Acme Products, Inc.

ACME PRODUCTS Acme Products , Inc. and District Lodge No. 71 , International Association of Machinists and Aerospace Workers, AFL-CIO. Case 17-CA-2836. May 9, 1967 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 27, 1966, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled case, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire,record in the case, and adopts the findings of the Trial Examiner only to the extent consistent herewith. 1. The Trial Examiner found, in each instance, that the discharges of employees Rice, Ross, and Smith on January 14, O'Dell on January 17, Goodman on January 31, were for the reasons given by Respondent's president, Kreiling, and not because of their union activities. He further found that in February, employee Stone quit and was not discharged. We disagree. Rice, Ross, and Smith were discharged on January 14, the day on which the Union's request for recognition and bargaining was received by Respondent.' Respondent's reaction to this request was to authorize Virgil McCulloch, who had been employed several months earlier, to make production and efficiency studies, to make inquiries of the employees at plant 2 about the causes of dissatisfaction, followed up later in the day by a visit and talk by Kreiling.2 That evening Rice, Ross, and i The Respondent on January 14 employed 14 nonsupervisory employees , in its two plants By that date nine authorization cards had been signed and on January 14, two more were signed Since the beginning of January the employees had been discussing, during work breaks, the desirability of unionization and on January 5 the Union was contacted by employee O'Dell through a telephone call placed from the office of Foreman Stewart In view of the small size of the plant, as well as the evidence that union activity was undertaken on the premises, it is reasonable to infer that Respondent was generally aware of the organizing activity 443 Smith, employees at plant 1, were discharged by Foreman Stewart, who told them he was letting them go at the direction of Kreiling because their work had not been good enough, although Stewart told them their work was good enough for him. Rice, Ross, and Smith were all among the original signers of union cards on January 10. Cox, a former son-in- law of Stewart, testified that on the night of January 14, Stewart called him and told him that he had had to let Rice, Ross, and Smith go, and that he was going to have to let O'Dell go, and that "they" were "mad" or "hot" about the Union. Cox did not specifically testify that Stewart had said that management had been discussing the union or that the men had been discharged because of the union, but in the context in which it was raised it is reasonable to infer that the matters were related. Kreiling, on the other hand, testified that during the morning of January 14, 1966, he observed Rice, Ross, and Smith talking and that he told them to "break it up," and he reported the incident to Stewart who informed him they had been warned earlier. Kreiling further testified that in the afternoon he saw the three men throwing slugs at each other, that he went to Stewart's office and told Stewart that in view of the warnings they should be let go. According to Kreiling, Stewart informed him- it was already planned to let Ross and Smith go.3 Rice, Ross, and Smith each denied the slug-throwing incident, but the Trial Examiner credited Kreiling's testimony on the slug-throwing incident, and concluded the employees were discharged to enforce plant discipline. However, even assuming that the slug-throwing incident took place, we conclude, from our review of the entire record, that it served merely as a pretext to rid the Respondent of union adherents. We note that the event took place the day the Union notified the Company that it represented the employees; that prior to discharging three employees, the Respondent engaged in a campaign of inquiry about union interest among employees at plant 2; that the three employees discharged that evening were among the original union adherents; that Foreman Stewart called Cox the same evening, and mentioned the discharges and also the Respondent's irritation about the Union; and that Kreiling's alleged reasons for his course of action with respect to the incident, and the reasons given by Stewart to the employees for discharge, were inconsistent. In connection with the last-stated reason, we find it before the Union's letter of January 14 2 The interrogations by McCulloch are more fully discussed, infra , Kreiling testified that Stewart asked why he was discharging Rice, and that he (Kreiling) stated they were all involved in the incident, but that Stewart should tell Rice to talk to Kreiling if Rice thought he was getting a bad deal As more fully detailed in the Trial Examiner's Decision, Rice later returned to work for a period of time, and Smith was recalled in April 164 NLRB No. 62 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD difficult to believe that Kreiling, who had earlier in the day allegedly warned these employees about horseplay, would not try to halt the serious and physically dangerous slug-throwing activities of the employees. Moreover, if these actions were the cause of the discharges and had been discussed with Foreman Stewart, it is reasonable to assume Stewart would discuss such conduct when terminating them. Yet, Stewart only stated that they were let go because their production or work was not good enough for Kreiling but good enough for Stewart-and without mention of the alleged breaches of discipline. Under these circumstances, it is evident that the slug-throwing incident, if it occurred, was seized upon sometime after the discharges as a means of justifying them, when in fact the discharges were really a result of their union activity. O'Dell, the employee who made the original contract with the Union,' was discharged the next workday, January 17, after the discharge of Rice, Ross, and Smith. O'Dell was presented with a check by Stewart, and no explanation was given at that time. When O'Dell called Stewart several days later to ask the reason for his termination, Stewart, according to O'Dell, stated he did not know why ,O'Dell was fired, and that O'Dell's work was satisfactory to him. Kreiling's testimony was to the effect that he had had several discussions with Stewart concerning O'Dell's "smoking" in the toilet and wandering around the plant, and that Stewart acknowledged these things had occurred. When Kreiling noticed O'Dell away from his job for prolonged periods on January 17, he mentioned this to Stewart and told him O'Dell should be let go that evening. 5 We are convinced, however, that the true reason for O'Dell's discharge lay in his union activities. Despite his alleged derelictions, no investigation was made to ascertain whether O'Dell had been smoking in the toilet, nor was O'Dell questioned about this, and indeed at the time of his discharge, no reason was given for his termination. Moreover, as previously noted above, Stewart had been ordered the prior workday, January 14, to discharge O'Dell, and thus the events which transpired the day of the discharge could only serve to screen a decision already arrived at. In addition, no reasons were given to O'Dell at the time of his discharge. As O'Dell was the originator of union activities which had caused concern among management, and as Stewart was instructed to terminate O'Dell the day before the date of discharge, it is clear that the events of January 17 could only serve as a convenient pretext for the prearranged decision, and were used to mask the real reason-O'Dell's union activities. Accordingly, we find this discharge was in violation of Section 8(a)(3) and (1) of the Act. We also find that the discharge of Donald Goodman on January 31 was violative of the Act. Goodman did not sign a card until January 14, after he had indicated to McCulloch, upon interrogation, that the Union might be a pretty good thing. Thus, his union sympathies were well known by Respondent. The reasons advanced by Kreiling for the discharge were that he had previously warned Goodman for talking and horseplay on the job, and that on observing Goodman talking again on January 31, he decided to terminate Goodman. However, the record fails to corroborate this self-serving testimony or substantiate why Goodman was singled out from the other employees in plant 2. While Kreiling endeavored to show that he had discussed Goodman's conduct with Dobbs, a leadman, on several occasions, Dobbs, in his testimony, did not affirm this, nor Kreiling's assertion that Dobbs had told him that Goodman had jostled him at work. Indeed, Dobbs' testimony was to the effect that if there was horseplay it was general and he could not "recall any particular employee." Goodman also denied being warned by Kreiling. Nor was there any evidence of disciplinary action against other employees in plant 2 for what was apparently common behavior. Thus, the singling out for discharge of Goodman is logical only in the context of his known attitude in favor of the Union, and is consistent with the Respondent's desire, manifested by its illegal discharges in plant 1, to rid itself of union supporters. Further, we find that the circumstances of employee James Stone's termination in February, show that he was constructively discharged on February 10, and did not quit as found by the Trial Examiner. Under either Stone's or Kreiling's version of the events, Stone's or Kreiling's version of the events, Stone's response to Kreiling's inquiry as to whether Stone was trying to "get fired" or "to depart," was negative. Stone, an employee since January 1963, was then given the "opportunity" to look elsewhere for employment. It is clear that O'Dell called the Union on January 5 from a telephone in Stewart's office, Stewart entered the office while the call was in progress , and at its conclusion suggested O'Dell not say anything on the phone he didn't want "overheard" upstairs Although O'Dell testified that he had no reason to believe Stewart knew who O'Dell was talking to, the nature of Stewart's warning is indicative , we believe , of his knowledge that it concerned the Union, a subject distasteful to Kredmg whose phone was on an extension to the one used by O'Dell 5 As is pointed out by the Trial Examiner, one of the difficulties in this case is the absence of testimony from Stewart , who was a key participant in all the discharges at plant 1 However, in the presentation of his case, the General Counsel's witnesses almost uniformly testified as to what Stewart told them In these circumstances , we are unable to accept the Trial Examiner's conclusion, that General Counsel's failure to call Stewart infers his testimony would have been unfavorable to the General Counsel's case Stewart, whose employment originally had been terminated in January , had been rehired by Respondent and was working for it in a supervisory capacity at the time of the hearing In these circumstances, we are unable to agree with the Trial Examiner, that Stewart's alleged reluctance to help Respondent in the preparation of its case is suggestive of hostility, and justified the Respondent 's failure to call and test such a witness. ACME PRODUCTS Kreiling made evident to Stone that his services were no longer desired, and, while no formal discharge was made, an effective termination was concluded at that time, at the initiative of Kreiling. Moreover, in view of Kreiling's demonstrated antipathy to the Union, and his prior discharge of union adherents, Stone's union membership, and Stone's testimony (not discredited by the Trial Examiner) concerning Kreiling's comment about bringing the Union in, it is evident that Stone's termination was contrived by Kreiling and manifested his continuing desire to rid Respondent of union supporters. Thus, we find that Stone was discharged on February 10 because of Respondent's desire to discourage union activity and eliminate from its employment employees who were union members or otherwise supported the Union. 2. As previously noted, President Kreiling, upon receipt of the Union's letter of January 14 requesting bargaining, authorized Virgil McCulloch to make inquiries among the employees of plant 2 about their attitude toward the Union. The Trial Examiner, in the absence of other violations, found that even if the inquiries were violative of the Act, they were relatively mild and isolated and did not warrant a remedial order. We hold otherwise. Not only do we find McCulloch's interrogations on January 14 to be coercive and thus in violation of Section 8(a)(1) of the Act, but in view of the illegal discharges on that and subsequent dates, we find them to be part of the pattern of action on the part of Respondent intended to discourage union activity, and thereby requiring remedial action. 3. We also find, contrary to the Trial Examiner, that Respondent violated Section 8(a)(5) and (1) of the Act by unlawfully refusing to bargain with the Union. On January 14 Respondent received the Union's letter, notifying Respondent that it represented a majority of the employees in an appropriate unit and requesting Respondent to meet with it for the purpose of bargaining. Kreiling told Union Representatives Slavens and Donath that he did not doubt the Union's claim to a card majority on January 17. At almost the same time he engaged in activity to destroy that majority. Thus, as previously noted, on January 14 employees in plant 2 had been unlawfully interrogated as to their union sympathies, and three employees at plant 1 who had signed authorization cards were illegally discharged. Further illegal discharges occurred on January 17 and 31, and February 10. It is clear, therefore, that the Respondent's refusal to bargain was not motivated by a good-faith doubt as to the Union's majority, but was intended to secure time in which to dissipate the support for the Union.6 Accordingly, we find that Respondent, by its failure and refusal to bargain with the Union on and after January 14 445 (when it received the union demand), engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices affecting commerce, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent has unlawfully failed and refused to bargain with the Union as the representative of its employees in an appropriate unit . We shall therefore require the Respondent to bargain , upon request, with the Union, and, if an understanding is reached, embody such understanding in a signed agreement. Having found that Respondent discriminatorily discharged James Ross on January 14, 1966, Edward O'Dell on January 17, 1966, and Donald Goodman on January 31, 1966, we shall order that Respondent offer the aforementioned employees immediate and full reinstatement to their former or to substantially equivalent positions , without prejudice to their seniority and other rights and privileges, dismissing if necessary any persons hired on or after their discriminatory discharge. As it appears that John Rice, who was discriminatorily discharged on January 14, was subsequently rehired and then voluntarily quit; that Donald Smith, who was discriminatorily discharged on January 14, was rehired in April 1966; and that James Stone, who was discriminatorily discharged on February 10, 1966, was subsequently rehired; and as there is no evidence that Rice, Smith, or Stone were reinstated in a discriminatory manner, or that they were subsequently discriminated against, we shall not order Respondent to now offer reinstatement to them. However, we shall order Respondent to make Rice, Smith, and Stone, as well as Ross, O'Dell, and Goodman, whole for any losses they may have suffered by reason of the discrimination against them, by the payment to each of them of a sum of money equal to that he would have normally earned as wages from the date of his discriminatory discharge to the date of his reinstatement, in the case of Rice, Smith, and Stone, and to the date of the offer of reinstatement, in the case of Ross, O'Dell, and Goodman, less his net earnings during such period. The backpay provided herein shall be computed on a quarterly basis in the manner prescribed in F.W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent for annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. 'Joy Silk Mills , Inc, 85 NLRB 1263, enfd 185 F 2d 732 (C A D C.), cert denied 341 U.S. 914 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the nature and extent of the unfair labor practices engaged in by the Respondent, the commission of other unfair labor practices may be reasonably anticipated, and we shall, therefore, order Respondent to cease and desist from in any other manner infringing upon the rights of its employees guaranteed by Section 7 of the Act, in addition to those rights found to have been violated herein. CONCLUSIONS OF LAW 1. Acme Products, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at the 1406 Agnes plant and 1007 East 16th Street plant of Acme Products, Inc., Kansas City, Missouri, including warehouse employees, but excluding office-clerical employees, guards, professional employees, and supervisors as defined by the Act. 4. At all times since January 14, 1966, the aforesaid labor organization has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By failing and refusing to bargain collectively with the aforesaid labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By discriminatorily discharging John Rice, James Ross, Donald Smith, Edward O'Dell, Donald Goodman, and James Stone, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By the foregoing unfair labor practices and by coercively interrogating employees regarding their union sympathies, the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights under Section 7 of the Act, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Acme Products , Inc., Kansas City, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization , by discharging or in any other manner discriminating against any employee in regard to hire or tenure of employment, or any other term or condition of employment. (b) Coercively interrogating employees regarding their union sympathies in order to discourage employees from joining, remaining members of, or assisting District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (c) Refusing to bargain collectively with District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (d) In any other manner interfering with, restraining , or coercing its employees in the exercise of their right to self-organization , to form labor organizations , to join or assist District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, and to refrain from engaging in such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at the 1406 Agnes plant and the 1007 East 16th Street plant of Acme Products, Inc., Kansas City, Missouri, including warehouse employees, but excluding office-clerical employees, guards, professional employees, and supervisors as defined by the Act. ACME PRODUCTS (b) Notify James Ross, Edward O'Dell, and Donald Goodman if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Offer James Ross, Edward O'Dell, and Donald Goodman, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make whole James Ross, John Rice, Donald Smith, Edward O'Dell, Donald Goodman, and James Stone for any loss they may have suffered as a result of the discrimination against them, all in the manner provided in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and other records necessary to analyze the amounts of backpay due James Ross, John Rice, Donald Smith, Edward O'Dell, Donald Goodman, and James Stone. (e) Post at its plants in Kansas City, Missouri, copies of the attached notice marked "Appendix."7 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by the Company's representative, be posted 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 the Company to ensure that such notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. MEMBER BROWN, dissenting: I would dismiss the complaint as recommended by the Trial Examiner. There are, to be sure, suspicious circumstances attending the discharges of the complainants. But the testimony which the Trial Examiner has credited, and which I accept, provides lawful reasons for the terminations. In the face of these findings, I am unable to conclude that the record establishes by a preponderance of the evidence that the discharges were discriminatorily motivated. So finding, I must also agree with the Trial Examiner that the 8(a)(5) allegation of the complaint is insufficiently supported by the record. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be-substituted for the 447 the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, by discharging any of our employees or in any other manner discriminating against our employees in regard to hire or tenure of employment or any other term or condition of employment, because of their union membership or activities. WE WILL NOT coercively interrogate our employees regarding their union sympathies in order to discourage our employees from joining, remaining members of, or assisting District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WILL NOT refuse to bargain collectively with District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or remain members of or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer James Ross, Edward O'Dell, and Donald Goodman, to the extent we have not already done so, - immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make whole James Ross, John Rice, Donald Smith, Edward O'Dell, Donald Goodman, and James Stone for any loss they may have suffered as a result of the discrimination against them. words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL notify James Ross, Edward O'Dell, and Donald Goodman if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL, upon request, bargain collectively with District Lodge No. 71, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all production and maintenance employees at our 1406 Agnes plant and 1007 East 16th Street plant, Kansas City, Missouri, including warehouse employees, but excluding office-clerical employees, guards, professional employees, and supervisors as defined by the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. ACME PRODUCTS, INC. (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this notice or compliance with its provisions, they may, communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-7000. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner: I heard this case at Kansas City, Missouri, on May 10-12, 1966, following pretrial procedures in compliance with the Act.' Following the hearing, briefs were filed with me by counsel for the General Counsel and for Respondent. Issues Presented The complaint alleges, and Respondent's answer denies, that Respondent: (1) discharged six employees i Following charges filed on January 24 and March 16, 1966, by the Charging Party , District Lodge No 71, International Association of Machinists and Aerospace Workers, AFL-CIO (herein usually called the Union ), the complaint issued on March 28, 1966, and Respondent filed its answer dated April 6, 1966 2 The transcript of testimony contains a number of errors but I do not formally correct them since they are obvious or otherwise harmless 3 The figure of 14 includes the 13 workers shown on Respondent's payroll (G. C Exh 2) and stipulated by counsel as within the production and maintenance unit alleged in the complaint It also includes Hawkins , an employee engaged in cleanup work at plant 2 and in the hauling of materials between the plants because of their union activities; (2) refused to bargain with the Union as the majority representative of Respondent's production and maintenance employees; and (3) engaged in certain unlawful interrogation and other allegedly coercive conduct. Upon the entire record in the case,2 including my observation of the demeanor of the witnesses, I make the findings of fact and conclusions of law stated below. FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT ; THE LABOR ORGANIZATION INVOLVED Utilizing two plant facilities in Kansas City, Missouri, Respondent is engaged in the manufacture and sale of trailer hitches and related products , and in this business annually receives from suppliers located outside the State of Missouri materials, and annually sells to customers located outside that State products , each valued in excess of $50,000. Respondent is engaged in commerce, and in operations affecting commerce, within the meaning of Section 2(6) and (7) of the Act. The Charging Party, the Union named in the caption, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Respondent, a small enterprise, manufactures the parts for its trailer hitches at one plant (plant 1, located on Agnes Street), and assembles and ships completed hitches at another (plant 2, located on East 16th Street). It has a busy season extending from about February through July, and has corresponding employment fluctuations; in prior years, its production personnel has varied from a low of about 8 in the off-season period to about 23-24 during the busy season. On January 14, 1966, a date pertinent to the charges herein, it had some 14 nonsupervisory production employees.3 At the times pertinent to this case, Respondent's managerial and plant supervisory staff was small, consisting of William Kreiling, Respondent's president, and (except for the period noted below) "Jack" Stewart, foreman of production at plant 1.4 A. Events Leading to the Violations Charged According to President Kreiling, on December 2, 1965, he held separate meetings of the employees at plants 1 and 2 at which he informed them of the prevailing low level of production efficiency as shown by certain studies or investigations Respondent had made;5 informed them of Respondent's conclusions that the low efficiency was due to time spent by the employees in "horseplay, talking, and Stewart was discharged about February 1 and rehired in his foreman position about March 1 ' Respondent employed one Virgil McCulloch sometime in October 1965 and entrusted him with functions having to do in the main with improvement of production efficiency McCulloch made certain corresponding studies of past and current rates of production, which according to Kreihng showed a severe decline in efficiency over levels prevailing in prior years At issue in the case is whether McCulloch, who left Respondent's employ about mid-February 1966, was a supervisor, agent, or representative of Respondent at the time , January 14 , he allegedly engaged in certain interrogation McCulloch did not testify at the hearing ACME PRODUCTS time spent in toilets"; and appealed for their cooperation with the admonition that Respondent would keep watch to see what improvement there was in production during the next month. Such employee witnesses called by the General Counsel as were queried on the subject at the hearing were unable to remember any such December 2 meetings as Kreiling described, but none testified that no such meetings were held. Accordingly, I find that the meeting took place and was of the general tenor as described by Kreiling. On January 3, 1966, Kreiling called a meeting of the employees of plant 1. Combining those portions of the uncontradicted testimony of Kreiling and of employee witnesses as refer to what he said on this occasion, Kreiling informed the employees that the production situation had deteriorated rather than having improved; that Respondent desired to build up a good force for the coming peak season; that Respondent was going to set up production schedules or quotas for the employees and make other changes; and that the employees would have to meet such requirements or "go down the road whistling `Dixie"'; i.e., be discharged. There is conflicting testimony as to whether Kreiling made any reference at this meeting to employee noncompliance with "work rules," but I am satisfied that, whatever his words, Kreiling made it known at this meeting that he was attributing the unsatisfactory production levels to employee neglects of duty in the form of talking, horesplay, etc.6 As a result of Kreiling's remarks at this meeting, talk concerning the desirability of unionization developed among various employees and crystallized, through an arrangement made by employee O'Dell, in seven of Respondent's employees meeting with union representatives at the union headquarters on the evening of January 10, at which time these seven signed union authorization cards. At a second such meeting on January 12, two additional employees signed such cards, and two more signed on January 14.7 B. The Union's Letter and Surrounding Events On the morning of January 14, Kreiling received from the Union a letter dispatched the day before (G. C. Exh. 3), in which the Union asserted its majority representation of Respondent's production and maintenance employees and proposed that bargaining begin on January 18 at the Union's office. In the course of the morning, Kreiling discussed the Union's letter with Foreman Stewart and McCulloch and in this or some other conversation with McCulloch characterized the letter as indicating dissatisfaction among the employees at plant 2. According to Kreiling, he asked McCulloch if he knew why the ° There is a conflict in the testimony as to whether at this meeting Kreiling stated that he was relieving Foreman Stewart of the power to hire and fire and giving these authorities to McCulloch, the author of the efficiency studies (see fn 5, supra). My disposition of the issues makes it unnecessary to resolve this conflict ' Respondent does not dispute the Union's majority representation on the basis of the cards if that method of determination is appropriate in this case " Bearing in mind that Foreman Stewart had no supervisory authority over plant 2 while McCulloch had been in frequent contact with the employees at that plant in connection with his production responsibilities, including the establishment of production schedules or quotas at that plant, I find that Kreiling authorized McCulloch to investigate the situation among the 449 employees "down there" should be dissatisfied, and that after responding in the negative McCulloch offered to visit plant 2 "and check it out for" Kreiling. In the circumstances, and bearing in mind Kreiling's rather qualified testimony on the matter, I am satisfied and find that Kreiling authorized McCulloch to make inquiries among the employees at plant 2 as a consequence of Kreiling's receipt of the Union's letter.8 McCulloch spoke separately to each of the employees at plant 2. Two of them testified and their testimony is uncontradicted.9 Employee Goodman testified that McCulloch led off with the statement that he supposed Goodman knew that the Union was "trying to get in." Goodman responded that he did. McCulloch then stated that he would not say anything "either way" about it-that he thought everybody had a right to his own opinion, but went on to ask Goodman how he felt about it. Goodman replied that he thought it was a good thing and McCulloch asked Goodman why he thought that way. Goodman mentioned the "wage standpoint," whereupon McCulloch stated that he would not say anything either way and reiterated his view that everyone had a right to his own opinion. In the case of employee Dobbs, the sort of "leadman" at plant 2, Dobbs started the conversation, as McCulloch sat down, with the remark that McCulloch acted like he had lost his best friend, to which comment McCulloch responded with the statement that he "was on fire" over the Union. McCulloch then asked Dobbs if he knew anything about it and Dobbs replied he had heard talk but did not know how strong the Union was.10 Dobbs then asked McCulloch what he thought about the Union and McCulloch said he thought it might help and, joining in this view, Dobbs told McCulloch he thought this was the only way things would straighten out. Dobbs then learned from employee Davis that there was some difference (not explained on the record) between what McCulloch had said to Davis and what he had said to Dobbs. As a result, Dobbs telephoned to President Kreiling, informed him that McCulloch had told him "one story" and Davis another," and told Kreiling he thought it would be to Kreiling's benefit that he, rather than McCulloch, speak to the plant 2 employees. Kreiling then came to plant 2 and spoke to the five employees there as a group. Upon consideration of the testimony of employees and of Kreiling, I find that on this occasion Kreiling reviewed with the employees cost and price factors bearing upon Respondent's competitive position and Respondent's need to keep its prices down in order to retain its business with such a customer as Montgomery Ward; explained why there had been no raises while stating he would try to grant raises if production efficiency improved; and appealed to the group to state the bases of their dissatisfaction, if they had any, for such answers as employees at plant 2 because he was peculiarly well situated to do so ° McCulloch, who left Respondent's employ in mid-February, was not a witness at the hearing 10 Dobbs did in fact know how strong the Union was because he attended both the January 10 and 12 meetings of the card signing employees (he signed at the first meeting), was aware of the decision made at the second meeting that the Union would send Respondent a written request for recognition and bargaining, and earlier on the morning of his conversation with McCulloch had seen an unopened letter from the Union to Respondent at plant 2. 'Dobbs testified that he made his qualified response to McCulloch because he feared for his job ' i There is no evidence as to what it was that McCulloch said to Davis, neither of whom testified 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could make. Because the employees made no response to this invitation, Kreiling spoke to each of the plant 2 employees individually on Monday, January 17, asking them to tell him about their dissatisfaction. The only employee witness to give an account of his conversation with Kreiling was Goodman, who testified, and I find, that Kreiling stated he was speaking to each of the employees because he did not wish anyone to be in a position to say that he had not been given an opportunity to talk to him, and asked Goodman if he had anything to say to him; Goodman declined; and in the course of his remarks, Kreiling stated that he did not like the way some people had been going behind his back rather than bringing their grievances to him. C. The Discharges of Rice, Ross, and Smith At the end of the workday on January 14, employees Rice, Ross, and Smith, all employed at plant 1 and each of whom had previously signed union cards, were discharged by Foreman Stewart. Stewart told them, in effect, that he was having to let them go at the direction of Kreiling, because Kreiling had told him their production or work had not been good enough, although, Stewart added, it was good enough for him. According to Ross, Smith asked Stewart whether Kreiling had received the Union's letter and Stewart first replied that he did not know, later said he thought Kreiling had received the letter, and finally said he could not say one way or another. According to Rice, the question Smith put was whether the discharges were "over the union," to which Stewart replied that he did not know and could not say one way or another. Smith did not testify as to what was said by him and by Stewart in this connection and Stewart did not testify at the hearing, see infra, fn. 12.12 12 About 10 p.m. that same evening Foreman Stewart telephoned to employee Cox, his former son-in-law who was a sort of leadman under Stewart relative to punch and doll press machine operations at plant 1 Cox, a witness called by the General Counsel, stated that Stewart told him he had just gotten home and that he had been down at the plant "arguing ", that he had to let Rice, Ross , and Smith go and "was going to have" to let O'Dell go, and that "they" were "mad" or "hot" about the Union. However, Cox declined to testify that Stewart had said that the Union was what the "arguing" was about or that Stewart had told him that, under a pretext, the men had been discharged because of the Union. Apparently, counsel for the General Counsel considered Cox's testimony at variance from what counsel had expected on the basis of a pretrial statement of Cox, and sought to introduce the pretrial statement in evidence as affirmative proof of what Stewart had said, an offer which I rejected. I observed Cox closely during this interrogation and, while he was obviously testifying under some strain, I am unable to find, on the basis of his demeanor, that the testimony he gave was other than his best honest recollection irrespective of what may have been contained in his pretrial statement, which was placed in a "Rejected Exhibits" file. For all I could tell in observing Cox, his strain may have been due to his having stated more than the actual facts justified in his pretrial statement "At the conclusion of Respondent 's case, Browne, senior counsel for Respondent, stated for the record as follows If the Examiner please, before concluding our case, I just simply want to state for the record that Mr Stewart, who has been referred to in this proceeding has been subpoenaed by the General Counsel. The General Counsel has secured a couple of statements from Mr Stewart We are not calling Mr Stewart because we were not able to obtain any testimony from him He stated that he had given his statement to the Board . Because we were not able to prepare Mr Stewart, we are not calling him as a witness Respondent's case relative to these discharges (and all other issues in the case) was presented exclusively through the testimony of President Kreiling; as previously noted, Foreman Stewart was not a witness at the hearing.13 On his direct examination, Kreiling testified that in the period January 7-10 he and Foreman Stewart had several conversations relative to the unsatisfactory work of Ross and Smith. Interrupted at this point, Kreiling then stated that these conversations were between him, Stewart, and employee Cox, related to the work of Ross, and had resulted in a determination to discharge Ross at the end of his 2-week trial period (Ross began work on January 6) because of his horseplay, talking, and the like. Kreiling further testified that during the morning of January 14 he observed Rice, Ross, and Smith talking and that after telling them to "break it up," he reported the incident to Foreman Stewart and that Stewart had informed him that he had "warned" the three that day and that they had similarly been warned by Cox. Kreiling further testified on direct that during the afternoon he observed the three men throwing metal slugs (waste items produced by the punch press machines) at each other, whereupon he went to Stewart's office and told Stewart that in view of the warnings the men had received he felt that "we should let them go." (Although Kreiling did not specifically so testify, I infer that he instructed Stewart to discharge the men, as Stewart in fact did.) According to Kreiling, Stewart said that they were already going to discharge Ross and Smith but he asked Kreiling why he was discharging Rice. Kreiling explained that all three were guilty of the slug-throwing incident but emphasized to Stewart that when Stewart gave Rice his check Stewart should tell Rice to talk to Kreiling if he, Rice, thought he was getting a raw deal.14 There then occurred the following- TRIAL EXAMINER ' Is Stewart now working for the company? MR BROWNE Yes Mr Stewart was here the first day of the hearing in response to the General Counsel's subpoena. TRIAL EXAMINER Well, of course , you could have subpoenaed him too MR BROWNE. Yes, we could, but we have not had an opportunity to discuss the preparation of the case with him and, you see, if we call him, we wouldn't know what his testimony would be. The General Counsel, on the other hand, has two statements from him. 14 According to Kreiling, he expressed this reservation about Rice because Rice's work was "highly satisfactory" and he, Kreiling, had no knowledge on the 14th of any warning given to Rice poor to that day Stewart did pass Kreiling 's message to Rice on the 14th but Rice did not seek to see Kreiling that day. In the following days Kredmg sought to be in touch with Rice and succeeded via a letter to Rice's father-in-law, whereupon Rice, at the suggestion of a Board agent, called on Kreiling at the plant In the course of the conversation, according to Kreilmg, he told Rice that he had been trying to reach Rice in order to rectify matters if he had wronged Rice and wanted Rice's version of the slug- throwing incident; and that Rice had explained that the other two were throwing slugs at him and that he was a victim of circumstances. According to Rice, Kreilmg referred to his desire to see Rice and his efforts to reach him, stated that he did not know how Rice felt about that Union but that it was going to come in and that he, Kreiling, was not "going to fight it", and that he did not know how he could make it up to Rice for his days of work lost but that Rice could go back to work that morning if he wished to. Rice did resume work that morning, and later voluntarily quit Respondent's employ. In April Respondent called Smith back to work ACME PRODUCTS 451 Called as rebuttal witnesses by the General Counsel, Rice, Ross, and Smith denied that they had engaged in any slug throwing on January 14 or that Kreiling had spoken to them that morning. Respondent then recalled Kreiling, who confirmed his previous testimony that he had seen the three engaged in throwing the slugs. D. The Discharge of O'Dell O'Dell, hired in March 1965, was a union card signer and the employee who made the initial contact with the Union following Kreiling's talk to the plant 1 employees on January 3.15 According to O'Dell, at what I presume was the end of the day on January 17, Stewart handed him a check saying "I have got something for you, Pappy" (Pappy being a nickname for O'Dell), and with these his only words Stewart thus discharged him. Three days later, O'Dell testified he telephoned to Stewart at the latter's home, and after some pleasantries, asked Stewart why "we was fired." Stewart replied he did not know and that O'Dell's work had been satisfactory to him or he would have fired him long before. Concerning this discharge, Kreiling testified on direct that in the fall of 1965, early in January, and during the week ending January 14, he had had discussions with Stewart concerning O'Dell's "continual smoking in the toilet and the pretty much wandering around the plant not working"; and that Stewart had acknowledged these derelictions of O'Dell but had prevailed on Kreiling not to take discharge action "out of sympathy" for O'Dell. Kreiling further testified that both during the morning and again on the afternoon of January 17 he had noticed O'Dell away from his job for a prolonged period "evidently ... in the toilet"; that he mentioned these incidents to Stewart, who agreed that O'Dell was in the toilet; and that he told Stewart of the "numerous warnings" O'Dell had had during the past months of the bad example O'Dell's toilet jaunts were setting for the other employees , and that "we would let him go that evening."16 On the basis of Kreiling's testimony, not denied by O'Dell, I find that O'Dell asked Kreiling to rehire him in a telephone call O'Dell placed to Kreiling about February 1; that in this talk O'Dell admitted he had been in the wrong on several things; and that Kreiling declined to take O'Dell back. E. Respondent's Response to the Union's Bargaining Request and Representation Claims When President Kreiling reached his office on the morning of January 14, he received the Union's letter of January 13, in which the Union asserted its claim of majority representation and requested a bargaining session on January 18. On January 14, a Friday, the Union also filed with the Board's Regional Office in Kansas City a petition for certification as the employees' majority representative , a copy of which petition Kreiling received on Monday, January 17. At or about noon on the 17th, Union Representatives Slavens and Donath telephoned to Kreiling. They requested a meeting to discuss the discharges of Ross, Rice, and Smith, which had occurred in the meantime , and proposed an impartial card check as a means of proving their claims that a majority of the employees had signed union authorization cards.[' Kreiling's reply was to the effect that he did not doubt the Union's claim to a card majority but wished to consult his attorneys and would call Slavens later that day. Not having heard from Kreiling by the time (2,p.m.) Kreiling had indicated, Slavens again called Kreiling, who informed Slavens that he would be unable to meet with his counsel until the next day, January 18. Slavens called Kreiling again on the afternoon of January 18, at which time Kreiling stated that as a result of his meeting with counsel (Browne and Whitacre)1B he had decided that the Union's representation claim should be processed through the Board, a decision which, in the light of Browne's letter of that same date to the Union must have been taken on the advice of counsel. The text of Browne's letter (Resp. Exh. 2) reads as follows: Your letter of January 13, 1966, has been turned over to me for attention. We have also been advised that a petition has been filed by your organization asserting a question of representation. The matter should be further processed by the Board for the purpose of determining the issues involved.19 F. The Discharge of Employee Goodman At the end of the workday on January 31, McCulloch came to plant 2 where Goodman, a union card signer, 15 O'Dell initiated two telephone calls to the Union on January 5 Nothing turns on the first one. He testified that after he had concluded the second one from a telephone located in Stewart's office, Stewart told him not to say anything over the telephone which he did not want overheard "upstairs " But O'Dell conceded that Stewart was not present when he placed this call and that he had no reason to believe that Stewart, who entered the office while the conversation was in progress, had overheard the talk or knew that it involved the Union Hence, I attach no significance to this evidence. 16 On cross-examination , Kreiling testified that subsequent to the fall of 1965, O'Dell had been warned ( apparently relative to prolonged stays and/or suspicion of smoking in the toilet) on many occasions (Smoking in the toilet was hazardous due to the location of the toilet in the paint department or area ) Asked to particularize , Kredmg testified he had warned O'Dell on one occasion and that he had asked Stewart to do so on several others He admitted , however, that neither he nor Stewart had observed O'Dell smoking in the toilet , and that he had never inspected the toilet on any such occasions He asserted , however, that Stewart had made such inspections and that it was obvious , presumably to Stewart, that someone had been smoking there Called in rebuttal , O'Dell testified that he had not smoked in the toilet on January 14 or 17, and that he had never been criticized for smoking in the toilet but had been merely "told" not to do so (by Stewart) on one occasion dating back to the earliest days of his employment in March 1965. 1' Union authorization cards in evidence (G. C Exhs 9-14, inclusive) establish that 9 such cards were signed by January 12, and 11 by January 14 These cards were valid designations as Respondent does not dispute, hence, on January 12, 14, and thereafter, the Union represented a majority of the employees in the concededly appropriate unit of production and maintenance employees , a unit which at the most would have a total of 15 employees. This makes it unnecessary to consider, as counsel have not done in their briefs, the status of employees McCulloch and Hawkins. 18 On January 14, Kredmg had discussed the Union's letter of January 13 with a member of his board of directors, who had recommended to Kreiling that he retain Browne , whom I infer Kreiling had not previously known, as counsel The record does not show when Kreiling first reached Browne but it is a reasonable inference from the record that January 18 was the earliest date upon which counsel were available to confer with Kreiling. 19 Presumably, in line with Board practice, the Board's Regional Director suspended action indefinitely upon the Union's representation petition when, on January 24, the Union filed its first charge with the Regional Director alleging, among other things, Respondent's refusal to bargain 298-668 0-69-30 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD worked and gave Goodman a check. In doing so, McCulloch explained that that morning Kreiling had told him to give Goodman his check that night. A few moments later, Goodman returned to McCulloch and asked him why he was being discharged. McCulloch's reply was that all that Kreiling had said was that Goodman had been talking too much with other employees. Goodman further testified that Kreiling had been down at plant 2 that morning but that Kreiling had never spoken to him about talking to other employees. Kreiling testified that on some occasions in late January he had noticed "talking and horesplay" among the employees at plant 2; that he asked Dobbs, the sort of leadman at that plant, who the main troublemakers were so that Kreiling could talk to them; and that Dobbs had stated that Goodman had been wont to jostle him at work and Dobbs had told Goodman to "knock it off." On another occasion during this period, Kreiling testified, he told Dobbs in the office that he had noticed Goodman talking on the job and Dobbs had replied that it was pretty hard to "stop them." Thereupon, Kreiling testified, he called Goodman into the office, gave Goodman a "warning" for talking, and pointed to discharge as the penalty for a further such offense. A few days later, on January 31, Kreiling testified, he again observed Goodman talking, called this to Dobbs' attention, and told Dobbs he would send Goodman's final check down later that day, which he did.20 Dobbs, who preceded Kreiling to the stand, testified that he could not recall having told Kreiling in late January that Goodman had been jostling him around or bothering him, or whether he had reprimanded Goodman in this regard, but went on to volunteer that "messing around" and "horseplay" went on everyday and was something "we talk about every day." Dobbs gave further testimony which, while lacking in precision , fairly indicates that Kreiling had periodically enjoined employees at plant 2 against "horseplay" and the like. G. The Case of Employee St one Stone, one of the early union card signers, first testified on direct that on Thursday, February 10, Kreiling called him into the foreman's office and asked him if he would like "to depart," to which Stone replied "Not necessarily"; that following some remarks Kreiling then made about the union activity among the employees'21 Kreiling asked Stone if he wished to look for another job, and Stone replied that he would; and that Kreiling, after agreeing to pay Stone for the balance of the week, gave Stone a letter of recommendation and a list of places 20 Kreiling could not remember whether he, McCulloch, or someone else took the check to plant 2 for delivery to Goodman 21 Stone testified, and Kreiling denied, that Kredmg said he knew "we were trying to get a union in" and that employee Dobbs was one of the men so involved at plant 2 22 There being no real conflict in the further testimony of Stone and Kreding, I find that when Kretltng was informed a month or so later that Stone (who had not found steady work) was available, he had Foreman Stewart send word to Stone to come in and, when Stone did so, rehired him When Stone was put back to work, Kreiling gave him a 10-cent-per-hour increase over his previous rate, but the evidence indicates this increase was in line with a general pattern of small increases Respondent had made in the interim which are not challenged by the complaint herein 23 Among other things, Stewart would seem to have been in a position to give illuminating testimony on such matters as (1) whether, as of January 14, marked inattention to duty prevailed among the employees and whether Kreihng had made clear his determination to require improvement and take where Stone could seek employment. After giving this and some further testimony, and after stating that he could not remember anything else that transpired in his conversation with Kreiling, Stone was, with my permission, asked the leading question whether Kreiling had asked him whether he was "trying to get fired" that day. Stone then testified that this question was put to him by Kreiling, that he replied in the negative, and that Kreiling said that Stone had been doing too much talking that day while performing some painting work and that he, Kreiling, "thought they was going to have to let me go." Stone's testimony places these remarks as preceding the references Kreiling made to the employees' union activity. Kreiling's testimony is as summarized in this paragraph. From about the first of February he noticed that Stone was spending excessive time in the toilet and such an incident took place on February 10 which he called to Stone's attention. This happened again later that day, whereupon he called Stone into the foreman's office where he asked Stone if he was trying "to get fired." Stone replied that he did not think so. Kreiling told him that he was disregarding Kreiling's previous admonitions to the employees and that there must be some dissatisfaction on Stone's part which was causing him to disregard the "rules." Stone responded that Respondent did not pay enough, whereupon Kreiling told Stone that Respondent paid as much as it could justify but he did not want to stand in Stone's way if Stone thought he could do better elsewhere. Kreiling further offered to pay Stone for the balance of the week if he wished to look for another job; told Stone he thought he could get Stone such a place; and to that end gave Stone a letter of recommendation plus a list of firms and told Stone to return on Friday (apparently the next day) and "check" with Kreiling, presumably as to the success of his search for another place of employment. On Friday, Stone told Kreiling that he had been unable to "get around" due to car trouble. Kreiling told Stone something to the effect that they "would keep this thing going for a couple of days next week" and for Stone to make contact with the firms whose names Kreiling had given to Stone and report to Kreiling. Stone did not so report to Kreiling.22 Concluding Analysis and Findings The record before me is woefully deficient for lack of the testimony of Foreman Stewart. For in the light of his involvement in many of the events left shrouded in darkness or conflict by this record, he must have been in possession of knowledge which would go far to support or negate the charges of unfair labor practices involved in this case. 23 But Stewart was not called to the stand, either necessary disciplinary action, (2) what was the nature of the discussion Kreihng had with him and McCulloch on January 14 relative to the union letter Kreiling received that morning, (3) what he observed and what Kretltng told him on January 14 relative to the conduct and discharge of Rice, Ross, and Smith (and possibly O'Dell), and, in particular, whether at that time , Kredmg evidenced actual or suspected knowledge of their adherence to the Union or otherwise evidenced a purpose to discharge them on such grounds, (4) what transpired in the (apparently lengthy) session he had, presumably with Kretltng, during the evening of January 14 referred to but not satisfactorily described in the hearsay testimony of employee Cox, (5) whether various employees discharged had been warned,by Stewart, as asserted by Kreiling, and, in general , (6) whether anything Kredmg did or said after receipt of the union letter evidenced Kreding's knowledge of the identity of union supporters or the existence or absence of any discriminatory purpose on the part of Kredmg responsive to the employees' union activity ACME PRODUCTS by the General Counsel or by the Respondent, although he was present at the outset of the hearing under subpena of the General Counsel. As for counsel for the General Counsel, it seems fair to infer that he did not call Stewart because, having taken two statements from him, Stewart was not in a position to give testimony lending support to the General Counsel's complaint in pertinent respects. As for Respondent, Stewart's refusal to be interviewed in preparation for trial certainly was suggestive of his hostility to Respondent, a possibility which could give any counsel pause .24 In the circumstances , I am unable to conclude that an inference that, if called, Stewart's testimony would have been unfavorable to Respondent should be drawn because of Respondent's failure to call Stewart to the stand.25 The record I have compels me to find that, as manifested by Kreiling's testimony concerning the employee meetings held in early December and January, there was a state of neglect of duty widely prevalent among Respondent's employees and a firm determination on Kreiling's part to take corrective disciplinary action which he evidenced to the employees; and that it was Kreiling's determination to do so, as announced at the January meeting, which brought on the unionization movement among the employees. In short, Respondent's deep concern over and determination to deal firmly with lack of discipline preceded the union movement. As another overall circumstance of significance, the record before me does not permit a finding that Kreiling was strongly hostile to the advent of the Union or was bent on retaliating through discriminatory action. No such sentiments or intentions were evidenced in what Kreiling said to the plant 2 employees whom he spoke to on January 14 or 17, or in his conversations with the union representatives on January 17 and 18, and only a few days later Kreiling told Rice that he did not know how Rice felt about the Union but he, Kreiling, was not going to fight it. No doubt Kreiling was surprised and disconcerted or displeased by the employees' union activities, but his principal reactions disclosed on this record, as manifested to the employees he talked to (his description of Respondent's cost-price-competition situation, as he had done earlier) and his inquiries concerning the causes of employee dissatisfaction, were relatively mild and not the kind which plainly indicates or suggests a purpose to penalize. At the same time, he was deeply concerned over plant discipline and was entitled to safeguard it, irrespective of the employees' union activities and their origin in his concern over a matter within his province to treat. Finally, there is no evidence that Kreiling knew of the union activities of the employees discharged more or less immediately upon receipt of the Union's letter (Rice, Ross, Smith, and O'Dell), and the two employees, Dobbs and Goodman, who he presumably then knew to be union adherents (through McCulloch's January 14 inquiries) were not then discharged, as would have been likely had to While the matter is not touched on in this connection by counsel for the parties, the record shows that because of some disagreement between them, Kreding discharged Stewart about the end of January, rehiring him a month later Nothing further about this incident is disclosed in the record L' Had the full significance of Stewart's potential testimony been apparent to me during the hearing, it might well have been in order for me to call Stewart as the Trial Examiner's witness, and subject, in effect, to cross- examination by counsel for the parties 16 It will be recalled that the inquiries Kreiling (and McCulloch) 453 Kreiling been imbued with virile antiunion hostility and a purpose to get rid of union supporters. 1. The Discharges of Rice, Ross, and Smith I find that Rice, Ross, and Smith were discharged for the reasons Kreiling gave and not because of their union activities. In so finding, I specifically credit Kreiling's testimony concerning the slug-throwing incident, simply because I see no reason, on the testimony and my demeanor observations, to consider Kreiling's testimony any less reliable than the contradictory testimony of the three employees. Furthermore, there is no evidence that Kreiling knew that any of the three were among the union supporters, and I do not see in the surrounding circumstances enough to warrant a finding that he suspected these three as among that group (if that fact could be considered as one put in issue herein.)26 In any event, as I view the matter, Kreiling had reached the end of his tolerance and discharged the three to the end of enforcing necessary plant discipline. 2. The Discharge of O'Dell I credit Kreiling's testimony and find that O'Dell was discharged for the reasons Kreiling gave and not because of his union activities.27 3. The Discharge of Goodman That there was a lack of discipline among the employees at plant 2 was, in effect, conceded by leadman Dobbs, who also did not directly dispute Kreiling's testimony that, shortly before January 31, Dobbs had identified Goodman to Kreiling as a particular offender. Nor did Dobbs refute Kreiling's testimony that on the morning of January 31 Kreihng told Dobbs that he would discharge Goodman at the end of that day because of his further "talking" that morning.28 In the circumstances, I credit Kreiling's testimony and find that Goodman was discharged for the reasons Kreiling gave. 4. The Case of Stone On the evidence before me, I find the central facts to be that in the course of an interview in which Kreiling was setting out to reprimand Stone for talking and to warn Stone of possible discharge (and in which Kreiling asked Stone if he was trying for this reason to get fired), Stone confirmed that he was dissatisfied with his pay and responded affirmatively to Kreiling's inquiry whether he wished to look for another job; that, without then discharging Stone, Kreiling gave Stone a list of firms and a letter of recommendation and leave to pursue these possibilities; and that while the matter of Stone's status as an employee of Respondent remained in limbo Stone in effect quit by failing to keep Kreiling advised relative to made on January 14 were limited to employees at plant 2, whereas Rice, Ross, and Smith worked at plant 1 11 Kreiling's later refusal to rehire O'Dell, contrasted with his rehire of Rice, Smith, and Stone, is some indication that, as Kreding testified, O'Dell had been an outstanding and prolonged offender in the abuse of working time 18 The main conflict in the testimony is whether, as Kreihng testified and Goodman dented, Kreibng had warned Goodman for talking a few days before his discharge on the 31st. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his efforts to find another position.29 Accordingly, I find that Stone, whom Kreiling later put back to work, was not discharged. The Alleged Coercive Inquiries and Statements The complaint charges Respondent with unlawful interrogation based on McCulloch's inquiries to employee Goodman and Dobbs at plant 2 on January 14, as to how they felt about the Union. Respondent was responsible for McCulloch's conduct on this occasion in view of my earlier findings that McCulloch made his inquiries with Kreiling's approval .30 It is, however, a close question whether the inquiries were coercive bearing in mind the full scope of the conversations, in which McCulloch twice told Goodman that everyone was entitled to his own opinion and told Dobbs that a union might help. But assuming the inquiries were nevertheless violative of the Act, they were relatively mild and isolated ones. Hence, and since I find no other violations, I do not consider they would warrant a remedial order. The complaint further charges a coercive threat of discharge, and the creation of an impression of surveillance of employees' union activities, based on Kreiling's alleged remarks to Stone, on February 10, that he knew "we were trying to get a union in" and of Dobbs as one of the employees involved. Counsel for the General Counsel seeks to construct the alleged threat of discharge by combining the first of these remarks with Kreiling's inquiry of Stone as to whether he was trying to get fired. But this combination is not warranted in view of my findings that the inquiry as to whether Stone was trying to get fired was connected by Kreiling with Stone's asserted talking. And the remarks, if made, could scarcely have been regarded by Stone as indicative of furtive surveillance, since at the time they were made Kreiling had for over 2 weeks known from perfectly legitimate channels-the union letter and related events-that union activity had taken and presumably still was taking place. The dispatch of the letter, and necessarily its arrival, were known to the union supporting employees, of whom Stone was one. And Dobbs' prounion position presumably became known to Kreiling on January 14, when Dobbs disclosed it to McCulloch. In these circumstances, and absent something said by Kreiling to suggest that his information had been obtained in some clandestine fashion, I consider this alleged violation not made out by the proof,3I assuming the remarks were made. The Alleged Refusal to Bargain Under settled Board and court decisions, Respondent was entitled to have the Union' s claim to majority representation and bargaining rights put to the test of an election, as the Union had petitioned, provided Respondent did not, through unfair labor practices, seek to undermine or destroy the Union's position or candidacy as a freely chosen representative of Respondent's employees. Since I have found against the General Counsel on all charges of violation sufficient, if sustained, to deprive Respondent of the right to refrain from extending recognition pending an election, the charge of refusal to bargain cannot be sustained. CONCLUSIONS OF LAW Save for the charge of unlawful interrogation, the violations alleged in the complaint are not established by a preponderance of the evidence and the charge of unlawful interrogation, if sustained by the evidence, is not sufficient to warrant a remedial order. RECOMMENDED ORDER It is recommended that the complaint 'herein be dismissed in its entirety. '° In the circumstances, it appears unnecessary to decide whether, as asserted by Stone and denied by Kreihng, in the course of this conversation Kreihng said that he knew "we were trying to get a union in" and that employee Dobbs was one of the employees so involved In any case, however, I am satisfied that Stone was able to give only an incomplete and sketchy account of the total conversation and one, therefore, which cannot be relied upon to establish the context of these remarks, if made By this late date, February 10, all concerned were, of course, aware of the union movement and Kreihng's references thereto and to Dobbs could have had a nonpreiudicial connotation And the remarks on their face are rather tangential and not implicit with an intention to discriminate against Stone 30 It is therefore unnecessary to determine whether McCulloch's position at this time was that of a "supervisor" within the meaning of the Act's definition of that term 3i That proof consists of Stone's testimony, and, as I have previously indicated, I do not consider that testimony as sufficiently complete and reliable to foreclose the possibility that the remarks, if made, were uttered in some unknown but nonprejudicial connection (during what must have been a somewhat extensive talk), and not just "out of the blue "