January 14, it showed that one saw had not been changed. In addition, Respondent introduced into evidence a list of employees discharged between April 1962 and June 1964. According to Personnel Director Martin, the list (Respondent's Exhibit No. 22) reflects "what the various personnel files of [the named employees] show on . . . [the] termination sheet." 44 One of those listed is L. C. Williams and the reason given is "Left Mill yard without permission." In other words, it contains no reference to a falsified report or failure to change a saw. A few minutes later, however, Martin testified that Williams' termination report states that Williams "left the mill yard, he did not do his work and he signed a false report that he did not do his work." The record contains no explanation for the variation. On the basis of the foregoing facts, particularly Respondent's failure to preserve the allegedly false report, the manner in which it was assertedly handled with the result that it got thrown in the trash, and Respondent's failure to mention the alleged falsification at the time Williams was discharged, I find that Williams did not falsify the report and credit his testimony that when he signed the report, it showed that one saw had not been changed. Having concluded that there was no false report, I discredit all of Adams' testimony concerning his statements about the Union and his denial that he knew that Williams was "union." In short, I credit his testimony only where indicated. There being no 43 In view of Slay's affidavit, I do not believe that Adams showed Slay and Rafe a "falsified" report on January 15. "Respondent's counsel asked Martin if the list reflected "accurately" what the files show "in regard to the termination" of the employees named and Martin replied, "Yes, sir, it does." PLAINS COOPERATIVE OIL MILL 1017 "false" report, I cannot credit either Reeves' testimony that Adams told him that Williams had signed such a report or his denial that he knew that Williams was "active" in the Union or that he had "signed a card." Again, my reason is my firm belief that if Adams had reported to Reeves that Williams had falsified a report, Reeves would have taken steps to preserve the evidence 4a In short, I do not believe that he had the conversation with Adams which he described at the hearing If Reeves was willing to testify falsely in order to justify Williams' discharge, I cannot and do not credit any of his testimony concerning the statements he did or did not make with respect to the Union and the union activity. It is obvious, of course, that I regard Respondent's failure to preserve the report as one of the most significant facts in the case. It is equally clear that Respondent's action-or inaction-in this respect has influenced my findings generally. As in the case of the alleged falsification, the undisputed evidence establishes that Respondent did not tell Williams, at the time of the discharge, that it had been reported that he left the mill the previous day. It follows that Williams had no opportunity to deny the report, or if it were true, to explain why he had left and for how long he was away. Since Adams was working in another part of the building on January 14, it was possible that an emergency had arisen and Williams had been given permission to leave by Superintendent Reeves or some other management representative. Adams, however, assumed that the report was true and that Williams had left without permission 46 Moreover, there is simply no probative evidence that Williams left the mill on Jan- uary 14 during working hours. Although Supervisor Hollis Reeves testified that he saw Williams leaving, he admittedly did not report the fact to Supervisor Adams, Superintendent Reeves, or any other management representative 47 I also think that if Reeves had seen Williams leave during working hours and had reported the fact, first to employee Willie Adams on January 14 and then to Supervisor Adams on Janu- 45 After the discharge of George Williams, which was followed by an unfair labor prac- tice charge, the supervisors were told that all discharges were to be handled by Super- intendent Reeves or, in his absence, by Assistant Superintendent Thomas. 46 Assuming, arguendo, that the saw report had been falsified, it is significant that Adams likewise took it for granted that Williams was solely responsible although Slay made approximately half of the entries and could have made the entry either after Wil- liams signed the report or could have made it with Williams' knowledge. Adams' ex- planation for his assumption was that he "trusted" Slay and was "sure" he had not made the entry and did not know it had been made On cross-examination, Adams was pressed to state the reason for his belief and at times seemed to be saying that Slay had told him that Williams had made the entry. Some of the questions and Adams' answers are set forth below. Q. So it could have been either [ Slay] or L. C.9 A. I don't think it was [Slay]. I am for sure he did not. Q. How do you know that? What is the basis of that? A. I just say he didn't. Q A. Q. A. ! i i • p ♦ t You have no reason to believe it, though, do you? I have a reason to believe it to be what he told me What who told you? [Slay] told me. R R t R O R Q. So you assumed that that saw had been marked in there by L. C, didn't you? A That is right Q. You had no basis for that, had you? A. I just believed what [Slay] said; L. C. marked the saw that is all that I can tell you Q Now, you say that [Slay] told you L. C marked the saw? A. No, I didn't say that 44 According to employee L. T. Runels, on one of his days off in December 1963, he saw Williams away from the mill and made a special trip to the mill to be sure the man he saw was Williams. The next day, he reported Williams' absence to Adams but asked him not to tell Williams. Adams admittedly did not mention the report to Williams which he could have done without identifying its source. I find it difficult to believe that Runels would use part of his day off checking up on Williams and find it even more difficult to believe that Adams would fail completely to tell Williams that he (Adams) had been told that Williams had left the mill. 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary 15, one of the three would have been able to recall, at least generally, the time of day and at least one of them would have testified definitely that he knew it was during working hours.48 There are also significant conflicts in Slay's description of the events of January 14 and the version given by Adams although neither testified to having seen Williams either falsify the report or leave the yard. Slay's version is as follows: About 10:55 a.m. Slay and Williams had changed 42 of the 43 saws; about 11 a.m. Supervisor Adams came down from working on a pipe or fan and "L. C. was gone out of the building." After looking at the report, Adams said that Slay and Williams were lacking one saw and that they had better get it changed. (Slay's testimony, if true, means that between 8.15 and 11 a.m. he and Williams had changed all but one of the day's quota of 43 saws. Moreover, Slay claimed that he and Williams had been working with that speed "quite a while," i.e , for a number of days, and that he was not tired at 11 a.m. on January 14. Supervisor Adams testified that it takes an average of 10 minutes to change a saw and that he could recall no occasion when 42 saws had been changed by noon.) After his 11 a m. conversation with Adams, Slay looked for Williams and when Adams came back and asked where Williams was, Slay replied that he did not know. Adams then told Slay: "You go get L. C. and you all put that saw in." And then I went out to look for L. C. and I didn't find him, and I come back in the building and after I come back into the building I stood up there and then Mr. Adams come back through again and say, "where is L. C.?" and I say, "I don't know, sir." That time it was about five minutes till tivelve. Mr. Adams come back through again and he say, "Where is L. C., you haven't seen him?" and I say, "No, sir, I haven't seen him I have not seen him." He say, "You go look for him." I went out and I looked around the building. I didn't see L.C. I come back in the building. I got my lunch and I sat down and then Mr Adams passed me, he didn't say no more to me, he went on in his office and sat down and eat. 1 sat there till about 1 00, or, I would say about 1:15. Mr. Adams come out of the office . . and come to me and say, "You haven't seen L. C.?" And he say, "You better go get him and get that saw in." I went out [of] the building and I looked again and I come back in where Mr. Adams was and I said, "Mr. Adams, I am not going to be responsible for the saw and I do not know where L. C is." He say, "I tell you one thing, you better go find him." He say, "This is the last time I am going to tell you all about those saws," and I say, "Well, Mr. Adams, I am not going to be responsible for that saw" And then he told me, he say, "Well, you better go find L.C " I went out and I looked again. I come back in the building, I went where Jesse Spencer was, I say, "1 wonder where L. C is" and Jesse say, "I don't know." I went back out there again and looked for L. C. I went to No. 4 seed house and when I come to No. 4 seed house George Williams and R. H. Coleman and Billy McEntire- Q. (By Mr. PalcE) McEntire? McIntosh) A. McIntosh, was working in a-cleaning out a tunnel ... I say, "Have you seen L C. Williams7" and George Williams spoke up and said, "No, we have not seen him." 49 And I say, "Well, if you all see him will you please tell him "As set forth above, when Adams was asked if he found out from Hollis Reeves on January 15 what time Williams left, be first answered that Reeves "didn't know," and then added, "I didn't ask him " 4e R. H. Coleman, a witness for Respondent, was asked by Respondent's counsel. Now, R, H., prior to L C being dischaiged, do you recall working in Seed House No 5 with George Williams and Billy McIntosh and other people when Zeb Slay come up there and made some mention about L C. Williams 9 Coleman replied, "we" were "cleaning out a pit" and I called [Slay] down there, I first started talking to him about him preaching s • x r x a s You see, I called him down there and I was talking to him and while he was there he asked me about L. C. Coleman went on to say that Slay asked if he had seen Williams and "we sat there and talked a while" [emphasis supplied] and Slay said, "Well, I think I'd better go try to find [L. C ] before Doe fires him." Although Slay's testimony set forth above does not refer to employee Brown, the latter gave similar testimony However, Brown testified PLAINS COOPERATIVE OIL MILL 1019 to come on because Mr. Adams have got at us and Mr. Don-I mean Mr. Reeves have got at us about those saws and have got [sic] at us long enough and he said he was going to let us go if we don't get all these saws in," and I went back in the building and I went back to the Coke room I sat in there in the Coke room, I went back in the saw filing room, I stood up and I said, "I wonder where is L. C.," and about that time it is about 2:15 L. C. come through the building. I said, "L. C., we 're lacking one saw, are we going to put it in?" L. C. had been cussing me out and I had just asked him one question , "L. C., are we going to put that saw in" and he shook his head. TRIAL EXAMINER : Let the record show that he shook his head no. A. He shook his head and I say, "Well, I would just go ahead and clean up," and I went and cut the air hoses and started cleaning up , blowing down, and we did not put that saw in. [Emphasis supplied.] 50 Adams, on the other hand , testified that he first checked the saw report between 12 and 12:30 p.m., and noticed at that time that a "few " saws had not been changed whereupon he asked Slay why Williams was not helping him and Slay went to look for Williams . Adams was working in a different area and when he checked the report "around 2.00-2.30, lust guessing," he found "some" saws still unchanged. Slay reported that he could not find Williams and Adams said Slay had better find Wil- liams and get the saws in. Adams checked again between 3 and 4 p in., and "some" saws were still unchanged . He did not see Williams, Slay reported that he could not find Williams. and Adams told Slay he would fire Slay if he did not get the saws in At a little after 4 p .m., i.e., after the end of the shift , Adams checked the report and allegedly found the falsification . He could not recall, however, which saw it was that had not been changed but which had been entered as changed. Thus, Slay claimed that 42 of the 43 saws were changed by 11 a.m. when Adams first checked ; according to Adams, he made his first check between 12 and 12:30 and noticed that a "few" saws had not been changed; when he checked between 2 and 2:30, he found "some" saws missing and "some" were still missing when he checked between 3 and 4 p.m. According to Slay, Williams disappeared a few minutes before 11 a.m. and returned at 2:15 p.m.; Adams claims that he did not see Williams at any time in the afternoon. Williams ' timecard shows that he was paid for the full 8 hours on January 14. Slay's claim that he and Williams had changed 42 of the 43 saws by 11 a.m. is so incredible on its face that I can accept none of his testimony , including his claim that Williams was gone 31/4 hours and that, when Williams finally returned at 2:15 p.m., he refused , for no particular reason, to change one saw in the remaining 13/4 hours before quitting time.5I Williams denied that he left the mill on January 14 but admitted that he was away from his place of work for about 30 minutes on one occasion and that he may have been gone once or twice for a shorter period.52 However, I do not believe that Adams did not see Williams at any time after 12:30 or 1 p.m . on January 14. Wil- liams testified , and I find, that Adams was in and out of the room several times that day, and when he was there about 3 o'clock he told Williams, "You all better get that other saw," that Slay was not present at that time, and that when Slay returned Wil- liams told him what Adams had said. that he did not know whether George Williams was present It is also clear from the testimony of Coleman and Brown that neither had any independent recollection of the date and I do not believe that either had any independent recollection of the event (Cf. the testimony of Respondent's witness Larry that he "was told" that an incident about which he was testifying happened in April ) DIcIntosh , a witness for the General Coun- sel, testified that he heard no such conversation and George Williams said that he was working in seedhouse No 5, not No 4, as testified by Slay, and that Slay did not ask him about Williams On the basis of the foregoing and in view of the implausibility of Slay's testimony generally, I conclude that Slay did not go looking for Williams on January 14. so Respondent concedes that Slay ' s "remembrance " of the times is not accurate but argues that Slay's "recitation is not untruthful because if [ he] was going to make up a story he would make up a better one than to be so obviously wrong as lie was " Si As noted supra, it takes an average of 10 minutes to change a saw . According to Slav, however, he and Williams had changed 42 that morning in 2% hours or less, which means that they could have changed the one remaining saw in about 4 minutes ii According to Respondent 's witness Rafe , Lonnie Todd , the linterman, "comes by after we put a saw in" and checks it to see that it does not "rub" for if it does, it can cause a fire. Todd would know how many saws he checked and when and would surely have known whether or not Williams was gone for a susbtantlal period. Todd, however, was not a witness. 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having considered the above facts, particularly Adams' failure to say anything to Williams on January 15 about a report that he had left the mill, the failure of any witness to identify even generally the time Williams allegedly left, the conflicts between the testimony of Slay and Adams, and the payment of Williams for 8 hours on January 14, I conclude that Williams did not leave the mill on January 14.53 About a week after L. C. Williams was discharged, Spencer told Supervisor Adams that he "didn't see any reason for L. C.'s discharge " Adams' reply was that "he was going to get rid of a bunch of them working around there." Spencer also told Adams that he thought Adams was "wrong in discharging L. C.." that he thought it was as much Slay's fault as it was L. C.'s fault.54 4. The discharge of Jesse Spencer on March 14 Spencer began working for Respondent in February 1959. He started as a laborer and at the time of his discharge was a sawfiler, a job which requires some skill and, apparently, carries a higher rate of pay. As set forth supra, Spencer was one of the employees who "contacted" the union representative and signed a union card in July 1963, and was also one of the employ- ees outside the union hall on August 15 when the supervisors, including Adams, drove by. He signed a second card in January 1964, and in early 1964 "contacted" about 15 employees of whom "about six" signed cards. In February, Supervisor Adams told Spencer that he knew that Spencer was working "for the Union" and that his activity had been reported to Superintendent Reeves. Reeves also told Spencer that it had been reported to him that Spencer was "keeping" employees to talk about the Union and that he did not want it to continue. When Spencer admitted that he had been participating in the Union, Reeves said that if Spencer continued to talk, "he would find some little excuse to let a worker go." Employee Bobby Rafe was in the Army Reserve and about every 2 months had to go to camp on Sunday, a day he normally worked and the day Spencer was normally off.5.5 On Tuesday, January 14, Supervisor Adams told Spencer that Rafe would have to be away on Sunday, January 19, and would work on Tuesday, January 21, his regular day off. This meant that Spencer would have to work on Sunday, his regular day off, and after some discussion he told Adams he would take off Friday, January 17, and Adams said it was "OK." 56 The following week, Adams again told Spencer that he would have to work on Sun- day (January 26) so that Rafe could be away. Nothing was said about what day Spencer would be off instead and he took off Tuesday, January 28; i.e., Rafe's normal day off. 61 Respondent's rules do not set forth the penalty, if any, for leaving the mill How- ever, an employee who is absent an entire day without permission and without a legitimate excuse is penalized only by being required to take off his regular day, i e , he is not permitted to make up the day he was absent by working on his regular day off. R. H Coleman testified that he was laid off 4 days in 1963 because he was asleep and his supervisor could not find him 5s The above findings are based on the credited testimony of Spencer. It is clear from the record that the employees often "talked back" to Adams and it is undisputed that Reeves told Adams on one occasion that if Adams could not handle the men, Reeves would discharge Adams and get some one who could. 65 The mill apparently operates 7 days a week and the employees work 6 days a week. 66 Spencer testified that he "hated" to give up Sunday and Adams asked employee J. W Carroll it he thought Adams was "right" In taking away Spencer's Sunday but Carroll did not answer. (Carroll, a witness for the Respondent, stated that the conversation occurred earlier and that Adams "wasn't so much asking my opinion He was telling me the way the situation was.") I do not credit Adams' testimony that Spencer knew he was not supposed to work on Sunday, January 19, but, for some reason, wanted off on Friday, January IT, and claimed, untruthfully, that he misunderstood Adams' instruc- tions. Adams admitted that he talked to Spencer "prior to the 1st and 17th" but said he was talking about Spencer's working on January 26. Adams also admitted that Spencer "griped" and "complained" about having to work on Sunday. Under these cir- cumstances, I think it highly unlikely that Spencer would knowingly make a "mistake" which meant that be had to work on Sunday, a day he clearly did not want to work. I find, therefore, that if Spencer made a mistake , it was an honest mistake. In fact, Adams' testimony suggests that he was responsible for the mistake for I do not think he would talk to Spencer "prior to" the "17th " about working on Sunday , January 26. Being unable to accept Adams' version of why Spencer worked Sunday, January 19, I do not credit his claim that Spencer did not have permission to be off Friday , January 17. PLAINS COOPERATIVE OIL MILL 1021 About March 11 or 12, Adams told Spencer that he would have to work on Sunday, March 15, so that Rafe could be off that day. According to Spencer, he said nothing to Adams about what day he would take off instead of Sunday but assumed that Adams was leaving the matter up to him and decided, at the last minute, not to go to work on Friday, March 13.57 When he returned to work on Saturday morning his card was not in the rack and Adams said he could not use Spencer anymore because he was absent on Friday. Spencer asserted that he was trying to follow Adams' instructions; i e., to take a day off other than Sunday so that Raie could go to camp on Sunday. Spencer went to see Manager Davis who, according to Spencer, told him to talk to Superintendent Reeves.58 However, Reeves was out of town and Spencer talked to Assistant Superintendent Thomas who said he did not see what he could do about it but that he would talk to Adams. When Thomas had not returned in 15 or 20 min- utes, Spencer left. As noted supra, Spencer claimed that he took off Friday, March 13, without notify- ing Adams of his intention to do so. However, according to Adams, he told Spencer on Tuesday, March 10, that he had to work Sunday, March 15, and that he would take off Tuesday, March 17, instead. Spencer objected to working on Sunday and, apparently, indicated that if he had to work that day he wanted Friday off. Adams, in turn, explained that he needed all the men he could get on Friday.59 Adams added that he mentioned the matter to Spencer on both Wednesday and Thursday so that there would be no misunderstanding. On both days, Spencer asked to be off on Fri- day and Adams again told him he would have to work Friday and be off Tuesday, March 17. Spencer nonetheless took Friday off and on Saturday morning Adams took Spencer's card to Personnel Director Martin, told Martin what had happened, and Martin told Adams to let Spencer go.°o I do not credit Spencer's testimony that nothing was said. prior to March 13, about what day he would be off as the result of has having to work on Sunday, March 15. I find, instead, that Spencer asked to be off on Friday and Adams told him he had to work that day and be off on Tuesday. If Spencer was going to work on Sunday so that Rafe could be off, it would be logical for him to be off the day Rafe was normally off, i e., Tuesday. When Spencer worked on Sunday, January 19, in Rafe's place, he specifically asked for and was given permission to be off on Friday. The next week, when he made no arrangements, he worked Sunday and took Tuesday off. In short, I am convinced that when Adams told Spencer he had to work on Sunday, March 15, Spencer would assume that he would be off on Tuesday unless he was given permission to be off a different day. 57 For reasons set forth infra, I do not credit Spencer's testimony in this respect How- ever, in assessing his credibility generally, I have considered the fact that he did not claim that Adams gave him permission to be off on Friday, as he could easily have done. As noted supra, Respondent contended at the hearing that Spencer's prehearing affidavits show that he or someone decided to "improve" on the case by adding new material each time. But the one "new" fact which would have "improved" Spencer's own case materially was never forthcoming. Although Spencer's March statement asserts that he asked Adams in March if he could be off on "Friday again" and Adams made no reply, Spencer testi- fied that he could not recall having asked Adams such a question. If anything, Spencer's testimony is more damaging to his case than his March statement. Thus, as indicated infra, I do not believe that Spencer would just take the day off without saying anything to Adams but if Spencer had asked about being off Friday and Adams did not answer Spencer's question, I might have been persuaded that Spencer interpreted Adams' failure to reply as meaning that he was leaving the matter up to Spencer. ss Reeves was out of town and it may be that Davis told Spencer to see Assistant Superintendent Thomas, not Reeves. Although Spencer may have been mistaken, he bad nothing to gain from testifying falsely in this respect. Thomas testified that Spencer told him that Adams had told Spencer to take off Tuesday and that he took off Friday. &U Adams testified that his department was "filling" saws that week which required a full crew. Employee Robert Lemon credibly testified that he heard Spencer say on March 11 or 12 that "if he couldn't get his regular day off he was going to take off the day he wanted to." w It is undisputed that an employee named Barker was discharged on December 26, 1963, because he had not worked on Christmas Day after having been refused permission to be off. 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since it is apparent that, if Spencer had to work on Sunday, he wanted Friday off, I also find that he asked Adams if he could be off on Friday and Adams said no, that Spencer had to work on Friday and take off Tuesday, Rafe's normal off day.61 5. Respondent's conversations with George Williams in April and May The Union filed its representation petition on April 8 and on April 9 George Williams was one of several persons who distributed union leaflets at the mill gates between 7 and 7:45 a.m.; i.e., before work 62 It is undisputed that Williams did not distribute union leaflets on working time although he had at least one in his hip pocket. However, Green testified that the leaflet or leaflets were folded so that it was impossible to see what they were. At about 8.45, Supervisor Green told Williams to take the leaflet or leaflets out of his pocket and take it or them to his car. Williams did as he was told.63 About 8 15 a in. on April 10, Green told Williams that Superintendent Reeves had told Green that Williams should stop talking about the Union around the mill and that when Williams finished work at 4 p.m., he was not to come back to the millyard as he had done one night in the past. Williams testified without denial that he had seen employee Carl Nash, a member of the employee committee, at the mill during the day and that he asked Green if he was to be treated "any different" from Nash.sr Green said that Nash would have to leave the mill. However, it is undisputed that Nash was still on the parking lot at noon on April 10 working on his truck.6 ' At 4 p in. on April 28, Supervisor Green spoke to George Williams and J. R. War- ren about "quitting early " Williams said he had not quit early and that he would like to get Superintendent Reeves and get "this thing straightened out." Williams went after Reeves and he, Reeves, and Green had a conversation. Reeves stated that Williams' work had been poor for the last 2 or 3 days and that he had seen Williams and employee Warren riding around in the truck for the last 15 minutes 66 Williams reminded Reeves that Davis had told Williams the previous Sepetmber that he would not be discriminated against. Reeves told Williams that he should not think he was being discriminated against because he chopped a few weeds and that he could leave if he did not like "what was going on around here." Reeves also told Williams he had statements signed by employees to the effect that Williams' work was poor.67 As set forth supra, a Board-conducted election was scheduled for May 8. The Union withdrew its petition on May 6 and that same day George Williams was interviewed by Respondent's attorney , John Price . The interview took place in Superintendent Reeves' office and Reeves and Personnel Director Martin were also present. Price said he wanted to talk to Williams about the charges he had filed against the Company saying, "We would like to get together and straighten this thing out." 68 61 Spencer testified that in previous years, Adams permitted employees to "swap" days off without notifying him Contrary to the contention of the General Counsel , this fact hurts rather than helps Spencer's case for a "swap" between Rafe and Spencer would have meant that the latter would be off on Tuesday, not Friday. Moreover, Spencer does not claim that he made any arrangement with anyone to work in his place on Friday. 6 Reeves testified that lie would stop on his way into the mill and ask for copies 63 The above findings are based on the credited testimony of Williams which is cor- roborated generally by Respondent's witnesses Green and employee J R. Warren. Green testified that he could not recall that Williams had distributed union leaflets "in the daytime" but stated that he had heard that Williams was doing so "down there at nights." Green, who claimed that Williams had a number of leaflets in his pocket , explained that he told Williams to take then to his car because he did not want Williams passing them out "in the daytime on the yard." [ Emphasis supplied .] He also admitted that he could not see what the leaflets said but assumed they had something to do with the Union. According to Respondent's witness Warren, Green told Williams that "he'd be better off" If he put the leaflets in the car 04 Nash worked the 4 p.m to midnight shift. 65 The above findings are based on Williams ' undenied and credited testimony Reeves did not deny having told Green to tell Williams to stop talking about the union around the mill and to tell Williams not to come back to the ?hilly and at night. ° During this period, Williams and Warren were assigned to the trash truck 67 The above findings are based on Williams ' credited testimony. 68 Although I believe that Williams interpreted Price's statements as meaning that it was up to Williams to get the matter straightened out, I do not believe that Price used those words PLAINS COOPERATIVE OIL MILL 1023 Price asked Williams why he thought he was being discriminated against and Williams replied that his work record since the previous September would show discrimination except for the period when he was assigned to the dump. Price asked for details and Williams' various assignments were discussed at least briefly.69 Although Price did not tell Williams the purpose of the interview, Williams is intelli- gent enough to know the purpose. However, he was not told that he had a right to refuse to answer the questions and he was not assured that no action would be taken against him because of his answers. 6. The Company's letter to the employees On or about April 27, Manager Davis sent the employees a letter in which he pointed out that in the early years, the wage scale was 40 cents an hour, the employees worked 12 hours a day, 7 days a week, without overtime, and that there were no vaca- tions, hospitalization, insurance, or bonuses. He also commented on the improve- ment in working conditions since those days and reminded the employees of the Company's insurance and hospitalization plans. A space was left for entering the number of months the employee worked in 1963, his earnings, vacation pay, and bonuses. The last paragraph read- Let's be careful how we listen to people who can only give us promises; we could lose what we have. When asked at the hearing what he meant by, "we could lose what we have," Davis replied, "Well, I think that's just a general term" and asserted that the statement had no real purpose. 7. The questionnaire The complaint, which was issued on April 30, 1964, alleged that on or about specific dates, named management representatives engaged in various types of allegedly coercive conduct which was described in reasonably specific terms such as threats of discharge if the Union continued its organizational activities and the interrogation of employees concerning their voting intentions. However, in conformity with Board policy, the complaint did not name the employees to whom or in whose presence the statements were made. It also failed to state where the incidents occurred. On May 11 and 12 groups of employees were called together in the company dining room and were given mimeographed questionnaires to fill out. There were spaces at the top for the employee to write his name, address, and telephone number. There followed a series of questions designed to obtain information about the incidents described in the complaint such as whether Supervisor Adams had asked the employee if he was "for or against the union." The employee was to place a check beside "Yes" or "No" and if the answer was "Yes," space was provided in which the employee was to write the details of what had happened, where it happened, when it happened, and who was present. The last question, No. 16, read: Have you given a statement in writing to anyone concerning any of the above questions? According to Respondent, "a little over 100" employees, i e , about half of the total work force, were brought to the office and given the questionnaires to fill out. Respondent also asserted that the employees were those who might have information concerning the incidents alleged in the complaint. However, the names of the hundred or more are not set forth in the record so that it is impossible to say whether or not Respondent had reasonable grounds to believe that all of them might have information which might assist Respondent in preparing its case. After each group had assembled, Fianklin Sears, one of the attorneys for the Com- pany, explained that he was there to get facts concerning the incidents alleged in the complaint which he said did not provide the Company with sufficient details. Sears stated that he wanted to talk to them "because they were possibly the people who knew the facts" and explained that the meetings had nothing to do with the union election or the employees' union activities.70 Sears did not state what comment, if any, he made about question 16. OD The above findings are based on Williams' testimony which is credited. Contrary testimony is discredited The charge with respect to Williams was filed on April 29 and I do not believe that Williams would have limited his complaints to his weed cutting assignment which had ended 6 months earlier; i e , on November 8, 1963 70 The above findings are based on the credited testimony of Sears and employee James Beaty. Personnel Director Martin was also present and passed out and collected the questionnaires. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed that the employees were not told that they were free to refuse to go to the meetings or that they were free to refuse to fill out the questionnaires. More- over, as set forth infra, the one employee who did not fill out the questionnaire on May 11 was called in the following day, individually, and asked for an explanation. Under these circumstances, I cannot find that the employees, who are generally poorly educated Negroes, felt free to refuse to answer. Moreover, neither of the two whose questionnaire is in evidence gave a truthful answer to the final question (Have you given a statement in writing to anyone concerning any of the above questions?). How the other 98 or more employees answered the questions, including No. 16, is unknown. Willie Griffin, one of those called in, answered "No" to all the questions except those which asked if he knew various management representatives. Although Griffin had given two statements to Board agents, he answered "No" to the question about giving a statement. When asked at the hearing why he had answered untruthfully, he replied, "Because I didn't want to be involved in anything, none of that union that was going on then." James E. Beaty was included in one of the May 11 groups. Because only pencils were available, Beaty did not fill out the questionnaire On May 12, Beaty, who was known to favor the union, was called to the office individually where he found Super- intendent Reeves, Personnel Director Martin, and Attorney Sears Reeves had a check for Beaty in connection with a loan requested by Beaty and after some discus- sion about repayment, Sears asked Beaty why he had not filled out the questionnaire and if Beaty had a reason for not filling one out. Beaty explained that he had been taught never to sign his name to anything in pencil and Sears handed him a pen. In response to one of the questions, Beaty described the conversation between Supervisor Adams and employee L. C. Williams about George Williams, set forth supra. Beaty testified that when he was called back a second time, he felt that the Company "wanted" something from him and that he did not know whether or not he was free to answer or to refuse to answer the questions. He stated, however, that he was not afraid of being fired. Beaty's questionnaire, which is in evidence, has a check mark beside the "No" answer to question 16; i e., about giving a statement to anyone. Beaty, however, testified that he failed to answer the question. He also testified that when Attorney Sears read his description of the L. C Williams-Adams incident, Sears commented, "Well, it's a wonder someone hasn't looked you up for a statement .... " Sears' remark certainly suggests that, as Respondent's witnesses testified, Beaty answered "No" to question 16. Moreover, I believe that Sears and the others would have insisted that Beaty, who was known to be prounion, answer the question. Accord- ingly, I do not credit Beaty's testimony in this respect. 71 8. The questioning of employees subpenaed by counsel for the General Counsel On the morning of June 22, i.e., the day before the hearing opened, counsel for the General Counsel notified John Price, one of Respondent's attorneys, that he had subpenaed certain witnesses, including several employees, and asked that they be available the next day to testify. Attorney Franklin Sears, another of Respondent's attorneys, testified that on June 22 and thereafter he had talked "about the case" to a number of the employees named by counsel for the General Counsel and that he had talked to some of them twice or possibly three times . He also recalled that in perhaps two or three cases he or Attorney Price asked if the employee knew what he was being called to testify about. Price also testified that he called in all or most of the employees listed and asked, "What are you going to testify about at the hearing?" His purpose, Price said, was "to find out what this case was all about, so [he could] come in here prepared to defend [his] client." Price also admitted that none of the employees was told that no action would be taken if he refused to go to the office or refused to answer questions because he felt that "all of us are free Americans that can talk about facts back and 71 This does not mean that I discredit all of Beaty 's testimony and I specifically credit his testimony concerning the Williams-Adams incident which he also described on the questionnaire . I think that Beaty denied having answered question 16 because he did not want to admit in the presence of management representatives , that he answered the questionnaire falsely. Beaty's testimony on direct examination that Attorney Sears assured the employees that he was not there because of the election or to find out whether the employees were for or against the Union is not the testimony of an employee who is determined to testify to only those facts which help the General Counsel and the Union. PLAINS COOPERATIVE OIL MILL 1025 forth between us without somebody being scared to death." He went on to say that he did not believe that any employee was in the least afraid "when John Price asks them a question about what they know about a case that's pending," adding "I just don't believe in all that hogwash about trying to reassure a man he's not going to be discharged and all that The mill's policy is that kind of policy. He already knows that. And, as I say, we're all free American citizens and we ought to talk to each other like adults ...." One of those called in was employee Willie Griffin. Also present during his inter- view was Personnel Director Martin and Supervisor Adams. Price asked Griffin if he knew anything about L. C. Williams or Jesse Spencer and Griffin said that he did not, that he was not working in that department. Price replied that there must be a reason for Griffin having been subpenaed, that "they just don't send ... subpenas having no reason" and asked if Griffin knew what he was going to be called to testity about. Price also asked if Griffin had written out a statement and Griffin answered- untruthfully-that he had not.72 Price commented, "We'll be surprised tomorrow evening." D. Analysis and conclusions 1. Respondent's attitude toward the Union as revealed by its conduct in August and September 1963 As set forth supra, Respondent heard that a union meeting was to be held at the Carpenters' Hall on August 15, 1963, and Assistant Superintendent Thomas, Personnel Director Martin, and Supervisors Adams and Hastings drove by the union hall several times and finally drove into the parking lot where Adams pointed at the various cars that were parked there. I find that the purpose of the supervisors was to learn which and how many employees attended the meeting and to let the employees know that the Company was keeping itself informed about their union activity. Because of the "extra" union activity, the Company held employee meetings on August 17 at which Manager Davis and Superintendent Reeves spoke. Davis told the employees that they did not need a union and that they had an employee committee to take their troubles to. In addition, Davis told them that they would get a wage increase, which was in fact granted in early September, and that they would get their sick leave back. I find that Davis' purpose in announcing the wage increase and in promising the employees sick leave was to influence their decision with respect to union representation. Cf. N.L.R B. v. Exchange Parts Company, 375 U.S. 405, 409-410. George Williams began working for Respondent on July 15, 1963, and visited a union representative a few days later. He was one of the employees outside the Carpenters' Hall on August 15 when the supervisors drove by in part for the purpose of learning which of the employees attended the union meeting. He was the only employee who spoke in favor of the Union at the employee meetings held by the Company because of the "extra" union activity. At the close of the meeting, Assistant Superintendent Thomas commented that he had heard that Williams was the "head" of the union movement and when Williams made a suggestion with respect to the Company's sick leave program, Superintendent Reeves stated that no one was going to tell him how to run the plant and that if Williams did not like it he could leave. Williams was discharged the next day by Supervisor Green who told him he "didn't want to see [Williams] on the mill yard anymore " General Manager Davis himself recognized that Williams and other employees might believe that Williams was discharged because he spoke at the meeting and it was for this reason, assertedly, that the Company decided to offer him his job back. Although, according to Davis, the decision was made on August 19, Williams was not offered reinstatement until September 3; i e., a few days after a charge had been filed. Sometime in October, Supervisor Adams asked employee L. C. Williams what he thought about George Williams and expressed the opinion that Williams came to the Company to cause trouble and, as set forth supra, in the spring of 1964, Respondent sought to limit Williams' right to engage in union activity on his own time. Although it has been found that Williams had been known to loaf, it has also been found that his 8-cent-an-hour increase on August 16; i e., 2 days before his discharge, indicates that his work during the previous month was acceptable. Furthermore, it is unlikely that an employer who discharges an employee for loafing warns him not to come to the millyard anymore. "The above finding is based upon Griffin's credited testimony . Since Respondent had asked this question of more than 100 employees via the questionnaire, I see no reason to doubt that Price asked Griffin the same question orally. 206-446-G G-vol 154-6 6 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The above facts, in combination, cause me to conclude that Williams would not have been discharged but for his union activity and that Respondent's purpose was to rid itself of the employee it believed to be the leader of the union campaign and to warn other employees about what could happen to them if they joined the Union or became active on its behalf. The events set forth above are not found to constitute unfair labor practices having occurred more than 6 months prior to the service of the first charge. However, they do establish that Respondent was hostile to the Union and its leaders and, there being no evidence of any change in the Company's att tude, can be and are used to "shed light" on events occurring within the limitations period. Local Lodge No. 1424, Machinists (Bryan Manufacturing Co.) v. N.L.R B, 362 U.S 411, 416; ct. Paramount Cap Manufacturing Company v. N.L R.B., 260 F. 2d 109, 112 (C.A. 8).73 2. The alleged inteiference , iestramt, and coercion a. General interrogation and threats It is clear from Manager Davis ' speech in August 1963 and his letter in April 1964 in which he warned the employees that they could "lose" what they had by listening to the Unions promises that Respondent was opposed to union representation. Even in cases in which the employer's formal statements do not in themselves violate the Act but in which he nonetheless "make no bones" about his opposition to the union, the Board may, "with ample justification . . . regard" statements "of anti-union attitude" as "background" against which to measure statements , conduct, and the like made by other management spokesmen , especially in terms of the interpretation which the employees reasonably could put on such actions . More specifically , this would bear on the question whether, from the listeners ' point of view, these statements by subordinate management constituted forbidden coercion, threats , or intimidation." Hendrix Manufacturing Company, Inc. v. N.L R.B., 321 F. 2d 100, 103-104 (C.A. 5). Moreover, as the court went on, to say, When, as done here, an employer sets out to campaign against a union, one of the risks is that out of zeal , ignorance, or otherwise , foremen, supervisors, and similar representatives in championing the antiunion cause will overstep the mark. In the instant case , in which top management officials openly went into the parking lot next to the building in which a union meeting was being held and one of the employees known by managament to be a leader of the campaign was discharged 3 days later, the "risk" is even greater , both in the sense that the supervisors are more likely to "overstep the mark" and in the sense that the employees will interpret state- ments and questions by company representatives in the light of what has gone before. Having considered Respondent 's questions , comments , and statements "in connec- tion with the position of the parties , with the background and circumstances in which they were made and with the general conduct of the parties," I find that the acts set forth below were "part of a general pattern or course of conduct" which interfered with, restrained, and coerced the employees in violation of Section 8(a)(1) of the Act N.L.R B. v. Kropp Forge Co, 178 F. 2d 822, 829 (C.A. 7), cert. denied 340 U.S. 810. 1. Supervisor Adams' questioning of employee L. C. Williams in October 1963 about what the latter thought of George Williams. Such a question was designed to and did cause L. C. Williams to reveal whether he agreed or disagreed with George Williams' efforts on behalf of the Union. Adams' statement in the same conversation that "some more" would be fired "if this union business keeps going on around here" and his questioning of Williams about whether he would sign a card.74 2. Adams' reply to Spencer's comment in January 1964 about the discharge of L. C. Williams, i.e., that "he was going to get rid of a bunch of them working around here." 3. Supervisor Adams' statement to employee Spencer in February 1964 that he knew that Spencer was for the Union , that he knew most of the employees who had signed cards, and that Superintendent Reeves had been told that Spencer was working 73 Respondent's Attorney Price testified that he had told the employees repeatedly that they were free to loin the Union However, actions speak louder than words in labor relations as well as in other fields. Cf. The M. H. Ritzwoller Co v N.L R B , 114 F. 2d 432, 436 (C.A. 7). 74 The first charge alleging violation of Section 8(a) (1) of the Act was served on Respondent on March 18, 1964 PLAINS COOPERATIVE OIL MILL 1027 for the Union.75 These and similar statements set forth below, particularly when "interpreted" in the light of the admitted surveillance of the union meeting in August 1963, created the impression that Respondent was keeping itself informed, by means of surveillance, about the identity of the employees who favored the Union and the union activity generally. 4. Reeves' statement to Spencer, also in February, that employees had reported that Spencer was talking about the Union, that he did not want it to continue, and that if it continued, Reeves "would find some little excuse to let a worker go." 5. Supervisor Adams' statement to Spencer, also in February, that the employees "didn't have any business fooling with the union" and Adams' repetition of his state- ment that Reeves had received reports concerning Spencer's role in the union campaign. 6. Supervisor Grady Morris' order, in February, to employees George Williams, Spencer, and Coleman to "break up" a conversation because the kind of church they were talking about was "no good" and Morris' statement to Spencer that he should not be talking to Williams because Morris knew what Williams was talking about.7E 7. Supervisor Adams' order to employee Willie Griffin in March, after Griffin had been talking to employee Beaty, a known union adherent, that if anybody said any- thing to him about the Union to say that he "wasn't for it" because it was "no good" and could not give him anything more than he already had. Supervisor Adams' simi- lar order to Griffin in April at which time Adams showed Griffin a report about his being late and mentioned having looked for Griffin and not being able to find him, thereby reminding Griffin that he had been guilty of conduct for which he could be penalized. Such statements by Adams interfered with Griffin's right to express his own views if the Union was mentioned. 8. Supervisor Green's order to George Williams, in April, to take one or more union leaflets which were in his pocket to his car although they were folded so no one could see what they were and Williams had not engaged in union activity on company time. Supervisor Green's statement to Williams the next day that Superin- tendent Reeves had told Green that Williams should stop talking about the Union around the mill and that when Williams finished work he was not to come back to the mill as he had done in the past. The latter statement, in particular, was clearly an attempt to limit Williams' right to engage in union activity on company property even during nonworking time. Needless to say, the night-shift employees have a lunch period and Williams had a right to talk to them about the Union during his and their nonworking time. 9. The statement in Manager Davis' letter of April 27, to the employees to "be careful how they listened to the union promises" and the warning that followed; i.e., that the employees "could lose" what they had. b, The questionnau e and the inter ogation of employee witnesses subpenaed by the Board The Board recognizes that an employer has the right to question employees concern- ing factual issues raised in a complaint even though, as the court pointed out in Texas Industries, Inc., et at. v. N.L.R.B., 336 F. 2d 128, 133 (C.A. 5), "Any interrogation by the employer relating to union matters presents an ever present danger of coercing employees in violation of their [Section] 7 rights." In seeking to balance the conflict- ing rights, the Board has established "specific safeguards designed to minimize the coercive impact of such employer interrogation." Johnnie's Poultry Co., 146 NLRB 770. In the Board's opinion (ibid.) : the employer must communicate to the employee the purpose of the ques- tioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not exceed the necessities of the legiti- 7e Although I have credited Spencer's testimony that Adams showed Spencer an Okla- homa oil mill contract which showed that Spencer would make 20 cents an hour less if there was a union, I do not base any unfair labor practice finding on the statement. If Respondent had in its possession a bargaining contract under which employees in Spencer's job classification received 20 cents an hour less than Spencer was receiving, it had the right to show it to Spencer in support of the Company's argument that the employees did not need a union 78 The undenied testimony makes it clear that what Morris was objecting to was not that the employees were talking on company time but what he thought the employees were talking about. 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mate purpose by prying into other union matters, eliciting information concern- ing an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees. When an employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege.77 It is in the interest of respondents as well as the public that employees feel free to give statements to Board agents about anything they have seen or heard which is relevant to charges which are being investigated or complaints which are being liti- gated. Much more often than not, a thorough investigation causes the Board to conclude that the charge is without sufficient basis to warrant the issuance of a complaint 78 In most legal proceedings, neither party is in a position to exert direct and powerful pressures on potential witnesses for the other parties. However, in Board proceedings such as this one, the employer has the power to discharge, withhold promotions, or otherwise penalize potential or actual witnesses for the General Counsel and employers have discharged employees both for filing charges and for giving testimony. Employee knowledge that such power exists and can be exercised is unavoidable and it is significant that each of the two employees whose questionnaire is in evidence answered untruthfully the question about having given a statement. One of them, Willie Griffin, explained that he "didn't want to be involved in anything, none of that Union that was going on then." 79 As the court recently pointed out in Texas Industries, Inc., et al. v. N L.R.B (336 F. 2d 128, 134), It would seem axiomatic that if an employee knows his statements to the Board agents will be freely discoverable by his employer, he will be less candid in his disclosures The employee will be understandably reluctant to reveal informa- tion prejudicial to his employer when the employer can easily find out that he has done so No employee will want to risk forfeiting the goodwill of his superiors, thereby lessening his job security and promotion opportunities. It is no answer to say that the employee is free to refuse to furnish his employer with a copy of his statement. A refusal under such circumstances would be tantamount to an admission that the statement contained matter which the employee wished to conceal from the employer. In order to assure vindictaion of employee rights under the Act, it is essential that the Board be able to conduct effective investiga- tions and secure supporting statements from employees. [Emphasis supplied.] 80 In the instant case, some of the employees also gave written statements to a union representative which is most certainly a form of union activity. The giving of such statements at least suggests that the employee is involved in the organizational cam- paign and is cooperating with the Union. Although the same is not true of statements given a Board agent in the early stages of an investigation, once a complaint has issued, it is reasonable to assume that some employees have given statements containing information "prejudicial" to the employer. Although the court stated in Texas Industries, Inc, et al. v. N L R.B. (336 F. 2d at 133) that it was not foreclosing inquiry about whether a statement had been given with respect to matters alleged in the complaint, it emphasized that the employer's privilege in this area is a "narrow" one and that protection of employee rights "requires that the scope and manner of questioning be strictly confined to the neces- sities of trial preparation." The reason, of course, was stated by the court when it said that "Any interrogation by an employer relating to union matters presents an ever present danger of coercing employees in violation of their [Section] 7 rights." The court also agreed with the Board that the situation "calls for a delicate balance between the legitimate interest of the employer in preparing its case for trial, and the interest of the employee in being free from unwarranted interrogation." 77 Footnotes omitted. 78 During the fiscal year ending June 30, 1963, only 32 3 percent of the charges filed were found to have merit and complaints were issued in only 14 8 percent of the cases Twenty-eighth Annual Report of the National Labor Relations Board, 1964 , pp. 10-11. 78,Cf. Henry I. Siegel Co. Inc v. N L R.B., 328 F. 2d 25, 27 (C A. 2), in which the employer's request for the affidavits caused sufficient apprehension that some of the employees destroyed their copies. 80 The court said in N L.R.S. v. Vapor Blast Mfg Company, 287 F. 2d 402, 407 (C A. 7), that "The confidentiality of employee affidavits may well be necessary to preclude em- ployer retaliation and to insure full disclosure [of relevant facts ] to field examiners" of the Board. PLAINS COOPERATIVE OIL MILL 1029 In the instant case, the complaint named the management representatives who, it was claimed, made the allegedly coercive statements, set forth the dates on which they were made, and described the type of statement; i e , interrogation or threats. Thus, as in Texas Industries, the Company "knew basically what it had to meet" and the first 15 questions were designed to reveal knowledge of each incident alleged and space was provided on the questionnaire for the employee to describe any conversa- tion to which he was a party or at which he was present. Respondent has never explained what bearing the question concerning giving of statements had upon the truth or falsity of the allegations in the complaint and has never indicated how the answer to that question would assist it in preparing its case. When questionnaires and interviews include inquiries about matters which do not pertain to the facts in issue, the employees will ask themselves what the employer is really trying to find out and what their answers will reveal. As indicated above, they can reasonably believe that the employer is seeking to discover their attitude toward the union and whether they have acted in a manner "prejudicial" to him. All inter- rogation and particularly questions about the giving of statements also serve to remind employees of their employer's power to penalize those who assist the union and/or the Government in preparing and presenting a case against him It is abundantly clear that the employees did not fill out the questionnaires volun- tarily. On the contrary, 100 or more of them were called in and given the question- naires which they filled out in the presence of management representatives When one of them failed to fill out a questionnaire, he was recalled the next day and asked for an explanation. Although Respondent asserted that it had reason to believe that all of those called in might have knowledge of the incidents alleged in the complaint, the 100 plus employees were never identified even generally, i e., by departments or shifts There are, therefore, no facts which enable me or the Board or a court to determine that Respondent had reasonable ground to believe that each one of the hundred or more might be able to provide it with information about the allegations of the complaint. Furthermore, the context in which the employees were called in was not "free from employer hostility to union organization": on the contrary, the employees had been given ample notice that the Company opposed the Union and were aware that prounion employees had been discharged Nonetheless, no assur- ances were given the employees that no reprisals would follow if they refused to fill out the questionnaires or filled them out in a manner "prejudicial" to Respondent. At the hearing, Attorney Price expressed the view that "all of us are free Ameri- cans" who can talk about facts "without anybody being afraid" and that it is "hog- wash" for the Board to take the position that employees should be assured that they will not be penalized because of anything they say or refuse to say when questioned by their employer or his representatives Most, if not all, of the employee witnesses were unskilled Negroes and many of them were barely able to read and write As a result, their chances of getting other, comparable jobs in Lubbock are speculative at best and their chances certainly would not be impioved if it became known that they had assisted the Government and/or the Union in preparing a case against their employer. They also knew that George Williams was discharged the day after he pointed out that there were two sides to the union question and Plant Manager Davis himself recognized that the employees might feel that Williams was discharged because he spoke at the meeting.81 Against such a background, it is unrealistic to describe interviews conducted in the company office by an attorney in the presence of management officials as "voluntary" and "objective" discussions between persons equally free to speak or not to speak and with equal power to protect themselves if one of them antagonizes the other 82 It would also seem that an employer who does not intend to penalize the employees, no matter what they say or refuse to say, would have no objection to telling them so. Indeed, if the employer's only purpose is to find out the facts, unfavorable as well as favorable, he is more likely to get truthful answers if he tells the employees that they have nothing to fear no matter how they answer his questions. 81 Although they knew Williams was reinstated, they also knew that he was offered his job back only after a charge was filed. They were also aware that the filing of charges did not cause the Company to reinstate L C Williams and Jesse Spencer who, they could reasonably believe, were also discharged because of their union activity. 82 Cf. the statements in Texas Industries, Inc, et at. v. N.L R B., 336 P. 2d at 134, that "No employee will want to risk forfeiting the goodwill of his superiors, thereby lessening his job security and promotion opportunities" and that an employee is "reluctant to reveal information prejudicial to his employer if the employer can easily find out that he has done so." 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Attorney Sears told the employees that the Company was seeking to learn the facts so that it could prepare its case and that he was present not because of the union activity or the election, it is clear that the Respondent provided none of the other "safeguards" which the Board held in Johnnie's Poultry Co., 146 NLRB 770, are necessary to "minimize the coercive impact" of employer interrogation. Further- more, as previously noted, Respondent has never explained how the final question, i.e., the one about giving a written statement to anyone, assisted it in determining the truth or falsity of the allegations of the complaint or assisted it in preparation of its case ' 83 Having considered all of the circumstances, including the manner in which the employees were required to fill out the questionnaires, the absence of any assurance that there would be no reprisals, the inclusion of a question which had nothing to do with the facts in issue but the answer to which might disclose which employees were cooperating in the preparation of a case against their employer, Respondent's hos- tility to the Union, the absence of evidence establishing that Respondent had reason- able grounds to believe that each of the employees might have knowledge about the incidents alleged in the complaint, and Respondent's failure to explain how the answers to that question about the giving of statements would assist in preparing its case, I conclude that the questionnaire was not "strictly confined to the necessities of trial preparation" and that Respondent therefore interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act by requiring 100 or more of them to fill out the questionnaire desci ibed above. It is undisputed that a day or two before the hearing, Respondent's attorneys called in employees known to have been subpenaed by the Board and asked them what they were going to testify about Some of the employees were questioned several times, in at least one case, Respondent expressed disbelief when the employee indicated that he did not know what he would testify about, and in no case did Respondent provide the safeguards set forth above. Broad questions of this type, like demands for copies of the prehearing affidavits, could well provide the employer with information far beyond that necessary to pre- pare his case. Employees often do not know precisely what the General Counsel is going to ask them and do not recall what is and what is not in their affidavits Not being lawyers, they are likely to assume that they will be asked at the hearing about all of the union activity and will be asked to name all of the prounion employees. An employee's affidavit and testimony, on the other hand, are frequently and intentionally limited to facts which are relevant to the issues for the very purpose of avoiding unnec- essary disclosure of the nature and extent of the union activity generally and the identity of all of the employees who have either joined or expressed interest in the Union.84 Furthermore, it would seem axiomatic that employees who are still working at the same time of the hearing are reluctant to appear as witnesses against their employer. However, the public interest requires that they honor subpenas and testify about anything they know which is relevant to the issues. Any conduct by an employer which increases the natural reluctance of such employees to appear and testify truth- fully and fully interferes with the Board's processes and hampers it in performing its statutory duty to effectuate the policies of the Act. Cf. Hilton Credit Corporation, 137 NLRB 56, footnote I When employees who have been subpenaed by the General Counsel are asked by their employer what they are going to testify about, some may tell him the truth, others may insist that they do not know, while others, in an effort to minimize their antiemployer conduct, may tell him only some of what they really know. The latter, especially, are less likely to tell the "whole truth" at the hearing because they fear that their employer or his counsel will point out that they have testified about inci- dents which they did not mention when questioned in the office. I conclude, therefore, that piehearing questioning by the employer of employee witnesses subpenaed by the Board in the manner described above violated Section 8(a)( I) of the Act because it interfered both with the employees' right to file charges and testify freely and fully and with Board processes which are necessary to secure vindication of employees' statutory rights generally. Neuhoff Bios. Packers, Inc., 13 As the court noted in Texas Industries, Inc, et al v N.L R B , 336 F 2d at 133, the protection of employee rights "requires that the scope and the manner of questioning be strictly confined to the necessities of trial preparation " 81 The court in Texas Industries, Inc., et al. v. N.L R B , supra, noted that the employer has no right to information concerning matters R hich have no bearing on any issue to be litigated. PLAINS COOPERATIVE OIL MILL 1031 151 NLRB 916; Hilton Credit Corporation, 137 NLRB 56 , footnote 1; cf. Inland Boatmen's Union of the Seafarers ' International Union, etc. (St. Louis Harbor Service Company), 150 NLRB 636. 3. The alleged discrimination against employees George Williams, L. C. Williams, and Jesse Spencer a. George Williams' job assignments As set forth supra, prior to his discharge in August 1963, George Williams worked in the seedhouse except for approximately 3 days when he was one of a crew cutting weeds around the mill.85 After his return on September 20, he worked in the seed- house for 2 or 3 days and then was assigned, along with Brown, to cutting weeds and both men continued on that job until November 8. From the middle of November until the middle of February 1964, Williams worked inside dumping seeds. He and another employee then spent a month outside padding seeds after which Williams spent another 2 weeks inside . On April 1, Williams was assigned to the trash truck and was still working on the truck when the hearing began in late June. As noted supra, the General Counsel contends that Respondent's purpose in assign- ing Williams to cutting weeds (September 23-November 8), to padding seeds (about February 15 to about March 15 ) and to the trash truck (April 1 and thereafter) was to penalize him for his union activity and to isolate him so that he would be unable to talk to other employees , during nonworking hours, about the Union . In support of his contention, the General Counsel points out that Williams ' assignments in the spring of 1964 meant that, except for 2 weeks , he was working outside the mill away from the other employees and that this was the period in which the Union was dis- tributing leaflets (February and April) and preparing for the election which was scheduled for May 8. The record contains no evidence of similar, two-man, long-time, outside assign- ments in the past and the gist of Supervisor Green's testimony is that he had no particular reason for assigning Williams the jobs listed above. Respondent regarded Williams as the leader of the union movement and when Green discharged Williams in August 1963, he told Williams that he did not want to see Williams on the millyard anymore and the following April, Green told Williams that Superintendent Reeves had told Green that Williams should stop talking about the Union around the mill and that he should not come back to the millyard as he had done one night . Although Green could not recall that Williams had distributed union literature during the day, he know that Williams had distributed union literature at the plant gates before work, had heard that Williams was doing so at night, and on one occasion directed Williams to take some union leaflets which were in his pocket to his car. The previous October, Supervisor Adams asked employee Spencer what he thought about Williams and expressed the opinion that Williams had come to the Company to cause "trouble." In February , Supervisor Morris broke up a conversa- tion between employees George Williams , Jesse Spencer , and B . C. Coleman on the ground that the kind of "church" they were talking about was "no good" and Morris also told Spencer he should not be talking to Williams because he (Morris) knew what Williams was talking about Almost immediately after Williams was reinstated , he and Brown were assigned to cutting weeds 6 days a week for more than 6 weeks. During this period, there was no overt union activity and Williams was given an inside job in November and con- tinued to work inside until the middle of February . In January 1964 the Union renewed its campaign to persuade the employees to sign cards and in February it distributed union literature for the first time. The petition was filed in April, union literature was again distributed, and an election was scheduled for May 8. Except for 2 weeks in March, Williams was assigned outside, two -man jobs from about Febru- ary 15 until after the hearing began in late June. The record thus shows that after Williams was reinstated, he was kept under close observation and was given jobs which kept him almost constantly outside the mill where virtually all of the approximately 200 employees worked.86 Although none of the jobs reduced Williams' lunch periods substantially , they did reduce them more than inside assignments would have done. More importantly, the assignments served to remind both Williams and the other employees of Respondent 's attitude toward as It has been found that the weed cutting detail was rotated during this period 86 Those of the employees who eat lunch in the plant have more time to talk than em- ployees coming into the plant in the morning and leaving it after work In addition, em- ployees who might hesitate to accept a union leaflet at the gate might listen to prounion arguments expressed by one of a group during a lunchtime conversation. 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Williams' union activity and to discourage the other employees from talking freely with Williams on nonworking time lest management assume that they, too, were pro- union.87 Cf. N L R.B. v. Link-Belt Company, 311 U.S. 584, 602, in which the Court recognized that an employer's purpose may be to make an "example" of employees whose conduct with respect to the union has displeased him. Having considered Respondent's failure to offer any explanation for Williams' job assignments, the absence of similar assignments in the past, the nature of the assign- ments, and Respondent's hostility toward Williams and his union activity, I cannot believe that Williams' assignments were pure happenstance. On the contrary, I am convinced and find that a preponderance of the evidence establishes that it was Wil- liams union activity which caused Respondent to assign him jobs which isolated him from the other employees and reduced his opportunities to talk to them during non- working hours and discouraged them from talking freely to Williams and from identi- fying themselves with the union cause. It follows, therefore, and I find that Respond- ent thereby violated Section 8(a) (3) and (1) of the Act.88 b. The discharge of L. C. Williams L C. Williams first revealed his attitude toward the Union in October 1963 when Supervisor Adams asked him what he thought about George Williams and L. C. replied that he though George Williams was trying to get the union "in" to help the workers. In the same conversation, Adams asked L. C. Williams if he would sign a card and Williams said he would. He in fact signed a card in late December and thereafter talked to other employees about the Union. At least one of them, Slay, refused to sign the card. Respondent's conduct which revealed its hostility toward the Union and its adherents has been set forth previously and need not be repeated here. On January 14 Williams and his helper, Slay, failed to change a saw and Williams was discharged the next morning. It is undisputed that the only reason Adams gave Williams for his discharge was the failure to change one saw the day before. Adams said nothing to Williams about having falsified the saw report or about having been seen leaving the mill the day before. However, Respondent claimed at the hearing that Williams was discharged for these latter reasons although Adams testified at one point that the false report was the "only" reason for the discharge.89 For the reasons set forth supra, including Adams' failure to mention to Williams either the alleged falsification or the report that he had left the mill and Respondent's failure to preserve the allegedly false saw report, it has been found that Williams did not falsify the report and did not leave the mill. An employer who discharges an employee for a valid reason tells him the season and his failure to do so is, without more, "enough to support an inference that the [discharge] was discriminatory." N.L.R.B. v. Griggs Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5). The inference is even more justified in a case such as this one in which the employer tells the employee one reason and thereafter asserts entirely dif- feient reasons, none of which stands up under scrutiny. N.L R.B v. Griggs Equip- ment, Inc., supra, at 278; Stokely Foods, Inc. v. N L R.B., 193 F. 2d 736, 738 (C.A. 5), N L R B v. E. C Biown, Co, and Production Line Manufacturers, Inc., 184 F. 2d 829, 832 (C.A. 2). 87 It is clear that other members of the yarderew were working at other jobs although their assignments are not set forth in the record Without knowing what other jobs were available, I cannot find that Williams was assigned to less desirable jobs It is true, of course, as Williams pointed out, that he was working almost constantly out-of-doors, in the sun, rain, or cold, depending on the season. 88 The above finding is limited to Williams' job assignments after about the middle of February 1964 ; i.e., those occurring within 6 months prior to April 30, the date on which the charge alleging that his fob assignments were discriminatory was served on Respond- ent. Since the order would be the same in either case, it is unnecessary to determine whether the March 17, 1964, charge was sufficient to warrant an allegation and finding of discrimination against Williams between September 23 and November 8, 1963. How- ever, that assignment can be used to "shed light" on his later assignments. Local Lodge No 1421, v. N.L B B., supra When Williams' assignments are viewed as a whole, it is found that, except for 2 weeks in March 1964, Williams worked inside the plant only from the middle of November 1963 until the middle of February 1964 ; i e , the period after the 1963 union activity had ceased and before the union began its overt activity in early 1964 by seeking to obtain signed authorization cards and by distributing union literature through the mail and at the mill gates. 89 As noted supra, Respondent did not contend at the hearing that Williams would have been discharged if his misconduct on January 14 had been limited to failure to change a saw PLAINS COOPERATIVE OIL MILL 1033 , Moreover, as the court pointed out in N.L.R.B. v. W. C. Nabors d/b/a W. C. Nabors Company, 196 F. 2d 272, 274 (C.A. 5), cert. denied 344 U.S. 865, " While union membership discloses the real motive actuating an antiunion employer in dis- charging such employees , notwithstanding other asserted reasons." 90 Having considered the entire record, including Respondent's conduct which dis- closed that it was hostile to the Union and that it was seeking to identify the pro- union employees , its knowledge that Williams had defended George Williams' union activity and had stated that he was willing to sign a union card , the timing of the discharge, i.e., shortly after he signed a card and just as the union activity was starting up again, its failure to tell Williams the reasons subsequently asserted for his dis- charge, and the failure of those reasons to stand up under scrutiny , I conclude that a preponderance of the evidence supports the allegation that Williams was discharged because Respondent knew or suspected that he favored the Union and in order to dis- courage other employees from joining the Union and being active on its behalf. It follows, therefore , and I find that Respondent violated Section 8(a)(3) and (1) of the Act. These findings make it obvious that I conclude, as I in fact do, that Wil- liams was not discharged because of the reasons asserted at the hearing and that these reasons were mere afterthoughts put forward to make it appear that Williams was dis- charged for cause c. This discharge of Jesse Spencer At the time of his discharge , Spencer had been working for Respondent for 4 years and there are no derogatory notations on his timecards or in his personnel file except those in connection with his discharge. As set forth supra, Spencer was one of the early leaders in the union movement, he signed a card in July 1963, and was one of the employees outside the union hall on August 15, 1963. He signed another card in early 1964 and renewed his efforts to per- suade other employees to sign cards . Both Superintendent Reeves and Supervisor Adams talked to Spencer about the Union with Reeves telling him that if he contin- ued to talk about the Union Reeves "would find some little excuse to let a worker go." It has been found that when Adams told Spencer that he would have to work in Rafe's place on Sunday, March 15, Spencer asked Adams for permission to be off Fri- day, March 13, and Adams said that Spencer had to work Friday and take off Tues- day, March 17. Spencer did not come to work on Friday and was discharged the next morning, allegedly for failing to work on Friday as directed by Adams. The question to be decided is whether Respondent seized upon Spencer's absence as an excuse to discharge a known, prounion employee or whether it in fact discharged him for the reason given. The basic premise of the General Counsel's "pretext " contention is that Spencer was guilty of nothing more than being absent without permission and without a legiti- mate excuse.31 It has been found, however , that Spencer was guilty of something con- siderably more serious than an "unauthorized absence." He failed to report to work after having been refused permission to be off on March 13. Thus, unlike L. C. Wil- liams, Spencer was in fact guilty of the misconduct for which Respondent claims that it discharged him. Moreover, his misconduct was of the type for which employees aie frequently discharged and Respondent had discharged an employee in December for failing to work on Christmas Day after having been directed to do S0.92 00 The court also noted in the same case that the fact that an employer retains some union employees does not "exculpate him from the charge of discrimination as to those discharged," 196 F 2d at 276. 91 In this connection he notes that Respondent's rules provide that "If an employee does not show for work without a legitimate excuse, he will be required to take his regular day off also " An employee who "does not show for work twice in a 30-day period, and does not have legitimate excuse," is "subject to discharge " 02I cannot agree with the General Counsel's contention that Barker's case is distinguish- able because 'Barker was told, in advance, that he would be discharged if he did not work December 25. Any employee knows, without being told, that he is likely to be discharged if he fails to report for work when directed to do so There is some evidence that em- ployee R. V. Carroll was absent in February even though Adams refused him permission to be off; however, I am unable to find that the record as a whole establishes that Adams refused Carroll permission to be off. I also note that Carroll signed a union card and it has been found that the Company was keeping itself informed about which of the em- ployees were prounion. The record does not indicate the date on which Carroll signed the union card but the General Counsel was in a position to establish the date If Carroll joined the Union after his alleged February absence, I assume that the General Counsel would have established the fact. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor can I agree with the General Counsel's contention that the record contains no explanation , other than Spencer's union activity, for Adams' selection of Spencer to substitute for Rafe.93 It is true that there were other employees who were competent to do Rafe's work and that it worked something of a hardship on Spencer to work on Sunday, his normal day off, once every 2 months . The fact remains , however, that Spencer was the logical employee to work on Sunday when Rafe was off because Spencer normally did not work on Sunday. The others apparently worked regularly on Sunday which means that they had their own jobs to do that day . In other words, had any one of them substituted for Rafe, his own job would have gone undone. The above facts, including Spencer's failure to report to work on March 13 after having been directed to do so, the serious nature of his misconduct , and the discharge of another employee in December 1963 for a similar offense , cause me to conclude that Spencer's absence was not a mere pretext seized upon by Respondent as an excuse to discharge Spencer because of his union activities . I find, instead, that Respondent discharged Spencer for cause, i.e., his absence from work on March 13 under the circumstances set forth above . It follows, therefore, and I find, that Respondent did not violate Section 8 (a) (3) and ( 1) of the Act by discharging Spencer.94 III. THE REMEDY Having found that Respondent committed certain unfair labor practices, I shall recommend the customary cease-and-desist order and the affirmative relief which is normally ordered in cases of this kind. Although Respondent apparently ceased its discrimination against George Williams after the hearing began , in view of its entire course of conduct with respect to Williams, the Recommended Order will direct Respondent to cease and desist from discriminating against Williams by assigning him jobs because of his union activity and for the purpose of discouraging other employees from having anything to do with Williams on nonwork time or with the Union generally . Any backpay found to be due employee L. C. Williams as a result of his discriminatory discharge shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB 716. Since Respondent discriminated against employees L. C. Williams and George Williams because of their known or suspected union activity and since such conduct goes to the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C A. 4) ), I shall also recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Plains Cooperative Oil Mill is an employer engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. United Packinghouse , Food and Allied Workers, AFL-CIO, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. R. L. Davis, H D. Reeves, Bob Thomas, Wayne Martin , Clyde Adams, Claude Green, and Grady Morris are supervisors within the meaning of Section 2(11) of the Act 4. By coercively interrogating employees concerning their attitude toward the Union and its adherents , by coercively questioning them about what they were going to testify about , by coercively requiring them to fill out a questionnaire which included a question about having given written statements to anyone , by threatening them with discharge and loss of benefits if they engaged in union activity , by limiting the exercise by employees of their right to talk to union adherents and about the union during 63 The General Counsel argues that Respondent 's purpose in selecting Spencer was to "provoke Spencer " into some form of protest which it could magnify into an "ostensibly lawful reason for discharging him." It is interesting to note that Respondent first notified Spencer that he would have to work in Rafe's place during the week, and prob- ably on the very day, Williams was discharged. °' It is true , as the General Counsel points out in his brief, that there is considerable contradiction in the testimony of Respondent 's witnesses concerning who had authority to discharge in March with the result that it is far from clear that Personnel Director Martin in fact had the power to authorize Adams to discharge Spencer . However, in my opinion , the contradictions cited by the General Counsel do not indicate that the Company discharged Spencer for reasons other than those stated by Respondent's witnesses. PLAINS COOPERATIVE OIL MILL 1035 nonworking time, by directing them to say that they were against the Union, and by creating the impression that the Company was keeping their union activity under surveillance, Respondent violated Section 8 (a) (1) of the Act. 5. By discharging employee L. C. Williams because of his union activity and, for the same reason, assigning employee George Williams jobs after about the middle of February 1964, which kept him isolated from the other employees and discouraged them from talking freely to Williams on nonwork time and from identifying them- selves with the union cause, Respondent violated Section 8 (a) (3) and (1) of the Act. 6. Respondent discharged employee Jesse Spencer for cause and not because of his union activity and did not violate the Act by engaging in conduct other than that summarized in paragraphs 4 and 5, above. 7. The unfair labor practices set forth in paragraphs 4 and 5, above, are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondent, Plains Cooperative Oil Mill, its offices, agents, successors , and assigns, shall. 1. Cease and desist from: (a) Coercively interrogating employees concerning their attitude toward the Union and its adherents, coercively questioning employees about what they are going to testify about, coercively directing employees to fill out a questionnaire which includes a question about having given a written statement to anyone, thicatening employees with discharge and loss of benefits if they engage in union activity, limiting the exer- cise by employees of their right to talk to union adherents and about the Union during nonwork time, directing them to say that they are against the Union, and creating the impression that the Company is keeping employee union activity under surveillance. (b) Discouraging membership in and activity on behalf of United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organization, by discharging employees because of their union activity or, for the same reason, assigning them jobs which isolate union adherents and discourage other employees from talking freely with them during nonwork time and from identifying themselves with the union cause generally, or by discriminating in any other manner against employees because of their known or suspected union activity. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other con- certed activity for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activity. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Offer L. C. Williams immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Trial Examiner's Decision entitled "The Remedy." Notify L. C Williams, if he is serving in the Armed Forces of the United States, of his 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. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or appropriate to analyze the amount of backpay due L. C. Williams. (c) Post at its plant in Lubbock, Texas, copies of the attached notice marked "Appendix." 95 Copies of said notice, shall, after being duly signed by the Respond- ent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, BS If this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals , Enforcing an Order " for the words "a Decision and Order". 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Trial Examiner's Decision, what steps Respondent has taken to com- ply herewith96 It is further recommended that the complaint be dismissed insofar as it alleges that Respondent engaged in conduct violative of Section 8 (a) (3) and (1) of the Act other than that found in the Trial Examiner's Decision. It is further recommended that, unless Respondent shall within the prescribed period notify the said Regional Director that it will comply with the foregoing Recom- mended Order, the National Labor Relations Board issue its Order requiring the Respondent to take the aforesaid action. 99 If this Recommended Order is adopted by the Board , this provision shall be modified to read: "Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith" APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discharge, assign work, or otherwise discriminate against our employees because they become members of, help, or act on behalf of, United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organization. WE WILL NOT threaten our employees with discharge or loss of benefits because they join or seek to be represented by United Packinghouse, Food and Allied Workers, AFL-CIO, or any other labor organization. WE WILL NOT inteirogate our employees, either orally or in writing, in a manner violative of Section 8(a)(1) of the Act, about their union membership or opinions, about what they expect to testify about in Board proceedings, or about whether they have given statements in writing concerning matters being investigated by the Board or which are alleged to be unfair labor practices in a complaint issued by the Board. WE WILL NOT limit our employees' right to engage in union activity on non- work time, to talk to union adherents and to engage in union activity generally. WE WILL NOT indicate to our employees that we are keeping their union activities under surveillance. WE WILL NOT direct our employees to say that they are opposed to the above- named labor organization, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activity. WE WILL offer to L. C. Williams immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and will make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. PLAINS COOPERATIVE OIL MILL, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement in accordance with the Selective Service Act and the Universal Military Training and Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Services. 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. A. WERMAN & SONS, INC. 1037 If employees have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board 's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131. A. Werman & Sons, Inc. and Boot & Shoe Workers' Union, AFL- CIO, Petitioner. Case No. 4-RC-6197. September 7, 1965 DECISION ON REVIEW, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election issued by the Regional Director for Region 4 on January 27, 1965, an election by secret ballot was conducted on February 18, 1965, under his direction and supervision, among the employees in the unit found appropriate. Upon the conclusion of the balloting, the parties were furnished with a tally of ballots which showed that of approximately 157 eligible voters, 143 cast ballots, of which 50 were for, and 89 against, the Peti- tioner and 4 were challenged. The challenged ballots were insufficient in number to affect the results of the election. Thereafter, the Peti- tioner filed timely objections to conduct affecting the results of the election. In accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and on April 6, 1965, issued his Supplemental Decision on Objections and Certificate of Results in which he overruled all the objections. Thereafter, pursuant to Section 102.67 of the Rules and Regulations , the Petitioner filed a timely request for review and the Employer filed a motion in opposition thereto. On May 24,1965, the Board, by telegraphic order, granted the request for review. Thereafter, the Petitioner filed a supporting brief. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fan- ning and Jenkins]. The Board has considered the entire record in this case with respect to the issues under review, the brief of the Petitioner, and the opposi- tion motion of the Employer, and makes the following findings : The objections relate solely to one speech made by Stanley Werman, the Employer's president, to an assembly of unit employees at the Mari- etta, Pennsylvania, plant. The speech, a copy of which was attached to the Regional Director's Supplemental Decision, was delivered during working hours in the plant on the morning of February 17, 1965, and was completed at 9 :07 a.m., approximately 25 hours before the ballot- ing began. 154 NLRB No. 79.