Pullman Inc.

1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entitled to reinstatement on the basis of plantwide seniority, coupled with abil- ity to do the work, immediate and full reinstatement to their former or sub- stantially equivalent position of each, without prejudice to their seniority or other rights and privileges and make each whole for any loss of salary or pay suffeied as a result of the discrimination against them. WE WILL make whole any employee in the unit, transferred from Cranston, or thereafter employed at Waiwick, who suffered a reduction in earnings by reason of our unilateral modification of wage rates WE WILL create a preferential hiring list containing the names of all employ- ees laid off by us on or after May 19, 1965, and not reinstated, pursuant to the terms of the Recommended Oider herein, notify the Union, and each listed employee, of the establishment of such list and coi:tents thereof and offer the individuals whose names appear on the aforesaid list full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges at such time as they normally would be recalled. All our employees are free to become, to remain, or to refrain from becoming or remaining, members of a labor organization of their own choosing DIE SUPPLY CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-Notify the above-named employees, and others referred to by classifica- tion it presently serving in the Aimed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and Universal Military Training and Service Act, as amended after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetss 02108, Telephone 223-3353. Trailmobile Division, Pullman Incorporated and United Auto- mobile, Aerospace and Agricultural Implement Workers (UAW), International Union, AFL-CIO. Case 16-CA-.263. September 27, 1966 DECISION AND ORDER On March 9-4,1966, Trial Examiner Stanley N. Ohlbaum issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's De- cision. Thereafter, Respondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was conmmitted. The 160 NLRB No. 105. TRAILMOBILE DIV., PULLMAN INC. 1349 rulings are hereby affirlned. The Board has considered the Trial Exam- iner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' [The Board adopted the Trial Examiner's Recommended Order.] i We grant the Respondent's posthearing motion, opposed by the General Counsel, to reopen the record to receive in evidence the Respondent's Exhibits 52(a) and (b), which are hereby made a part of the record IIowever, we find that these exhibits, relating to an industrial safety award presented to Respondent at the 27th annual meeting of the Texas Safety Conference and the Governor's highway Safety Conference held on March 27-30, 1966, are not sufficient weight to alter our Decision herein TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This case was heard before Trial Examiner Stanley N. Ohlbaum in Longview, Texas, on June 15-18 and July 20-22, 1965, on complaint of General Counsel of the Board i alleging, and answer of Trailmobile Division, Pullman Incorporated ("Trailmobile," "Employer," "Respondent") denying violations of Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Sec. 151, et seq., as amended ("Act"). All parties appeared and were represented throughout the hear- ing by counsel, who were afforded full opportunity to present evidence, examine and cross-examine witnesses, file briefs, and propose findings of fact and conclusions of law. Subsequent to the hearing, briefs were received, which, together with the evidence, have been carefully considered. Upon the entire record 2 and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS; LABOR ORGANIZATION INVOLVED At all material times, Respondent has been and is a Delaware corporation with a place of business in Longview, Texas, where it engages in manufacturing trailers, and where and whence in the regular course of its business operations in the 12-month representative period immediately preceding issuance of the complaint it manufactured, sold, and shipped directly in interstate commerce to customers in States other than Texas, over $50,000 worth of products. I find that at all said times Respondent was and is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. I find that at all material times the Union was and is a labor organization within the meaning of Section 2(5) of the Act. I find that assertion of juiisdiction in this case is proper. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues The issues presented are whether Respondent: (1) in violation of Section 8(a)(1), interfered with, restrained, or coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, through interrogation as to union mem- bership and related matters, threats of discharge or other reprisals for union mem- bership or support, and promises of economic benefits for abstaining or withdrawing from union membership or support; (2) in violation of Section 8(a)(3) of the Act, discharged its employee John S. Powers because of his union membership and activities. B. Background Respondent Trailmobile Division of Pullman Incorporated manufactures, services, and sells dry freight and tank trailers and containers, maintaining 5 manufacturing 'Issued through the Regional Director for Region 16 on April 14, 1965, upon charge filed on February 17, 1965, by United Automobile, Aerospace & Agricultural Implement Workers, (UAW), International Union, AFL-CIO ("Union"). Unless otherwise specified, date references are during the period around August 1964-February 1965. a Hearing transcript corrected in accordance with my order on notice dated Jan- uary 21, 1966. 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plants (Fremont, California; Longview, Texas; Springfield, Missouri; Cincinnati, Ohio; and West Point, Pennsylvania), 45 sales and service branches in principal cities throughout the continental United States, and over 100 branches and distrib- utorships in the United States, Canada, and Mexico. Respondent describes itself as "the second largest truck-trailer maker in the world." 3 Its Longview, Texas, plant is the one involved in this proceeding. Occupying an area of 165,000 square feet, at the times here material that plant employed about 360 employees in various production departments.4 The subsidiary of Pullman Incorporated now known as Trailmobile Division (formerly Sechler & Company, founded in 1835 in Cincinnati as a carriage-maker) was acquired by it in 1952; other subsidiaries are Pullman-Standard Car Manufac- turing Company ("world's largest builder of railroad cars"), M. W. Kellog Com- pany ("one of the world's largest builders of oil refining and chemical processing plants"), and Swindell-Dressler Corporation (general engineering service, including highways, other public works, and steel mills) .5 Union organizational activity involving Respondent's Longview plant employees commenced around the beginning of June 1964, culminating in a union demand on July 29 for recognition. To this Respondent did not accede, instead filing with the Board's Regional Office on July 31 a petition for election, which was held on September 3, resulting in a union victory and eventual certification by the Board. Notwithstanding the Board certification, Respondent has continued to refuse to recognize or bargain with the Union, claiming that• the Board's certification was legally invalid because (as Respondent continues to aver) the Union does not repre- sent a majority of its employees in an appropriate unit. Respondent's continued refusal to bargain in the face of the Board's certification (following a hearing and decision on challenged ballots) has resulted in a Board determination that Respond- ent is in violation of Section 8(a)(5) and (1) of the Act. A detailed chronology of events and a descriptive index of the numerous person- nel involved in this proceeding are appended (Appendixes B and A). This proceeding concerns events which allegedly occurred during the union organi- zational campaign immediately prior to as well as after the September 3, 1964, election. Principally, these involve alleged acts of interrogation, economic threats and promises in September just before the election, and the alleged discriminatory discharge of employee Powers in February following the election. They will be con- sidered in that order It should preliminarily 6 be noted that these acts are alleged to have occurred within a matrix of employer opposition if not hostility 7 to unionization of its Long- 3 Respondent's Exhibit 35, page 2. 4 The total number of plant employees in January 1965, was said bi Plant Superin- tendent whitehurst to have been 500-550. B Respondent's Exhibit 35, pages 2-3. 6 Description of these preliminary incidents is merely by way of background to render more intelligible events which were to follow, as detailed below. It would be unrealistic and conducive to distortion of the total situation here to ignore these preliminary events, since they in fact occurred and formed a part of the full picture. Although Respondent opposed consideration of such background events upon the ground that they transpired outside the 6-month statutory period specified in Section 10(b) of the Act, they were admitted by me, purely as background, since Section 10(b) does not require exclusion of such evidence, that section being 'a statute of limitation and not a rule of evidence See N L R B v General Shoe Corporation, 192 F 2d 504, 507 (C A. 6), cert denied 343 TJ S. 904; Axelson Manufactumnq Company, 88 NLRB 761 (quoted approvingly in N L R B v Fredrica Clausen d/b/a Luzerne Hide & Tallow, 188 F.2d 439, 443 (CA 3), cert denied 342 U S. 868, and Local Lodge No. 1424, IAM [Bryan Manufacturing Company] V. N.L R B., 362 U.S. 411, 416). Indeed, admission and consideration of material background evidence appear to be mandatory upon the trier (United States Rubber Company, 93 NLRB 1232; Florida All-Bound Box Company, 138 NLRB 150, 151 ; N.L.R B v. National Shoes, Inc, 208 F2d 688, 692 (CA. 2)), although he cannot-as I do not-accord "independent and controlling weight" in determining whether unfair labor practice occurred (News Printing Co, Inc, 116 NLRB 210, 212) That utilization of evidence of employer's union hostility occurring beyond the 6-month period, as basis for a finding of motivation for discharge in an otherwise equivocal situation, does not give such evi- dence "independent and controlling weight" within the rule of News Printing (supra), see: Dan Raver Mills, Incorporated, 125 NLRB 1006, 1007; Paramount Cap Manufacturing Company, 119 NLRB 785, 786-787, enfd, 260 172d 109 (CA 8). 7 So far as the Act is concerned, employer opposition or hostility to unionization is of course not unlawful unless it takes a form proscribed by the Act. TRAILMOBILE DIV., PULLMAN INC. 1351 view plant, the superintendent of which, H. F. Whitehurst, conceded that during the weeks before the election he campaigned against the Union. Numerous glean- ings from the testimony of witnesses on both sides fairly support the conclusion that Respondent was at least not favorably disposed toward the prospect of unionization of its Longview plant, even though its opposition did not rise to the intensity some- times encountered when plant unionization is attempted. Thus, soon after the first union meeting in early June 1964, fabricating employee Forrest Floyd Hill was asked at his place of work by his foreman, George Akin, early in the morning, whether he had been at the union meeting the evening before, how many were there, that he (Akin) heard he and somebody else were drunk there and had a steak dinner, and why he (Hill) was for the Union. When Hill pointed out that he was receiving 13 cents an hour less than the welders' rate and had been unable since he had been hired (then about 3 years) to get a raise, Akin replied that he should have had the higher rate and that he thought he could get it for him.8 In July 1964, welder (then inspector) Graves was a party to a heated discussion with assembly or subassembly department 23, 1st shift Foreman Whiteside, during lunch in the plant inspection office, in the presence of about a half dozen other employees, mostly rank-and-filers. According to Respondent's witness Elms, "White- side asked him [Graves] about why he wanted a union or something. And he [Whiteside] asked him [Graves] if he didn't have a good job, and he said, `Yes,' he had a good job, but the union was going to make him a better job." There was discussed the subject of wage scale disparities between employees in Respondent's Longview plant and its Cincinnati plant. According to Graves, Whiteside commented that Respondent was unable to use automation to the extent that it desired in Cin- cinnati, because of the strength of the union there, but that Cincinnati plant work would be shifted to a new, automated plant in Philadelphia, and the same thing could happen in Longview if the Union got in; 9 that in the event of unionization at Longview, the employees there would have to go out on strike if Cincinnati employees did so; and that dissatisfied employees at Longview should get jobs else- where. Graves indicated that plant unionization would bring departmental seniority and eliminate or reduce layoffs; and when Graves said the Union would straighten things out, Whiteside replied (according to Respondent's witness Thurman), "Well, the union won't straighten out anything. All we will have will be trouble" and that "there would be confusion all of the time." Later in the day, Whiteside apologized to Graves "for getting mad," stating that he had "said more than [I] should have said." 10 While union organizational activity continued at the plant in June and July, employee Powers attempted from July until the September 3 election to enlist his Leadman or Foreman Cox to sign a union card, discussing the subject with him "usually every day," and letting him look over union literature kept in his toolbox after a company bulletin board announcement forbidding union literature distribu- tion during working hours. On one occasion during this period, around the beginning of August, Cox asked him to remove some union literature which he (Powers) had taped to his (Powers') toolbox. Powers complied." As of this time, the Union had unsuccessfully (July 29-31) sought recognition by Respondent. Around August 10, Powers and some other employees began wearing union but- tons in the plant. On August 10, welder Blevins spoke to Foreman Travis Higgin- botham about going to a Labor Board meeting at Forth Worth. Higginbotham said, "What happened to make you be for the union?" Blevins replied that there was "nothing that you or any other foreman have done." Higginbotham stated, "Well, I've helped you several times in the past . . . you guys have got away with things 8 Based upon uncontradicted credited testimony of Forrest Bill. George Akin was not produced as a witness. U John John, Respondent's director of industrial relations of Trailmobile Division since February 1965, testified that Respondent ne' er planned to close its Cincinnati plant and transfer the work to a new plant in Pennsylvania. As pointed out by me at the hearing, however, even assuming this was true, the question (among others) is, rather, whether Respondent's supervisory personnel here alleged to have said that this was the Com- pany's intention in fact said it and the effect that such a statement, if made, was reason- ably calculated to have upon the rank-and-file employees. lu Based upon composite credited testimony of General Counsel's witness Graves and of Respondent's witnesses Akin, Elms, Thurman, and Whiteside 11 Based upon composite credited testimony of Powers and Cox. 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the past . . . from now on, you are going to have to go to the union for what you want . You guys have gotten away with things in the past- you could have been run off for, but it is not going to be like that in the future." 12 The testimony of various witnesses, Respondent's as well as General Counsel's, also shows that in mid-August, Respondent's top managerial officials were conduct- ing briefing discussions for small groups of employees, under outdoor shade trees and elsewhere, at which employees were encouraged to ventilate their grievances, presumably among other things for appropriate reaction by management. At these discussions, various questions were raised by employees,' including inquiry by Pow- ers as to the status of Lonzo Higginbotham-later to become an issue in the con- tested election of September 3 (where the Union challenged Higginbotham's status to vote). At one of these meetings, Respondent's Longview Plant Superintendent Whitehurst told the employees, "Fellows, this is not going to be a sweat shop from now on. I am going to make this a place that you will look forward to coming to work . give us one year, and if I can't make it that way, then I'll recommend a union 11 13 14 On or about September 1, while Powers (with Huffman) was in process of hand- ing out union election slogan cards, flooring department Foreman Gunn com- mented, when handed a card by Powers and asked whether he wanted to hand some out, that "I believe in organized labor, but it's got so much out of hand now I just can't go along with it" and that "For a while I thought you all had us beat, but now I think we got you beat now. I don't think I've got but three men in my department that's going to vote for the union." 15 On the Monday preceding the Friday, September 3, 1964, union election, Fran- cis D. ("Dude") Roy, Jr , Respondent's director of facilities and industrial engineer- ing, arrived in the Longview plant from Respondent's Cincinnati home office. He had previously been Longview plant manager. He remained at the Longview plant all that week, circulating around and speaking to a great many employees there, and leaving after or on the day of the election. Powers testified credibly that a day or so before the election, while he wag at work on a grain trailer in Department 26, wearing a union button, Roy, seeing the button, approached Powers, introduced himself, and said, "I see you are advertising how you feel." Two other employees were close by. Roy said that he "wanted to know what was the matter with the guys down here, why they wanted a union." In response, Powers told him that "there was a lot of favoritism. All of the guys was not satisfied with some of the management." Roy "said that they were doing what they could to straighten it out." Roy told Powers and his two fellow employees that they "did not need [a union] in there, that [you] would not be satisfied with it." Roy "brought up the strikes they had at the Cincinnati plant [of Respondent] in 1957" and said that union official Wigglesworth-to whom Powers said he had been talking about that strike-"was just a trouble maker" and Roy "really ran him [Wigglesworth] down." After Powers told Roy he had his views and Powers had his own and the afternoon shift whistle blew, they shook hands, Powers telling him "for my sake" that there were "no hard feelings," with which Roy agreed, saying, "Well, I guess I had better go on and see somebody else. I am not doing any good here " Powers responded with, "Well, I have done some real good for the union I have kept you away from somebody for about forty-five minutes." Roy thereupon left on an ostensibly ami- cable note, although Powers characterized the foregoing exchange as "pretty heated on through the conversation." Welder Green, in Respondent's employ for over 9 years, testified that on election day (September 3, 1964) Roy approached him at work and, looking at the union button or buttons Green was wearing, asked him what office he was running for. Green told him none. Roy said that "a vote for the company would mean a con- tinuation of friendly relations and a vote for the union would mean nothing but trouble."' Green told Roy that he (Green) would have to go his own way. Roy turned and walked away. 13 Based upon credited testimony of Blevins, undisputed by Higginbotham, who, called as Respondent's witness, testified on other matters. 13 Plant Superintendent Whitehurst testified on cross-examination that he was unable to recall whether or not he made such a statement to the employees. 14 Based upon composite ciedited testimony of General Counsel's witnesses Powers, Graves, Blevins, and Lee, and of Respondent's witnesses Whitehurst and Bellatti. 16 Based upon undisputed credited testimony of Powers. Gunn did not testify. TRAILMOBILE DIV., PULLMAN INC. 1353 Although Roy admitted speaking to 50-100 employees during election week, his testimony was vague, uncertain, and vacillating as to what he spoke about. Insist- ing that the "main purpose" of his election week's visit to Longview was in no way connected with the election and that although he knew there was going to be an election then, the timing was merely coincidental "as far as I was concerned," 16 he nevertheless conceded on cross-examination that he "did spend a lot of time on them [the employees]," "because obviously, there were some problems there, with relation to some of the former supervision. We had started an organization down here that had been a very harmonious operation. We did not have any of these problems. This disturbed me, because I had a very deep interest in the people. So, I did spend a lot of time on them," conceding that he "realized that this much interest in a union was engendered by some problems at the plant itself." Claiming that information was "volunteered" to him by "practically everyone," he appeared later to modify this by conceding that "perhaps not all of them" volun- teered the information he obtained and that "to a certain degree" he himself sought the information 17 since "there were occasions when I was trying to find out if the supervision had been doing a job," conceding it was "obviously of interest" to man- agement "to see with what the employees were dissatisfied" so that use could be made of this information "from the standpoint of good management." Roy also testified that he "beg[a]n to feel, sens[e] that there were other problems which had been created," conceding that to him "The fact that there was a union election was some indication that there were plant problems"; and that the reason for talk- ing to the employees to discover their dissatisfactions during this election week was that "we wanted to keep it on the harmonious team spirit, that had been developed from the day that I got down here." He testified his discussions with the employees covered such subjects as wages, comparative wage scales, and reasons for differences in wages among Respondent's various plants, and strikes. Asked on cross-examina- tion whether he discussed the Union with the employees, his first response was, "Well there were many that there was no real reference to the union, as far as that goes." Asked the question again, he answered, "Well, a number of them brought it up." Then asked whether he brought it up, his answer was, "Not to my knowledge." Asked this question once again, his answer was, "Well, bring it up in what respect?" Told in any respect, his reply was, "Well, I could not say that. I did not mention the word, `union,' as far as that goes." Roy testified that he sub- sequently consulted on these matters "primarily" with Plant Manager Paul Sem- bach (as well as other plant management officials) in the nature of "friendly advice," but maintained that no names of employees ac,ive in the Union came up in these discussions "in my presence." He insisted that he reported on none of these matters to the Cincinnati home office. Asked whether his Company was opposed to the attempted 1964 unionization of its Longview plant, his answer was, "I do not believe I am in a position to answer that, because I am not a high enough official" and that "There was no company policy, as far as I was aware of." Asked whether he had then been campaigning against the Union without knowledge as to whether this was in accord with company policy, he answered, "Could be . .. . It is possible." Specifically with regard to Powers, Roy conceded that he spoke to Powers in the presence of two other employees on or about September 1, but that he was unable to recall "specifically" what Powers said other than that "A number of sub- jects were brought up" and that he (Roy) "ultimately had to ask Steve [Powers] to keep quiet while these two [other] men asked me their questions." As to Green, although Roy testified he did "not recall eveiything that was said," he denied telling Green or any employee that "A vote for the company is a vote for friendly rela- tions, and a vote for the union means trouble." Based upon my demeanor observations as well as upon his words, Roy impressed me as at least evasive and lacking in candor, particularly since he hedged repeatedly, leaving me in a state of disbelief that his memory was as poor as he claimed. On the other hand, I was favorably impressed with the testimonial demeanor of Powers- significant portions of whose testimony were undisputed by Roy--and of Green. 16 So far as others were concerned, Roy testified, "I ain afraid you NNi11 have to ask them." 1v Still later in cross-examination, Roy conceded that what he meant when lie earlier testified that employees "volnteered" information to him was that they supplied him with information in response to his questions 1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I therefore credit the described testimony of Powers and Green in preference to that of Roy, to the extent of any conflict. C. Alleged violations of Section 8(a)(1)-coercive interrogation, threats of economic harm, and promises of economic gain The complaint alleges violations of Section 8(a)(1) through coercive interroga- tion of employees, threats of economic harm 18 in case of their union membership or pursuit of union activity, and promises of economic gain for their union absti- nence or abandonment . Respondent denies these allegations. Hairston, a welder in Respondent 's employ for 8 years, testified that while at work on or about September 1, 1964, wearing a union button, Plant Supervisor Whitehurst approached him and said, "What the devil are you doing wearing that button9" Hairston answered , "I might as well. A lot of the rest of them are wearing them-my friends ." Whitehurst replied, "If I could get you, Richard Gibson and Jes Kersh to pull these buttons off we would win this election ." Continuing, White- hurst "said that we were good friends . If the union got in, some way or another the union . would stop friendship between Mr. Whitehurst and some of the working men." 19 Whitehurst then asked Hairston , "Do you know what you want to do," and, urging him to "Get things straightened up back to normal," told him that in the election "You ought to vote the things out of here." Testifying that he was unable to recall a conversation with Hairston "on Septem- ber 2 or September 3," Longview Plant Superintendent Whitehurst denied asking him at any time what he was doing wearing a union button or telling him that if he could get him, Gibson , and Kersh to remove their union buttons " we could win the election," or that at any time he questioned any employee about his union membership , how he planned to vote, or said that he would lose his friendship if he joined or voted for the Union On cross-examination, however, asked whether he ever discussed union buttons with any employee , Whitehurst's response was, "Not that I can remember. I don't even remember speaking about the buttons with anyone." 10 So much of paragraph 7b of the complaint as pertains to an alleged economic threat on August 20, 1964 , by Respondent 's Supervisor Whiteside was «ithdrawn at the hearing by General Counsel because outside of the statutory 6-month period ( Act, Section 10(b)). While withdrawing this as an operational allegation of violation, General Counsel never- theless urged that evidence thereof, already in the record , be permitted to remain in the record as background . I reserved decision on Respondent ' s objection to this request Gen- eral Counsel 's application is hereby granted and Respondent ' s objection overruled. See cases cited supra, footnote 6. 10 Contrary to Respondent , I do not interpret this remark of Whitehurst-in the total context of the case-to have been plainly a mere offhand remark as to Impairment of personal friendship , as in Fort Smith Broadcasting Co v. N L R B , 341 F 2d 874, 876- 877. 880 (C A. 8). Since there was no proof of existence of a personal social relationship of friendship between welder Hairston and Plant Superintendent Whitehurst , I was left with the impression , in the light of the background and record as a whole, that the "friendship " which unionization or unionism would have impaired would have been a "friendly" attitude of management-supervision toward employees in their business (i e , management-labor ) relationships and not in social matters . Furthermore , verbalization of this nature by a plant superintendent under the total circumstances of spirited employer campaigning against the Union just before the election carried a potent message to employees by implying economic hazards with which unionization would be fraught. "Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged ." ( Justice Harlan in N L.R B v. Exchange Parts Co , 375 U. S 405, 409 ) . . it is common experience that the desire of employees to unionize is raised or lowered by the advantages thought to be attained by such action " ( Justice Reed , in Radio Officers' Union v. NL.R .B, 347 U.S. 17, 51. ) "Language may serve to enlighten a hearer, though it also betrays the speaker 's feelings and desires ; but the light It sheds will be in some degree clouded , if the hearer is in his power " ( Learned Hand, J , in N L R B V. Federbush Co , Inc, 121 F 2d 954, 957 (C A. 2 ).) "Any determination of the exact nature and effect of such statements can be made only with due regard for the context of the statements , the characters and economic positions of those who heard it, and the rela- tionships existing between a company and its employees ." ( Biggs, C. J., in N L R.B v. Morris Fishman and Sons, Inc, 278 F2d 792, 796 (C.A. 3).) TRAILMOBILE DIV., PULLMAN INC. 1355 Welder Hairston further testified that on September 2, 1964, while he was wear- ing his union button at work, General Foreman Davis approached him and, seeing the button, said to him, "Paul [Hairston ], this hurts my feelings," adding that "it hurt his feelings real bad that I [Hairston ] used to be a leadman under him [Davis], and sort of let him down or made him feel bad inside," that "I want to talk to you about it for a while" and that "I [Davis] am going to try to get you [Hairston] to pull this union button off." This occurred in the presence of Hair- ston's fellow employee Rester, who was also wearing a union button . Davis also asked Hairston "what has the union promised [you]," to which Hairston said nothing , and he asked Hairston whether his fellow employee Huffman was "the kind of representative [ s] . . . that I wanted for the union." Davis also spoke of "strikes and strike funds ," citing as an example the case of a striker who ran up a grocery bill around $500 at Davis' father 's grocery store, until the striker "lost his home"; and, mentioning the alleged striker's "old, ragged, beat up car," Davis inquired of Hairston whether he "still drive [ s] this '55 Plymouth" and whether Hairston "could . . . live on twenty-five dollar a week strike money." Telling Hair- ston that he (Davis ) "might get fired" for missing a foremen 's meeting by talking to Hairston this long, but that "I 'll gain more by staying here and getting you to pull this button off," Hairston finally removed his union button and handed it to Davis, who pocketed it, remarking , "Paul [Hairston ], it takes a big man to pull a button off like you did . You're big on the outside. You're also big on the inside." When Davis told Hairston's fellow employee Rester that "you know how the union is . I thought you knew better or knew about these unions . It looks to me like you shouldn't be wearing that or anything like that," Hairston 's fellow employee likewise removed his union button. Davis, Respondent's 1st shift foreman at Longview since August 1964, admitted speaking to Hairston and Rester on September 2, 1964, in their work area, "about different problems"-"I don't remember the full extent of the conversation "-"One thing that I do remember , we had some conversation about the fact that he [Hair- ston] was wearing a union button . . . As best as I remember , I remarked to Mr. Hairston that, `I notice you are wearing a union button and this concerns me.' It hurt my feelings personally because he and I had worked real close together in the years before that . I told him that I noticed he was wearing a union button there and I asked him what some of the problems were back there . . . We talked about some of the problems . And the exact problems, the nature of them, I don't remember exactly what they were . . . We talked on about the union button and he remarked that he would-he would take the button off if I wanted him to, and I told him that no, this would have to be his decision and his alone , and-well, eventually, he did; before the conversation ended, he did pull the button off. . . . As best as I remember, he give the button to me." Davis conceded describing , in this conversation with the employees , a striker at another plant who had run up a $500 charge at Davis' parents ' grocery store before they refused him further credit and that the bill is still unpaid. Questioned on cross-examination as to whether be had asked Hairston if he "could live on $25.00 a week strike money ," Davis' response was, "I don't remember exactly. It's very possible I could have , but I don't remember." While generally favorably impressed with Davis' essential candor, I nevertheless remained with the impression that his powers of recall, whether involuntarily or voluntarily, left something to be desired ; and I do not credit his statement that he in effect told Hairston not to remove the union button and expressly cautioned him that such an action by Hairston "would have to be his decision and his alone ," since on comparative demeanor observations I credit Hairston 's contrary testimony in this respect and, further, consider it unlikely that Davis, ostensibly intent on a tangibly successful antiunion coup to the extent of deliberately foregoing his important foremen's meeting, would have observed the technical legal nicety of such a care- fully worded warning designed to stay the willing hand of one who was (as Davis would have it ) a volunteering backslider.. Hagler, a trailer fitter in Respondent's employ for 2 years, testified that on Sep- tember 3, 1964 (union election day) he had three conversations with 1st shift assembly or subassembly department 23 Foreman Whiteside, as follows. Early in the morning , Whiteside approached him at work where he was wearing a union but- ton and said he "would like to know what I [Hagler] felt about the union, and how I thought I would profit by it . . . I told him, well , that I thought we might get higher wages and more stable employment , and surely a better retirement plan." Whiteside said he had to go to a foremen's meeting but wanted to talk some more 1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Hagler after. Whiteside returned to Hagler later in the morning and described to Hagler "all the troubles . . . and the squabbles" at a unionized plant nearby, and also mentioned another neighboring plant where "the company fired all of its employees because they tried to get the union in." After telling Hagler he (White- side) had been "sort of like" Hagler when he first came to Trailmobile-"didn't know much about the union"-but had voted against it, Whiteside told Hagler he would like to see him pull off his union button. Hagler said he would think about it. In the afternoon, while the voting was going on, Whiteside again approached Hagler, this time in the presence of fellow employee Rhodes,20 and asked Hagler whether he could "guarantee me [Whiteside] how you are going to vote when you go in there to vote')" Hagler replied he could not. At no time did Whiteside indi- cate to Hagler why he was asking him these questions. As to the foregoing, Respondent's witness Whiteside testified that he has been in Respondent's employ for over 8 years, in the summer of 1964 and the preceding year and a half as 1st shift foreman of body subassembly department 23, and that Hagler worked under him when, on September 2, he spoke to Hagler. Whiteside tes- tified he was unable to recall who started the first conversation nor what it started over, but remembered that he told Hagler, who was wearing a union button, about a plant where most of the strikers had lost their jobs and where a new or full work force was hired and the union voted out. Questioned as to whether during this con- versation he "ask[ed] Mr. Hagler to take his union button off," Whiteside's response was, "No, sir. I told him that it would please me to see him take it off," and that Hagler told he he would "think about it." Whiteside testified that he had a further talk with Hagler at the latter's work station on the afternoon of Septem- ber 3, election day, as he was directing employees to the polling place and instruct- ing them to return to work immediately. According to Whiteside, at this time, "I just made the remark that I kind of knew what kind of doubts and what kind of thoughts were running through their minds, that I'd voted in two previous elections myself, and I kind of made the remark if any of them at this precise time could guarantee how they would vote." According to Whiteside, at this Hagler and Rhodes both merely remarked they could not guarantee or could not say how they would vote. Whiteside allegedly was unable to "recall offhand" any other conver- sation with Hagler. Green, a welder in Respondent's employ for over 9 years, testified that while at work on open-top trailers in department 26 on September 3, 1964, he was approached by Respondent's Cincinnati home office executive and former Longview Plant Manager "Dude" Roy, who, observing the two union buttons Green was wearing, answered him in the presence of fellow employee Johnson and Foreman Pitt- man "what office [are you] running for," to which Green answered he was "not running for any office." Johnson asked Roy about insurance policies (of which the employees had not been furnished any copy) and Roy replied that "that is being worked out and you will receive them at an early time." Roy added that "a vote for the company would mean a continuation of friendly relations and a vote for the union would mean nothing but trouble " When Green told Roy that "I [Green] would have to go my own way," Roy "turned and walked away." With regard to the foregoing, Roy testified that he was in Longview during the entire election week chiefly on other business, but that he also spoke to many employees since, among other things, as he expressed it, " . . obviously, there were some problems there, with relation to some of the former supervision. We had started an organization down here [Longview] that had been a very harmonious operation. We did not have any of these problems This disturbed me, because I had a very deep interest in the people. So I did spend a lot of time on them," conced- ing that he "realized that this much interest in a union was engendered by some problem at the plant itself"; further stating that "we [management] wanted to keep it on the harmonious team spirit " and conceding that "The fact that there was a union election was some indication that there were plant problems ." Roy conceded that he spoke to Green on election day or the day before, but only "very casually." "it seems to me" with Pittman "in the area." and that "Snecifically, I do' not recall everything that was said " He denied, however, that he told Green or any other employee that "A vote for the company is a vote for friendly relations, and a vote for the union means trouble." He also denied that he asked Green what office he was running for, but that "I may have made a comment about advertising 20 Rhodes , still employed by Respondent, was not produced to contradict or corrobo- rate this. TRAILMOBILE DIV., PULLMAN INC. 1357 just in jest, `I notice you are advertising' [in reference to union button]." Also deny- ing he asked employee Huffman "that" question (i.e., "What office are you running for?"), he testified that "Norman Huffman volunteered information to me." Blevins, a welder in Respondent's employ for 4 years, testified that on Septem- ber 2, 1964, Plant Superintendent Whitehurst approached him at work in depart- ment 16 and "asked me [Blevins ] what my gripe was . . . I told him that I didn't have any gripe , that I only wanted some job security and a few more benefits 21 Well he said, `you guys probably could get your insurance , retirement and maybe a ten or twelve cent raise without the union.' . . . I told Mr. Whitehurst that I believed that he and Chuck [ Bellatti], the personnel manager, were sincere in what they were trying to do, but, I just didn't believe that they had the power to back it up." Whitehurst walked away. Longview Plant Superintendent Whitehurst denied that he ever told Blevins "that he could have his insurance and retirement paid for by the company if the union did not get in," that "he could get a ten or twelve cent raise without the help of the union," or anything to that effect , also tesified that he could not "recall" a conversation with Blevins on September 2. On cross -examination, however, asked whether he ever told employees they should give him a year or a period of time while he was in charge to show them that things would work out all right ,22 White- hurst's response was, "I don't recall," While favorably impressed with the testimonial demeanor of General Counsel's witnesses Green, Hagler, Hairston , and Blevins ,23 I was left with the impression that Respondent's witness Whitehurst, although truthful and candid on other mat- ters, either held back or really suffered deficient recall on the subjects just described. In another connection I have already commented upon and furnished examples of the deficient testimonial quality of Respondent's witness Roy, whose testimony was punctuated with vacillation and evasion . I was on the whole favorably impressed with the testimonial demeanor of Respondent 's witnesses Whiteside and Davis, who in certain respects tended to support aspects of the employees' described testimony bearing upon the violations alleged. On balance and after careful consideration, I credit the testimony of General Counsel's witnesses Green, Hagler , Hairston, and Blevins in the respects set forth. Respondent contends that its supervisory and managerial personnel , including Roy, lacked authority to make promises or threats on its behalf, supporting this contention by a plant speech by its President Burns the day before the September 3 election, in the course of which he included a statement to the effect that "the company could not make any threats or promises" ( while also discussing "rates of pay . . . insurance and retirement plans"). Mere use of the self-serving , pat phrase that supervisory assurances or indications of economic advantages for disassociation from protected concerted activity are not to be considered as "promises " does not retrieve or insulate them from their un- lawful character if in fact made, as here , in a context fairly calculated to have effect on employees' minds as indicia of economic advantages in the offing tied by their employer to relinquishment of their statutorily guaranteed right to organize for collective bargaining . Certain messages , although retrospectively attempted to be minimized or clouded , are in their true factual frame of reference as transparent as window glass to men of affairs in the hard-nosed industrial relations world. It must be remembered that Respondent 's utterances through its high-ranking home office as well as local managerial and supervisory personnel , occurred in a back- ground, already pictured , of active company opposition to plant unionization and efforts on its part to keep the Longview plant union free. Under these circum- stances, the thrust of the described promissory utterances could only have been in one direction ; namely, indications that even though not legally enforceable "prom- ises," assurances of specific economic advantages ("insurance, retirement and maybe 21 On cross-examination Blevins amplified this to specify that he told Whitehurst that "I felt that we should have our retirement and our insurance paid the same as the guys have in the Cincinnati plant." 23 Cf. supra, page 5 , statement credibly attributed to Whitehurst at mid -August orienta- tion sessions for employees under the shade trees. 23I have taken into account surface inconsistencies or insubstantial discrepancies or inaccuracies in the testimony of some of these witnesses, not of such seriousness , in light of the overall record and my observed demeanor comparisons, to require rejection of their testimony in whole or material part. 1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a ten or twelve cent raise") to be reaped from refraining from organized activity.24 Employer assurances of economic advantage for eschewing unionism need not be legally enforceable contracts or "promises" in order to be violative of the Act.25 Nor is Respondent's director of facilities and industrial engineering (and, prior to that, its Longview plant manager) "Dude" Roy's present attempted downgrading of his own authority impressive under the circumstances. Management as well as union officials, particularly those with high-sounding titles, would do well to indicate their alleged lack of authority at the time they indulge in its purported exercise, instead of resorting to unpublicized, post-facto, deprecatory self-abasements that they really did not have the authority to say what they did. Principals in such cir- cumstances place themselves in a poor light to complain because they have been well served by allegedly overzealous subordinates, the fruits of whose efforts they were willing to retain. The statute (Act, Section 2(13)) explicitly indicates that usual common law rules of agency do not govern these cases. It is clear that to the employees here, the officials and supervisors involved, as the employees' "bosses," justifiably stood for and spoke as the Company, without need on the part of the employees to demand credentials or precise letters of authority.26 Employer appeals to employees for surrender of union buttons-here urged by Respondent to have been privileged, innocuous, and voluntary on the part of the employees-must likewise be viewed in the context of the particular situation pre- sented, rather than as mandated by an inexorably universal rule. In this case, unlike some others,27 at least several employees, as found, were pointedly (and success- fully) urged or wheedled by at least several supervisors-by one determinedly in a relatively long appeal-into surrendering or removing their union buttons, in a context of employer union hostility and violations of the Act. What may under certain circumstances be voluntary relinquishment of a union button as the result of lawful persuasion, may under other circumstances, particularly in a context of other actions violative of the Act, be coerced surrender, to gain a supposed advantage or avoid a feared reprisal. The right of employees to wear union buttons flows from the guarantees of Section 7 of the Act (Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 801-803; N.L.R.B. v. Mayrath Company, 319 F.2d 424, 426 (C.A. 7); N.L.R.B. v. Power Equipment Company, 313 F.2d 438, 442 (C.A. 6); Kimble Glass Company v. N.L.R.B., 230 F.2d 484, 485 (C.A. 6), cert. denied 352 U.S. 836), subject to such reasonable limitations as may be essential under circum- stances not present here to avoid disruption of production or discipline (N.L.R.B. v. Mayrath Company, supra; N.L.R.B. v. Murphy Diesel Company, 263 F.2d 301, 303-304 (C.A. 7); Caterpillar Tractor Company v. N.L.R.B., 230 F.2d 357, 359 (C.A. 7)). "The step from embarrassment to restraint or intimidation is a short one." N.L.R.B. v. Syracuse Color Press, Inc., 209 F.2d 596, 600 (C.A. 2), cert. denied 347 U.S. 966. Respondent further urges that none of its described actions were unlawful since its employees and supervisors were friendly. Even if people are "friendly," it does N Within the context of a preelection campaign, such remarks could well be regarded as improperly designed to discourage employees' participation in protected concerted activity by holding out the bait of economic gain as a reward, and thus as more than abstract prophecy or mere expression of opinion. See, e g., N.L R.B. v. Stanton Enter- prises, Inc., 351 F.2d 261, 264 (C.A. 4) ; N.L.R B. v. Lester Bros, Inc, 301 F.2d 62, 67 (C.A. 4) ; N L.R B. v. Norfolk Southern Bus Corporation, 159 F.2d 516, 518 (C.A. 4), cert. denied 330 U.S. 844. Si Furthermore, mere statement by the employer that "the company could not make any threats or promises" (particularly in the context of discussion by him of "rates of pay . . . insurance and retirement plans"), without reasonably explicit identification with supervisors or reasonably specific disclaimer of promises (or threats) made or alleg- edly made-is consistent with the meaning that such promises (or threats) are unauthor- ized by law ; and that therefore, in the case of promises, assurances of economic advantages were not intended as true "promises"-even though they could still safely be relied on by those worldly-wise enough to read between the lines. =8Cf. N.LR.B. v. Cameo, Inc, 340 F.2d 803, 806-807 (C.A. 5), cert. denied 382 U.S. 926. 27 E.g, N.L R B. v. Mallory Plastics Company, 355 F 2d 509 (C.A. 7), called to my attention by Respondent in a letter of January 28, 1966, from its learned counsel. As the court there explicitly pointed out (slip opinion, page 5), the events took place in a back- ground of total absence of employer unfair labor practices, evidenced in part by the employees' unopposed continuation to wear the union buttons, as distinguished from their removal and surrender to management herein. TRAILMOBILE DIV., PULLMAN INC. 1359 not follow that their acts toward each other are invariably so. Nor does the Act exempt friends from its prohibitions: friend and foe alike may violate the law.28 Although there is basis for doubting the prevalence, during the period here de- scribed, of the spirit of serene friendliness now sought to be portrayed by Respond- ent, there is no requirement that unfriendly or nonspeaking belligerency exist, nor that smiles be replaced by frowns, before the provisions of the Act become oper- ative. Indeed, experience dating back to the Bible teaches that the appeals or min- istrations of professed friends may be more insidious than those of foes, open or concealed.29 It would be strange indeed if "friendship" were a password or license to open-season violation of the Act and the plainly declared public policy of its enactors.30 Respondent also contends that it has, or has had, what it considers to be amicable labor relationships in other plants, including a bargaining history with the Charging Party (UAW) herein, and that this negatives or evidences its lack of union animus. Whether or not Respondent as a subsidiary, or Respondent's parent organization, enjoys pleasant industrial relationships elsewhere, for all sorts of possible reasons involving considerations which are speculative, is not inconsist- ent with determination on its part to keep its Longview plant union flee. It is further urged by Respondent that it has not prior to this case been the subject of unfair labor practice charges.31 Again-even assuming this is true, and without exploring whether the contention applies to Respondent as a relatively new subsidiary or to the new parent organization to whose industrial relations policy control it is now presumably subject 32-this would not preclude findings of violations in this case; were it otherwise, there could never be a first time, hence never any possibility of violation findings. Furthermore, obviously, even the existence of policy does not mean that administrators or subordinates in a particular plant or at a particular time have carried it out 33 Finally, Respondent contends in its brief (page 84) that any violation on its part of Section 8(a)(1) was at worst "minor, casual and isolated . not warranting a remedial order." Considering the entire background, including the high-level standing in Respondent's managerial hierarchy of some of its officials here involved, and the rather widespread front and time duration over which the acts occurred, as well as another serious alleged statutory violation about to be discussed, I do not believe that these acts in the aggregate should be regarded as "minor, casual and isolated ... not warranting a remedial order." On the contrary, the acts were part of a consistent pattern of conduct violative of the Act and its declared policies, sufficient in my opinion to warrant and require, in the public as well as private interest, invocation of the Act's remedial provisions , as hereinafter recommended. Upon the basis of the foregoing considerations and my findings crediting the described testimony of General Counsel's witnesses, and considering but not accord- ing independent and controlling weight 34 to the background events set forth, it is 2' Daniel Construction Co., Inc. v. N.L.R.B., 341 F.2d 805, 812 (C.A. 4), cert. denied 882 U.S. 831. 0 Respondent can hardly urge with seriousness that one cannot be wronged by one's friend. If the spirit of friendship between supervisors and supervised . here was as Damon- and-Pythias-like as it now seeks to picture, it is not improbable that Respondent regarded itself as wronged by these employee friends' union organizational activities. Thy friendship oft has made my heart to ache, Do be my enemy-for friendship' s sake. (Blake, "To Hagley.") s0 Furthermore , such acts toward "friends" have coercive effect on other employees who are not friends , since the acts become known and are passed around among employees in a factory milieu as sensitive barometers of how management feels and how it is likely to react toward union activities. 3'Testimony along these lines by John John , Respondent's director of industrial rela- tions for the division (I e., for Trailmobile only) since 1965, was taken subject to the Charging Party and General Counsel's motions to strike, upon which decision was reserved. Those motions are hereby denied, the indicated testimony being treated as background. 88 John conceded he was unable to testify that Pullman Incorporated ( Respondent Trailmobile's parent) has not been the subject of unfair labor practice charges or proceedings. 11 John further testified that although in August 1964 "I was familiar with the policy of the company . . . I was not familiar with all of the matters relating to the organi- zational activities at the Longview plant," and that since he was then "not in the office" he was "not actively involved in Longview matters." 84 Supra, footnote 6. 1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found and concluded that a fair preponderance of the substantial credible evidence establishes that Respondent on or about September 2 and 3, 1964, coercively inter- rogated employees, made threats of economic loss or harm to them in the event of unionization or union activity , and made promissory statements of economic gain for employee abstinence therefrom, in violation of Section 8(a)(1) of the Act. D. Alleged violation of Section 8(a)(3)-discharge of Powers The complaint further alleges that Respondent discharged its employee John S. Powers on February 12, 1965, because of his union and organizational activities. Respondent admits that it discharged Powers on that date , but contends it was for cause. 1. General operations of container department 200 Among other things, Respondent has since June or July 1963, at its Longview plant built for Union Carbide Company some 555 30 feet by 8 feet by 8 feet aluminum containers (large, oblong, windowless receptacles resembling freight box- cars or trailers ) designed for transporting pelletized or powder -type plastics. These 555 containers were produced in fulfillment of three Union Carbide orders•- Appioxirnate Period of Manufacture Union Carbide Order No. by Respondent 1-------------------------- June or July 1963-early spring, 1964 2-------------------------- October or November 1964-early January 1965 3-------------------------- February 5-May 7, 1965 .35 On the first order, Respondent's Plant Superintendent Whitehurst (then general plant foreman) set up the necessary operational facilities (personnel and equip- ment ) and supervised production ; thereafter, as plant superintendent (since July 20, 1964 ), he exercised general supeivisory function over container department 200 as well as over the rest of the plant. As explained in detail by Whitehurst, production of such a container involved making the necessary welds and performing other necessary operations upon the component portions or sections ; and, eventually, placing the welded sections, or top, bottom, and sides, into a large jig (a device or fixture which holds sections or parts together properly while they are being joined together permanently ), where they are welded together and otherwise (i.e., through sanding, cleaning, smoothing, and buff- ing) brought to a state of completion or near-completion . Each container has 4,400 weld spots , in an 8-hour factory shift, 11/2 containers were completed. The standing operating procedure appears to have been for welders to weld the inside of the con- tainer 36 and then for the welders to leave the container while helpers ground or "shaved," sanded , buffed, or otherwise removed excess weld and rough spots and cleaned up the inside .37 In order for the welders (as well as the helpers ) to do the required work at the top of the container when finished with work at the bottom and reachable sides, the container would be rotated , that is turned around or up- side down, in the jig.38 This rotation was accomplished electrically or manually, depending on whether the jig in which the container was emplaced was the "main '5 Two models were built-Model P, having one 8-inch inspection hatch ; and Model V, having two such inspection hatches . Inspection hatches are located at the top, on the center line , near the end of the container . Each model also has a 20-inch access hatch at the top as well as two 8-inch discharge nozzles or hatches on the rear end 98 V-Models were built ( none on the first order ), and 457 P-Models, comprising the total of 555 containers on all three orders. ^ normally including also the welding to the Inside of pyramidal or cone-shaped deflector plates prior to welding the container ends, since these deflector plates are too large to fit through any of the hatches. 37 Accomplished by the use of hand -operated pneumatic tools consisting of a 20 ,000 and 24,000 r,p in. sander and end -mill, activated and deactivated by slight pressure on the trigger The sander is 9 inches in length along an L-shape ; the end-mill is 121/2 inches long and weighs 3 pounds . The finished interior surface of the container is smooth at all places. Early instructions as to use of rubber mats and that men remove or wrap rags around shoes while working inside the containers were rescinded when it was found that adherent shavings would cause more significant blemishes than men 's shoes without mats. after they [ the welders ] have welded the deflectors , and finished the welding 38 inside, then they have to turn [the container ] over to finish the, welding that they would- have inside on the top. They « ould twin it over " ( Testimony of Plant Superintendent Whitehurst.) TRAILMOBILE DIV., PULLMAN INC. 1361 assembly jig" (electrical ) or a "manual turnover jig." Although there was only one "main assembly jig" (electrically powered, switch-controlled from the outside, rotat- ing 360° in 7 minutes at its lowest, actual operating speed), there were seven "man- ual turnover jigs" (somewhat smaller and rotated from the outside by manual turning after removal of a lockpin at one end and raising the upper stabilizing legs of the jig). Because Respondent had only one electrically powered "main assembly jig," the "manual turnover jigs" (i.e., hand-rotated assembly jigs) were utilized in order to speed up production and not delay work in process, so as to expedite Respond- ent's manufacture and fulfillment of its container orders to its customer. 2. Powers' history at Respondent's Longview plant John S. Powers entered Respondent's employ in November 1958 as a $1.70-per- hour helper, was promoted in February 1959 to welder at $2 or $2.10 per hour, and continued working there until laid off in August 1960. He was recalled in Feb- ruary 1961 but did not return. He was again recalled, by the personnel manager, in August 1961, at which time he returned and remained until his discharge on Feb- ruary 12, 1965. Powers' capability as a welder is unquestioned here. Describing him as "a very good welder" in a market or area where it is difficult to obtain good welders, Plant Superintendent Whitehurst concedes that "there is no question here . . . about the capability or qualifications of Mr. Powers as a welder." Powers welded on the first and second orders of the Union Carbide containers, almost exclusively on the second shift (3:30-11:30 p.m.) under Foreman Lonzo Higginbotham and Leadman Cox, except for a 3-month interval from September to December 1963 on the third shift (11 p.m. -7 a.m.), but for practical purposes not 39 on the first (i.e., day) shift on containers. Powers worked only 1 day (or a day and a half) on the third order of containers, that is to say on February 11 (and morn- ing of February 12), resulting in his discharge on the next day (February 12) under circumstances to be described. There is no showing that prior to his advent into union organizational activ- ities at the Longview plant at the beginning of June 1964, Powers' employment his- tory there was extraordinary. Powers joined the Union at its first organizational meeting, at the beginning of June 1964, and thereafter attended subsequent meetings, held about every 2 weeks in June and every week commencing around mid-July until the time of the election (as well as meetings thereafter). He (as well as some others) openly solicited fellow employees to join the Union. One of those solicited by Powers was his own Lead- man or Foreman Cox, who, a few days after the Union unsuccessfully requested (July 29) recognition, asked Powers to remove some union literature which Powers was displaying on his toolbox. Powers complied with the request. Powers (as well as others) openly wore union buttons, although he appears to have been an early wearer. As part of Respondent's antiunion campaign , around mid-August its top plant managerial officials, Plant Superintendent Whitehurst and Personnel Manager Bellatti, conducted orientation or "gripe" sessions for groups of employees, under shade trees and elsewhere on the plant grounds. At one of these meetings, attended by about 20-25 employees, Powers (by predesign decided on by him and other union organizational leaders ) raised "quite a number of questions"-more than any- body else-including a pointed one about the status of Lonzo Higginbotham, his erstwhile foreman 4° The question thus posed by Powers turned out to involve a potentially crucial issue in the hotly contested union election of September 3, and one which Respondent continued to litigate through 1965 and apparently continues to litigate. A "pretty heated" exchange between Powers and "Dude" Roy, Respondent's Cin- cinnati home office director of facilities and industrial engineering (and former Longview plant manager ), a few days before the September 3 election , on the sub- ject of the union activities going on at the plant, has already been described in detail (supra, section II, B). 39 With the possible exception of a 3-day emergency or special detail in October 1964. SU Although at the hearing Plant Superintendent Whitehurst first claimed he was unable to recall whether it was Powers who questioned him about the status of Lonzo Higgin- botham, after his memory had been "refreshed" he conceded near the end of the hearing that the question was indeed raised by Powers 257-551-67-vol. 160-87 1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On union election day, September 3, Powers wore 12 union buttons. Although the Union ostensibly won the election, the final outcome continued to hinge upon chal- lenged, uncounted ballots, including that of Lonzo Higginbotham. Between the unresolved election of September 3 and his discharge on Febru- ary 12, Powers continued to attend union meetings regularly and otherwise to be active in union organizational activities, including distribution of union literature and keeping his fellow employees-among them Richard Elms, an inspector-informed about union organizational developments. Meanwhile, after the election Powers picked up two reprimands in fairly rapid order, one on September 10 for working without safety glasses, and another on October 8 for alleged "horseplay" described as "tormenting a fellow worker." On December 30, the Board's Regional Director issued his report on the challenged ballots, recommending the sustaining of some challenges, the overruling of others, and a hearing on still others. On Janu- ary 14, 1965, Powers received a further reprimand for another incident of alleged "horseplay." On February 3, 1965, the Board ordered a hearing upon issues resulting from exceptions filed to the Regional Director's December 30, 1964, report on the chal- lenged ballots and election objections. On February 4, the Union dispatched a letter to Respondent (received by it on February 5), requesting a wage increase for Longview employees, or alternatively to meet with the Union to bargain. Enclosures to this letter indicated that such a wage increase had been made by Respondent to its Cincinnati plant employees around February 1. Copies of this letter and its enclo- sures were sent by the Union to some of Respondent's Longview employees. On February 8 (Monday) the Union forwarded a further letter to Respondent's employ- ees, advising them of the Board's February 3 order directing the hearing on the issue of the eligibility of Lonzo Higginbotham and Respondent's leadmen to vote at the September 3 election ; indicating that if the union challenges thereto should be sustained the Union would then be certified as the employees' bargaining repre- sentative. Presumably this was received on February 9 (Tuesday). On February 11 (Thursday), Powers, in the course of welding a container with another employee, rotated the container in order to weld at the top, resulting in his discharge under circumstances which will be described. Testimony of Powers and other witnesses indicates that he was one of the three or four most active and dedicated employees in the entire plant on behalf of the Union, and openly so; his activities consisting not merely of attending meetings reg- ularly but of distributing and displaying union literature , soliciting members, and fanning and keeping the flame of unionism alive at the plant in various ways such as by the asking of questions to management at the summer "gripe" orientation ses- sion held for employees by management on the plant grounds , by continuing to be one of a mere handful who continued to attend union meetings after the election, and by acting as a conduit to spread union organizational news around among the employees and to keep up their morale 41 Notwithstanding the foregoing, Respondent's Plant Superintendent Whitehurst, Personnel Manager Bellatti, and Foreman Floyd Akin testified that they did not "know" whether Powers was active in or a member of the Union .42 Upon the entire record and demeanor observations , I do not credit these denials, which, all things considered, impressed me as highly incredible. Credited evidence clearly indicates that the extent of Powers' union activity, which was open and unconcealed, in the plant was generally well known throughout 41 With regard to his activities between the election and his discharge , Powers testified that, "Well, when they had the election and they had the challenged votes , well, a lot of us, you know, we figured it ought not to take as long as it did , and it kept taking a little bit longer and a little bit longer and the guys kept getting, you know , disgusted that these wouldn 't be anything done about it and, well, we just lost it. And I'd been going to the meetings . I'd been keeping us up to date on what was going on and I just kept telling them , I said, 'Well, they're working on it and everything's going to be all right' " Powers also testified in this connection that "some of them had just been getting disgusted with the way it kept drawing out and drawing out," and that he "kept telling the guys, 'Just keep holding on , we'll win it finally . . . Don 't give up hope ' " 43 Leadman Cox, while conceding he was aware of the extent of Powers' union activities in the plant , nevertheless testified lie never said anything about it to management Upon the probabilities of the situation , as well as demeanor observations , I discredit this testi- mony that he never made known to management anything about Powers ' union activities. TRAILMOBILE DIV., PULLMAN INC. 1363 the plant, not only to employees but to representatives of management . Thus, Pow- ers gave clear indications , to at least Respondent's Executive "Dude" Roy and his Leadman Cox that he belonged to the Union , and kept Cox informed as to contents of union literature which Powers kept in his toolbox ; and Powers' discussions with other plant managerial and supervisory personnel , including Plant Superintendent Whitehurst and flooring department Foreman Gunn , leave no doubt that manage- ment was amply apprised of the level of interest and activity of Powers on behalf of the Union . It is likewise eminently clear that union organizational activity, and specifically by Powers , continued after the September 3, 1964, election , at least up to the date of Powers' discharge on February 12, 1965. Resolving credibility issues upon the basis of demeanor observations and the entire record , I find that Powers was one of the three or four most active of Respondent's employees on behalf of the union organizational effort in its Longview plant, from the summer of 1964 until his discharge on February 12, 1965; that those union organizational activities were carried on by Powers openly and without concealment , and were a matter of gen- eral common knowledge throughout the plant, not only to other employees but also to Respondent through its supervisory and managerial personnel. 3. Events of February 11-12, 1965 On February 11, 1965, Powers , who was working in chassis department 16, was told by Foreman Travis Higginbotham of that department to report for work in container department 200 in place of absent welder Tillison 43 In department 200. Foreman Floyd Akin 44 told Powers to work with welder Edd Taylor on a Union Carbide third order Model P aluminum container which was then in a manual turn- over jig. When Edd Taylor and Powers had finished welding the deflector plates and the reachable portions on the inside , and the bottom portion of the container, it became necessary to rotate the container so that they could weld the top portion. Meanwhile , helpers Curtis Taylor, Sullivan , and Crittenden 45 had entered the con- tainer through the top hatch , in order to smoothen and clean up the inside after the welders. Since Edd Taylor and Powers had already removed their welding leads from the inside of the container and there was no other welding work for them to do elsewhere, it became necessary to rotate the container so that they could com- plete their welding on the unreachable ( high ) portions thereof. Powers therefore "hollered down through one of the drain holes back there at the bottom that we were ready to turn the container over. And Curtis Taylor [one of the three helpers inside the container] hollered back go ahead." Neither of the other two helpers inside the container (Sullivan and Crittenden ) said anything . Not only Powers, but also Edd Taylor told the men inside the container , before turning it, that they were ready to turn it, Edd Taylor having gone for a drink of water between the time Powers warned the men and the time Edd Taylor did so, that they were ready to rotate the container, and none of the men on the inside having left the container meanwhile . Three or four minutes after telling the men inside that they were ready to turn it, Edd Taylor or Powers pulled the lockpin and started to rotate the con- tainer.46 After the container was partially rotated, Curtis Taylor "hollered to get the 43 Prior to February 11, Powers had not worked on the third order of containers, work: on which had commenced just a few days before, on February 5, although Powers had worked on the first and second orders, almost entirely on the Second shift According to Plant Superintendent Whitehurst , welder Tillison worked on all three orders, but welder Edd Taylor worked only on the second and third orders ( about 300 containers) 44 Akin testified that he had been Powers ' supervisor in chassis department 16 from December 14, 1964 , to February 5, 1965 , at which time Akin was transferred front chassis department 16 back to container department 200, leaving Travis Higginbotham as Powers' supervisor in chassis department 16; and that both he (Akii) and Travis Higginbotham had been foremen in chassis department 16 On cross-evammation however , Akin testi- fied that he became foreman of department 200 on Nooember 1, 1964 ( prior to which lie had been it leadman ), and that he was transferred from department 200 to become foreman of chassis department 16 on December 7, 1964 4,,According to Plant Superintendent Whitehurst , Curtis Taylor worked on all three container orders Sullivan worked for Respondent from June 1963 to March 1965 Crittenden had just staited working for Respondent on February 10, 1965 '5 According to Powers and Edd Taylor , they first disconnected the lights Sullivan's recollection was that the lights were disconnected when the ladder was removed at about 90, of rotation Although t do not con'.ides this to he a particnlaii,, sirnihcant disuei^- ancy, I have nevertheless taken it into aecounb in assessiiig credibility 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ladder out," 47 which Powers accordingly did 48 Edd Taylor and Powers then, in the presence of the whole department, continued rotating the container until it was half-rotated (i.e., 180°), repinned it with the lockpin, and continued their welding work on it 48 Curtis Taylor, a helper inside the container that was rotated, testified that after Edd Taylor and Powers finished welding inside the container, they removed their welding equipment and left the container; and that thereafter, while he (Curtis Tay- lor) and the other two helpers (Sullivan and Crittenden) were inside grinding and cleaning up, "one of the welders [i.e., Edd Taylor or Powers]-I don't know which one it was-stuck their head in that little manhole-the place at the bottom-and says, 'We're going to roll it.' . . . I said, 'Roll it."' 50 While thus admitting that he told Edd Taylor and Powers to roll or rotate the container, or expressly acquiesced therein, Curtis Taylor now maintains that he was not serious when he said this, but that he said it "unconsciously" or was only joking, since he claims that he used to joke this way with welder Tillison.51 Further, according to Curtis Taylor, after the lockpin had been removed and the container began to "rock," he "hollered out of the hole to hold it, to stop it, not to roll it," but they continued. However, Curtis Taylor further testified that after the container had been rotated "half-way over, I hollered to take the ladder out ..." and that although the container then came to rest and the ladder was then removed, he (Curtis Taylor) nevertheless "surely didn't" ask Edd Taylor or Powers to stop rotating the container or to let him out-"I didn't tell them to stop it; I told them to take the ladder out, but I didn't tell them to stop it.,, 52 Curtis Taylor conceded that at no time did either of the other two men (Sul- livan and Crittenden) inside the container with him ask that the container be stopped and not rolled. Powers and Edd Taylor denied hearing Curtis Taylor at any time ask that the container not be rotated or that he be allowed to emerge, or any protest from inside 53 The other two occupants of the rotated container, Sullivan and Crittenden-the for- mer testifying as General Counsel's witness and the latter as Respondent's witness- each denied hearing Curtis Taylor at any time ask that the container not be rolled. As the container was being rotated, the men on the inside shifted their weight-in the usual fashion employed on other occasions-in order to permit and facilitate the rotation; had they not done so, the container could not have been rotated against their resistance.54 After the container was rotated, welders Edd Taylor and Powers continued work- ing on it. However, one of the helpers, Curtis Taylor-the one who had told them to "Roll it," but who now states he said this "unconsciously" or jokingly-spoke to Foreman Akin (who had learned about it elsewhere) and told Akin "something V I e., the ladder by which Curtis Taylor and the other helpers had entered the con- tainer through the top hatch. *s According to Powers, also at this time, at Powers' request, one of the helpers inside handed out to him a can of MEK cleaning fluid, which, while In a supposedly spillproof can, is highly flammable. Edd Taylor and Sullivan (the latter, Inside the container) also testified that the MEK was handed out to Powers by one of the helpers inside. 40 The foregoing is based upon the composite credited testimony of General Counsel witnesses Powers, Edd Taylor, and Sullivan (the latter being one of the helpers working inside the container in question at the time in question). While essentially consistent, I am aware of certain inconsistencies therein, which I have taken Into account. so Emphasis added. m Tillison was not produced as a witness by Respondent although apparently available, nor was the failare to produce him accounted for. Under these circumstances , it will not be assumed that had Tillison been produced his testimony would have supported that of Curtis Taylor. 62 Emphasis added. After first testifying that nothing else was removed, Curtis Taylor conceded he was unable to recall whether a can of MEK was taken out. Contrary to Powers, Edd Taylor, and Sullivan (another helper Inside the container), Curtis Taylor and Crittenden insisted the lights stayed on in the container during the entire rotation. According to Curtis Taylor, the power equipment (grinders and end-mills ) was loose inside the container and was not turned on or activated during the rotation. ra Had Curtis Taylor (or either of the others) left the container, it would have been necessary for him (or them) to reenter it by Brawling under It on the floor, through the hatch which would then (the container having been rotated ) have been a mere 18-24 Inches from the floor. 64Testimony of Sullivan (inside the container) as well as of Powers (outside the container). TRAILMOBILE DIV., PULLMAN INC. 1365 ought to be done about it, because it is too dangerous," and then Curtis Taylor dis- cussed it with Plant Superintendent Whitehurst, who said, "It is dangerous . something needs to be done about it." According to Whitehurst, after Curtis Taylor told him that he and two others were in a container that had been rotated, and after he (Whitehurst) had checked with Foreman Akin, he instructed Personnel Manager Bellatti to look into the matter with Akin. Edd Taylor testified that after lunch on February 11, Foreman Akin approached him and "told me not to ever do that again." Later in the afternoon, Edd Taylor was called into the office of Personnel Manager Belatti, who told him, in the pres- ence of Akin, that "this was horseplay . . . `We are not running a playground for five year olds.' He said this was serious business, turning a container over with someone in it, that we were endangering their lives . I told him that we didn't do it for horseplay. It wasn't a joke of any sort that we were trying to pull . Later he told me that I would be reprimanded for this act." 55 Edd Taylor testified that nobody had ever told him prior to this not to turn a container over. He denied that in rotating this one he and Powers were "in any kind of a hurry or . . . rush- ing to get something done," but that "we were trying to get our work out, is all." After Edd Taylor was spoken to by Personnel Manager Bellatti in his office, Powers, summoned there by Akin, also was asked and described what had happened. Bellatti told Powers that "Curtis Taylor had told him [Bellatti] that be told us [Edd Taylor and Powers] not to turn the container, and that he had told us two or three times while we were turning not to turn it . . Well, I [Powers] told him [Bellatti] that this was a lie, and that that was not the way it happened. And he [Bellatti] said, `Well, maybe not a lie, maybe a misunderstanding.' And then he told me that he was going to investigate it fully and that if he found out there was any horseplay involved that it would cost me my job." Like Edd Taylor, Powers was insistent in his testimony that Edd Taylor and he did not rotate the container as a joke or horse play, but only because "we were behind on our work, and they sent me up to that department [200, Container Department] . . . I had worked nights on the contain- ers before, we had always-when we, the welders, were through with their work, they always turned the containers where they would not get behind, where they could stay up. And then, the guys on the inside grinding, they could finish them up outside or anywhere." Sullivan, one of the helpers inside the rotated container in question with Curtis Taylor and Crittenden, testified (as General Counsel's witness) that he and Critten- den were also questioned, separately, by Bellatti in the afternoon of February -11, and that he (Sullivan) told Bellatti the same thing as testified to at the hearing (supra). Sullivan's testimony gives no indication that the container rotation was in any sense a prank, horseplay, or joke on anybody's part; for example, Sullivan indig- nantly rejected a suggestion that "anybody laugh[ed]" in connection with it. His testimony bears out the character of the rotation as being in the course of the work performance of the two welders, corroborating their contention to Bellatti.56 Crittenden, the only other person inside the container in addition to Curtis Taylor and Sullivan, testified (as Respondent's witness) that he, too, was questioned by Bellatti in his office about the incident in question,57 and that among other things Bellatti asked him "whether or not you had heard Mr. C. E. [Curtis] Taylor say that it was all right to turn the container over" and that "I [Crittenden] told him [Bellatti] I did not hear him protesting at all" but that "while the container was being rolled" he (Crittenden) heard Curtis Taylor say "something to the extent about catching the ladder" and that he (Crittenden) told Bellatti "that is all [I] heard Mr. [Curtis] Taylor say . . . that is exactly what I told him [Bellatti]." Crit- tenden insisted he did not hear Curtis Taylor say anything to the effect that the con- tainer should not be rolled or that the rolling should be stopped. Personnel Manager Bellatti testified that, investigating the incident on February 11 at the request of Plant Superintendent Whitehurst, he first called container depart- ment Foreman Akin to his office. According to Bellatti, Akin told him he had been 5Edd Taylor received a written reprimand the next day. 66 Indeed, after he learned the next day (February 12) that Powers had been discharged, Sullivan of his volition returned to Bellatti's office to inquire whether Powers had been fired for this ; Bellatti told him, "No . . . this was simply the straw that broke the camel's back . . . be had been written up once or twice, and had been warned about further horseplay." 67 According to Crittenden's testimony , he as well as Sullivan was questioned by Bellatti on the morning of February 12. 1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD away from the department at the time of the incident, which had,been described to him by Curtis Taylor. Bellatti then told Akin to get Edd Taylor, and spoke to Edd Taylor (first) and then to Powers. In response to Bellatti's question, Edd Taylor denied any realization of any "seriousness" about this and said "that he hadn't done it intentionally to hurt anybody" and "didn't know that these consequences could have come about." Bellatti then sent for and questioned Powers. According to Bellatti, when he asked Powers (as he had Edd Taylor) "if he realized the serious- ness of this matter and the consequences that could have resulted," Powers "at this point . . . told me that he had done this before-either he had done it or had seen it done on the second shift when he was working in containers-and he went on to tell me how it was done, that he was inside to hold a deflector plate when it was turned. And I told him [Powers] that we were conducting an investigation, that I was going to investigate this matter and talk to the people concerned, and that was about the extent of our conversation . ." -According to Bellatti, after Powers left Akin told him [Bellatti] that "no one had been turned over inside'a container with equipment inside, men and equipment" 58 and that Akin did not "know of any incident at all." Bellatti then sent Akin for and spoke to Curtis Taylor, who "was pretty upset about it-rightly so." According to Bellatti, Curtis Taylor told him that when word was given to those inside the container that it was going to be rolled, he [Curtis Taylor] said, "Go ahead and roll it," but that he said this "jokingly," and that later he "yelled, `Stop turning it,' or, `Don't turn it,' or something to this effect. About ninety degrees over they stopped it and somebody pulled out the lad- der and it continued on over, and he said he landed up in a heap on the floor after it went on over." 59 According to Bellatti, Sullivan told him he "didn't remember" whether he had heard Curtis Taylor yell, "Stop," and that he "slid down in a heap" when the container was rotated 60 And, according to Bellatti, Crittenden also told him he "ended up on the floor with the rest of the fellows." 61 Bellatti testified that Crittenden told him he did not hear Curtis Taylor yell, "Stop." Asked whether Crit- tenden said anything about hearing Curtis Taylor say anything about moving the ladder, Bellatti's response was that he was unable to "remember," but that "Curtis [Taylor] was the only one who mentioned anything about the ladder." Asked whether he "ask[ed] any of these men who were inside the container whether they had ever been turned around inside of a container on any previous occasion," •Bel- latti's response was, "I don't remember that I did," although Curtis Taylor "was very implicit on this. He^ was very upset. It was the first time it had ever happened to him." Further according to Bellatti, since Powers had told him that containers had been rotated on the second shift, Bellatti spoke to 2d shift container department Fore- man Pittman about this, and Pittman told him he knew of no case -where a container with men and equipment had been rotated on the second shift.62 While on his way to see Pittman, according to Bellatti, he encountered Plant Superintendent White- hurst, who allegedly told him that " no units in the manual turnover jig in container construction had ever been turned over with men and equipment on, the inside,63 "If Akin told this to Bellatti, it was simply untrue. See infra, D, 4. "It will have been observed that this account Is inconsistent even with the testimony of Curtis Taylor, who himself testified that it was he who asked that the ladder be removed, and who did not indicate he "landed up in a heap"-a position uncalled for under the circumstances. I am constrained to conclude' from this inconsistency that Bellatti was in this as well as other respects "gilding the lily" and attempting to "improve" upon or embellish the facts so as at the hearing to put the best face possible on the situation from the standpoint of his employer. I have taken this into account in determining credibility and in drawing necessary inferences herein. m This is likewise inconsistent with the testimony of Sullivan, whom I credit. See supra, footnote 59. 81 Crittenden gave no such indication in his testimony, which I credit in this respect. See supra, footnotes 59 and 60. On cross-examination, Bellatti reiterated that all three- Curtis Taylor, Sullivan, and Crittenden-"told me they fell down to the floor in a heap, yeah. They were all three together . . . They were all right-working fairly close together" Off Pittman said this to Bellatti, it was either untrue or he was ignorant of the true facts. See snfra, D, 4. However, Bellatti may have attempted to water this down on cross- examination, when he stated that Pittman told him he "did not know or recollect of a container ever being turned over with men and equipment being inside." [ Emphasis added 1 63 If Whitehurst said this to Bellatti, it was not in accord with the facts. See infra, D, 4. TRAILMOBILE DIV., PULLMAN INC. - 1367 and I [Bellatti ] told him [Whitehurst] that this was what I was trying to ascertain, and he said that he recommended that Steve [Powers] be discharged for this act and that further disciplinary action be taken on Edd Taylor-of course, depending upon their records." 64 Further according to Bellatti, the following morning (Febru- ary 12), after he and Akin reviewed the files of Edd Taylor and Powers, he accepted Akin's recommendation that Powers be discharged and Edd Taylor be given a "strong written disciplinary warning." Asked whether he (Bellatti) gave Akin "any idea of how you [Bellatti] felt about this matter before Akin expressed an opinion," Belatti's response was, "No, not that I know of"; asked whether he had told Akin what Whitehurst had told Bellatti with regard to how Whitehurst felt about Powers' case, Bellatti's response was, "I don't remember that I did . . . I don't remember if I told him or not." 65 Container department Foreman Floyd Akin testified that after he learned of the container rotation in his absence on February 11 and gave Curtis Taylor permission to speak to Plant Superintendent Whitehurst about it, he asked Edd Taylor "whose idea it was to turn the container over with the employees on the inside, and he said he guessed it was as much his fault as it was Steve's [i.e., Powers'], and I told him never to do it again." According to Akin, Whitehurst later told him to "get with Chuck Bellatti-and investigate the incident " When Akin took Edd Taylor to Bellatti's office for questioning, "Bellatti asked him [Edd Taylor] if he had turned the container over with the employees on the inside and he said that he did." Bellatti asked Edd Taylor "if he didn't realize that someone could have been hurt and Edd said that he didn't and that he didn't turn the container over with the intention of hurting anyone." Bellatti said that after investigating he "would let him know the next day what action would be taken." Thereafter, Akin took Powers to Bellatti's office, where Bellatti "asked him [Powers] why did he turn it over with the men inside" and Powers replied that "they were through welding on the outside and needed to turn it over to finish welding." Further according to Akin, when Bellatti asked Powers if he didn't realize "someone could have been hurt," Powers said "that he didn't, that he guessed he should have checked with Floyd - [Akin] before he turned the container over, that he was already out on a limb .66 And Chuck [Bel- atti] told him if he was out on a limb, that he had put himself out on a limb, that we didn't have anything to do with it." Bellatti said "he would investigate the matter further and let him know the following day what action would be taken." 87 Akin testified he could not recall a statement by Bellatti to Powers that "if he found it to be horseplay it was going to cost him his job." According to Akin, also present when Bellatti questioned Curtis Taylor 68 (after he had questioned Edd Taylor and Powers), Curtis Taylor said that "he [Curtis Taylor] and Sullivan and Crittenden were inside grinding the seams and deflectors and Steve [Powers] had yelled in 69 that they were going to turn the container, and Curtis [Taylor] said that he thought that they were joking and he told them to go ahead, and when he realized that they wasn't joking he said that he yelled out, `Stop turning the container,' but they turned it on over 90 degrees and he yelled at them to stop it and take the ladder out,70 and at that point they stopped it and took the ladder out and finished turning it." 610n cross-examination , Bellatti reiterated that Plant Superintendent Whitehurst had recommended to Bellatti that Powers be discharged, prior to Akin's recommendation the next day-and therefore prior to the conclusion of Bellatt!s "investigation " Whitehurst, however, denied that he told Bellatti what disciplinary action should be taken or that he was consulted on it. As to this, I credit Bellatti. 65 By cross-examination time, Bellatti testified unequivocally that he did not tell Akin of Plant Superintendent Whitehurst's recommendation that Powers be discharged. White- hurst denied that he told Bellatti what disciplinary action should be taken or that he was consulted thereon. As to this aspect, I credit Bellatti that Whitehurst told him Powers should be discharged, substantially as testified to by Bellatti. 00 On cross-examination, Akin testified that neither Powers nor Bellatti stated what was meant by Powers' being "out on a limb." 07 Akin testified that he was "positive" Bellatti's questioning of Powers occurred In the morning and not afternoon of February 11. 11 But not when Bellatti questioned Sullivan and Crittenden. 09 Curtis Taylor testified that he did not know who yelled in. 40 Unless Curtis Taylor prevaricated to Bellatti and Akin, this Is, of course, a direct contradiction of Curtis Taylor's testimony that "I didn't tell them to stop it ; I told them to take the ladder out, but I didn't tell them to stop it." I credit Curtis Taylor's testimony in the quoted aspect. 1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Akin's inspection of the inside of the container in question disclosed that notwith- standing the rotation described it was in no way scarred or damaged; and, accord- ing to Plant Superintendent Whitehurst, it was subsequently delivered to the customer. According to Akin, on the following morning (i.e., February 12), there was a meeting in Bellatti's office attended by Plant Superintendent Whitehurst, Bellatti, and Akin, at which Bellatti "asked me what I thought should be done about it" and Akin told Bellatti that "since I had warned Steve [Powers] on two different occa- sions to cut out his foolishness 71 and Mr. [Travis] Higginbotham had given him a written reprimand that he should be discharged 72 and Edd Taylor given a written reprimand for his actions since he had only been involved in one other incident." According to Akin, although Whitehurst "agreed," nobody suggested or indicated to Akin that Powers or Edd Taylor should be discharged or disciplined in 'connection with the container rotation incident in question; asked whether he was positive of this, his response was, "To the best of my knowledge I am." Akin testified that although Travis Higginbotham was Powers' foreman in department 16, Higgin- botham was not consulted, nor did anybody suggest that he be consulted, in con- nection with Powers' discharge. And Akin testified that he considered the turning of the container as an act "done through the line of foolishness . you can call it horseplay if you like. I call it foolishness . . . I think it were done in the line of play, yes, sir." Agreeing, however, that since "this particular container on this par- ticular occasion had to be turned . . . before they could finish welding,", Akin indi- cated that the "foolishness" was not the "turning" but the turning with men and equipment inside; insisting to the last that he was "positive in all of [my] exper- ience [I] have never seen or heard, in the Trailmobile plant, of any container being manually turned with any person or equipment in it." In Bellatti's office at around 10 a.m. on February 12, according to Akin, "Chuck [Bellatti] told him [Powers] . . . that he was being discharged for his part in turn- ing the container over with three employees inside." According to Bellatti, it was Akin who discharged Powers. Powers "was told about the investigation that we had and that . . . no one had been turned over in a container unit with men and equip- ment inside and that, based on his past record and warning, he was being discharged for turning this container unit over with these employees and equipment inside, which may have caused some serious injury or death." 73 Bellatti indicated in his testimony that he regarded the rotation of the container "as a joke of some kind on "On cross-examination, Akin testified that he was a leadman in container department 200 until he became a foreman there on November 1, 1964, and that lie was transferred from department 200 to become foreman of chassis department 16 on December 7, 1964. Akin then conceded that he had testified at a previous Board hearing that as a leadman he had never discharged, reprimanded, written up, or disciplined anyone ; that he never gave Powers a written reprimand at any time; and that his recommended discharge of Powers on January 12, 1965, was his first disciplinary action on any employee. Later In. cross-examination Akin testified that he had told Powers orally on two occasions about a week apart In January 1965 to "cut out his foolishness" and to "quit throwing (water- filled] milk cartons " Akin agreed he had never told Powers that "one more time" and he would be fired, or warned him of any possible severe consequences 730n cross-examination, Akin said Higginbotham had told him about this, involving "throwing a rope on Horace Lee when he was welding," in mid-January 1965, also that in mid-January 1965, Travis Higginbotham had also reprimanded Powers for "not wearing his safety hat and safety glasses." Akin testified that Travis Higginbotham was Akin's foreman when Akin was a leadman. Almost immediately after his foregoing testimony, Akin testified that Higginbotham had told him that he had seen Powers "throw" a rope "around Horace Lee's neck" while the latter was welding. On cross-examination, Akin also agreed that he had never given Powers a written reprimand at any time. Also on cross- examination, Akin referred to one written reprimand from department 26 Foreman Oscar Rogers in the summer of 1964, about cutting electrical leads-as had Edd Taylor, also- which Akin saw in the personnel file of Powers that he reviewed with BeIlatti on Febru- ary 11 ; and later in cross-examination, Akin added that Rogers also volunteered this information to him on February 11 or 12. 73 On cross-examination, however, Bellatti modified this so as to rescind or take back his testimony about death or being killed, conceding that (although he so testified at the hearing) he did not say that to Powers. Particularly In light of my parallel obser- vations described supra, footnote 59, and my demeanor observations, I am constrained to regard this as another Instance of a proclivity on the part of Bellatti to add to facts to make them seem better from his employer's point of view than they really were. TRAILMOBILE DID'., PULLMAN INC. 1369 the men inside." According to Powers, Bellatti "said that he had investigated it, and that all three of the guys inside the container said'that they were telling us not to turn it. I [Powers] told him [Bellatti], `Well, the only fair thing'to do would be to get everyone involved out there and find out.' He [Bellatti] said he knew what happened, and he told Floyd Akin to go with me to get my tools, check all the company tools and stuff and just go on home." Akin then escorted him to his tool- box and out of the plant.74 According to Powers, as they were walking out of the plant, Akin said to him "he [Akin] was real sorry about it, and he hated that it happened-that he didn't want me mad at him, because he didn't have anything to do with it." Akin denied saying anything to Powers other than that "I was sorry that it had happened." In connection with the matter of Powers' discharge under the circumstances described, Curtis Taylor had given 'a pretrial affidavit to an agent of the Board in which, among other things, he affirmed on March 24, 1965:- after I had told Floyd Akin about it, I went to Whitehurst and told him about it. He said that something would have to be done about it. He said that Powers had been doing things like that for quite a while and that they could never catch him at it but that they were going to do something about it." 75 Confronted with this affidavit on cross-examination at the hearing, and conceding that he had signed it, Curtis Taylor testified that he "did not say no such thing to the National Labor Relations Board." He later testified that "I said the top part, that Mr. Whitehurst said something had to be done about it, but now, I might have signed that without knowing what I signed, but I didn't say that . . . I thought I -did [read this before I signed it], but I don't guess I read it good enough." In this posture of the record, recalled to the witness stand by me, Plant Superintendent Whitehurst (who had already testified, without any statement to the effect attributed to him by Curtis Taylor) denied making any such statement to Curtis Taylor when he spoke to him in his office on February 11, and he characterized Curtis Taylor's affidavit statement as "untrue." After weighing all factors carefully, I am unable to bring myself to believe that the agent of the Board in effect fabricated a statement attributed by Curtis Taylor to Whitehurst and in effect suborned perjury and tricked Taylor into signing it. Nor can I find any basis for inferring that Curtis Taylor made this statement up or had any reason for so doing. Upon the entire record and my demeanor observations, I find that the quoted statement, attributed to Whitehurst by Curtis Taylor and recounted by Curtis Taylor to the Board agent, was in fact made by Whitehurst to Curtis Taylor and by Curtis Taylor to the Board agent as set forth in Curtis Taylor's affidavit.76 I was favorably impressed with the testimonial demeanor of Powers, Edd Taylor, and Sullivan, but extremely adversely by that of Curtis Taylor. It was apparent, among other things, that Curtis Taylor entertains a marked aversion to union activ- ity and its advocates in any form, which he makes no attempt to disguise. He testi- fied that "If I live to be a hundred year old ... I still don't believe in unions . . it ain't a place in the Bible where it says belong to a union, and the house divided within itself shall not stand, and ever since the union has been out there, or any other place, it has meant nothing but confusion and trouble, and so therefore, I don't want no part of it. And the author of confusion is the devil. I'll go so far as to say that." Upon the entire record, including the testimony of Respondent 's witness Critten- den in this aspect, I do not credit the testimony of Curtis Taylor that he at any time before or while the container in question was being rotated on February 11, 1965, in any way asked or indicated that it not be rotated or that its rotation be halted or stopped; and I find that he made no such statement and that Respondent did not in fact believe that he had made any such statement. Moreover, under the total circumstances of his risky union activity and his Employer's recent formal notification to him (Respondent's Exhibit 25) alerting him It Notwithstanding the supposed seriousness with which Bellatti by his own description viewed the container rotation incident , Bellatti did not `speak to Edd Taylor about it at all Taylor' was merely given a written disciplinary note by Akin that afternoon. 15 General Counsel's Exhibit 2. 40 This particular finding is made notwithstanding favorable demeanor impressions of Whitehurst testimonially in other respects, and my decidedly' adverse demeanor impres- sions of Curtis Taylor in most respects. 1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was vulnerable to immediate discharge for further "horseplay," it does not seem reasonable to suppose that Powers would soon thereafter court discharge by deliberately indulging in action which he himself recognized to be "horseplay." Indeed, according to Respondent's witness Akin Powers himself so intimated, to no avail (in stating he was already "out on a limb"), during his exit "investigation." I find that the described container rotation by Edd Taylor and Powers on Feb- ruary 11, 1965, was performed in the course of and as part of their employment and duties as welders, in Respondent's interest, and was not an act of "horseplay," "foolishness," or other prank, jest, or fun, or in fact so understood by Respondent. Since Respondent insists that it discharged Powers on February 12, 1965, for cause and no other reason, the circumstances attending that discharge, in a back- ground context of continuing employer opposition to unionization of its Longview plant, have been explored in detail in order to furnish more sensitive insight into the true cause or causes underlying Respondent's discharge of a scarce category employer (welder) described by Respondent itself as "competent and experienced" (Respondent's brief, page 4) who had been in its employ "for most of the period from 1959 to February 12, 1965." (Ibid ) 77 4. Rotation of other containers It will be recalled that in connection with welding the containers in question, it is essential that they be rotated so that the welders can reach otherwise inaccessible portions; and that for the purpose of such rotation Respondent had one electrical motor-powered turnover jig and seven manual turnover jigs. The decision as to when to rotate a container in production is made by the welders working on the container on the outside and not by the helpers on the inside, although usually (but not invariably) if the helpers on the inside are not finished the welders on the out- side meanwhile do some other work if available 78 Credited testimony of welders Edd Taylor and Powers that they rotated the container in question because they were ready to weld the top portion and had no other work to do is uncontroverted by any credible evidence. It is unquestioned that it was essential in the regular course of production of the containers thus to rotate them, electrically or manually. Respondent further con- cedes that "Employees regularly remained inside the containers while they were rotated in the main [i.e., electrical] assembly jig." (Respondent's brief, page 73.) Respondent's position here is that what was improper about the container rotation in question was "not turning the container over, but turning it over when men, power tools and equipment were inside." (Id., page 9), which its Personnel Manager Bel- latti characterized as "horseplay" and its container department 1st shift Foreman Floyd Akin as "foolishness." In support of its position that the rotation of the container by Powers with Edd Taylor on February 11 containing men with their tools was improper, Respondent contends that it was in violation of orders or instructions it had issued forbidding this since it was dangerous to personnel as well as to containers; and that such orders or instructions had previously been observed. These contentions will be exam- ined separately. Plant Superintendent Whitehurst testified that sometime in the summer of 1963 (while he was general foreman of the plant),79 before work started on the first order of these containers, he told some employees that ". . . there had to be a mini- mum amount of handling scratches involved. When you lay these sheets down on the jigs . . . you had to remove any objects that would move around inside these containers when they were being moved" and to ". . . remove all men, material and tools, and even shavings, from the turnover jig before they ever turned it over." Although Whitehurst expressly named individuals to whom he claims to have given these instructions (Pittman, Curtis Taylor, Tillison, Gibson, Halliburton, Gilcoat), 77 "Employers are not in the habit of dismissing competent employees merely to replace them." N.L R B v, Local 776, IATRE (Film Editors), 303 F 2d 513, 519 (C A. 9), cert. denied 371 U.S 826 78 Based upon credited testimony of Edd Taylor and Fife. 78 Whitehurst testified variously that this was in August, "maybe it was July, August or September . . . somewhere along in there . ," and in the "last two weeks in June and maybe the month of July," 1963. TRAILMOBILE DIV., PULLMAN INC. 1371 he was unable specifically to include Powers 8° As shown below, Respondent con- cedes that notwithstanding these alleged instructions some containers containing per- sonnel and equipment were thereafter rotated manually, on express instructions of management, in October-November 1964. Notwithstanding these manual rotations of containers with personnel and equipment, Whitehurst's earlier (summer-fall, 1963) above instructions not to rotate containers manually with personnel and equipment were concededly not reiterated by Whitehurst after his initial (1963) instruction because, as he testified "I [Whitehurst] thought the foremen would take care of it. They are confident [sic] people." Whitehurst conceded that at no time were any written instructions posted or issued regarding rotation of containers; that the printed plant safety rules do not speak of rotation of containers; and that at no time was any instruction issued cautioning against turnover of containers manually at too rapid a rate. Floyd Akin, formerly an inspector and from November 1964 was a 1st shift con- tainer department foreman, testified that at the beginning of the first container order (summer, 1963) Whitehurst "had instructed the employees working in that particular area to always remove the tools before the container was rotated." I Emphasis added. I Then asked the leading-type question on direct examination as Respondent's witness, as to "Any instructions about removing the men before it was rotated," his response was, "Yes, men and equipment." [Emphasis added.] The testi- mony of Respondent's witnesses Pitman (formerly a welder, now a foreman), Cox (a leadman ), Curtis Taylor, Halliburton, and Gilcoat 81 to an extent corroborates that of Whitehurst regarding the later's described instructions at the start of the first order of container work; however, it is noted that Gilcoat does not mention that Whitehurst indicated that personnel be removed from rotated containers; and it is further noted that Curtis Taylor testified that he never received instructions to hold loose deflectors in V-Model containers 82 being rotated. None of these wit- nesses, identified or placed Powers among those so instructed or told. On the subject of these alleged orders or instructions not to rotate containers man- ually containing personnel or equipment, Powers and Edd Taylor swore unequivo- cally that they were never so told. The testimony of General Counsel's witnesses Fife, Griffin, and John ("Red") Hill is of the same character; indeed, Fife and Griffin testified that they were instructed by 2d shift container department Fore- man Pittman not to rotate the containers unless somebody was inside, in order for example to hold loose deflectors which might otherwise damage the interior. Being well impressed with the demeanor of Powers and Edd Taylor, as well as with that of Fife, Griffin, and John ("Red") Hill, I credit the testimony of Powers (as well as that of the others last enumerated) that he was at no time told not to rotate containers manually containing men and equipment. There is, further, no actual inconsistency between this testimony and that of Whitehurst (and other wit- nesses of Respondent), since it may very well simply be that some employees were instructed as claimed and some (including Powers) were not. Upon the record (demeanor included) as a whole, I thoroughly believe that Powers was not so told. Even considering the probabilities of the situation, it seems highly unlikely that under the circumstances Powers, a continuing union activist who had but recently managed to collect several reprimands and a warning after a relatively long and 80 At one point, he vaguely referred to Powers as being "involved" This is the closest Whitelnrst edged toward including Powers In view of Whitehurst's specific identification of numerous other employees by name and his hesitancy and failure clearly to include Powers, although given sufficient lead to do so, it seems fair to conclude, as I do, that Whitehurst either knew Powers was not included or did not know that he was included among those so instructed The explanation for this may have been that Whitehurst functioned primarily on the first shift, whereas Powers' work was foi practical purposes confined to the second shift 81 Although helper Crittenden also ostensibly testified as Respondent's witness on this aspect of the case , he stated that he entered Respondent's employ on February 10, 1965, on which day Curtis Taylor told him to remove tools before rotating a container. (It may be observed that the desirability of removing tools from a container being rotated without personnel therein to hold the tools seems at least rea',onable, besides being in no way inconsistent with the practice or reasonableness of rotating containers containing both tools and personnel.) 82 See mire, pages 31-33. This may be because no such containers were rotated on his (1st) shift. 1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uneventfully satisfactory employment career with Respondent, would` invite dis- charge by flouting Respondent's orders on this subject. It is accordingly found that even if Respondent did issue oral instructions or orders to some employees, as described, dealing with the manual rotation of containers, Powers was at no time so instructed. - We proceed to an examination of Respondent's contention that (in pursuance of its alleged instructions to that effect) prior to the described container rotation on February 11, 1965, by Edd Taylor and Powers, containers containing personnel and equipment had not in fact been rotated. At the outset, it is perhaps unnecessarily reiterated that Respondent concedes in its brief that "Employees regularly remained inside the containers while they were rotated in the main [i.e., electrical] assembly jig." (Respondent's brief, page 73.) Its Plant Superintendent Whitehurst indicated at the hearing that.this was in accord- ance with company policy, including allowing welding leads to remain within con- tainers so rotated, but not air-powered tools. According to Whitehurst, welders hold- ing welding leads remained inside electrically-rotated containers "all the time." He testified that he himself was thus rotated on the first order, "to see that it wasn't dangerous." 83 With regard to manual turnover of containers containing men and equipment prior to February 11, 1965, Plant Superintendent Whitehurst himself described such rotations during the second container order (late October 1964).84 However, he testified that he personally "know[s]" of no occasion other than February 11, 1965, when "any power tool was permitted to remain inside the container while it was being turned over with a man inside or men inside." But Whitehurst conceded that he was not always present during container production on the 2d shift, to which Powers' work was essentially confined, since except for the early period of the first order (summer, 1963) Whitehurst was on the 1st shift and entrusted other shifts to sub- ordinates and was "very seldom" present on the 2d shift during the second and third orders. Respondent's Personnel Manager Bellatti testified that although he has heard that containers in electrically operated jigs have been rotated with equipment as well as personnel inside, he has not heard of such a case involving the manually operated jig since his employment by Respondent commencing January 1964; conceding, how- ever, that it is "entirely possible that things went on in the form of container roll- ing that [I] and Mr. Whitehurst and Mr. Pittman and Mr. Akin might not be famil- iar with." Respondent's 1st shift container department foreman since November 1, 1964 (prior to that, from August 1963 to January 1964, container department inspector), Floyd Akin-who is said to have been the one who discharged Powers on Febru- ary 12-testifying as Respondent's witness, first flatly denied knowing or hearing of any occasion other than the February 11, 1965, incident here questioned, when a person and equipment were rotated in a container. He later admitted hearing of occasions when a container was rotated electrically with personnel therein. Respond- ent's Foreman (formerly welder) Pittman, also appearing as Respondent's witness, testified that the only containers he has seen rotated manually with personnel and ss Whitehurst indicated he considered this not to be dangerous, in view of the slow speed of rotation of the electric rotating jig and its stop controllability by switch. He conceded, however, that at no time was any instruction issued cautioning against excessively rapid turnover of containers manually. 84 The occasion therefor is said to have arisen from the necessity, for certain operational reasons not here material, to hold larger deflectors on the initial V-Model containers, which had not been welded to the inside of these particular containers. In view of their size, the deflectors could not be placed inside the containers after all of the containers' sides were attached, since the deflectors could not then fit through the hatches, so that these particular deflectors-which had not been welded to the inside-would have remained loose inside the containers and possibly damaged them during rotation, unless held by personnel on the inside during rotation. According to Whitehurst, for this reason he in effect instructed then second order 2d shift Foreman Pittman to proceed with production of the first such V-Model container by having the deflectors held on the inside during rotation of the container. Plant records indicate that three V-Model containers were thus manufactured with loose deflectors, which were " turned manually with one or more men in them." Whitehurst denied knowing whether other equipment ( hoses) was removed before such rotation, since he "wasn't there" because "It was done on night shift-second shift," but he took the position at the hearing that they "should have been." TRAILMOBILE DIV., PULLMAN INC. ' 1373 equipment inside were three on the second order (fall, 1964), and that he himself was inside one, holding loose deflectors because of a special production problem involving those deflectors. Respondent's witness and leadman Cox testified that although he himself has never seen a container turned manually with anybody in it, he has seen containers turned manually with rubber mats in them; and also lad- ders until removed at a side, partial turn position. Respondent's witness Curtis Taylor (one of the helpers inside the container rotated on February 11, 1965) testified that he has worked on containers on the day (1st) shift only; .that with regard to rotations of personnel-containing containers in the electric jig, he has observed this "just about everytime they build a container," this being the "regular practice" and that on such rotations lights remained on and equip- ment stayed inside with the men being rotated. He further testified that except for February 11, 1965, he has never seen a container rotated manually with men or equipment inside.85 After testifying that deflectors were allowed to remain loose in V-Models in the manual turnover, without anybody holding them during rotation, he added: "I wasn't there all the time . I had to go to the restroom, got coffee, something like that . . . Now, they could have done anything while I was gone, but as far as me seeing anybody turned over, I have never seen nobody turned over I've heard a whole lot of things . . . Yes, I've heard about it . .. Not too frequently." Respondent's witness Halliburton, a helper, testified he witnessed three or four containers with personnel holding deflector plates, and other equipment (except power equipment), he himself being one such person,, rotatid, manually on the 2d shift of the second order under Foreman Pittman. Halliburton -added that although he has not witnessed a container rotated manually with men inside on the third order, he has seen the containers rotated with tools such as a grinder inside, discon- nected from the air hose. Respondent's witness Gilcoat, formerly a helper, testified that he worked on the first container order "only just on one occasion maybe" and could not "recall" see- ing a container with men and equipment rotated manually. General Counsel's wit- ness Sullivan, also a helper, testified that he also has not seen, or participated in, such a rotation, but that he has not been in Respondent's employ "long" and has worked on only about 30 containers. Respondent's witness Crittenden, likewise a helper, entered Respondent's employ on February 10, 1965 (i.e., only one day before the rotation of February 11, 1965, here being questioned); according to his testi- mony, he worked on three containers that were rotated, including one he was in. General Counsel's witness Powers, the welder whose discharge for participating with Edd Taylor in rotating the container on February 11, 1965, is here in ques- tion, testified that he worked on .the first and second container orders (as well as on the third order on February 11), and that containers with men (including him- self) and equipment (as well as with loose deflectors) inside were rotated in the manual turnover jig "many times"; and that he, Fife, and Griffin rotated Foreman Pittman in a container on the night shift in November 1963.86 Fife, essentially a second- and third-shift welder, testified as General Counsel's wit- ness that in addition to observing the manual turnover of Pittman in a container, he also saw helper personnel thus rotated "fairly often" with Foreman Pittman cognizant of this. He further testified that he himself rotated containers with helpers and equip- ment inside, on the 3d shift; and that manual rotations of containers with men and 116 Not even on the early V-Models concededly thus rotated, although he was working there at the time. As indicated above, however, this may be accounted for by the fact that Curtis Taylor was employed on containers on the 1st and not 2d shift. IOEdd Taylor, who with Powers rotated the container on February 11 resulting in Powers' discharge but only reprimand for Taylor, testified that although he has seen containers rotated in the electric turnover jig with as well as without persons inside, he has not observed or participated in the rotation of containers in the manual turnover jig other than without personnel therein, which is "common." (It will be recalled that Edd Taylor also testified that he was at no time told not to engage in such rotation.) In gen- eral on this subject, not only variations in immediate work situations (such as here at the specific time involved on February 11, 1965, no other work to be done by Edd Taylor and Powers), but also variations in modus operandi may be ascribable to such possible factors as differences in numbers, categories, and qualifications of personnel available in different plant shifts See, e g, N. It. F. Maier, Psychology in Industry (Houghton Mifflin Co., 1946), pp. 299-300, 327, 333; F. J. Roethlisberger & W. J Dickson, Management and the Worker (Harvard University Press, 1964), pp 233, 239, 251, 436. 1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment have not been limited to cases where loose deflectors have been held, but so as not to hold up welding work. Second-shift welder Griffin likewise testified that he has observed and participated in the manual turnover of containers with person- nel and equipment therein (including himself and also Foreman Pittman); that when he was inside, it was not in order to hold loose deflectors but in connection with his welding work, and that there were others there with him; and that they were never asked to leave during rotation of containers.87 John ("Red") Hill; a`fit- ter, also appearing as General Counsel's witness, testified that he has himself, with others, and their tools, been inside a manually rotated container 25-30 times on the first order; that he has seen and himself rotated others inside of containers in the manual turnover jig; and that 2d shift Foreman Lonzo Higginbotham personally participated in rotating such containers 88 Respondent makes much of the argument that it is extremely dangerous and harmful to rotate containers with men and equipment inside-dangerous to person- nel and harmful to containers. The short answer to this could be that, dangerous or not, the practice was in fact followed at certain times in Respondent's plant-with Respondent's knowledge and acquiescence, as well as participation by its own super- visors, and apparently without injury to anybody or damage to any container at'any time. However, the "danger" may be doubted, since it is obvious (even apart from testimony to this general effect) that persons inside, upon being apprised (as here) that the container is about to be rotated, could readily avoid not only "danger" but even possible discomfort in a number of ways, such as by merely sitting on the floor, particularly by sitting on the floor at the juncture of the floor and side facing in the direction of the rotation (and bracing themselves by feet or otherwise against that side if desired). Insofar as equipment is concerned, although it is true that the grinder and end-mill operate at speeds of 20-24,000 r.p.m., this is true only when they are turned on, not when they are turned off; and although it is true that the trigger arm or device turns these pieces of equipment on with slight pressure, it is equally true that the withdrawal of that slight pressure immediately turns them off, so that not only a direct, but a sustained, continuous pressure (as demonstrated at the hearing) is necessary to keep them going. Even that risk, slight though it be- and "risked" though it was, without evidence of any injury or damage at any time- would be avoided by merely holding the equipment so that it could not accidentally hit something and theoretically turn itself on momentarily. Since even three large, awkwardly-dimensioned (about 36 by 20 inches, conical or pyramidal) deflectors were concededly held by usually one man (including a supervisor) inside (usually in the dark, apparently, at that) on previous occasions when containers were rotated, it is difficult to see why relatively small, light, and easily held equipment items of the type described could not readily also be held, as in fact they sometimes, were. Insofar as injury to containers is concerned, it is noted that concededly at least per- sonnel were invariably allowed, as regular procedure, to remain in containers rotated electrically; and, further, that there is no evidence of any damage from rotated per- sonnel or tools to containers, including the container rotated on February 11, 1965. It cannot be assumed that in the course of its operations at its plant, Respondent was ignorant of these facts. - Upon the record as a whole, and resolving issues of credibility pertaining to this aspect of the case,89 I credit the testimony of General Counsel's witnesses to the general effect that containers with men, tools, and equipment inside' were rotated on various occasions-not limited to the three or four V-Model containers on the second order in the fall of 1964-in the manual turnover jig; that such rotations were participated in or observed by various personnel, including supervisory per- s' He also testified that on the second order, he only saw rotated containers with men inside to hold deflectors, and that he saw no manual turnover with men and equipment on the third order. 88 Since Lonzo Higginbotham was not produced by Respondent to controvert this testi- mony, it cannot be assumed that had he been produced he would have testified to the contrary. Favorably impressed with the testimonial demeanor of General Counsel's witnesses Powers, Fife, Griffin, and Hill, as well as Respondent's witness Halliburton, I was on the whole poorly impressed by Respondent's witnesses Akin and Pittman, and on this aspect of the case at any rate by its witness Cox. As already noted, Respondent chose not to produce (or explain its failure to produce) Lonzo Higginbotham, whose testimony might have assisted in factual resolutions. TRAILMOBILE DIV., PULLMAN INC. 1375 sonnel, in Respondent's employ; and that such rotations were in the furtherance of production on Respondent's container work, and with the knowledge, acquiescence, and in certain cases participation, of Respondent. I further find that there is no evidence that any employee of Respondent other than Powers was at any time discharged for or in connection with any such container rotation; and that there is no evidence that any employee other than Edd Taylor ( in connection with the dis- charge of Powers on February 12, 1965 ) was at any time reprimanded or other- wise disciplined or warned for or in connection with any such rotation. 5. "Other Horseplay," etc. Respondent further contends that it discharged Powers on February 12, 1965, for "other horseplay" in which he had engaged prior to that date. At the outset , it will be recalled that it has already been found, supra, D, 3, that the container rotation by Edd Taylor and Powers on February 11 was not "horse- play," "foolishness," or prank or joke, so that--even if, as Respondent contends, Powers was an inveterate jokester, uncontrollable addicted to dangerous or other- wise intolerable pranks on the job-the container rotation on February 11 was, at any rate, for reasons already elaborated , not such an act. In addition to the alleged "horseplay" container rotation on February 11 resulting in Powers' discharge on the following day, at the hearing Respondent assigned in support of that discharge a miscellaney of alleged "other horseplay" by Powers. In this connection, it may be noted initially that the testimony of Powers' immedi- ate supervisors fails to establish that all of the alleged derelictions currently enumerated played a role in that discharge. The testimony of container depart- ment Foreman Akin and Personnel Manager Bellatti, who are portrayed by Respondent as its personnel directly responsible for Powers' discharge, indicates that their review of the contents of his personnel file , together with the alleged "horseplay" container rotation of February 11, resulted in the decision to discharge Powers, as distinguished from their decision merely to warn Edd Taylor, the other container rotator, who allegedly had a better file. But Powers' personnel file, allegedly contained only the following "write-ups": on August 21, 1963, from Travis Higginbotham for participating with Edd Taylor and Rester in cutting elec- tric leads from fans (Respondent's Exhibit 38); 90 September 10, 1964, from Rogers for working without safety glasses (Respondent's Exhibit 32); 91 October 8, 1964, from Rogers for "horseplay" consisting of "tormenting a fellow worker, George Garrison" (Respondent's Exhibit 33); 92 and January 14, 1965, from Travis Higgin- botham regarding throwing some rope at a fellow employee (Respondent's Exhibit 25).83 It is observed that, except for the single old reprimand to Powers with Edd 00 Contrary to the testimony of Akin, there is no such reprimand from Rogers to Powers in the file, in the summer of 1964 or any other time. 91 Also contrary to the testimony of Akin, there is no such reprimand from Travis Higginbotham to Powers, in mid-January 1965 or any other time 92 As to this, Rogers testified that it was merely a sort of memorandum for the file, with Powers not given or shown a copy or even told about it ; prepared by Rogers without investigating the alleged incident ( reported by Garrison ), which was dented by Powers when Rogers spoke to him about it. Notwithstanding Rogers' admission at the hearing that Powers denied the occurrence of this incident and that Rogers did not investigate it, it is noted that Rogers did not see fit to mention these seemingly significant facts in this "disciplinary" write up of October 8, 1964, which he placed into Powers' personnel file (and which, it is further noted, bears no date stamp, in contrast to the earlier one, Respondent's Exhibit 32). '3 This cleanly typed (in contrast to 'Higginbotham 's previous handwritten-Respond- ent's Exhibit 38) document seems peculiarly self-serving , as if designed post facto to create a "record" against Powers, since it not only recites his current alleged dereliction but takes the trouble to recite in technical detail that "Mr. Powers has been verbally warned in the passed [sic] by Mr. Rogers, Foreman, Mounting Department, of such horseplay Mr. Powers is being instructed to discountinue [sic] such practices in the future. As stated in our Company Safety Rules on page 7 : Horseplay will not be tolerated. Fighting, wrestling, throwing anything or `fooling' of any kind is strictly forbidden In the future if Mr. Powers engages in horseplay he will be subject to more severe discipline even to the extent of automatic discharge." Higginbotham's demeanor as observed and heard left me with grave misgivings that he personally composed the language of this memorandum as he testified. 1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor and Rester of .August 1963, this "record" is comprised of personnel actions which commenced shortly after the union election ,of September 3 and more or less paralleled in time, perhaps coincidentally, Powers, union organizational activity designed to keep -alive then attempt to unionize Respondent's Longview plant. Even so, there is no showing by substantial credible, evidence that these "write- ups" 94 on Powers were unusual or such as in the normal course of events under Respond- ent's general personnel policies applicable to all employees, sans union organiza- tional activity, to result in discharge. If anything, the evidence indicates that no employee previous to Powers was-discharged for such "horseplay," while at the same ^ time it establishes that Respondent tolerated-certainly without the extreme penalty of discharge-on the part of employees other than Powers (including even superyisory,'personnel) the very same acts or types of acts which, in the case of Powers; it,chose to regard as such serious "horseplay" as to require summary dis- charge of a concededly competent, scarce category employee of numerous years' standing. ` - 1 ( , - . - In addition- to Powers'. alleged derelictions of record antedating February 11, 1965, Respondent litigated -rather considerably at the hearing a somewhat extensive compilation of other alleged derelictions' in the "horseplay" category, in attempted further justification of the questioned discharge of February 11. A short answer to these might be that they were not spelled out in the personnel file of Powers, review of which, together with the container rotation of February 11, allegedly formed the basis for the discharge. Another brief answer to these-as well as to the incidents in Powers' personnel file-is that Respondent does not contend it discharged Powers for those incidents alone, but because of his "horseplay" con- tainer rotation on February 11 plus the prior incidents of "horseplay"; however, since, as herein found, the February 11 container rotation was not "horseplay" or otherwise improper, there is no need to inquire into the prior incidents, since it is not claimed that they alone were the reason for the discharge. Nevertheless, in the interest of according full consideration to Respondent's contentions, these other incidents have been carefully examined; particularly since to a degree they throw light upon the character of the work habitus and relationships existing within the plant milieu. They are detailed, with relevant commentary and findings in Appendix C. In appraising the particular facts involved in each of these specific alleged inci- dents of ."horseplay" (Appendix C), it is essential to evaluate them within the basic frame of reference of the particular way of life at this particular plant during the period involved . The voluminous testimony of Respondent's long-term (10 years) welder Huffman, an impressively, credible witness, furnished picturesquely solid delineation in this regard. Huffman's portrayal of plant life at Longview, nam- ing names and citing chapter and verse , conveys a sharp image of an industrial plant at which the spirit of frivolity and good fun appear to have been the rule, accepted and even indulged in by management itself ; including such acts as hurling waterfilled milk cartons at walls or ceilings so as to sprinkle or douse those nearby- evidently a popular pastime for supervisors (e.g., Foreman Travis Higginbotham and leadman or Foreman Haywood) as well as the supervised; Foreman Travis Hig- ginbotham's turning up of an electric welding arc and hiding to observe the welder's reaction; Foreman Akin's pitching of rolling steel slugs at or toward an employee, con- cededly "just to mess up his work area"; Foreman Akin's scuffling with an employee, 04 To be sure, Akin also testified at the hearing to two alleged remarks by him to Powers, also, as Respondent would have it, coincidentally, in mid-January 1965, to "cut out his foolishness" (throwing waterfilled milk cartons), and further testified, somewhat belatedly as it seemed to me, that he recalled that Foreman Rogers allegedly also orally volunteered to him on February 11 or 12 the information in the file about his summer, 1964 reprimand to Powers . Since, as has been shown , there was no such information in the file, and because of my poor impressions as to Akin's veracity, already adverted to in other connections, I heavily discount such testimony by Akin and the importance he now attempts to assign to these supposed previous derelictions of Powers. TRAILMOBILE DIV.1 PULLMAN INC. 1377 concededly "a violation of the company rules"; 95 placing a frog in a supervisor's glove (and then squashing the contents); pulling of a knife by one employee on another; Leadman Trice exploding firecrackers near welders; Foreman Rogers pretending to shoot another foreman with a blank cartridge; and detonating plastic bags filled with a mixture of acetylene and oxygen so as on one particular occasion to shake the inkwell and desk in the personnel manager's office 250 feet away. 96 By and large these and similar sports appear for the most part to have elicited neither sub- stantial reproof nor adverse reaction, much less formal disciplinary action, from Respondent; and the last named-i.e., the particular explosion "they still talk about" after some years, it would seem an extremely serious incident under any fair view-drew only a 3-day suspension. Other incidents, such as that complained of by Powers about Garrison's dragging air hoses over him while Powers was weld- ing, appear to have been ignored by management. As to this, incidentally, Garrison conceded on cross-examination that welders had complained about his dragging his air hoses over them while working. Respondent's Personnel Manager Bellatti himself testified that he did not know of a single employee other than Powers who had ever been discharged for "horse- play," notwithstanding the printed plant rules in general terms forbidding such acts. Nor did Foreman Akin know of any reprimanded employee other than Powers who had ever been discharged. In such a plant climatology, it is diffcult to believe that Respondent really was as concerned with the described alleged actions on Powers' part as it now insists; rather, the more probable explanation suggests itself, upon the background and record as a whole, that his summary discharge was due to other far more likely reasons, which, since he was concededly a competent employee of long standing, could only have been his unusually active and to a degree (e.g., pointed questioning of Plant Superintendent Whitehurst and Personnel Manager Bellatti re status of Lonzo Higginbotham, a key contested issue in the union election; and wearing 12 union buttons on election day) perhaps provocative role in attempting to unionize the Longview plant. Moreover, so long-continued a history of employer tolerance of alleged employee misconduct now branded as so habitual, serious, and substantial, taxes credulity 97 A view more in accord with the hard facts of industrial life in the overview of the case is that these incidents, not atypical in the plant, were not really regarded to be so serious as is now urged, but rather that they have been dredged up and, en Over Respondent's objections, decision upon which was reserved at the hearing, I permitted Forrest Hill to testify as a rebuttal witness on details of this scuffle. Respond- ent's objections was upon the ground that Hill should not have been permitted to testify In view of the fact that he had been observed in the hearing room subsequent to a ruling sequestering witnesses . Since it was conceded that Hill remained only during the testi- mony of Blevins, which had nothing to do with the subject of Hill's proposed rebuttal testimony-the latter dealing only with a description of the scuffle between Foreman Akin and employee Ward and the throwing of steel slugs by Akin at Ward as observed by Hill-I permitted Hill to testify as a rebuttal witness on these subjects alone. My reasons for so doing were that Blevins had not testified on these subjects ; the issues which arose about the scuffle and the slug-throwing could not have been anticipated ; Hill heard no testimony regarding the scuffle and slug-throwing; interests of justice, it seemed to me, required receiving Hill's possible contribution as an eyewitness to resolution of the issues as to the scuffle and slug-throwing ; Respondent was afforded unrestricted opportunity to cross-examine Hill ; and there was no showing of prejudice. Continuing in the belief that my ruling permitting the testimony under the described circumstances was correct, I hereby deny Respondent's motion ( upon which I reserved decision at the hearing and which is renewed in Respondent's brief) to strike Hill's testimony from the record. ea At the hearing, Respondent objected (Transcript, pp. 1152-59) to the reading into the record by General Counsel of still other examples, from testimony of Respondent's own witnesses in Representation Case 16-RM-270, which the parties asked be officially noticed in another connection. Decision was reserved by me upon those objections. The objections are hereby sustained, the testimony being merely cumulative. 97 Nachman Corporation v. N L R B., 337 F.2d 421, 423 (C.A. 7) ; N.L.R.B. v. Electrio City Dyeing Co., 178 F.2d 980, 983 (C.A. 3). 257-551-67-vol. 160-88 1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD magnified out of all importance, are now presented as an imposing array to ration- alize a discharge effected for a different reason. As is well known, it is not difficult, if one sets one's mind and efforts to it, to assemble a collection of derelictions and shortcomings-real, half-real, or imagined-against even the best of employees (as also against the best of friends, business associates, and even matrimonial part- ners) when the parting of the ways is reached for some other, real but unacknowl- edged reason. It seems to-me, after giving careful consideration to the whole rec- ord, that this is a case which falls within this category.98 Upon the record as a whole, it is found and concluded that the enumerated alleged acts of "horseplay" now relied on by Respondent to support its discharge of Powers on February. 12„ 1965, were not, singly or in the aggregate, the true basis of or the actual motivating factor for that discharge; and, further, that Respondent at no time. believed they or any of them were the true basis or actual motivating factor for that discharge.99 6. Concluding findings In view of the findings made above, upon grounds there set forth, and upon the entire record, it is found and concluded that it has been established by a fair pre- ponderance of the substantial credible evidence that the container rotation by Edd Taylor and Powers under the described circumstances on February 11, 1965, was not, nor were the alleged other instances of "horseplay" or other acts including the failure to wear safety glasses, above described, singly or in the aggregate, the true reason for Respondent's discharge of Powers on February 12, 1965; but that those reasons are being employed by Respondent as pretexts for its discharge of Powers because he had engaged and was continuing to engage in union organizational activities in Respondent's Longview plant.100 These findings and conclusions are based, among other considerations already explicated, upon the following: (1) The conceded fact that Powers was a well-qualified, scarce-category, difficult-to-replace employee of numerous years' standing.101 (2) The other violations of the Act, as here found, and Respondent's unionization animus at any rate so far as its Long- view plant is concerned.i0a (3) The fact of Powers' stand-out union activism at Longview from the very start of the unionization drive there. He was a "charter member" and continued to act like one until he was discharged. To many of his fellow employees undoubtedly he 'was one of a small handful whose names were synonymous with the Union. Not only was he a first joiner and open recruiter, publicizer, and campaigner in the plant, but he even stood up to management at its open meeting for employees and raised knowledgeable, provocative inquiries as to the status of Lonzo Higginbotham-to become a key issue in the disputed repre- sentation election. ("It is undisputed that the challenge to the ballot of employee Lonzo Higginbotham became crucial to the result of the election."-Respondent's 9 Respondent's grab-bag potpourri of alleged reasons for Powers' discharge, measured against the background facts, simply does not "stand under scrutiny." N.L.R.B. v. Dint t Russell, Ltd., 207 F.2d 165, 167 (C.A. 9), and cases cited. -I similarly find and conclude, with regard to Powers' failure on or about September 10, 1964, to wear safety glasses while welding, this incident so insubstantial as' hardly to merit discussion. Suffice it to say that this stale infraction has not been shown to have been repeated thereafter, and there is neither proof nor claim that any other ' employee was ever discharged or substantially disciplined therefor or that it would merit such. It is clear that it played no role in Powers' discharge and I so find l00 N.L.R.B. v. Lipman Brothers, Inc., 355 F.2d 15, 61 LRRM 2193, 2196 (C.A. 1, Jan. 21, 1966) ; N.L.R B. v. Whitin Machine Works, 204 F.2d 883, 885-887 (C.A. 1). 101 Such circumstances have been deemed to warrant an inference of discrimination, in the event of discharge. N.L.R.B. v. Elias Brothers Big Boy, Inc., 325 F.2d 360, 366 (C.A. 6) ; N.L.R.B. v. Tru-Lsne Metal Products Company, 324 F.2d 614, 616 (C.A. 6), cert, denied 377 U.S. 906; N.L.R.B. v. Wayne W Wilson Co , 311 F 2d 1, 2 (C.A. 6). As pointed out above, "Employers are not in the habit of dismissing competent employees merely to, replace them ...... N.L.R.B. v. Local 776, IATSE (Film Editors), 303 F.2d 513, 519 (C.A. 9), cert. denied 371 U.S. 826. This is, of course, especially true of scarce- category employees, such as- welder Powers concededly was in the area. 107 That "'antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining [employer] motive [in discharging an employee],'" see N.L R.B. v. Georgia Rug Mill, 308 F 2d 89, 91 (CA 5) ; accord, NL.R.B. v. Lipman Brothers, Inc., 61 LRRM 2193, 2197 (CA. 1, Jan. 21, 1966). TRAILMOBILE DIV., PULLMAN INC. 1379 brief, page 67.) This alone would have sufficed to make him, in the eyes of his Employer, a marked man. All save the excessively naive know that to raise a ques- tion publicly is to draw attention to oneself; and experience in labor relations teaches that the employee who exposes himself by publicly asking his employer a pointed question courts employer disenchantment or displeasure, a natural conse- quence of which may be employer reprisal or eventual discharge. It is because of the well-understood hazard attending the airing of such questions openly that the employee who does so is stamped among employees as well as with his employer as a leader of organizational activity, as indeed he ordinarily is since he has the courage to speak out in disregard of retaliation. And it is for this reason that employer reprisal visited upon him is not merely unlawfully discriminatory against him but also unlawfully coercive against his fellow employees. It may not be doubted that employee insulation from such consequences of the exercise of pro- tected concerted activity is among the prime purposes of the Act, and redress thereof within the immediate orbit of its sweep. Respondent urges that numerous employees other than Powers also wore union buttons. Unlike the others, how- ever, Powers wore 12 union buttons on election day, and he did much more than merely wear a union button to attempt to unionize the Longview plant. He was one of a very small handful of employees in the forefront and leadership of the unionization movement at Longview, and appears to have done about as much as any of them toward that end. It would be unrealistic to assume, as Respondent urges, that these overt, unconcealed activities by its employee in its plant were unknown and unreported to and by any of its supervisors and managers. Respond- ent had many eyes and ears throughout the plant, and, particularly with regard to matters of such clear and present concern to an employer as employee attempts to unionize its plant over its opposition, it would be unrealistic to assume that no eye saw and no ear heard. Moreover, Powers' continuing union organizational activities between the election (September 3, 1964) and his discharge (February 12, 1965)-an interim period which, it is to be remembered, was marked by continuing employer opposition to unionization and by employer contesting the outcome of the election in favor of the Union-in such matters as keeping plant employees alerted to union organizational activities and developments , is not one (notwithstanding Respondent's attempted minimization thereof) to be disregarded or discounted, since it served not only an extremely important organizational purpose by keeping employees' interest in unionization alive but served also to preserve Powers' image to his fellow employees as a leader in the unionization drive. At the same time, it continued to identify Powers to Respondent as a pestilential, intractable thorn in its side on the unionization which it continued to oppose. (4) Respondent's incredible continued insistence under oath at the hearing, in face of the facts shown-includ- ing testimony of its own witnesses-that it was substantially uncognizant of the unusual extent of .Powers' manifested union interest and activities in its plant. (5) The fact of Powers' essentially good personnel record prior to his participation in union organizational activity at the plant, whereas thereafter, adverse personnel actions began to build up in his file, including one seriously incomplete at best (i.e., uninvestigated and omitting his denial of the occurrence) with no copy or notice thereof to him, and another suspiciously technically worded so as appearing to create a post facto "record" against him of alleged prior infractions.103 (6) The mounting tempo of unionization indications and pressures upon Respondent in the week in February immediately preceding Powers' discharge.104 (7) The fact that the container rotation on February 11, 1965, was not really in violation of Respondent's instructions, but in accordance with practice on previous occasions and in the regular course of the welding work of Edd Taylor and Powers in Respondent's interest to expedite production; and, further, that the rotation was after adequate warning to and with the consent of the employees working inside, who had ample opportunity to leave the container if they so desired. (8) The fact that although "horseplay" was assigned as the reason for the discharge of Powers, "horseplay" in numerous forms had for a long time been the way of life at this N' This is reminiscent of the court's observation in N.L R.B. V. Elias Brothers Big Boy, Inc, supra, that the employee's work "apparently became intolerable only after [he] had joined the union." 104 See supra, 11, B, and infra, Appendix B. The timing of a discharge vis-a-vis sur- rounding circumstances is pertinent evidence of motivation. NLRB. v. Elias Brothers Bag Boy, Inc, supra, footnote 103. 1380 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD plant, with even supervisors engaging therein; 105 and the further fact that even apparently extremely .dangerous "horseplay-" (e.g., the big explosion by Huffman) in the plant, not by Powers, had not-resulted in any discharge. (9) Respondent's dredging up of a medley of stale alleged infractions and supposed shortcomings, many if not most of which had never even been reported,to management; many if not most all of which were widespread throughout.the plant, including on the part of supervisors; and many if not most of which there is no indication were considered by (or possibly even known to) management at the time of his dis- charge.100 (10) The absence of showing that comparable circumstances based upon comparable personnel records or even a single such record at any time resulted in discharge of any other employee (or showing that there has never been such a case in the history of the plant), notwithstanding the fact that those records are in Respondent's possession and therefore the facts therein peculiarly within its knowl- edge.107 (11) The specific circumstances under which Powers, an experienced and competent, scarce-category welder of numerous years' employment standing at Longview, was discharged in summary fashion by Respondent, as described in detail above, following a hasty "investigation" showing earmarks that its outcome was foreordained and its result prejudged regardless of whether or not Powers was at fault; and that the container rotation was seized upon-as indicated by the state- ment of Plant Superintendent Whitehurst to Curtis Taylor, reported by the latter in his pretrial affidavit to the Board-as a mere convenient excuse to rid itself of Powers for reasons other than those given.108 (12) Respondent's unexplained fail- ure to produce as witnesses its former Supervisor Lonzo Higginbotham, its employee Tillison, and other employees, to testify in relation to material facts in issue. (13) The essentially disparate treatment of Powers and Edd Taylor for their joint con- tainer rotation of February 11, 1965, for which Powers alone was discharged; the personnel histories of these two welders not being so substantially distinguishable as is now pictured, except for the extent. of their union organizational activities. (14) Particularly considering the history of previous container rotations without disciplinary result of any kind, within the matrix of the total circumstances dis- closed by the record, Respondent's apparent magnification of the container rotation of February 11, 1965, out of all proportion to its real significance if any, and its apparent utilization thereof as a convenient pretext for ridding itself of a continu- ing activistic unionist thorn in its side.109 Respondent emphasizes that employers may discharge employees at will for any reason or no reason, without being in violation of the Act, provided the discharge is not for union activity or other reasons proscribed by the Act. To stress this is to belabor the obvious. There is no disputing the proposition invoked, which is of course extremely well settled.110 That unquestioned legal proposition, however, does not polarize disputed facts so as to separate truth from falsity. The rule is of no assistance in that regard. It still remains to resolve the issue as to the real reason for the discharge. The applicable rule comes into play only after the true reason for the discharge is first ascertained. 105 Iowa Pork Company, Inc, 148 NLRB 1242. 105 N L R B. v. Chicago Apparatus Go, 116 F'2d 753 (C A 7) - 107 Cf. U.S. v. Denver and Rio Grande Railroad Company, 191 U S. 84, 91-92. 11811. .. It seems to us that the respondents seized upon what at best were only tech- nical grounds for dismissal- which even if proven valid, under the circumstances hardly justified the drastic action taken. Moreover, it appears that the respondents were watch- fully waiting for these four union enthusiasts to give the respondents the slightest reason or pretext to get rid of them because of their union activities. It is well settled that the mere existence of a valid ground for discharge is no defense to an unfair labor charge if such ground was a pretext and not the moving cause. [Citations]" N L.R B. v. Lipman Brothers, Inc, 355 F.2d 15, 21, 61 LRRM 2193, 2197 (C.A. 1, Jan. 21, 1966). To the same effect, that even existence of a valid cause for discharge is no defense to a charge of unfair labor practice when the actual motive is discriminatory, see N L.R B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5) ; N.L.R B. v. Transport Clearings, Inc, 311 F.2d 519, 523 (C.A. 5). 100 N.L.R.B. v. Lipman Brothers, Inc., supra, footnote 108 , Nachman Corporation v. N.L.R.B., 337 F.2d 421 (C A. 7) ; N.L R.B v. Electric City Dyeing Co , 178 F 2d 980, 983 (C.A. 3). 111) See, e.g., N.L.R B. v. Jones & Laughlin Steel Corp., 301 U S. 1, 45-46 TRAILMOBILE DIV., PULLMAN INC. 1381 In brief, upon the record- as a whole -I am persuaded, and accordingly find. and conclude, that a fair preponderance of the substantial credible evidence establishes that Respondent's -discharge of John S. Powers on February 12, 1965, under the circumstances described was pretextuous to - conceal the true reason therefor, namely his activity in union organizational matters. At the very least, his union organizational activities played a substantial and decisive role in Respondent's decision to discharge.him." The evidence in totality persuades me that the permis- sible ground alone would not have led to the discharge, so that it was at least partially impermissibly motivated, and therefore in violation of the Act. N.L.R.B. v. Dazzo Products, Inc, 358 F.2d 136 (C.A. 2); N.L.R B v. Great Eastern Color Lithographic Corp., 309 F.2d 352 (C.A. 2), cert. denied 373 U.S. 950; N.L.R.B. v. -Jamestown Sterling Corp., 211 F.2d 725, 726 (C.A. 2). Upon the foregoing findings and the entire record, I state the following: 'CONCLUSIONS OF LAW 1. Trailmobile Division, Pullman Incorporated is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Automobile, Aerospace and Agricultural Implement Workers (UAW), International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. - 3. By the conduct set forth in section II, supra, which has been found to con- stitute unfair labor practices, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By its February 12, 1965, discharge of, and its failure and refusal at all times since then to reinstate, its employee John S. Powers, under the circumstances set forth in section II, supra, because of his union membership, sympathy, and activi- ties, Respondent has discriminated and is continuing to discriminate against him in regard to the hire and tenure of his employment, in violation of Section 8 (a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminatorily discharged, and has failed and refused to reinstate an employee, I shall recommend that Respondent be required to offer the employee thus discriminated against immediate and full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of earnings he may have suffered by reason thereof, by payment to him of a sum'of money equal to that which he normally would have earned as wages from the date of such unlawful discharge to the date of Respondent's offer to reinstate him, together with interest thereon, less his net earnings if any during such period, backpay and interest to be com- puted in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716; and that Respondent be required to make available necessary records for computation of backpay. Appropriate provision shall be made in the Recommended Order and posted notice to employees, for the notification of the discriminatorily discharged employee if he is now in the Armed Forces of the United States of his right to full reinstatement upon application after discharge from the Armed Forces ' in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. ,u It is settled that discharge bottomed upon a combination of lawful and unlawful reasons violates the Act. N.L R.B. v Longhorn Transfer Service, Inc., 346 F 2d 1003, 1006 (C A. 5) ; Wonder State Manufacturing Company v. N.L.R.B., 331 F.2d 737, 738 (C.A. 6) ; N.L.R.B. v. West 'Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6) ; N L R.B. v. Solo Cup Company, 237 F.2d 521 (C.A. 8) ; N.L.R B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). 1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the fact that the unfair labor practices committed are of a character striking at the roots of employee rights safeguarded by the Act, I shall also recom- mend that Respondent be required to cease and desist from infringing in any man- ner on the rights of employees guaranteed in Section 7 of the Act. I shall further recommend that Respondent be required to post an appropriate notice. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following: RECOMMENDED ORDER Trailmobile Division, Pullman Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any of its employees coercively with regard to his or any other employees' union activities, desires, or sympathies. (b) Obtaining the removal by any of its employees of his union button through economically coercive or other improper means or measures. . (c) Threatening, directly or indirectly, any employee.with discharge, loss of employment, layoff, loss of benefit or other thing of value, or any discriminatory reprisal or retaliation or action, because of union or union organizational mem- bership, affiliation, sympathy, support, assistance , or activity. (d) Promising, granting, or holding out to any employee any wage or benefit increase or other thing of value to induce him or other employee to refrain from union or union organizational membership, affiliation, sympathy, support, assistance, or activity. (e) Discouraging membership in and lawful activities on behalf of United Auto- mobile, Aerospace and Agricultural Implement Workers (UAW), International Union, AFL-CIO, or any other labor organization of its employees, by discharging, laying off, suspending, or failing or refusing to reinstate or rehire, or by threaten- ing to do so, any employee, or by otherwise discriminating or threatening to dis- criminate against any employee in regard to hire or tenure of employment or any term or condition of employment, by reason of his exercise of any right under the Act. (f) Interfering in any other manner with, or restraining or coercing, any employee in the exercise of his right to self-organization, to form, join, or assist any labor organization; to bargain collectively through representatives of his own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer John S. Powers immediate, full reinstatement to his former or sub- stantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay, in the manner set forth in "The Remedy" section of this Decision. In the event Powers is presently serving in the Armed Forces of the United States, notify him of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Decision. (c) Post in its factory in Longview, Texas, copies of the attached notice marked "Appendix D." i12 Copies of said notice, to be furnished by the Regional Director 112 In the event that 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." TRAILMOBILE DIV., PULLMAN INC. 1383 for Region 16, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof , and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (d) Notify said Regional Director , in writing, within 20 days from receipt of this Decision, what steps have been taken to comply herewith.113 I FURTHER RECOMMEND that the complaint be and the same is hereby dismissed as to all violations alleged but not herein found. 113 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A: PRINCIPAL PERSONS REFERRED TO IN DECISION AND RECORD Name* Description Akin, Floyd (RW)_________________ Foreman, 1st shift, Dept. 200 (Aluminum Containers; i.e., where Edd Taylor and Powers rotated container in manual turn- over jig on 2/11/65 leading to Powers' discharge on 2/12/65) Akin, George______________________ Foreman Barnett, Irving --------------------- Foreman Beard, Curly______________________ Foreman Bellatti, Charles H. ("Chuck") (RW)__ Personnel Manager since Jan. 1, 1964 Blevins, Joseph (GCW)_____________ Welder, fellow employee of Powers Brown, Billie______________________ Welder, Dept. 200 (Aluminum Containers) Burns, ?__________________________ President of Respondent Cox, James T. (RW)________________ Powers' leadman or foreman in Sept. 1964 (solicited by Powers to sign union card and to wear union button) Crittenden, Johnny (RW)___________ Helper, working inside container rotated by Edd Taylor and Powers on 2/11/65 Davis, Aubrey Clayton ("Red") (RW)- General Foreman, 1st shift, since Aug. 10, 1964 Downing, Arthur L. (RW)__________ Industrial Engineer Elms, Richard (RW)_______________ Inspector Fife, Daryl (GCW)_________________ Welder, fellow employee of Powers Garrison, George E. (RW)___________ Grain trailer fitter, fellow employee of Powers Gilcoat, William (RW)______________ Helper and foam operator, fellow employee of Powers Graves, Billie J. (GCW)------------- Welder, fellow employee of Powers; for- merly (e.g., Aug. 1964), inspector Green, Bobby Wayne (GCW)________ Welder, fellow employee of Powers Griffin, Roy_______________________ Welder Griffin, Wayne (GCW)-------------- Welder, fellow employee of Powers Gunn, O. C------------------------ Foreman, Flooring Dept. Hagler, Lindley Carroll (GCW)______ Trailer fitter, fellow employee of Powers Hairston, Samuel Paul (GCW)_______ Welder, fellow employee of Powers Halliburton, Dewain________________ Helper or fitter, Dept. 200 (Aluminum Containers) Higginbotham, Lonzo_______________ Foreman, 2d shift, and Powers' supervisor on 1st order of containers manufactured in late summer-early fall, 1963 *GCW. General Counsel witness; RW : Respondent witness. Respondent's employees not otherwise identified are or were employed at its Longview, Texas, plant here involved 1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A-Continued Name Description Higginbotham, Travis Edward (RW)__. Foreman (since 1961; formerly a welder), Dept. 16 (Chassis Dept.), where Powers worked on 2/10/65 Hill, Forrest Floyd (GCW)----------- Fabricator, fellow employee of Powers Hill, John ("Red") (GCW)---------- Trailer fitter Huffman, Norman (GCW)----------- Fellow employee of Powers, whose signa- ture on union card was obtained by Powers John, John (RW)------------------- Trailmobile Division Director of Industrial Relations since Feb. 1965 Lee, Horace C. (GCW)______________ Welder Pittman, James (RW)_______________ Night foreman, Dept. 200 (Aluminum Con- tainers), 1963-1964; later, foreman, Dept. 26 Powers, John Steve (GCW)__________ Welder, whose discharge on 2/12/65 is the subject of the Sec. 8(a)(3) charge here Rappelyeha (Rappleye ?)____________ Union Carbide inspector of containers being manufactured for it by Respondent Rester, Harold_____________________ Fellow employee of Powers, whose signa- ture on union card was obtained by Powers Rhodes, Jerry______________________ Fellow employee of Powers Rogers, Oscar (RW)________________ Foreman, Dept. 26 Roy, Francis D., Jr. ("Dude") (RW)__- Formerly (1953-Feb. 1965 ) in Respondent's employ, Feb. 1956-Jan. 1957 as its Longview Plant Manager, and thereafter at its Cincinnati office, in summer 1964 as Director of Facilities and Industrial Engineering Self, Loyd_________________________ Foreman, Dept. 60 (Inspection), June- Aug. 1964 Sembach, Paul ---------------------- Plant Manager or Operations Manager Smith, W. L_______________________ Fellow employee of Powers Sullivan, Vernon LeRoy (GCW)------ Helper, working inside container rotated by Edd Taylor and Powers on 2/11/65 Taylor, Curtis (RW)---------------- Helper or fitter, working inside container rotated by Edd Taylor and Powers on 2/11/65 Taylor, Edd H. (GCW)_____________ Welders, Dept. 200 (Aluminum Contain- ers), working with Powers when he and Powers rotated container in manual turn- over jig on 2/11/65, leading to Powers' discharge on 2/12/65 Thompson, Richard_________________ Industrial Engineer Thurman, Frank (RW)-------------- Inspector Tillery, Carl_______________________ Union representative Tillison, George Franklin____________ Employee being replaced by Powers in Dept. 200 (Aluminum Containers) on 2/11/65, day before Powers' discharge on 2/12/65 Trice, Darrell ---------------------- Leadman, Dept. 16 Waldon, D. F______________________ Fellow employee of Powers, whose signa- ture on union card was obtained by Powers Ward, Larkin Merriam ("Red") (RW)_ Drill operator, helper, and fabricator Whitehurst, H. F. ("Whitey") (RW)___ General Superintendent of Respondent's Longview Plant (since July 1964) Whiteside, Bobby (RW)_____________ Foreman, 1st shift, Dept. 23 (Assembly or Subassembly of Body Sides, Roofs, and Noses) Wigglesworth, Ken ------------------ Union official TRAILMOBILE DIV., PULLMAN INC. 1385 Year Date APPENDIX B• CHRONOLOGY Event 1963--- 1964 --- November-------------- February--------------- February--------------- August------------------ June or July ________---_ Early spiing_--_________ June (early)_____________ June (early)------------- June-September - ------ July (early)_____________ July-September 3______- July 29------------------ July 31------------------ August 1 (apx.)--___-___ August 5 (apx.) --------- August 10 (apx.)________ August 15 (apx.) -------- August 29-31_____-______ August 31_______________ September 1_____________ August 31-Septembei 3 (apx.). September 2-3__--___-___ September 3_____________ Poweis enters Respondent's employ as "helper," at around $1 70 per hour. Powers is piomoted to welder, at around $2 05 per hour, working until August 1960, when he is laid off. Powers is recalled to work by Respondent, but does not return. Powers is again recalled to work, by Respondent's personnel manager; i etui ns, working continuously until discharged on February 12, 1965. Work starts on 1st order of Union Carbide aluminum containers at Respondent's Longview, Texas, plant Respondent completes work on 1st order of Union Carbide aluminum containers at Respondent's Longview, Texas, plant. Powers signs union card at lit union meeting. Foreman Geoige Akin interrogates employee Forrest Floyd Hill re Hill's and other employees' attendance at union meeting and why Hill is for the Union Union organizational meetings are held about every 2 weeks (June) and then weekly (mid-July and August). Foreman Whiteside engages in heated discussion with employee Graves, in presence of other employees, as to Graves' prounionism and related matteis. Powers (as well as other employees ) solicits union members , including Powers' Leadman or Foreman Cox Union (UAW) demands recognition by Respondent. Respondent (Employer) files petition with NLRB for election based upon Union's July 29 request for recognition. Powei s' Leadman of Foreman Cox asks Powers to remove union litera- ture displayed on Powers ' toolbox. Powers complies. Powers and some other employees start wearing union buttons. Welder Blevins is questioned by Foreman Travis Higginbotham as to Blevins' piouniomisn and is warned re discontinuance of employer tolerance of employees ' shortcomings in the event of unionization Respondent's top managerial officials at plant conduct briefing "gripe" sessions for groups of employees At one of these meetings, in presence of other employees, Powers raises questions with Plant Supt. White- burst and Personnel Manager Bellatti re status of Lanza Higgin- botham-subsequently a key issue in the contested union election proceeding litigated through 1965 (and still continuing) Employer and Union execute and NLRB Regional Director approves Stipulation for Certification upon Consent Election. Respondent 's (i e , Employer's) director of facilities and industrial engineering (from Respondent 's Cincinnati office, and formerly its Longview, Texas , plant manager), "Dude " Roy, arrives at Longview plant on business, speaking to many employees and remaining there until day of or after September 3 union election. Flooring Dept . Foreman Gunn tells Powers he "can't go along" with unionism because it is "out of band " and that Respondent has the Union "beat" at the plant. Respondent's director of facilities and industrial engineering and former Longview plant manager, "Dude" Roy, visits and circulates among Longview plant employees for entire week of union election, discus- sing their dissatisfactions , etc., with them. Among other things, Roy questions Powers re unionism and speaks disparagingly of the Union and characterizes a union official as "the one behind all of it . Just a trouble maker", and he tells another employee (Green) that "a vote for the company would mean a continuation of friendly relations and a vote for the Union would mean nothing but trouble " Respondent's plant managerial and supervisory personnel interrogate, etc (see attached Decision, sec. II, C), employees. Union election is held at Respondent's Longview, Texas, plant. Powers weals 12 union buttons. Election result of 360 eligible voters , 171 for Union, 168 against Union , 16 challenged , and 1 void ballot. 1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Year 1964---- Date September 4 (or 3) ------ APPENDIX B CI1RONOLOCiY-Continued Event September, 1964- January, 1965 September 10__-______-__ September 11__________-_ October 8_______________ October or November --- December_______________ December 30____________ 1965___ January (early) --------- January 14 ______________ January 18 _ _____________ January 19 ______________ February 3______________ February 4______________ February 5______________ February 5_-____________ February 8____ --------- February 10_____________ February 11_____________ February 12_____________ Respondent 's director of facilities and industrial engineering (from its Cincinnati office, and formerly its Longview plant manager), "Dude" Roy leaves Longview plant after several days' visit. Powers continues attending union meetings regularly and keeping other employees informed as to union developments. Powers receives reprimand from Dept 26 Foreman Rogers for working without safety glasses. Union files objections to elections of September 3 Powers receives reprimand from Dept 26 Foreman Rogers , on com- plaint of employee Garrison regarding "horseplay . . . tormenting a fellow worker , George Garrison " Powers denies this, and without further investigation Rogers places a wutten reprimand or report into Powers' file without giving a copy to Powers or showing it to him or telling him about it. Respondent starts work on 2d order of Union Carbide aluminum con- tainers at Respondent 's Longview, Texas, plant. Powers and 3 other employees distribute union literature to plant employees. NLRB Regional Director issues report on challenged ballots and union objections to September 3 election , recommending that certain chal- lenges be overruled , others sustained , and a ,hearing held as to still others Respondent completes work on 2d order of Union Carbide Aluminum containers at Respondent's Longview , Texas, plant Powers receives written reprimand for tossing rope at or on fellow employee Horace C. Lee. Respondent (r e , Employer) files exceptions to NLRB Regional Di- rector's December 30,1964 , report on challenged ballots and objections to September 3, 1964, electron. Union files exceptions to NLRB Regional Director 's December 30, 1964 report on challenged ballots and objections to September 3, 1964, election NLRB orders hearing on Employer's and Union 's exceptions to Re- gional Director's December 30, 1964, report re September 3. 1964, election, meanwhile deferring ruling on Regional Director 's recom- mendations regarding union objections to electron Union sends Respondent letter , with enclosures , requesting it grant its Longview, Texas, plant employees a wage increase or meet with the Union to bargain , with copies of letter and enclosures to some of Respondent's Longview employees. (Enclosures to letter indicate such a wage increase was agreed to by Respondent with the Union in its Cincinnati plant on or about February 1, 1965 ) 'The above February 4 union letter is received by Respondent Respondent starts work on 3d order of Union Carbide aluminum con- tainers at' Respondent 's Longview , Texas, plant. Union sends letter to Respondent 's employees notifying them ofNLRB order of February 3 directing a hearing on question of eligibility of Respondent 's leadmen and of Lonzo Higginbotham to vote at election of September 3, 1964 , indicating that if union challenges are sustained, Union will be certified as Respondents' employees' bargaining repre- sentative Powers works in Dept 16 (Chassis Dept ). Powers is assigned from Dept 16 (Chassis Dept) to Dept 200 (Alumi- num Container Dept ), on 3d order of Union Carbide containers, in place of absent employee Trllison While working there with fellow employee Edd Taylor , welding the outside of a container, he and Edd Taylor rotate the container (contained in a manual turnover jig) in order to weld at the top Later that day, they both , as well as employees working on the inside of the container, are called into the office and questioned about this. Powers is discharged by Respondent. TRAILMOBILE DIV., PULLMAN INC. 1387 Year 1965___ Date APPENDIX B CHRONOLOGY- Continued Event Hearings are held in Representation case by NLRB Hearing Officer. Fosters (among others) testifies NLRB Heating Officer issues iepoit on challenged ballots in Repre- sentation case Respondent completes work on 3d order of Union Carbide aluminum containers at Respondent's Longviess, Texas, plant Employer and Union file exceptions to NLRB Hearng Officer's April 16 report on challenged ballots in Representation case NLRB sustains union challenges to ballots in September 3, 1964, elec- tion and certifies Union as collective-bargaining representative of Respondent's unit employees. (Case 16-RM-270 ) NLRB Regional Director issues complaint (Case 16-CA-2401) against Respondent Employer , alleging violation of NLRA Section 8(a)(5) and (1), based upon union charge filed July 13, 1965, that notwith- standing NLRB certification on June 28, 1965, and union demand thereafter, Respondent continues to refuse to bargain collectively with the Union Respondent Employer files answer to complaint of July 28, 1965 (Case 12-CA-2401), admitting it is continuing to iefuse to bargain with the Union although certified by NLRB, but alleges the Union does not represent a majority of its employees in an appropriate unit and that NLRB certification is "erroneous and of no legal effect " Based upon parties' stipulation of Sept 17, 1965, waiving hearing in Case 16-CA-2401, NLRB transfers case to itself for findings, conclu- sions, decision, and order. NLRB issues findings, conclusions, decision, and eider (156 NLRB 483), in Case 16-CA-2401, that Respondent Employer refused to bargain collectively with Union notwithstanding NLRB certifica- tion, in violation of NLRA Section 8 (a)(5) and (1), and requiring Respondent to cease and desist tbeiefrom and to bargain with the Union and post a notice to that effect in its Longview, Texas, plant. March 9, 12, 23, and 24__ April 16----------------- May 7------------------- May 15---------------- June 23_________ _________ July 23----- - - - - - - - - - - - - A u g u s t 6---------------- September 23__ --------- December 30-______-_-__ APPENDIX C "Other Horseplay" - 1. Breaking of} another employee's drillbits.-As to this, trailer fitter Garrison, a chief accuser of Powers on the subject of "horseplay," testified that while Powers welded grain trailers in department 26 (body mounting), when Garrison drilled holes (i.e., for tarpaulin hooks), from the outside of the trailer and Powers was welding on the inside, Powers would break off some of Garrison's drillbits when they penetrated through to the inside of the trailer; and that when he spoke to Pow- ers about it, Powers denied he did it or just grinned. Garrison conceded that at times his drillbits were similarly broken off by persons he could not identify. Foreman Rogers testified that Garrison complained to him about Powers three or four times between April and October 1964, and that he (Rogers) received such a complaint from Garrison only, and not from anybody else; and that Garrison never told him that any of Garrison's helpers' drillbits had also been broken off. Garrison, however, had testified that his helpers' drillbits had also been broken off. It seems hardly likely that if this were true Garrison would not have told Rogers about it, particularly if Garrison was as disturbed about this as he and Rogers now portray. Crediting Rogers in this aspect, I believe that Garrison's testimony that his helpers' bits were also broken off was testimonial embellishment or embroidery by Garrison at the hearing, which I have taken into consideration in assessing his credibility. Rogers further testified that when he spoke to Powers on the subject of annoying Garrison, Powers "denied it" and that Rogers could, not "recall" Powers' claiming he had been endangered by Garrison's careless or close drilling, but that he (Rog- ers) thereupon, without further "mak[ing] any attempt to investigate to see who was telling the truth," placed a written reprimand or disciplinary slip (Respondent's Exhibit 33) into Powers' personnel file without giving a copy to Powers or showing it to him or even telling him about it. It is noted that although concededly Powers 1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not given a copy, shown , or told about this reprimand or disciplinary slip (Respondent's Exhibit 33), it is typed and purportedly addressed "To John S. Pow- ers," the copy in his file states "File Copy," and, unlike a prior disciplinary slip (Respondent's Exhibit 32) concededly received (September 10, 1964, for not wear- ing safety glasses ), it bears no date stamp . As previously remarked, this disciplinary slip to the file only (Respondent's Exhibit 33) shows suspicious earmarks of being a product carefully tailored to create a post facto "record" against Powers. It is further noted that Rogers' slip says nothing about "the fact that Powers denied this," although Rogers testified he "placed it in there [i.e., in Powers ' personnel file] for record purposes." Conceding that on occasion he has broken off drillbits when they have penetrated dangerously close to him (one actually hit his welding hood ) as he was doing inside welding, with Garrison an intractable offender even through he "hollered at him a lot of times about it . and here he would come again with it," Powers staunchly (and credibly, I find ) denied this was done by him as a joke, prank , horseplay, or harassment. He also testified credibly that the same breaking off of drillbits was done by various other welders whom he named ; and he likewise credibly denied being reprimanded for this, and testified that he complained to Rogers about Gar- rison's work habits in this and other respects . Corroborating Powers' description of Garrison's drilling, Respondent's welder Hairston (employed there for 8 years) described a recent occasion-as to which, although denied by Garrison, I credit Hairston-when he was working on the outside and Garrison on the inside , and Gar- rison suddenly and without warning drilled his bit right between two of Hairston's fingers. Garrison conceded that on a "few occasions " he "did drill close" to welders, including Powers, who complained to him about this and that he "had almost bit him or come close to touching him with a . . . moving steel drill bit." With regard to the breaking off of Garrison's drillbits, I find that on those occa- sions when done by Powers, it was not done as a joke, prank, horseplay , or harass- ment, but as a reasonable self-protection measure , in avoidance of what might otherwise have been serious personal injury to himself and damaging financial and other consequences to his Employer ; that the very same practice was followed by Respondent's welders other than Powers , as a regular, reasonable practice ; that at no time did Respondent discharge , reprimand, or otherwise discipline any employee therefor; and that the memorandum of October 8, 1964 (Respondent's Exhibit 33), from Respondent's Foreman Davis to Powers ' personnel file under the circumstances described above was not a reprimand or other disciplinary or adverse personnel action by Respondent against Powers. 2. Shorting out lights in trailers.-On this subject, Respondent's Foreman Pittman testified that when he was a welder in department 26 in the summer of 1964, he was "shown . . . how to short out lights in a grain trailer" by Powers, but that he "didn't pay too much attention to it" and could not "remember exactly what he did say." On further questioning, Pittman testified that Powers merely told him that the lights "could" be shorted out in a certain way but did not short any lights out-".He showed me how it could be done. He didn't short the lights out"; and that he neither asked Powers why he was showing him this, nor made any comment, nor reported this to anybody . Powers testified that he was unaware of any such incident ; and that he had never shorted out any trailer lights, but that he has employed his welding equipment to turn the lights on in a trailer. It is apparent that it has not been established that Powers shorted out trailer lights, and that in any event the unreported alleged incident involving Pittman could not have played any part in Powers' discharge, and I so find. 3. Cutting lead wires to or from electric fans.-On this matter, Foreman Travis Higginbotham testified that in August 1963 he issued a written reprimand to Pow- ers, Edd Taylor, and Rester for cutting electric leads to two fans. Powers does not dispute that this occurred. His explanation is that he and the two other employees had cut the cords from the fans and locked them up overnight because men on the night shift were removing the fans to other work areas and not returning them, so that it was necessary for Powers (and his colleagues ) to locate and bring them back every morning; and that when less drastic measures , such as speaking to the foreman (who "never did do anything about it"), and welding a channel around the cords to pre- vent their removal, proved to be ineffectual because the night crew cut the block off, they cut the wires close to the fan and attached connectors and unhooked them at night. Edd Taylor credibly corroborated Powers' version of this, testifying that because of the night crew's removal of and failure to return this equipment he and TRAILMOBILE DIV., PULLMAN INC. 1389 his colleagues could "maybe ... spend thirty minutes of your time looking for a fan the next morning." Denying that this was done as a joke, he insisted they were "just merely trying to save time and trouble." It is undisputed that following the described reprimand in August 1963 this action was not repeated. I find that the described action, which took place approximately a year and a half prior to Powers' discharge, while ill advised on the part of Powers and the other two employees, was nevertheless not done as a joke, prank , or horseplay, but supposedly in the interest of saving time and thus expediting production , for their employer; and that after the described reprimand of August 1963 , the action was not repeated. 4. Tossing milk cartons filled with water.-The short answer to this is that the evi- dence (credited testimony of Respondent's witness Akin as well as of General Coun- sel's witnesses Huffman, Powers, and Lee), overwhelmingly establishes that this form of play, concededly indulged in by Powers on occasion , was widespread throughout the plant, in the presence of and even with supervisory personnel themselves (Lead- man Haywood and Foremen Travis Higginbotham and Akin, the latter admittedly), engaged therein : that nobody, including Powers, was ever disciplined or reprimanded therefor; and that after Foreman Akin told the men to stop it, it was according to Akin's own testimony stopped. ("It stopped. Didn't have any trouble with it."- Akin's testimony.) In this connection, Lee credibly denied that he ever told Akin that it was Powers who threw waterfilled milk containers which hit , doused, or splashed Lee, since on one occasion Powers was sitting right there with Lee, who expressly told Akin it was not Powers ; and on the other occasion Lee saw it was not Powers. Lee's testimony also indicates that Respondent made light of the entire matter, since Lee's attempt to report this to the office (Personnel Manager Bellatti or then Plant Manager Sembach ) was unsuccessful and Akin in effect ordered him not to report it there but to go back to work because (according to Akin) "All Paul [Sembach, Plant Manager ] will do is eat our a- out." 5. Pulling a stool out from under a welder.-Pittman (now a foreman ) testified that while a welder in the summer of 1964 a stool "went out from under" him while welding, landing him on the floor, and that he then released the stool to Powers after grappling with him unsuccessfully to retain it. Although he first testified he "went down on the floor" when the stool was pulled from under him, on a repeat version Pittman said, "I landed on my head." Asked whether he reported this to anybody, Pittman first testified, "I don't remember whether I did or not." He thereafter stated, however, that he "believe[d]" he told it only to Cox, then his leadman. Conceding that he once removed a stool from Pittman , Powers' version of this incident is that the stool in question was a specially constructed one, specifically designed for use in welding nose sections in jigs, and that when the time arrived to weld a nose section he could not find this stool. "We looked around, oh, I'd say fifteen minutes and never did find it in the department there, so we went ahead and welded it out , squatted down on the floor and welded it out. Well, when the next one came up, we still couldn't find the stool and some- body said they'd seen him [Pittman] with it over there [two aisles over from the grain department, on a container chassis]. So I went over there to see him about it-see if I could find it, and he was standing up there working there in the front of the trailer and I walked up and asked him, `How about bringing our stool back over there where you got itT And he said I didn't have my name on it, that that was Trailmobile's property, and anything that was theirs, he could use, anyway. And I told him that they built them for us to use over there and he said, well, he was using it. So I just reached down and got ahold of it [sic] and I said, 'It goes back over there and we need it now."' After a brief tug of war, Powers secured it. Flatly denying that he ever pulled the stool out from under Pittman, Powers insists that Pittman was not welding nor seated at any time during this episode, but was standing up measuring something ; and that Cox, who witnessed the episode, literally "kind of shrugged his shoulders and walked off." In his testi- mony Pittman admitted he had obtained the stool from the grain line and that when Powers told him it was his he told Powers he "didn 't see his name on it nowhere." I have already commented adversely on Pittman's credibility and favorably on that of Powers . Crediting Powers' testimony, I resolve the testimonial conflict regarding the stool incident in favor of Powers' version, and I find that not only was there no prank or horseplay involved in -this incident but that Powers' action was not improper under the circumstances but was , on the contrary, in his Employ- er's interest. 1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Throwing a rope at or on another employee -Plant Superintendent Whitehurst testified that Foreman Higginbotham had told him "that Mr. Powers had trouble with another employee," namely Horace Lee, about a "rope incident," allegedly involving Powers' picking up of a grain trailer rope and casting it at Lee while he was welding, this being all that Whitehurst was told (i.e.,1 nothing about how Powers came to the rope or the rope to Powers ). It is conceded that Powers received a written disciplinary warning, dated January 14, 1965, from Travis Hig- ginbotham concerning this, and warning of the possibility of discharge for further "horesplay." ( Respondent's Exhibit 25.) Regarding this, Respondent's Foreman Travis Higginbotham testified that he saw Lee, while welding on the outside of' a trailer, hit by a rope thrown by Powers from inside the trailer where Powers was, standing doing nothing (as apparently were other welders also). According to Higginbotham, he saw Powers looking at Lee when he threw the rope out, "because I [Higginbotham] was walking that-a-way." However, Higginbotham described the sides of the trailer in which Powers was standing as being 55 inches (or close to 5 feet) high, with Lee sitting on a stool leaning over on the outside; that Powers' head was 9 or 10 feet from the ground; and that what he actually saw was Powers flinging the rope (about 12 to 15 feet, 1/2 inch diameter, loosely coiled or wadded up)-over one side of the trailer "towards Lee"; and that it struck Lee "m the back of the head," pushing his head down against his lead. Further according to Higginbotham, later in the day he personally composed and wrote out in longhand a reprimand which was typed up in the office subsequently for him to sign, and which he gave to Powers 2 days afterward. He also testified, "I didn't read the reprimand when it was over here . . . I didn 't write a whole lots up on it because I'm limited on the write -ups." Asked whether he said anything about Powers' having been told about horseplay by anybody else in the past ( as indicated by the seem- ingly unusually technical wording of the typed reprimand), Higginbotham's reply was, "Well, I don't know whether anybody else-well, I'd talked to him in the past I don't know if anybody else had." He then explained that his own talking to him in the past referred to a day or two before , to wear safety glasses and hat and stay on the job in his work area. Higginbotham further testified that when he gave Powers this reprimand he told him that if he "straightened up, it wouldn't mean a thing," and that he did not give him a written reprimand thereafter. Powers' version of this incident is that on the occasion in question, after the rope was thrown on him (Powers ) while welding a grain trailer side assembly with his hood down, he "just pitched it on down " and it struck Lee; that when he was through welding, Higginbotham said to him, "Don't be throwing anything else on him because be gets mad pretty easy"; and that 2 days later Higginbotham handed him a written reprimand , which he (Powers ) showed to Lee, who became so upset about it that he (Lee ) asked Higginbotham to change or cancel it because "there wasn't any grounds for writing somebody up for that." When Powers later told Higginbotham he "really appreciated him using me for the goat back there," Hig- ginbotham said, "That write up, well, don't worry about that. They don't mean anything anyway." There is no evidence that the person who threw the rope at Powers was disciplined or that any attempt was made to ascertain his identity. Testifying as General Counsel's rebuttal witness, Lee-still working for Respond- ent as a welder-stated he did not see who threw the rope, which knocked his welding hood off, but that when he told Higginbotham he was getting tired of "guys throwing things," Higginbotham told his it was Powers who had done it. Lee testi- fied that when he learned of the write-up given to Powers a few days later, he went to Higginbotham and "I told him I thought it was unfair and I asked him if he'd lust change it over on me . . . I told him I thought it was unfair because there are things happen like that that they didn't write anybody up for, worse things than throwing a rope." Lee testified that he subsequently also, told Plant, Superintendent Whitehurst that he had "seen things happen out there worse than that and the other men didn't get a write-up on it." Plant Superintendent Whitehurst testified that after the "rope incident," Lee was subsequently removed from Powers' work area, not to separate him from Powers, but because Lee made a threat involving "something about a knife-a knifing or something to this effect . . . . Mr. Lee had had previous trouble before In another department, with some other employees , regarding the knifing incidents, and he [Lee] had to be moved again . He [Lee] had not knifed him [Kenneth Gordon, another employee ]. He had threatened him"; and Lee had never been discharged or reprimanded for this or for the previous knifing threat or remark. TRAILMOBILE DIV., PULLMAN INC. 1391 Upon the entire record, I find that it has not been established by substantial credible evidence that the described rope incident was, or that Respondent believed it was, a prank, joke, or horseplay as contended. 7. Rocking containers containing employees -Respondent's witness Gilcoat. a helper and foam operator, testified that "just once or twice" while the stabilizer legs were raised on the container in the manual turnover jig he observed from the outside that the lockpin would be removed, and that this would "allow the con- tainer to rock slightly, while men would be inside cleaning up"; and so he asked Powers "that if they pulled the pin if they would let me know . . . so I wouldn't get up there [on top of the container] while it was rocking." On cross-examination, Gilcoat conceded that "I didn't really say [i.e., on,direct examination] he [Powers] rocked it"; that "the shifting weight of the men inside would rock the container"; and that he did not know why Powers removed the lockpin, this being on one occasion around October 1964 on the evening shift in container department 200. Gilcoat finally conceded that he did not actually see Powers remove the lockpin even on this occasion, but that "I just deduced that he had pulled it out ... poor choice of words . . . I just figured that he had pulled the pin . . . I 'didn't see him,pull it completely out, no." - Although Powers denied any recollection of the incident- described by -Gilcoat, it is apparent that there is not necessarily any impropriety in mere removal of the lockpin in connection with work on a container, such as in rotating it., Accordingly and in view of the nature of the particular alleged incident as recounted and modi- fied on cross-examination by Gilcoat, I find that there is no substantial evidence that Powers by way of joke, prank, or horseplay rocked containers or a container containing employees, as claimed by Respondent. 8'. Welding other employees' temporary work clamps to trailers.-- As to this alleged misfeasance by Powers, of which he is also accused by Garrison, the latter testified that around August-October 1964 he found that furniture clamps which he used in his work were ,welded to the side - of the trailer; and that in removing one, he (i.e., Garrison ) tore a piece of panel off. (According to Foreman Rogers , Garrison "tore a hole in the sheet" when he pulled the clamp off the side of the trailer, to which it had been "tack" welded, a "tack weld" being a "small weld, very small . quarter-inch to a half-inch.") Garrison testified that he encountered this on only two occasions and conceded that he did not know why it had been done. Powers testified that on occasion, in the course of his work, he as well as other welders has tack welded a furniture clamp to the back of a trailer being assembled, in order to keep it from falling or slipping off, sometimes being asked to do this very thing. Powers testified that "A lot of times . . . the clamp will jump out of the slot, and you will have to tack it in for them where it will not jump out. And, if I am back there, I will usually tack it . . . or any of the other welders who were back there '. . Sometimes he [employee using the clamp] would put the clamp up there and clamp it to the wall , and the vibration on the trailer would cause the clamp to fall . . . the clamp would fall off and down on you, and we would tack it up there . . . Usually, if we were working right there, we would tack the clamp . to the trailer . . . A tack weld is usually maybe a quarter inch to a half inch long. You could take the middle and bend it-the clamp, and it would break loose." Powers conceded, however, that on occasion he as well •as the other welders had tack-welded clamps in jest without ever being told by manage- ment not to do this. Welders Hairston, Green, and Blevins, appearing as General Counsel's witnesses, testified credibly that in the course of their work they had tack-welded clamps to trailer bodies to keep them secure and prevent their falling off. Crediting the testimony of Powers-conceded by Respondent to be a well- qualified welder-I find that it was common practice among the welders to tack- weld clamps to trailers in the usual course of their work in the interests of their Employer;, and that when welders occasionally did this in fun it was not regarded by Respondent as ground for reprimand or other disciplinary action. 9. Shorting out another employee's shear.-Here again the accuser is Garrison, who testified that in August-October 1964, his uni-shear tool "would short out; they wouldn't run." Asked why this would happen, Garrison replied, "Because the switch had been thrown." Asked who threw the switch, Garrison replied, "I don't know," and that there were 8-10 employees around the switch. Powers had previ- ously denied on cross-examination that he had ever , shorted out Garrison's uni- shear. In this final posture of the record on the subject of the alleged shorting of 1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the uni-shear by Powers, I granted General Counsel's motion at the hearing to strike it out as not established. I find that there is a total failure of proof by Respondent as to this contention. 10. Placing trailer nose sections on air lines to cut off power.-Once again in the role of sole accuser, Garrison testified that around August-October 1964, on several occasions the air supply hose which he used for his pneumatic tools was cut or unplugged by a nose corner set down on it by Powers and Edd Taylor; and that Powers would "just grin" when told about it. Acknowledging that on occasion trailer nose sections had been set down on air hoses, Powers explained that in setting up a nose jig for a grain trailer, the trailer is backed in a door for mounting the sides and nose; that the nose, weighing 150-200 pounds, is carried by two men about 15-20 feet to the front of the trailer, where it is set down preliminary to attaching it to the trailer, involving also other adjustments such as the shifting of stools' and stepladders, but that to his knowledge no air hose was ever severed in so doing, and that he was at no time disciplined for setting this equipment on the hoses. I find that it has not been established by substantial credible evidence that, as contended by Respondent, Powers at any time, either deliberately or as a joke, jest, or horseplay, placed a trailer nose section on an air line or hose in order to cut off power supply, and that he was at no time in any way accused of or disci- plined for any such action. 11. Arcing another employee's drillbits.-Garrison now further accuses Powers of "arcing" Garrison's drillbits; that is, placing his (Powers') electric welding arc on Garrison's bits. Garrison conceded that he never said anything to Powers about this, and that his bits had also been "arced" by "some people that [I] have not been able to see." It will be recalled that Powers testified at some length, with corroboration, regarding Garrison's persistently close, dangerous drilling habits. I credit Powers' testimony that he at no time "arced" Garrison's drillbits deliberately or as harassment, and find any contention to the contrary has not been established. 12. Welding sheets so that nose corners could not be workedd on.-Foreman Rogers testified that Garrison complained to him that Powers was welding in such a way that Garrison "could not get his nose comers in," but that when he (Rogers) spoke to Powers about this, Powers denied it, so that "I [Rogers] didn't have anything else to say" and made no further attempt "to investigate to see who was telling the truth" Rogers conceded that when he thereafter wrote the so-called "disciplinary" slip to the file (Respondent's Exhibit 33), which has been commented on supra, without giving Powers a copy or showing it to him or telling him about it, Rogers nevertheless failed to include it in any mention of Powers' denial (or of Rogers' failure to investigate to ascertain the facts). Rogers conceded there had "not par- ticularly" been any trouble with the nose assembly or its fit. Although Rogers claimed he could not "recall" whether welders had complained about Garrison leaving an excessively large gap with his uni-shears in grain trailer nose sections (i.e., too large a gap to be filled in by the welders), Garrison conceded that "a number of welders . . . [spoke to Garrison] about cutting the nose section too big and leaving too much gap, causing too much work for them"; as Garrison discon- solately expressed it at the hearing, "They [welders] are always rumbling about it, yes . . . they would say that I was cutting off-that I left them a little bit too much gap to weld up when I would cut the comers off." It will be recalled that Respondent conceded and Plant Superintendent White- hurst himself explicitly testified that there is no question about Powers' competency as a welder, and indicated that Powers was one of his best welders, with no adverse suggestion of Powers' capability in that regard. I find that Respondent has failed to establish by credible evidence that Powers welded sheets so that nose comers could not be worked upon by Garrison as claimed. 13. Blowing argon gas off another employee's welds with the air hose while the other employee was welding.-Foreman Akin testified that he once in January 1965 observed Powers blow the gas off Lee's weld with an air hose. Apparently, how- ever, he did not consider this of sufficient importance to do or say anything about it. Foreman Pittman testified that "once or twice" while he was welding, in the summer of 1964, his argon gas was turned off, but when asked who turned it off his response was that he did not know; that Powers was one of at least three people in the area; and that he did not report this to management or, in fact, to anybody. It is apparent that Respondent's "proof" with regard to the described incidents is so insubstantial and nebulous as to add up to very little if anything. TRAILMOBILE DIV., PULLMAN INC. 1393 It is accordingly found that the evidence fails, to establish Respondent 's contention in this regard. 14. Poking another employee on a ladder with a stick.-As in the case of the last enumerated alleged misfeasance or infraction , Akin testified that on one occasion, also in January, he noticed Powers poking Edd Taylor with a stick while welding on a ladder. Even if true, this account is so meager-with no suggestion that any harm resulted or was intended , or even that any jest was intended as distinguished from a possibly legitimate need to attract Taylor's attention during the welding and other factory noises-and the infraction if any apparently so trifling as not even to merit mention, to say nothing of discipline , by Foreman Akin, that in my view it cannot fairly be regarded as other than insignificant at best. 15. Blowing smoke with air hose-at another employee at work.-Here, again, Akin testified that he once , also in January, espied Powers blowing some smoke with an air hose toward Lee. Akin conceded that although he was Powers' supervisor at the time, he did not tell Powers to stop it or even mention it to him. This alleged episode appears to be of a character with the last two enumerated; namely, vague and insubstantial , and also apparently so trifling as not to have merited so much as mention (to say nothing of action ) by Akin. 16. Turning up a wire feed adjustment on another employee's welding machine.- As to this, Foreman Pittman testified that while he was a grain line welder in the summer of 1964, he once caught Powers turning up the wire feed adjustment on his welding tool, but that aside from asking Powers to leave it alone he told nobody about it. Pittman subsequently testified, however, that "at a later date," "at the time [Whitehurst] was [plant] superintendent," in the latter part of 1964 or early 1965 he told Whitehurst about it, but that he could not recall where nor "remember just how it all did come up." Powers testified that he observed Foreman Travis Higginbotham do this very thing with regard to welders (identifying one by name as Huffman ) and then "ducked behind the trailer and went back over there to his desk . . . grinning about it." I find that, as described in the text of this Decision, this particular action was in the nature of innocent frivolity of a type which was characteristic in the plant and indulged in not only by rank-and-file employees, but also by supervisors, and not treated or regarded by management as having any seriousness or significance or such as to merit any disciplinary response. APPENDIX D 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 offer John S . Powers immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges , with backpay and interest, for any wages he lost as a result of our discharge of him on February 12, 1965 , because of his union activities, and our failure and refusal to reinstate him. WE WILL NOT interrogate employees as to their union membership , affilia- tions, desires, sympathies, or activities, so as to interfere with, restrain, or coerce them in the exercise of their rights to engage in union activity or any other right guaranteed by the National Labor Relations Act, as amended. WE WILL NOT directly or. indirectly, through use of economically coercive or other improper means or measures, attempt to compel or induce employ- ees to remove their union buttons. WE WILL NOT directly or indirectly threaten any employee with economic or other loss, harm, detriment , or reprisal, to himself or other employee for exercising his right to join a union or engage in lawful organizational activity. WE WILL NOT directly or indirectly offer, promise, or hold out in expectancy to any employee, any economic or other benefit to induce him or other employee to refrain from exercising his right to join a union or to engage in lawful organizational activity. WE WILL NOT discourage membership in and lawful activities on behalf of United Automobile, Aerospace and Agricultural Implement Workers (UAW), 257-551----67-vol. 160-89 1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union, AFL-CIO, or other labor organization of our employees, by discharging, laying off, suspending, or failing to reinstate or rehire, or threatening to do so, any employee , or by otherwise discriminating or threaten- ing to discriminate against any employee in regard to hire or tenure of employment or any term or condition of employment, because he has joined a union or engaged in lawful organizational activity or exercised any other right guaranteed by the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with, restrain , or coerce employees in the exercise of their rights guaranteed to them by Congress, to self-organization, to form labor organizations , to join or assist any labor organizations to bargain collectively through representatives of their own choosing, to engage in concerted activities for- the purpose of collective bar- gaining or other mutual aid or protection; or to refrain from engaging in any or all such activities. All our employees are free to become, remain, or refrain from becoming or remaining, members of United Automobile , Aerospace and Agricultural Implement Workers (UAW), International Union , AFL-CIO, or any other labor organization. TRAILMOBILE DIVISION, PULLMAN INCORPORATED, Employer. Dated ------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-Notify the above employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Serv- ice Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street , Forth Worth, Texas 76102, Tele- phone 335-4211 , Extension 2145. Westinghouse Electric Corporation and Local Lodge No. 1712, International Association of Machinists and Aerospace Work- ers, AFL-CIO, Petitioner and Local Union No. 449, Inter- national Brotherhood of Electrical Workers, AFL-CIO, Intervenor. Case 19-RC-3907. September 27, 1966 DECISION AND CERTIFICATION OF RESU _ LTS OF ELECTION Pursuant to a Stipulation for Certification upon Consent Election approved May 12, 1966, an election was conducted by secret ballot on May 25 and 26, 1966, under the direction and supervision of the Regional Director for Region 19, among the employees in the unit described below. After the election the parties were furnished with a tally of ballots which showed that 181 votes were cast, of which 69 were for Petitioner, 13 were for Intervenor, 90 were against par- ticipating labor organizations, and 9 ballots were challenged. The challenged ballots were sufficient in number to affect the results of the election. No objections to the conduct of the election were filed. 160 NLRB No. 106.