Colony Furniture Co.

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I find that Respondent did not breach the settlement agreement by engaging in subsequent unlawful conduct , I shall recommend that the settlement agreement be reinstated without passing upon the conduct which occurred prior thereto . Conroe Creosoting Company, 149 NLRB 1174, and see cases cited in section A, supra. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSION OF LAW Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER I recommend that the complaint be dismissed in its entirety and that the settle- ment agreement in Case No. 14-CA-3470 be reinstated. Colony Furniture Co. and United Furniture Workers of America, AFL-CIO. Case No. 26-CA-1937. January 11, 1966 DECISION AND ORDER On September 17, 1965, Trial Examiner James A. Shaw issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recom- mended dismissal thereof. The General Counsel filed exceptions to the Decision and a supporting brief, and the Respondent filed cross- exceptions and a brief in support thereof and in opposition to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications." 1. Although the Trial Examiner credited the testimony of employee Stenhouse as to the conversation he heard between employee Charles and Plant Foreman Davis and found Davis' statement to Charles 'Under the established policy not to overrule a Trial Examiner's credibility findings unless a clear preponderance of all the relevant evidence convinces us that they were in- correct, we find no basis for disturbing the credibility findings made by the Trial Examiner in this case. Standard Dry Wall Products, Inc., 91 NLRB 844, enfd. 188 F. 2d 362 (C.A. 3). 156 NLRB No. 71. COLONY FURNITURE CO. 729 violative of Section 8(a) (1), the Trial Examiner failed to find that part of Davis' statement constituted a threat of discharge, or to order a remedy therefor. We find that the statement by Davis, ". . . if they [the Respondent] ever heard anything about union talk they'd [the Respondent] have to let us [the employees] go," was a threat of dis- charge in violation of Section 8 (a) (1) ; and we shall amend the Order and notice accordingly. 2. The Trial Examiner credited emyployee Mitchell's testimony as to what Plant Superintendent Dallas Hendrix had stated to him, and found the statement violative of Section 8(a) (1) as constituting sug- gested surveillance of the union activities of his coworkers in the plant. However, the Trial Examiner failed to order a remedy therefore. Accordingly, we shall amend the Order and notice to proscribe such unlawful conduct. The credited testimony as to this conversation between Mitchell and Hendrix also shows that, immediately after Hendrix asked Mit- chell how he felt about the Union, Hendrix told Mitchell, You know we got plans for you in the near future." The Trial Examiner, while finding that Hendrix' statement at this time violated Section 8 (a) (1) otherwise, failed to find that such statements also included an unlaw- ful promise of benefit. We find that, in the context in which stated, immediately following the unlawful interrogation of Mitchell as to his feelings about the Union, the quoted statement by Hendrix con- stituted a promise of benefit if Mitchell would renounce the Union or refrain from aiding or assisting the Union, in violation of Section 8(a) (1). Accordingly, we shall amend the Order and notice to proscribe this type of unlawful conduct. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as new paragraphs 1(c), (d), and (e) and reletter the present 1(c) as 1(f) : [" (c) Threatening to discharge its employees for their activity in behalf of the United Furniture Workers of America, AFL-CIO, or any other labor organization, in violation of Section 8(a) (1) of the Act." [" (d) Suggesting to its employees that they engage in surveillance of the union activities of their coworkers, in violation of Section 8(a) (1) of the Act." [" (e) Promising benefits to its employees if they renounce or refrain from aiding or assisting the United Furniture Workers of America, AFL-CIO, or any other labor organization, in violation of Section 8(a) (1)." 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [2. Add the following as the third, fourth, and fifth indented para- graphs to the notice attached to the Trial Examiner's Decision: [WE WILL NOT threaten to discharge our employees for their activity in behalf of United Furniture Workers of America, AFL-CIO, or any other labor organization. [117E, WILL NOT suggest that our employees engage in surveil- lance of union activities of their coworkers. [WE WILL NOT promise benefits to our employees if they renounce or refrain from aiding or assisting United Furniture Workers of America, AFL-CIO, or any other labor organization.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard before Trial Examiner James A. Shaw in Little Rock, Arkansas, on January 25 and 26, 1965, pursuant to due notice. The complaint, which issued on October 30, 1964, on a second amended charge dated October 27, 1964, alleged that Colony Furniture Co , herein called the Respondent, engaged in unfair labor prac- tices proscribed by Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended The Respondent filed an answer to the complaint on November 6, 1964, in which it admitted certain jurisdictional allegations in the complaint, and specifi- cally denied the commission of any of the alleged unfair labor practices. The parties were represented by counsel and participated fully in the hearing. The parties also filed briefs which were received by me on or about March 8, 1965, and they have been duly considered in making my findings herein. On or about March 3, 1965, counsel for the Respondent filed a motion to correct the record herein, which is hereby granted in the absence of objections by either the General Counsel or the Charging Party. Upon the entire record in the case, and from my observation of the witnesses, I make the following- FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS The complaint alleges and the answer admits that "Respondent is now, and has been at all times material herein, a business enterprise with plants in various States, including California and New Jersey, and at Little Rock, Arkansas, the only location involved herein, where it is engaged in the manufacture, sale, and shipment of furni- ture products"; "During the past twelve months, in the course and conduct of its business, Respondent received at its Little Rock, Arkansas, plant, goods and materials valued in excess of $50,000, directly from points located outside the State of Arkan- sas, and during the same period of time, sold and shipped from its Little Rock, Arkan- sas, plant, directly to points located outside the State of Arkansas, products valued in excess of $50,000." In the circumstances described above, I find that the "Respondent is now, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act." 1 II. THE LABOR ORGANIZATION INVOLVED The Charging Union, United Furniture Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and issues As indicated above, we are primarily concerned herein with certain alleged conduct by the following persons, who at all times material herein were agents and supervisory 1 Quotations are from the complaint. COLONY FURNITURE CO. 731 employees of the Respondent: Plant Foreman J C. Davis; Plant Superintendent Dallas Hendrix; and Plant Manager Frank Whittle, that was violative of Section 8(a)(1) and (3) of the Act, as amended. The alleged violations of the Act stemmed from the efforts of representatives of the Charging Union to organize the employees of the Respondent during the months of August and September 1964. As a consequence of its efforts in this regard certain of the Respondent's employees became active on its behalf among their coworkers, particularly L. C. Charles, a "truck loader." Charles was discharged by the Respondent on October 5, 1964, under circum- stances that will be thoroughly discussed below. Suffice it to say at this stage of the Decision, that the discharge of Charles was the predicate for the filing of the amended charge upon which the complaint herein was issued by the General Counsel on Octo- ber 30, 1964. As indicated above, the position of the General Counsel in the case-at-hand is that Charles was discharged by the Respondent on October 5, 1964, because of his activi- ties for and on behalf of the Charging Union, and consequently was violative of Sec- tion 8(a)(3) and (1) of the Act; and that his position in this regard is supported by certain conduct of its supervisory employees that was independently violative of Section 8(a)(1) of the Act, in that it interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. The Respondent's position is that Charles was discharged for causes that were within its prerogative as an employer and were not violative of Section 8(a)(3) and (1) of the Act, and that it did not engage in the alleged independent violations of Section 8(a) (1) of the Act set forth specifically in the complaint herein. In the final analysis the issues herein may be summed up as follows: Did the Respondent engage in conduct violative of Section 8 (a) (3) and (1) of the Act? The General Counsel contends that it did, and the Respondent denies in toto his conten- tion in this regard. Though the foregoing may well sum up the issues herein legalis- tically, it does not follow that they constituted the primary problem that I have been confronted with in disposing of the issues herein, which quite frankly was the credi- bility of the witnesses who testified before me at the hearing herein. While it is true that the resolution of this particular issue is, at times, most difficult and annoying to me, nevertheless, in the case-at-hand it is more so for reasons which should be obvious to those who have occasion to peruse the transcript of the record herein.2 B. The alleged violations of Section 8(a) (3) and (1) Some reference should be made at this point to the nature of the Respondent's busi- ness at its Little Rock, Arkansas, plant, such as its complement of employees and its departmental setup, for example, its truckloading department where the incidents that we are primarily concerned with herein occurred. The Respondent at all times material herein had approximately 100 employees at its Little Rock plant. They were assigned to various departments such as sanding, where its products such as dressers, night stands, and the like were sanded by employ- ees who worked on a "production line" system, and the trucking department, where a considerable portion of its finished products were loaded on trucks for shipment to its customers. As indicated above, we are primarily concerned herein with the employees who worked in this department The record shows that at all times material herein, the Respondent had around 12 employees in the truck department, which in turn was divided into 2 sections, one of which was the L.T.L. section which loaded its products in privately owned trucks, and the regular section which handled the loading of its products on its own trucks and/or trailers for delivery to its customers The supervisor in charge of the depart- ment, at all times material, was J. C. Davis. Suffice it to say at this point that his role in the incidents with which we are concerned herein was of major importance. The following employees worked under Davis' supervision in the truck department: L. C Charles, One Stenhouse, and Orville Huddleston, all of whom testified at the hearing herein in support of the General Counsel's case-in-chief. The Union started its organizational campaign among the Respondent's employees sometime in July 1964 by the distribution of handbills outside its plant. Though the record herein is most vague in this regard, I am convinced that its major efforts to organize the Respondent's employees were from around the middle of August to the latter part of September 1964. During this period the Union held several meetings in North Little Rock and at Charles' home, 1418 Ringo Street, Little Rock, Arkansas. 2 See infra for examples of such worrisome and frustrating incidents in the cease-at- hand. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During this same period the Union also passed out to Respondent's employees appli- cation for membership cards, which the record indicates were signed and returned to its representative One of those who signed a card during this period was Charles. That the Respondent was well aware of the Union's activities among its employees is well illustrated in the testimony of Davis, Hendrix, and Whittle, which will likewise be referred to below in my disposition of the case as to Charles. Suffice it to say at this point that the original charge against the Respondent was filed on September 18 and served upon it on September 22, 1964.3 It was in the light of the foregoing that L. C. Charles was discharged by the Respondent on October 5, 1964. The case as to Charles has perturbed me considerably for reasons that will be apparent to all concerned hereinafter. Suffice it to say at this point that the credibility issue that I referred to at the onset of my Decision in the case-at-hand will now be apparent to all concerned. The incidents that led up to the discharge of Charles on October 5, 1964, started on Friday evening, October 2, 1964, at which time J. C. Davis, foreman in charge of the truckloading division, told several members of his group to report for work at 7 a.m. on Saturday, October 3, 1964. Among those he requested were Charles, Sten- house, and Huddleston, all of whom reported for work as requested but Charles. At this point it should be pointed out that the employees are required to check in and out of the plant on a timeclock that is located near one of the entrances to the plant. What transpired at the timeclock on October 3, 1964, was, unquestionably, the most troublesome issue that was litigated at the hearing, and the "consumer" of page after page of the record herein, primarily because of the testimony regarding the "mechani- cal operation" of the clock and the carlessness of an unknown employee at checkout time who neglected to move the "lever" that regulates the "in" and " out" mechanism inside the clock and transfers the time in print to the timecards.4 On October 3, 1964, around 7:15 a.m., Davis, as was his custom, went by the timeclock to see if all of the employees under his supervision had reported to work. He knew their timecard numbers and upon checking the card rack saw that all of their cards had been pulled out and placed in the "In" rack in their proper slots. He then went back to the loading dock where they reported each morning and found that all were present except Charles. Shortly thereafter, he went back to the time- clock and found that Charles' card had been punched in What transpired thereafter is best told in the following excerpt from Davis' testimony: Q. (By Mr. JOHNS.) Did you advise Mr. Whittle of Mr. Charles' absence? A. I did. Q. Tell me what happened in respect to that. A. After I went to the shipping department and found that Charles was not present and his card had been clocked I taken it to Mr. Whittle's attention at approximately 8:15 or 8:20 and asked him what should we do about it, that Charles wasn't there and that his card had been clocked in. Q. What did Mr. Whittle say? A. He said, well, had he called in or did anyone know of the reason or had he sent word by anyone and I said no. And he said, "Well, put it back in the rack. It might have just been a mistake by someone," and he would check with me later on in the morning about it. Q. Did you check the rack again after the employees had checked out on Saturday? A. Yes, sir, I did. Q. Did you find Charles' card checked out? A. Yes, sir, I did. Q. What did you do about it? A. I taken it in to Mr. Whittle's office to his attention. After the employees under his supervision had checked out at 12 noon, Davis went back to the timeclock and pulled out Charles' card and found that it had been checked out at 12, and that there was also an "overpunch" on the "time in" place on his card.5 He pulled the card out of the rack and went back to Whittle's office and showed him the card. After Whittle saw the card he said to Davis, "Let's go look at the cards." S See General Counsel's Exhibit No. 1-a. 4 Further reference to the timecards will be made in that section of my Decision that is concerned with the incident that led up to the discharge of Charles See Respondent's Exhibits Nos. 1, 2, 3, 4, and 5 for a picture of the timecards and the "in" and "out" spaces and punches. 5 See Respondent's Exhibit No. 3 for the "overpunch" opposite the "2" on the card. COLONY FURNITURE CO. 733 When they arrived at the timeclock, Whittle asked him who usually worked with Charles on the dock, which was their regular working place, and he told him that there were "two guys," Huddleston and Stenhouse. What transpired thereafter is best told in the following excerpt from Davis' testimony in this regard: 6 Q. And then what did you or Mr. Whittle do after you mentioned these names? A. We checked these cards. We pulled them from the rack and checked them in order to see that they had been punched-I mean, in other words, to check the cards to see if they had been punched alike, after we found out that Charles had been over-punched when I brought it in the second time, we checked the cards of Huddleston and Stenhouse first, because they work in the immediate depart- ment of his. We found that Huddleston wasn't over-punched and Stenhouse was. So, then, we checked the whole rack, me and him together. We checked the rack together and we didn't find no other card at that moment that was over- punched. Q. What was then done? A. I asked Mr. Whittle what should we do about the case, that it looked kind of suspicious that something was wrong since they had been clocked in and out- well, clocked out twice, actually, that someone had evidently made a mistake or not made no mistake, but evidently clocked it intentionally, and he suggested we put it back in the rack and check and see if L. C. would give any reason for having-if he would bring it to my attention Monday morning. What transpired on Monday morning, October 5, 1964, is, in my consideration, the most controversial issue that we are confronted with, primarily because of the suspicion that it raises regarding the credibility of Stenhouse and Huddleston, who testified at.the hearing in support of the General Counsel's case-in-chief. As indicated above, Whittle and Davis checked the cards of Huddleston and Sten- house first and found that of the two only Stenhouse's was overpunched. Singularly enough, his overpunch and the "correct" punchout time on Stenhouse's card and Charles' were identical, which is clearly evidenced on their cards which were admitted in evidence at the hearing. An examination thereof shows that both cards are checked out on the No. 2 line at 12 o'clock.? At the time the above-described check of the timecards was made all of the employees had checked out and no further inves- tigation of the incident was made until Monday, October 5, 1964. What transpired at that time will be thoroughly discussed below. Here again I am convinced that the evidence in this regard is best portrayed in the language of the witness. Consequently, the following pertinent testimony from Davis' testimony in this regard follows below: Q. What happened on Monday in respect to Charles? A. Monday morning at work time I came in and Charles never reported to me his card had been clocked in and I reported to Mr. Whittle that his card had been clocked in and he asked me at that time had Charles reported to me and said anything about his card being clocked, or give me any excuse for why he wasn't present Saturday and my answer to him was no, that he hadn't. Q. What did Mr. Whittle say to that? A. He said to replace the card in the rack and he would check with me later on in the morning and see if Charles-maybe he hadn't had time to see me or hadn't-to give him a little more time to come to me and tell me about his card or either tell me about his absence. T Ri<u. EXAMINER : You will have to speak up, please. Q. (By Mr. JohNs.) Did Mr. Whittle come to early in the morning? A. Yes, sir, about-we have a break period about 10:00 o'clock. He came to me along then and asked me had there been any report from him and I said no. Q. What did Mr. Whittle say then? A. He said he would check with me again about a quarter until 12:00, would gave him until noon, or along close to noon, and he would check with me again, and if there was still no report, he wanted to see him and, also, Stenhouse in the office. Q. What happened next? A. At approximately 11:30 or a quarter to 12.00 Mr. Whittle came out there and asked me had there still been no report or had there been a report and I said no, and he said, "Well, I am ready to see the employees in my office." In compliance with Whittle's request Davis went back to the "dock" and told Charles and Stenhouse ". . . that they were wanted in Mr Whittle's office." What hap- 6 See infra for my comment on the causes of the "overpunch " 7 See Respondent's Exhibits Nos. R-3 and R-5. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pened thei eafter will be disposed of below. Suffice it to say at this point that there are several different versions of what transpired in Whittle's office at the time in ques- tion, and as a consequence thereof I am confronted with several problems as to the credibility of the witnesses for the parties who testified at the hearing herein regarding what transpired in Whittle's office at the time in question.8 At this point I again point out that there are three separate versions of what trans- pired in Whittle's office on October 5, 1964. They are as follows: that of Whittle and J C. Davis, L. C. Charles, and for at least a portion of the time, that of Stenhouse. Davis' version as to what transpired in Whittle's office will be considered at this point for reasons that will be obvious to all concerned hereinafter. According to Davis, when he arrived at the office, Charles was sitting in a rocking chair near Whit- tle's desk, and Stenhouse was standing "at the lefthand side facing the door of Mr. Whittle's desk." Davis sat down on a sofa. After he sat down he noticed that Charles had an unusually large pocketknife in his hand, with a blade longer and larger than the ordinary pocketknife, and at the time was "picking at his finger nails" and leaning on Whittle's desk. After everybody got settled down in the office Whittle said, . Boys, we seem to have a problem here. I don't really ... I didn't at first know what I should do, or whether I should have called the law or what," and he turned to L. C. Charles and said, "L C, you were told to come into work Saturday. You wasn't here." Charles admitted that he had failed to report to work on Saturday morning. Whittle then told him that his timecard had been punched in and out on Saturday, and that he had not mentioned this to his foreman, J. C. Davis, since he reported for work at 7:52 a.m. on the day in question, Monday, October 5, 1964. At this point Charles said, "Was my card clocked?" In answer to Charles' question, Whittle then laid his card and Stenhouse's on the desk in front of Charles and told him that his card had been clocked in and out on Saturday, October 3, 1964. He then turned to Stenhouse and asked him if he clocked Charles' card in and out on the day in question Stenhouse emphatically denied that he had "clocked" Charles' card in and out, and asked Whittle to let him see the cards. After Stenhouse looked over the cards, he said, ". . . Just a minute," and left the office and went directly to the timecard rack. Davis followed him out of the office and stood back a short way from where Stenhouse was standing and checking the cards on the rack.a Shortly after Stenhouse arrived at the card rack he pulled a card out of the rack and went back to Whittle's office. What transpired thereafter will be disposed of below. The card that Stenhouse pulled out of the rack was that of Harold Jones. The circumstances under which Stenhouse pulled Jones' card out of the rack will be thor- oughly discussed hereinafter. Suffice it to say at this point that, according to Sten- house, Jones' name flashed in his mind, so to speak, right after Whittle told him that his card and Charles' bore identical punchout marks, which caused him to think who else was punching out when he was on Saturday, October 3, 1964, and it was at that moment that he thought of Jones. There will be more in this regard below. After Stenhouse arrived back at Whittle's office he handed him Jones' card and said, "Well, what about this card?" Whittle took the card and looked it over and said, "Well, maybe this guy could be in on it too," and told Stenhouse in effect that he and Davis did not see Jones' card when they checked the card rack on Saturday morning, October 3, 1964. What transpired from this point on will be discussed below. 8 At this point I desire to point out my position as to the disposition of the issues herein In the first place, my policy in this regard is now and always has been predicated upon certain basic principles, the most important being that all of my findings are made in the light of my observation of the witnesses who testified at the hearing herein, and after a careful scrutiny of the record as a whole, not a portion thereof, or a lifting out of context particular portions thereof, as a predicate for a finding of fact (See Hunkin- Conkey Construction Company, et at., 100 NLRB 955, 901.) I have read and reread the record herein several times and have carefully abstracted the testimony of each and every witness that testified at the hearing, and being mindful of the contentions of the parties, with obvious, and heretofore mentioned credibility problems involved as to sev- eral incidents, and the lengthy testimony regarding the mechanical operation of the time- clock, consequently, what follows herein is a composite picture of all the factual issues involved and the conclusions based thereon. The parties may be assured that in reaching all resolutions, findings, and conclusions herein, the record as a whole has been considered , relevant cases have been studied ; each contention advanced has been weighed even though not specifically discussed ; and that I shall make my ultimate findings herein upon all of the above and "let the chips fall where e'er they may." 0 Quotes are from Davis' testimony at the hearing herein. COLONY FURNITURE CO. 735 We now come to the discharge of Charles and Stenhouse 's "lay-off." After long and careful consideration , I am again convinced that the best way to present a resume of Davis' testimony in this regard is to do so in the language of the witness . Conse- quently, the excerpt from his testimony follows below: So, he turned to L. C. L. C. still hadn't given any reason for not reporting, being off, or not reporting for having his card clocked . In other words , he didn't give no argument, why Mr. Whittle should be questioning- Mr. WISE: I am going to object and ask that the witness be instructed, sir, to state just what he heard and so forth. TRIAL. EXAMINER : Just what you heard , please. The WITNESS: Okay. A. (Continuing.) Mr. Whittle turned to Charles and told him that he didn't have no alternative but to dismiss him, discharge him, because of failure to report his card, it had been clocked in and out , and he give no reason for it being clocked in and out. He also turned to Stenhouse and told him that he was going to lay him off on Wednesday so he could have time to check this more thoroughly and told him to come back Wednesday to see him and he would decide then what to do about his side of the case. And at that moment he told Stenhouse to go clock out and at that moment he called Mrs. Pettey and had her to figure the payroll, figure the time for Charles and me and Stenhouse left the office. As I see it Whittle's reasons for the discharge of Charles were manifold , in other words, a combination of incidents anyone of which, standing alone, would have been a legitimate reason for discharging him, absent a desire to get "rid" of him so to speak on account of his activities on behalf of the Union . In situations such as we are faced with herein , where there exists a legitimate cause for discharge, even though the dischargee was a member of a labor organization and was engaging in activities on behalf of a union at the time of or prior to his discharge , the important question is and always has been, what was the real motivating factor for his discharge? According to the record, primarily from Whittle's testimony on both direct and cross-examination, the following incidents played a role in his decision to discharge Charles on October 5, 1964. The first incident that Whittle mentioned in his testi- mony was Charles' failure to report to his foreman , J. C. Davis, that he was not com- ing to work on Saturday morning, October 3, 1964, which he had been requested to do by Davis on the previous day, Friday, October 2, 1964. The record contains no evidence that Charles made any effort to notify his superiors in this regard at any time either prior to the time he was to report to work or the day in question. The only evidence in the record in this regard is Charles ' testimony that he went out of town Friday night and did not get back home until 4 or 5 a in. on Saturday morning, October 3, 1964. Nor did he even speak to his foreman, Davis , in this regard at any time after he reported to work on Monday morning , October 5, 1964, or at any time thereafter while he was at his working place that morning. Another, and unquestion- ably a major , factor was his failure to report to his foreman the fact that his time- card had been punched in and out , Saturday, October 3 , 1964, and emphasized by an overpunch on the time "in" space, and repunched on the regular "out" space on his card, after he had pulled his card out of the rack when he reported to work on Monday morning , October 5, 1964, and punched "in" on the timeclock . Whittle's position on this incident was to the effect that any normal and honest worker would either consciously or unconsciously have noticed that his card was punched in and out on a day he was absent , especially where it was emphasized by a "glaring overpunch," which is a "rare" mistake in timecard punching by employees in either the Respond- ent's or any other industrial plant,'° and in such circumstances would have reported the error to his superior at his first opportunity . Whittle in the course of his testimony on cross-examination, summed up his reaction to Charles' failure to report the card- punching incident and the reason it, too, was a motivating factor in his decision to discharge Charles in this language : ". . . although he had been there three years and was familiar with our clock in card system and how he was supposed to report any discrepancies on his card to his foreman . He failed to do this." There yet remains another factor which I likewise consider of major importance. I have reference to Whittle's reaction to Charles' attitude and demeanor while he was in his office on the morning in question , Monday, October 5, 1964. The purpose io Though the record herein shows that there had been overpunches on occasion in the past, it also shows that in most instances they had been seen by the employee involved on his card, who in turn reported it to Davis for correction 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of my observation in this regard is to remind all concerned herein that I too was impressed by Charles' demeanor during the course of his interrogation by counsel for the parties at the hearing herein, at which time my comment in this regard will like- wise be understandable when considered in the light of my ultimate disposal of this worrisome and pestiferous issue. According to Whittle, Charles' overall attitude toward the Respondent as his employer, as particularly illustrated by his conduct in his office during the course of his conversation with him on the morning of October 5, 1964, was also a factor in his decision to discharge him. Charles' version of what transpired in his office at the time he was discharged will be set forth below. However, before disposing of this impor- tant aspect of the case, I feel that I should consider the testimony of both Stenhouse and Huddleston, not only as to what transpired in Whittle's office, at the time in question, but also their account of what transpired at the timeclock on Saturday, October 3, 1964. I will first consider the testimony of One Stenhouse, who has been referred to on several occasions hereinabove. According to the credible testimony of Stenhouse, he worked for the Respondent from February 16 to October 5, 1964. During this period he worked as a truckloader on the dock under the direct supervision of J. C. Davis. Among those who worked with him during this period were Charles and Orville Huddleston. Stenhouse left the Respondent's services on October 6, 1964, and went to work for the Minnesota Mining Company, where he was employed at the time of the hearing herein. The circumstances under which he left the Respondent's services are, as indicated above, of major importance in the case at hand for reasons which will be apparent below. Suffice it to say at this point that the importance of his testimony will be obvious in my ultimate disposition of the issue as to Charles' credibility as a witness. As indicated above, when Whittle and Davis checked the timecards of the employ- ees who had worked on Saturday morning, October 3, 1964, after they had checked out for the day, they found that the cards of Stenhouse and Charles bore identical time in and out punches for that date, including the overpunch on the "in" column on their cards. It was for this reason that Whittle instructed Davis, their foreman, to send them both into his office on the morning of October 5, 1964. Stenhouse's testi- mony in this regard will be considered below. I have pointed out on several occasions hereinabove that one of the major issues herein is the credibility of the witnesses who appeared and testified before me at the hearing herein. I have also intimated that this issue has considerable bearing on my ultimate disposition of the case as to Charles. With that in mind I will now consider Charles' testimony as to certain violations of Section 8(a)(1) of the Act by Davis and other supervisory employees of the Respondent, which in my opinion goes right to the heart of the credibility issue. Charles testified at the hearing as to several conversations he had with Foreman J C. Davis on different occasions before he was discharged on October 5, 1964. He first testified as to a conversation he had with Davis sometime in September 1964, in the shipping department where he worked, and in the presence of Stenhouse and Huddleston.'1 Due to the importance of Charles' testimony regarding this particular conversation, I will insert hereinbelow the following pertinent excerpt from his testi- mony in this regard: Q. Was anybody there besides you and Mr. Davis? A. Yeah. Stenhouse was, I know, I remember. Q. All right. Anybody else? A. And I'm not sure that Huddleston was there or not. I'm not sure he was, but I believe he was, but I won't say he was. Q. Okay. Just tell us about this conversation with Mr. Davis, how it came about and what was said. A. Well, the first he axed [sic] me had I-was I concerned with the union and I told him no, and he said Mr. Hendrix told him that me and Johnny Neal had been starting some talking about pushing the union. Well, I say, "No," I didn't know anything about it. Well, then, later he mentioned to me again, said Mr. Hendrix told him that he was going-he wanted him to get rid of me on that account, and, then, some- time later he mentioned again. Me and Mr. Vernon Moore was standing up talking- Q. (Interposing.) Wait a minute, now. This is this first conversation with Mr. Davis. Now, you tell us all about that conversation first, and, then, we 11 See infra in re their version of the conversation COLONY FURNITURE CO. 737 will go to any other conversation you may have had. Just tell us as best you can remember about the conversation when there was you and Mr. Stenhouse and maybe Huddleston. A. Well, he axed [sic] me about it and I told him no and he said Mr. Dallas said that he heard that me and Johnny Neal had been talking union talk and said if we had we had better be careful about what we was saying; if we didn't we could lose our job by it, and I told him no, I hadn't. Q. Did he say anything else, did Mr. Davis say anything else? A. Not right then, I don't guess, or I don't remember, rather. After he testified regarding the above conversation with Davis , he was interrogated as to the "later" conversations that he referred to in the above excerpt. The gist of his testimony in this regard was to the effect that he had at least two more con- versations after the one referred to in the above excerpt. His testimony as to "the two other" conversations was to the effect that Davis told him ". . . Dallas [Hendrix] keeps saying something to him [Davis] about getting rid of me and he said he had told him to get rid of me by the weekend and he said he told him he didn't have any reason to get rid of we and he said he told him to find a reason , because I was pushing the union . . . I told him no, I wasn't talking union talk. He said well Dallas [Hendrix] see you and Mr. Moore talking and he don't know if you are talking union talk or not and say if Dallas keep on pushing me, I am going to have to do something about it. . Later he told me to stay away from Mr. Moore talking with him, because Dallas thought that was what he was' talking about, the union." It is interesting to note at this point that the "Moore " referred to in the above excerpts from Charles' testimony on direct examination was Vernon Moore who is named, along with one Thomas Sarrigan, as having been discriminatorily discharged, in violation of Section 8(a)(3) and (1) of the Act, in the original charge filed herein on or about September 18, 1964.12 Let us now look at Charles' testimony on cross-examination as to the foregoing resume of his testimony in regard to his conversation with J. C. Davis, his foreman, at times material herein. At the onset of my cross-examination of Charles, counsel for the Respondent, requested that counsel for the General Counsel furnish him with any pretrial state- ments that Charles signed prior to the hearing herein. Counsel complied with the request and handed him three statements or affidavits that had been signed by Charles during the investigation of the original charge herein 13 that was filed with the Regional Office on September 18, 1964 One of the three was signed by Charles under oath after being interviewed by Mark Kitchen, field examiner for the Board, on October 1, 1964, which was 4 days prior to his discharge by the Respond- ent on October 5, 1964. Due to the importance of Charles' testimony in this regard, I insert hereinbelow a pertinent excerpt therefrom, which in my opinion well illus- trates the credibility problems that I have been faced with in my resolution of the issues concerned with herein. Q. (By Mr. JOHNS.) This Respondent's Exhibit No. 8 is dated October 1, 1964 and initialed by you on page one and two and signed by you, Louis C. Charles, and sworn to before Mark Kitchen, on October 1, 1964. Is that correct? A. That's correct Q. And I will read you these words and ask you if you did not tell Mr. Kitchin these words on that day. You referred to a conversation about three weeks ago. That's about three weeks before October 1. Is that correct? A. That's right. Q. And, then, you say, "That was the end of the conversation and Davis has never said anything else more to me about the union or laying me off or laying anyone off. This conversation with Davis was while Tom and Moore"-it is Thomas Arringer, isn't it? A. It is Tom. I don't know. Q. Well, it would be Vernon Moore? A. Vernon Moore, right. Q. (Continuing.) -"were still working at Colony" Is that correct? A. That's right 12 See General Counsel's Exhibit No. 1(a). 23 See General Counsel's Exhibit No 1(a). 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. And, also, you told him, "Davis is the only person in supervision or man- agement at Colony who have ever talked to me about the union and only the one time as stated above." Is that correct? A. Right. TRIAL EXAMINER: What is the date of that affidavit? Mr. JOHNS: October 1, 1964. [Emphasis supplied.] In the circumstances, I can give little, if any, credence to Charles' account of his "conversations" with Davis. Final disposition of this particular issue will follow below after first disposing of the testimony of Stenhouse and Huddleston, who as indicated above, were present at the time Charles and J. C. Davis engaged in the conversation we are now concerned with. According to Stenhouse, he and Orville Huddleston were present when their fore- man, J. C. Davis, had the conversation referred to above in the excerpt from Charles' testimony in this regard. Their separate accounts of what transpired and was said in the conversation we are concerned with are practically the same. Though both Stenhouse and Huddleston impressed me as honest and forthright witnesses, I am of the opinion that Stenhouse's account of the incident we are con- cerned with is more to the point insofar as the issue herein are concerned. In the circumstances I insert hereinbelow the following excerpt from Stenhouse's testimony in this regard: Q. (By Mr. WISE.) Just tell us about this. Who said what, as best you can remember. A. Well, that day Mr. Davis said that L. C. Charles and Neal was-Mr. Dallas Hendrix thought that they was pushing the union, so, he told us that we were to be careful about what we say or drink, you know, when we go to the water fountain at noon and at lunch time; even around the plant we had to be careful about what we talk about, and he told us to stop grouping up, you know, around in the building, because they thought that some of us was talking union talk, you know, and if they ever heard anything about union talk they'd have to let us go. Q. Do you recall anything else? A. Let me see. I can't recall- TRIAL EXAMINER: Speak up please. The WITNESS: I can't recall anything right now. Q. (By Mr. WISE.) Did anybody but Mr. Davis say anything? A. Did Mr. Davis say anything? Q. Did anybody besides Mr. Davis say anything? A. No, they didn't. For reasons referred to above, I credit Stenhouse's testimony as to the above inci- dent, and discredit Davis' denial thereof. As indicated above, Stenhouse's testimony regarding the above incident was corroborated by the credible testimony of Orville Huddleston. As indicated above, both Stenhouse and Huddleston impressed me as credible witnesses. My impression in this regard is not only predicated upon their demeanor while testifying but for other reasons as well, particularly as to Stenhouse, whose testimony as to his over- all conduct as an employee and as a person throughout the period of time we are concerned with herein, and his relations with the Respondent after Charles was discharged on October 5, 1964, concerning which he was interrogated by counsel for the Respondent on cross-examination, was most impressive for reasons which I will comment upon hereinafter. Suffice it to say at this point that I have reference to Stenhouse's contacts with the Respondent after he voluntarily left its services on October 6, 1964. I have reference to the fact that Stenhouse after he had been hired by Minnesota Mining Company, went out to the plant to see Whittle and to advise him as to his action in this regard. His purpose for going back to the plant is best told in the following excerpt from his testimony in this regard: Q (By Mr. WISE.) Now, you say Mr. Whittle told you he was going to lay you off until Wednesday; is that right? A. That's right. Q. Did you go back to work Wednesday? A. No, I didn't. I went back Tuesday, October the 6th. So, I went in to see Mr. Whittle but he wasn't in-in the office I mean. He was in the plant somewhere, but I couldn't find him, so, I saw Mr. Dallas Hendrix and Mr. J. C. Davis. They were sitting there in the office and, so, I told them that I was quitting work, and I really wanted to see Mr. Whittle, but he wasn't there, like COLONY FURNITURE CO. 739 I say, so, Mr. Dallas, he said that he didn't know anything about it, you know, so, he would tell him what I had said, you know, but I had gotten me another job, so I just went, back and quit because I didn't want to be working for anyone who was accusing me of something I didn't do. [Emphasis supplied.] As far as I am concerned, Stenhouse's efforts to see Whittle was convincing evi- dence of his integrity, for the reason that when it is considered in its entirety it required considerable courage on his part to go back and face the person who had accused him of wrongdoing and tell him to his face that he had quit his job and his reasons for doing so. That it had a similar effect upon Whittle is indicated by his testimony that he had a conversation with Stenhouse in his office a few days before the hearing herein was opened, and discussed with him the possibility of recommending him for a job at a new plant the Respondent contemplated at a future date. It was Stenhouse's testimony regarding the above and his overall demeanor while testifying that impressed me, and a major factor in my findings above to the effect that he was an honest and forthright witness. The primary reason for promulgating the foregoing incident as to Davis' con- versation with Charles, Stenhouse, and Huddleston was to assist those concerned herein to understand the reasons behind my credibility findings as to Charles and J. C. Davis in my ultimate disposition of-the issue herein as to what transpired in Whittle's office on October 5, 1964, at the time he discharged Charles and laid off Stenhouse for 3 days. My conclusions as to Charles as a witness have been set forth above. As to Davis, there will be further comment below. I have found above that Davis made the statements attributed to him by Stenhouse and Huddleston in his conversation with Charles, and discredited his denial thereof. My reasons for discrediting Davis' account of what transpired at the time in ques- tion were primarily predicated upon his demeanor while testifying on both direct and cross-examination and the language he used in couching his denials, which for the most part impressed me as automatic or "computer calculated" in nature. He did admit however on cross-examination that he had a conversation with ". . . either L. C. Charles or One Stenhouse or Orville Huddleston" in which the word "union" was "mentioned," on or about the same time that Charles, Stenhouse, and Huddleston referred to in their testimony as to the conversation that has been discussed at great length hereinabove which was sometime around the middle of September 1964. In the circumstances I am convinced and find that Davis had reference to the same conversation that Charles, Stenhouse, and Huddleston referred to in their testimony in this regard which has been discussed at considerable length and disposed of hereinabove.14 Having disposed of certain credibility issues as to Charles, Davis, and Stenhouse, I will now return to what transpired in Whittle's office on October 5, 1964. I have set forth hereinabove Davis' version of what transpired in Whittle's office on October 5, 1964, and have referred to Whittle's testimony in this regard. Charles' testimony in this regard will be commented upon below. Charles' account of what transpired in Whittle's office on the date in question is vague and adds little, if anything, to that which has already been set forth above in my resume of the testimony of Davis and Whittle in this regard. As a matter of fact, there is little controversy over this incident, except as to the "knife" incident, and the "furnishings" in Whittle's office, both of which will be discussed below. Both Whittle and Davis testified to the effect that Charles had a large pocketknife with a long blade in his hand while he was in Whittle's office and that he was seated in a rocking chair near Whittle's desk, which was corroborated by two wit- nesses who worked in an adjoining office. Charles denied in toto their testimony in this regard and further testified that he did not even own a pocketknife. He further testified that he stood up throughout the interview, and that he did not see a rocking chair in the office. Here again I am faced with a credibility issue, particularly as to the knife incident. As indicated above, the Respondent offered the testimony of two female employees who worked in a room next to Whittle's office as to both the knife and the rocking chair. Their testimony in this regard will be disposed of below. In passing I point out to all concerned that Charles' denials as to the knife incident were on cross-examination and not on rebuttal. The principal witness offered by the Respondent as to the knife incident and the "rocking chair" in Whittle's office was Maxine Pettey, Whittle's secretary. She testified that her office adjoins Whittle's and has "an open" door, and that she was 14 See infra in re my disposal of the issues herein as to the independent violations of Section 8(a) (1) of the Act. 217-919-66-vol. 15 6-4 8 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present throughout his conversations with Charles and Stenhouse. Her testimony in this regard is interesting for two reasons, primarily because it refers to both the knife and the rocking chair. For this reason I insert the following excerpt below: Q. Where was Mr. Charles located in the office on that occasion, Monday morning, October 5? A. Sitting in the rocking chair. Q. Did you observe anything? A. Yes, sir. Q. What? A. He had a knife in his hand picking at his finger nails. Q. Can you describe the knife? A. Well, I don't know what kind of handle it had, but I would say it had a blade just about this long (indicating). I would say maybe five-between five and six inches. Q. How long did you observe him picking on his finger nails with this knife? A. About all the time he was in Mr. Whittle's office. TRIAL EXAMINER: Pardon me. Would you illustrate to the record how he was picking his finger nails? The WITNESS. Well, he had this knife up, and he would hold it up and he would do at his finger nails like he was trying to let everyone see it. TRIAL EXAMINER: Like he was- Mr. WISE: Objection, Mr. Examiner. TRIAL EXAMINER: What? Mr. WISE: I am going to object to the witness' testimony, "like" what he was trying to do. TRIAL EXAMINER: Well, that may be stricken. The reason I asked is because you said picking at his finger nails. I just wanted to be sure what you meant. The WITNESS: Well, now, some of the time he would be hitting on his hand, you know, like this (indicating) and then he would pick at his finger nails. Her testimony in this regard was corroborated by Janet Spivey, a payroll clerk in an adjoining office. Pettey further testified that to her knowledge, the rocking chair, referred to above, had been in Whittle's office at least 4 years before the above incident occurred on October 5, 1964. Both Pettey and Spivey impressed me as honest and forthright witnesses, and I credit their- testimony regarding the above incident, and discredit Charles' denial in this regard. I have indicated above that I would refer to Stenhouse's testimony as to the time- card incidents on Saturday morning, October 3, 1964. I had reference to his testimony regarding why he pulled Harold Jones' card out of the rack and took it into Whittle's office to substantiate his statement to Whittle when he was first queried in this regard by Whittle, that he did not punch Charles' card either in or out on the day in question, and that at the time in question the clock mechanism had not been properly set up when he and the other employees in the truckloading department were checking out. Stenhouse in the course of his testimony testified that shortly after he had punched out at noon on the day in question, he heard someone behind him say that the lever was in the wrong place and that this was the reason that he went back and checked out again after the lever had moved the "out" punch space to its proper place. The reason that I have referred to this phase of the incident in question is because it, like the testimony as to Charles' interroga- tion on cross-examination, goes to Stenhouse's credibility, for the reason that there were employees behind him when he punched out both times on Saturday morning, October 3, 1964, and if he had punched all three cards, as the Respondent intimated at the hearing herein, then obviously it was in the presence of several of his coworkers who were "bunched up," so to speak, right behind him awaiting their turn to check out. Significantly, none of them were called as witnesses by the Respondent in support of its contention as to Stenhouse. As indicated above, this is indeed a case of many facets, particularly as to the contentions of the parties herein as to Charles. With that observation in mind, I will now return to a "facet" of the "overpunched" cards of Charles, Stenhouse, and Jones on Saturday, October 3, 1964. As I see it, although the record indicates that either Stenhouse or Jones could have erroneously pulled and punched Charles' card, there is no substantial evidence to support a finding in this regard as to either. I have disposed of the case as to Stenhouse in this regard hereinabove, and found that he did not punch Charles' card either "in" or "out" on the day in question. COLONY FURNITURE CO. 741 The case as to Jones presents a problem that neither I nor any other trier of the facts could conscientiously dispose of for the simple reason that he failed to appear at the hearing herein, though he had been subpenaed by the General Counsel prior to the hearing herein. Consequently any findings as to his role in the card-punching incident would of necessity have to be predicated upon either surmise, conjecture, or suspicion, in which I will not indulge in either the case-at-hand or in any other that a similar situation might arise. Even so, the record does show that his station, that is, his working place, was near the timeclock; and that Stenhouse recalled seeing him check out ahead of him on Saturday morning, October 3, 1964, which led him to pull Jones' card out of the rack after he left Whittle's office on Monday morning, October 5, 1964, and found that it bore identical punch marks with his card on the date in question; and that the clock moves every minute which would permit at least three or more employees to punch identical time in or out punches during the 60-second interval. Obviously, any findings upon the foregoing in the absence of Jones' version in this regard would of necessity be predicated upon surmise or suspicion which, for reasons stated above, I will not indulge in. In the circum- stances, I will refrain from further comment in this regard, except to advise the parties herein that I have considered the statement Jones gave counsel for the Respondent on October 16, 1964. [Respondent's Exhibit No. 9.] 15 Another facet of the case as to Charles that has caused him considerable concern is the testimony in the record as to the "knife" incident in Whittle's office which has likewise been referred to above. My primary reason for referring to it again at this stage of my decision is twofold: (1) its effect upon him as to Charles' credibility as a witness; and (2) its overall effect upon Whittle in arriving at his decision to discharge Charles on October 5, 1964. I have particular reference to Charles' testimony that he never carried a knife and in fact never owned one. Despite his testimony in this regard, he had a knife in his pocket at the hearing herein, which he, in the course of his testimony, said was his wife's. Even so, it was a knife of ordinary size that most of us carry around "unconsciously" day in and day out for no particular reason, but from habit. For this reason and the testimony of several witnesses at the hearing herein, especially that of Spivey, I have discredited Charles' testimony in this regard and at this point reaffirm my original finding in this regard. I am also convinced from my observa- tion of Charles both on and off the witness stand that he was inclined to be a bit belligerent and arrogant at times, particularly when he was being interrogated as to matters that he would prefer to be "left unsaid," so to speak, as for example, the knife incident itself. The primary purpose for the observation is to portray to those concerned herein the impression that Charles made upon me at the hearing herein, and the possible effect he had upon others such as Whittle in similar situations. Another facet in the case-at-hand as to Charles which I cannot ignore is the testimony of Hendrix regarding his tendency to run around over the plant and interrupt and talk to the "women folks" while they were working at their jobs on the "production line" such as the "sanding line." According to Hendrix, the plant superintendent, he had to reprimand Charles several times about his misconduct in this regard. Hendrix's testimony as to Charles' tendency to "run around" the plant away from his working place was, in essence, corroborated by Stenhouse, who in the course of his testimony at the hearing herein, also testified that Charles had a habit of engaging in such conduct. As indicated above, Whittle's reasons for discharging Charles though manyfold, each upon its own would not have induced him to take such drastic action, but when considered in the light of what happened on October 3 and 5, 1964, as to his absence from work and the card-punching incidents, he was convinced that he had no "alternative" but to discharge him. In other words the October 3 and 4 incident was the "... straw that broke the camel's back." After long and careful consideration, I am convinced that the best way to sum up Whittle's testimony regarding his decision to discharge Charles and lay off Stenhouse is to do so in his own language. Consequently, the excerpt from his testimony follows below: Then, I decided what I thought should be done. I turned to Charles and said, "Charles, you've offered no explanation as to why you were absent on Saturday. You've offered no explanation, nor attempted 15 The record shows that Harold Jones left the Respondent's services sometime in the latter part of November 1964. At the time of the hearing herein, his whereabouts was unknown to both the General Counsel and the Respondent, and both had made efforts to contact him on several occasions prior to August 31, 1965, the date that the case herein was scheduled to be heard. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get corrected a mistake on your time card You've asked for no excuse for your absence on Saturday and you know an excuse is required and in view of these things, in view of your card, the situation on your card, we have no alternative except to discharge you as of now." I turned to Stenhouse. I said, "Stenhouse, you clock out now and go home. I am going to lay you off until Wednesday. You come back in to see me Wednesday and at that time we will make some disposition of your case." With that, Stenhouse left. Davis asked me if he could go and I said, "Yes, you can go ahead. Go back to work." I called Mrs. Pettey in and handed her Charles' card and said, "Mrs. Pettey, will you figure this time up to 12:00 o'clock." She figured the time due, the money due on his card and brought it back to me and I wrote out what we call a petty cash check. I might explain, we write no regular payroll checks in Little Rock. They all come out of our home office, and in a situation where money is required to be paid out of Little Rock, we pay it out of the petty cash fund. When we make a payment out of the petty cash fund, I am required to secure a receipt for the payment in order to reimburse my fund, so, I wrote out the check for Charles and at the same time wrote out a petty cash receipt. I offered first the receipt to Charles and said, "Charles, I have got your check here and I need you to sign a receipt for it." He said, "I'm not going to sign anything." I said, "Well, that's all right. We will just mark it refused to sign, and here is your check." With that, Charles closed his knife. He had his knife, it remained open up until that point. He closed his knife, accepted the check, and left my office. At this point I desire to point out that the record herein contains little, if any, substantial evidence to support the General Counsel's contention concerning the Respondent's violations of Section 8(a)(1) of the Act except as to J. C. Davis, foreman in charge of its truckloading department, and his reference to statements made by Plant Superintendent Dallas Hendrix to him as to the activities of Charles and other employees under his supervision. The only evidence in the record that involves Hendrix directly is found in that of an employee, Lonnie Ray Mitchell, who worked in the mirror department at times material herein, which will be considered and disposed of below in that section of my Decision devoted to the alleged inde- pendent violations of Section 8(a)(1) of the Act. It also should be borne in mind that the record shows that the Respondent had at times material herein around 100 employees, 12 of whom worked in the truckloading department, and that all of the witnesses called by the General Counsel in support of his case-in-chief worked in that department except Mitchell. From this factual situation I am convinced that the Respondent's alleged antiunion activities were confined for the most part to the employees in the truckloading department. Conclusionary Findings as to the Alleged Discriminatory Discharge of L. C. Charles At long last I come to my ultimate disposal of the case as to L. C. Charles, the alleged discriminatee in the case-at-hand. As indicated above, this is indeed a case, if one may paraphrase Thomas Paine, "to try men's souls " 16 I have found above that Charles was an active union adherent and that his activities in this regard were well-known to the Respondent, particularly through its foreman, J. C. Davis, who was in charge of the department where Charles worked at all times material herein. I am also convinced that the Respondent was opposed to the union- ization of its plant, and I so find. My finding in this regard is likewise predicated upon the activities of J C. Davis and my overall impression of Hendrix as evidenced by his demeanor throughout his appearance as a witness at the hearing herein, and his testimony as to pertinent matters we are concerned with herein, which will be discussed and disposed of hereinafter.17 In disposing of the case as to Charles, I am faced with a difficult task, when the issue is considered in the light of the record as a whole. The issue being of a nature that is not only most perturbing but difficult to ascertain not only herein but in all 10 From "The American Crisis," No 1, by Thomas Paine [1737-1809], American Revolution advocate and famous pamphleteer of that era of our history. 17 See infra in re that section of the Decision devoted to the alleged independent viola- tions of Section 8(a) (1) of the Act COLONY FURNITURE CO. 743 cases of this nature, since the inner workings of the minds of those responsible for arriving at the decision to take such action must of necessity be first determined by a trier of the facts from his observation of the witnesses and his evaluation of their testimony in order to arrive at a final and just determination of the motivating factor for taking the action that the Respondent , through Whittle, its plant manager, did in arriving at his decision to discharge Charles on October 5, 1964. After long and careful consideration of Whittle 's testimony in this regard and from my observation of his demeanor while he testified at the hearing herein, I am convinced and find that the motivating factor in his decision to discharge Charles was the latter's total disregard of his Employer's, that is the Respondent herein, rights in its relations with its employees to promulgate reasonable rules as regards their conduct both on and off its premises, such as, for example , to report to their superiors errors on their timecards , and others of like importance . In addition there were certain rules of conduct or behavior that employees were expected to adhere to as a matter of everyday routine and common sense , such as drinking on the job, fighting among employees, and others of a similar nature that were primarily a matter of common courtesy toward their employer , such as advising him as to their inability to report for work, particularly at times they had been specifically requested to do so, as was the case as to Charles in the case-at -hand, where he not only had been requested to report to work but selected by his foreman to do so. As indicated above, Charles not only failed to report for work on Saturday morning, October 3, 1964, but also failed to notify the Respondent in this regard on the day in question, and ignored the incident when he reported to work on his next regular working day, Monday, October 5, 1964. When all of the foregoing is considered in the light of the card punching incident and Charles' failure to even talk to Davis when he reported to work on Monday morning, October 5, 1964, then one is in a position to understand Whittle's reaction to the punching in and out of Charles ' timecard on October 3, 1964, the day that he failed to report for work. All of the foregoing was before Whittle on Monday morning, October 5, 1964. Even so, he instructed Davis, Charles ' foreman, early that morning to wait until a later hour before he said anything to Charles , in order to give him a chance to explain his failure to report to work on Saturday , October 3, and as to his card being punched in and out on that date. After waiting at least 3 hours to hear from Charles in this regard on the morning in question , he finally instructed Davis to send him into the office . Since what transpired at that time has been disposed of at great length above, I will refrain from further comment at this stage of my Decision. As pointed out above , the key to cases of this nature is the determination of the real motive for the discharge, which I have found in the case as to Charles to have been his own conduct and total disrespect for his Employer , the Respondent herein, as evidenced by what transpired on October 3, 1964, and thereafter . As I see it, the events of October 3, when considered by Whittle in the light of the past, was the real motivation for his decision to discharge him. As pointed out above, cases of this nature have been before the Board and the courts before. For example, see Metal Piocessors' Union Local 16, AFL-CIO (Poray, Inc. ) v. N.L.R.B., which involved a similar situation . In that case the U .S. Court of Appeals, District of Columbus Circuit, speaking through Bastian , Circuit Judge, said, inter alia: 18 The record again sustains the Board . No evidence appears to indicate Com- pany hostility toward Zajac, either during the period that he was a Union steward or during the short time prior to his discharge that he was chief steward. He met frequently with his foreman, Blaha, to discuss employee grievance ; Zajac himself indicated that differences between them were amicably worked out. In addition, there was no evidence that Blaha had overlooked violations by other employees and had enforced the rule only as to Zajac. More- over, it seems clear that an inference that Zajac was discharged on account of his Union activities may not be drawn from the mere fact that the activities preceded the discharge. The Union argues further that the Board erred in rejecting certain evidence which, it is said, established general Company hostility toward the Union, from which, in turn, it may be inferred that Zajac's discharge was discriminatory. 18 See 143 NLRB 617. See also Oneonta Dress Co , Inc v. N L.R.B., 333 F 2d 1 (C A. 2), enfg. in part, setting aside in part , and remanding in part , 142 NLRB 1299 , N L R, R. v. Birmingham Publishing Company, 262 F 2d 2 (C.A. 5) 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With this we cannot agree. Even if it were assumed arguendo that the evidence referred to did establish general Company animosity toward the Union, it would be insufficient in itself to ground the inference that Zajac's discharge was violative of the Act. As the court in N.L.R.B. v. Redwing Carriers, Inc., 284 F. 2d 397, 402 [47 LRRM 2240] (5th Cir. 1960), observed: "The opposition of an employer to union organization and even unlawful interference are not enough without more to make the discharge of an employee wrongful. N.L.R.B. v. Hudson Pulp & Paper Corp., 5 Cir., 273 F. 2d 660 [45 LRRM 2441], N.L.R.B. v. McGahey, 5 Cir., 233 F. 2d 406 [38 LRRM 2132]." Another facet of the case at hand that I cannot ignore is that at the time the time- card incident occurred, the original charge herein had been filed against the Respond- ent, and as a consequence had been assigned to a field examiner for the Board for investigation as to its merits . As indicated above it was assigned to Field Examiner Mark Kitchin for investigation. According to the record, he had talked to Whittle in this regard prior to the hearing herein. In such circumstances, I am convinced that Whittle considered this factor before he made the decision to discharge Charles. This was evidenced by his careful choice of words in answering the questions posed him and his cooperative attitude while being interrogated on cross-examinaiton by the representative of General Counsel at the hearing herein . From all of the above, and in particular as to the investigation of the original charge herein, I am con- vinced that Whittle considered these factors before he arrived at the decision to discharge Charles, and that in such circumstances his sole motive for taking the action he did was because he was convinced that he, as a representative of the Respondent, was legally entitled to take the action that he did as an exercise of certain prerogatives of management that have not, as of this date, been rescinded by Congress. In the circumstances discussed, described, and found above, I will recommend below that the case as to Charles be dismissed in its entirety. IV. THE ALLEGED VIOLATIONS OF SECTION 8 (a) (1) OF THE ACT 19 According to the record, there are two incidents that occurred during the Union's organizational campaign among the Respondent 's employees that are not connected' with the alleged discriminatory discharge of L. C. Charles. I have reference, first, to the testimony of Lonnie Ray Mitchell who testified at the hearing herein in support of the General Counsel's case-in-chief. This testimony concerned a conversation he had with Dallas Hendrix, the plant superintendent, allegedly on or about Septem- ber 25, 1964, concerning certain protected activities of the Respondent's employees at times material herein, and which are more specifically set forth in paragraph 8 of the complaint herein, and denied in toto by the Respondent in its answer. A resume of Mitchell's testimony in this regard follows below. At the time of the hearing herein, Mitchell had been working for the Respondent for about 14 months. According to his testimony, his job was "threefold," so to speak, that is, he worked on three different jobs, "stock clerk, build mirrors, and repair orders." 20 His immediate supervisor was J. C. Davis, who, as indicated above, was. also foreman in charge of the truckloaders. In the course of his interrogation by the General Counsel, he was queried as to a conversation he had with Dallas Hendrix, the plant superintendent, at times material herein. His testimony in this regard will be considered below. According to Mitchell, he was on his way back to his working place in the mirror department after the regular "break" one morning and was stopped by Hendrix in the hallway and queried, not only as to his personal reaction to the Union' s campaign among the Respondent's employees, but requested to engage in surveillance of his coworkers in this regard and ". . . if I found out anything about it to come tell him" (Hendrix).21 Here again I am convinced that what transpired and was said in his 19 At this point I honestly feel that I should point out to all concerned herein that my delay in issuing my Decision herein has been due to prolonged illness and other causes beyond my control and apologize for my delay in this regard 2D Quotes from Mitchell's testimony in the record. 21 Quotes from Mitchell 's testimony on direct examination. COLONY FURNITURE CO. 745 conversation with Hendrix is best told in the following excerpt from his own testi- mony in this regard on cross-examination. Consequently, it follows below: 22 Q. Now, suppose you go back over this conversation you say you had with Mr. Hendrix. A Well, he came back-I mean it was about 10:15 one morning right after break. I was going back there by the mirror department and he stopped me there and told me, said he hadn't thought much about asking me about it, but that Frank wanted to know how I felt about the union. I told him I hadn't thought too much about it. He said, "Well, you know we have got plans for you in the near future." We had been talking before about a job, and, so, I told him I hadn't thought much about it, and he said, well, said, "Mr. Moore and Tom, they fired them for personal reasons" and said, "They have the Labor Board on them about that," and he said we needed to be on their side or they needed a good man on their side. So that's about all he said. Q. Is that all he said? A. Except he told me if I heard anything to tell him. TRIAL ExAMINER: Pardon me for interrupting. Hendrix, what was his position? The WITNESS: Plant superintendent. TRIAL. ExAMINER: Very well. Thank you, very much. Hendrix denied in toto Mitchell's testimony as to the above incident. Since his testimony in this regard is typical of that of other witnesses for the Respondent when queried as to certain statements attributed to them by witnesses for the General Coun- sel at the hearing herein, I am inserting hereinbelow a pertinent excerpt therefrom as to the conversation referred to above in Mitchell's testimony, with which we are now concerned, as an example of what he has reference to.23 The sole purpose for this procedure is to illustrate to all concerned herein the credibility problems that I have been faced with in disposing of the issues herein. Q. Did you have a conversation with Lonnie Mitchell sometime in September of 1964 about the union? A. No, sir. Q. Did you ever tell Lonnie Mitchell that Frank Whittle asked you to ask him what he thought or felt about the union? A. No, sir. Q. Or to find out what he knew about the union? A. No, sir. Q. Did you ever say to Lonnie Mitchell that we need you on our side in con- nection with the union? A. No, sir. Q. Did you say anything to Lonnie Mitchell to the effect that we have got the union now to fight? A No, sir. Q. Did you ask Lonnie Mitchell to report back on any union activities he heard of, or anything to that effect? A No, sir. Q. Did you ever say anything to Lonnie Mitchell about having plans for him in the future9 A. Not plans. Q. What did you say? A. I said, "I have a job that is coming up in stock. I may try you on this job, put you supervisor over two people, plywood, hardboard, to unload it, stack the ply, count it, make the receipt on it, and turn it in to the office." Q. When did you discuss that job with Mitchell? A. In the last part of June. Q. Did you fill that job? A. I tried him, yes, sir. 12 1 have inserted Mitchell's testimony on cross-examination In this regard because it is clearer and more to the point, so to speak, than his testimony on direct. a' See the testimony of J. C. Davis as set forth in the transcript of the record beginning at page 273. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. You tried him on that? A. Yes, sir. Q. And- A. (Interposing.) He worked very hard himself, but the two men did not that he supervised. The Respondent's position as to Mitchell's testimony is that it was fabricated by him for the purpose of embarrassing it at the hearing herein in retaliation for remov- ing him from his supervisory position in the mirror department.24 I have considered the Respondent's position as to Mitchell's testimony, and have read and reread it and that of Hendrix innumerable times. I have also considered it in the light of the record as a whole, and am convinced that Mitchell was an honest witness. My impression of Mitchell is not only predicated upon his forthright answers to questions posed him on cross-examination by counsel for the Respondent at the hearing herein, but on that of his demeanor while he testified on both direct and cross-examination. In the circumstances, I credit Mitchell's version of the inci- dent in question and discredit Hendrix's denial thereof for the same reasons that I dis- credited that of the witness J. C. Davis, which has been discussed and disposed of hereinabove. In other words, Hendrix made the same impression upon me as Davis did when he was queried as to the statements attributed to him by Stenhouse and Huddleston, which was to the effect that his denials were "computer taped," so to speak, and uttered automatically in answer to questions posed him on both direct and cross-examination, which when considered in the light of his demeanor while testifying were, quite frankly, false. That the remarks and statements made by Hendrix to Mitchell were violative of Section 8 (a) (1) of the Act should be obvious to all concerned herein since on their face they suggested surveillance of the union activities of his coworkers in the plant; and also by questioning him as to his union sympathies. Since Hendrix's statements and suggestions were so clearly violative of Section 8(a) (1) of the Act, I see no neces- sity for burdening this already too lengthy Decision with the citations ad infinitum of cases in support of his findings in this regard. Suffice it to say that in my opinion, Hendrix's interrogation of Mitchell was unlawful even though it was not couched in coercive language The test is whether Hendrix's interrogation of and suggestions to Stenhouse to engage in surveillance of the activities of his coworkers interfered with the rights of the Respondent's employees to exercise their rights under the Act, which I am convinced and find was the sole purpose of the interview in question, and that by such conduct the Respondent engaged in conduct violative of Section 8(a)(1) of the Act. There yet remains for consideration the testimony of Stenhouse as to a conversa- tion he had with his foreman, J. C. Davis, after the occurrence of the conversation between Davis and Charles, in the presence of Stenhouse and Huddleston, which has been referred to and disposed of hereinabove, which the General Counsel also con- tends was violative of Section 8(a) (1) of the Act. The incident that I have reference to occurred a few days after the conversation referred to above. Stenhouse's version of what transpired and was said in the conversation we are now concerned with is likewise best told in the following excerpt from his testimony in that regard at the hearing herein Q. Is that the only time you had a conversation with Mr. Davis? A. Well, no, a few days later. Q. Where were you then? A. We was in the loading dock. Q Was anybody there besides you and Mr. Davis during this conversation? A. I don't think so. Q. Tell us about that. A. Well, we was talking, L C. Charles and this Vernon Moore, they was back there in, you know, right around from the loading crew. Well, J. C said he had warned- Mr. WisE: May I interrupt, Mr. Examiner. TRIAL EXAMINER: Your question is to Mr. J C Davis? The WITNESS: Mr. Davis, yes, well, he said he had warned L. C. about talking and going on during his work time, because he thought that him and this Neal fellow was pushing the union, L. C. Charles and Neal, so, he told us to be careful about what we say and do around there and he said he didn't want to hear any talk about it himself. 21 See the Respondent's brief in this regard. COLONY FURNITURE CO. 747 Q. (By Mr. WISE.) Did you answer him in any way? A Well, the onliest thing I said to him that I had heard about it, but I wasn't pushing the union. I had heard about it because I had saw some leaves go in and I didn't know where they had come from or nothing like that, but I was- he didn't ask me did I know who was pushing it or anything like that. As I see it, Davis' remarks to Stenhouse in the conversation set forth above, stand- ing alone without more, would not in my opinion be violative of the Act , for reasons that I will comment upon hereinafter. However, when they are considered in the light of the record as a whole, particularly the testimony of Stenhouse regarding the conversation he and Huddleston overheard between Davis and Charles which has been disposed of above , and also the testimony of Mitchell as regards what Hendrix told him, they, at least "technically" speaking, were violative of Section 8 (a)(1) of the Act for the following reasons. As I see it, Davis' remarks suggested that certain of the Respondent 's employees were under surveillance during the Union's organizational drive it was convinced that they were "pushing the union ," such as Charles and Neal , and in effect a warning to Stenhouse to be careful about engaging in any union activity and that if he did he would suffer the consequences for having the temerity to exercise his rights under the Act, which were offensive not only to the Respondent but to him personally. In those circumstances , I am convinced that Davis' remarks to Stenhouse were violative of Section 8 (a) (1) of the Act because they constituted interference with, restraint, and coercion of an employee's statutory rights, and I so find. I also find that Davis' statements to Charles , in the presence of Stenhouse and Huddleston , in September 1964, which have been disposed of above, were likewise violative of Section 8 (a) (1) of the Act. I have intimated above that Davis' remarks , if standing alone, would not be viola- tive of the Act. My observation in this regard was predicated upon the fact that Davis was the supervisor over a small group of employees , around 10 or 12 at times material herein , and the record shows that in those circumstances he and the employ- ees worked close together and talked among themselves quite frequently about many subjects, including the Union which was the natural thing for such groups to do, with no intent of violating any law or even giving it a thought. Moreover, Davis by his demeanor while testifying at the hearing herein impressed me as an ordinary sort of person and not of a malicious nature toward those who worked either with him or under his supervision , which was well expressed by Stenhouse himself in the above excerpt from his testimony, where he said, inter alia, ". . . so he told us to be careful about what we say and do around there and he said he didn't want to hear any talk about it himself," which indicated to me that Davis, personally , did not relish his role as an informer to his superiors as to the concerted activities of those who worked under his supervision. At this point I feel that I should point out to all concerned herein that I have at times in my Decision discredited portions of the testimony of certain witnesses and credited it as to other matters. As for example, portions of the testimony of Whittle, Hendrix, and Davis as to the Respondent's overall attitude toward the Union's attempts to organize its employees was contrary to portions of their testimony in this regard, and which I have ignored in reaching my decision herein for the reason that for the most part it consisted of denials of the testimony of witnesses for the General Counsel as to what transpired at the times we are concerned with herein , and in such circumstances I saw no necessity of resolving each and every facet of their testimony, but considered it as part of the overall picture and so disposed of it hereinabove. There is ample authority for my crediting portions of a witness ' testimony and either ignoring or discrediting it as to other matters, which is well illustrated in the following excerpt from the opinion of Judge Learned Hand in his decision in N.L.R.B. v. Universal Camera Corporation, 179 F. 2d 749, 754 (C.A. 2), dated January 10, 1950, vacated and remanded 340 U.S. 474, vacating and remanding 79 NLRB 379. See also 190 F. 2d 429: It is no reason for refusing to accept everything that a witness says , because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all. CONCLUSIONS OF LAW 1. Colony Furniture Co. is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. United Furniture Workers of America, AFL-CIO, is a labor organization as defined in Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act in the manner and on the occasions herein found above, the Respondent has engaged in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) of the Act. 5. All allegations of the complaint as to which specific findings of violations have not been made, have not been sustained by a preponderance of the evidence as required by Section 10(c) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, I recommend that the Respondent, Colony Furniture Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from (a) Interrogating employees concerning their activities in behalf of the Charging Union herein, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (b) Creating among its employees the impression that they are being surveilled in their union activities in a manner constituting interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant in Little Rock, Arkansas, the attached notice marked "Appen- dix." 25 Copies of said notice, to be furnished by the Regional Director for Region 26, shall, after being duly signed by the Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing,-within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps have been taken to comply therewith.26 25 If this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the 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 interrogate our employees concerning their union activities in a manner constituting interference, restraint, and coercion in violation of Sec- tion 8 (a) (1) of the Act. WE WILL NOT create among our employees the impression that they are being surveilled in their union activities in a manner constituting interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act. THE METALLIC LATHERS UNION, LOCAL 46 749 WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the Act. COLONY FURNITURE CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, 746 Federal. Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. .534-3161. The Metallic Lathers Union of New York and Vicinity, Local 46 of The Wood, Wire & Metal Lathers International Union, AFL-CIO and Slattery Contracting Co., Inc. The Metallic Lathers Union of New York and Vicinity, Local 46 of The Wood, Wire & Metal Lathers International Union, AFL-CIO and George A. Fuller Company. Cases Nos. 2-CD-. 928 and 2-CD-329. January 11, 1966 DECISION AND ORDER QUASHING NOTICE OF HEARING This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following charges filed on March 5, 1965, by Slattery Contracting Co., Inc., herein called Slattery, and on March 16, 1965, by George A. Fuller Company, herein called Fuller, alleging violations of Section 8(b) (4) (i) and (ii) (D) by Respond- ent Local 46, Wood, Wire & Metal Lather International Union, AFL- CIO, herein called Local 46. On April 8, 1965, the Regional Director for Region 2 consolidated these cases and thereafter a duly scheduled hearing was held before Hearing Officer Alan H. Randall, on April 28 and 30 and May 3 and 4, 1965. Local 172, International Hod Carriers, Building and Common Laborers Union of America, AFL-CIO, herein called Laborers Local 172,. Prefabricated Concrete, Inc., herein called Prefabricated, and Eastern Precast Concrete, Inc.,. herein called' Eastern, were permitted to intervene as parties in interest to the proceeding. All parties appeared at the, hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. • Thereafter, Local-46 filed a brief which the Board has duly considered: _ The National Labor Relations Board has reviewed the ruling's of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. 156 NLRB No. 77.