Cotton Lumber Co.

'286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cotton Lumber Company, Arlington Lumber Company and Blaine Lumber Company and Teamsters Union, Local 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America. Case 9-CA-5296 May 1, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On February 12, 1970, Trial Examiner James F Foley issued his Decision in the 'above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Decision and a supporting 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 con- nection with this case to a three-member panel The Board has reviewed the rulings of the Trial Exam- iner 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 brief of the Respondent, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examin- er' ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that Respondent, Cotton Lumber Company, Arlington Lumber Company, and Blaine Lumber Compa- ny, Columbus, Ohio, its officers, agents, successors, ' Respondent ' s exceptions directed to the credibility resolutions of the Trial Examiner are without merit The Board will not overrule the Trial Examiner 's resolutions as to credibility unless a clear preponder- ance of all relevant evidence convinces us that they are incorrect On the entire record, such a conclusion is not warranted herein Standard Dr% Wall Products, Inc . 91 NLRB 544, enfd 188 F 2d 362 (C A 3) '- In agreeing with the Trial Examiner that Augustus Daniels was discriminatorily discharged on August 11 , 1969, and that the alleged basis for his discharge that he quit work at noon on Saturday , August 9, 1969 , when he was ordered to work in the afternoon , was pretextual, we are relying upon Daniels ' credited testimony that he -was unable to find out on the prior Friday evening whether he was required to work the full day on Saturday, and that his foreman , Preece, told him that he could leave at noon on Saturday because he did not bring his lunch ' We find it unnecessary to decide , and make no determina- tion, whether Daniels had a lunchbox with him on Saturday or whether such lunchbox in fact contained a lunch Similarly , we find it unnecessary to decide whether Dials, Sr , was a supervisor within the meaning of the Act and do not adopt the Trial Examiner 's findings in this regard - , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1 Delete the first two sentences of paragraphs 2(a) and 2(b) and substitute the following: "(a) Offer immediate reinstatement to employees Augustus Daniels and Albert Perry to their former jobs or, if those jobs no longer exist, to substantially equiva- lent jobs at `. . "(b) Offer immediate and full reinstatement to Robert Sayre to his former job or, if that job no longer exist, to a substantially equivalent position at Respondent Cot- ton.. . ' 2 Delete the last paragraph of the notice in the Appendix and substitute the following: WE WILL offer immediate reinstatement to employ- ees Augustus Daniels and Albert Perry to their former jobs or, if those jobs no longer exist, to substantially equivalent positions at Cotton Lumber Company; and will offer to employee Robert Sayre to immediately transfer him from Blaine Lumber Company to his former job or, if that job no longer exist, to substantially equivalent employment at Cotton Lumber Company; without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, with interest at 6 percent per annum. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES F. FOLEY, Trial Examiner: This case, Case 9-CA-5296, was brought before the National Labor Relations Board (herein called the Board) under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), 61 Stat 136, 76 Stat. 579, against Cotton Lumber Company, Arlington Lumber Company and Blaine Lumber Company (jointly, herein called Respondents, and severally, herein called Respondent Cotton, Respondent Arlington, and Respondent Blaine, respectively) by a complaint issued September 29, 1969, and amended at the hearing on November 17 and 18, 1969, and an answer filed October 6, 1969, and amended at the hearing to meet the amendments made to the complaint at the hearing. The complaint, as amended, is premised on a charge filed August 15, 1969, and an amended charged filed September 5, 1969, by Team- sters Union, Local 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called the Union). It is alleged in the complaint, as amended, that Respondents, as a joint employer, through Respondent Cotton, in late May 1969, and on or about August 4, 5, 8, 22, and 29, and November 3, 1969, engaged in conduct violative of Section 8(a)(1) of the Act, consist- ing of interrogation, threats, granting wage increases, surveillance, and giving the impression of surveillance designed to defeat union activity and membership; that Respondents, as a joint employer, through Respondent Cotton, on August 7, 1969, discriminatorily transferred 182 NLRB No. 43 COTTON LUMBER COMPANY 287 employee Augustus Daniels from Respondent Cotton to Respondent Arlington, and on August 6, 1969, discrim- inatorily transferred employee Robert Sayre from Respondent Cotton to Respondent , Blaine , to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act;, and on August 11, 1969, Respondents, as a joint employer, through Respondent Cotton or Respondent Arlington, discriminatorily discharged Dan- iels, to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act, and on August 22, 1969, Respondents, as a joint employer, through Respondent Cotton, discriminatorily discharged employ- ee Albert Perry to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act. Respond- ents, jointly and severally, deny engaging in any conduct violative of the Act A hearing on the amended complaint and amended answer was held before me on November 17 and 18, 1969 The parties were afforded an opportunity to present evidence, make oral argument, and file briefs. Briefs were filed by General Counsel and Respondent after the close of the hearing. 1 FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondents Cotton, Arlington, and Blaine, Ohio cor- porations with separate places of business in Columbus, Ohio, are each engaged in the business of distributing and selling at wholesale and retail lumber and lumber related products. During the 12 months preceding Sep- tember 29, 1969, each of them purchased from sources outside the State of Ohio, goods valued in excess of $50,000, and caused the shipment of these goods from the sources outside Ohio, to their respective places of business in Columbus, Ohio, and during the same period each of them sold product's with a 'value in excess of $500,000 Respondents jointly and severally are engaged in com- merce within the meaning of Section 2(6) and (7) - of the Act, and assumption of jurisdiction will effectuate the purposes of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. F III THE UNFAIR LABOR PRACTICES ' A The Evidence of Joint Employership Each of the Respondents is located in a different area of the city of Columbus, Ohio. Each was founded by William E. Blaine, Sr. (herein called Emerson Blaine). Blaine was founded in 1924, Cotton in 1952, and Arling- ton in 1959. All the stock in each company is owned by Emerson Blaine and William E. Blaine, Jr., his son (herein called Bill Blaine), with the possible excep- tion of a few qualifying shares. Emerson Blaine is the president and treasurer of Respondent Blaine and Respondent Cotton Bill Blaine is president of Respond- ent Arlington and Emerson Blaine is treasurer . Emerson Blaine is a member of the board of directors of each of the three Respondents . Bill Blaine is a member of the board of directors of Arlington and Blaine. Emerson Blaine coordinates the operations of all three Respondents , acting as general manager . Policy on wages and fringe benefits•.for employees and general labor policy are set by Emerson and Bill Blaine for all three Respondents Pay scales for the employees of the three Respondents are the same or parallel. So are the major aspects of employee benefits. Employee classifications are the same., Wage increases and increases in other employee benefits are given to the employees of each Respondent at the same time. Harvey B. Rector, labor consultant and counsel for Respondents in this proceed- ing, is consultant to Emerson and Bill Blaine with respect to the labor policy for all three Respondents. Major purchasing for each Respondent is handled by a separate corporation identified as ABC Wholesale. Emerson Blaine is president and treasurer , and Bill Blaine is vice president and secretary of this company. Emerson Blaine and Bill Blaine own all the stock in this company, with the possible exception of some qualifying shares Office goods and related items may be purchased sepa- rately Emerson Blaine sets the financial policy, borrowing, and expansion policy for all three Respondents in consul- tation with the other officers of each Respondent. Emer- son Blaine" has an office at Blaine, Cotton, and ABC Wholesale. He does not have an office at Arlington where his son, Bill Blaine, is president. B. The Evidence of Union Activity at Respondent Cotton On August 2, 1969, employees Augustus Daniels, Frank Castle, and Albert Perry met with Dave Taylor, vice 'president of the Union, at the union hall about the, representation of Cotton's employees by the Union. Daniels, Castle, and Perry were truckdrivers employed by Respondent Cotton. There were approximately 28 truckdrivers, helpers, loaders, and laborers employed by Respondent Cotton. Taylor gave Daniels, Castle, and Perry union cards. They were jointly applications for membership and authorizations to the Union to act as bargaining'representative. Daniels, Castle, and Perry signed cards on August 2, 1969. On Monday, August 4, and Tuesday, August 5, other truckdrivers, and helpers, loaders, and laborers signed cards. All the signed cards were in Daniels' possession They consisted of 12 or 13 cards bearing signatures which he personally solicited, .and 8 or 9 others bearing signa- tures which other solicitors represented to him were the signatures they had obtained from 8 or 9 other employees. The signed cards were given to Taylor by Daniels on Tuesday evening, August 5, at Daniels' home. On August 7, 1969, the Union, by Mit Duncan, its secretary-treasurer, sent a letter to Respondent Cotton to the attention of Harold Lathouse, vice president, secretary, and general manager, of Respondent Cotton, 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which it represented that a majority of the truckdri- vers, yardmen, warehousemen, shipping and receiving clerks employed by Cotton had designated the Union as their collective-bargaining representative, and request- ed Cotton to recognize the Union as the collective- bargaining representative of these employees. Cotton received the Union's letter on August 8, 1969. There is no evidence that Cotton replied to the Union's letter. Fred E. Blaine (herein called Fred Blaine), the brother of Emerson Blaine , and head foreman at Respondent Cotton, testified that he was aware of the union activity in Cotton's yard during the week of August 4, 1969. On August 8, 1969, the Union filed with the Board's Regional Office in Cincinnati, Ohio, a petition for certi- fication as bargaining representative of the employees of Cotton named in its letter of August 7, 1969. On October 27, 1969, the Regional Director of the Board issued a Decision and Direction of Election in which he found appropriate as a unit for the purposes of representation by a collective-bargaining representative the employees of Cotton for which the Union filed a petition on August 8, 1969, for certification as collec- tive-bargaining representative, and directed a Board con- ducted election in this unit to determine if a majority of the employees in the unit wished to be represented by the Union. The election was pending when the hearing was held in this proceeding on November 17, and 18, 1969. C. The Evidence of Conduct Allegedly Violative of Section 8(a) (1) of the Act Augustus Daniels was hired in June 1969, as a truckdri- ver for Respondent Cotton by Fred Blaine , foreman for Cotton.' He was interviewed by Fred Blaine and Robert Johnson about 2 weeks before he was hired. When he was interviewed by Fred Blaine , Daniels was asked by Blaine how he felt about the Union, to which Daniels replied he had worked union and nonunion and that he was interested in making more money. ' It is undisputed that Fred E. Blaine and Robert Johnson, who assists him as assistant foreman , are supervisors under the Act Fred Blaine hands out the bills for deliveries to the, truckdrivers and in general supervises all the drivers, helpers, loaders , unloaders, and labor- ers. He spends the major part of his time in his office Dnvers and loaders work considerable overtime . The workweek averages 60 to 65 hours a week , 8 to 9 months of the year. Overtime commences at 5 p in , the end of the workday Blaine works 40 hours a week He leaves at 5 p in and does not work Saturdays When he leaves, Johnson takes over his duties He performs Blaine's duties regularly 20 to 25 hours a week Johnson's regular duties consist of direct supervision over yard operations including loading, unloading, and ware- housing . Ray Dials, Sr , does the supervisory work in the yard that Johnson does when the latter is in Blaine's office handling Blaine's work His regular work is that of a loader , and the performance of other duties at the direction of Johnson . The evidence shows, and I find , that Dials, Sr , is engaged in Johnson 's work about one-third of the hours he is employed I find that he is a supervisor within the meaning of the Act M N. Landau Stores, Inc, dl b/a Clark Stores, 168 NLRB 273 The performance of only one of the indicia of a supervisor set out in the definition of a supervisor in Sec 2(11) of the Act vests the employee performing it with the status of a supervisor Ohio Power Company v N.L.R.B., 176 F.2d 385, 387 (C A 6), cert denied 338 U S 899; James H. Matthews & Co. v. NLRB , 354 F 2d 432 (C A 8), cert denied 384 U S 1002 Fred Blaine then said he did not want anyone who would be strongly for a union if he could help it, and keep him out.2 Employee Franklin Castle was hired by Fred Blaine as a truckdriver in May 1969. When he was interviewed by Fred Blaine he was asked by Blaine how he felt about the Union. Blaine also said they wanted to keep out the Union if they could. Castle replied he worked union and nonunion .' Fred Blaine hired Russell Cooke, a truckdriver employed by Cotton, in the latter part of February 1969. He was interviewed for the job by Fred Blaine . During the interview Blaine asked him what his position was about unions in general . He also said to Cooke that he did not see how a union would work out in a lumber company.4 I credit Perry's testimony and Daniel's testimony, that on August 7, 1969, Daniels and Milt Williams, who loaded and unloaded trucks, were unloading and loading Daniels' truck. The first union meeting of Cot- ton's employees was to be held that evening. The card signing had begun on Monday, August 4, 1969. Driver Perry and loader Gillespie were loading Perry's truck and were discussing the Union while working. When Daniels and Williams walked by, Gillespie hollered to Perry, and Daniels and Perry stopped and lit cigarettes, and talked to them. Perry and Gillespie were having a heated argument about the Union, but worked during the argument and did not hold up the work. Ray Dials, Sr., and Bill Thompson joined the conversation. Gillespie asked Daniels why he was interested in getting the Union in, and what benefit Daniels would get from it. Daniels endeavored to answer his question. Gillespie said he would quit his employment with Cotton and leave it before he would join a union . I credit the testimony of Dials, Sr., and Gillespie that Perry said ' This is Daniels testimony Fred Blaine denied he said he did not want anyone who was for the Union He testified he may have asked him if he was for or against a union, that he did not remember Johnson testified that neither he nor Blaine mentioned the Union to Daniels. I credit Daniels after consideration of the conflicting testimony in context and the demeanor of the witnesses I credit Perry's testimony that in the latter part of May 1958, when he was hired for a job as truckdriver by Fred Blaine, after being interviewed by Blaine and Johnson 2 weeks earlier, Blaine said he had withheld hiring him so he could not vote in the election Johnson was not present when he was hired A Board-conducted election to determine if Cotton's employees had selected a'majority representative was held at Cotton on May 24, 1968 Blaine asked him at the time he was hired if he was a unionman, and Perry replied he had paid union dues when he worked for Asplandh Tree Company I do not find Fred Blaine's conduct of May 1958 violative of the Act as it did not occur in the 6-month period preceding the filing and service of the charge See Sec 10(b) of the Act However, it is evidence against which conduct of Respondent Cotton occurring within the 6-month period under scrutiny can be evaluated See Sheet Metal Workers International Association, AFL-CIO v N L R.B , 293 F.2d 141, 147 (C A.D.C.), enfg. in part and setting aside in part 127 NLRB 1629, cert. denied 368 U.S 896 8 This is Castle's testimony which I credit Fred Blaine denied he made any reference to the Union when he hired him I have resolved the credibility conflict in favor of Castle's testimony after evaluation of the conflicting testimony in context and the demeanor of the witnesses " This is Cooke's testimony. Blaine denied he said anything to Cooke about unions when he interviewed him I credit Cook's testimony after evaluation of the conflicting testimony in context, and the demeanor of the witnesses 'COTTON LUMBER COMPANY • , - 289 to each of them that if they did not join the Union they would not be working for Cotton .5 I also credit, Perry's testimony that Gillespie said that as they did, the last time they would thin out those who started any union activity like they thinned out crabgrass. Robert Sayre , who was transferred from Respondent Cotton to Respondent Blaine on August 6, 1969 , testified that on August 4, 1969 , after the organizational activity had begun on that date , he overheard a conversation between Fred Blaine and a loader by the name of Bill Thompson . Johnson was also present . Sayre stated that Fred Blaine said to Thompson to let him know anything he heard about the Union . According to Sayre, he was about 6 feet away from Blaine , Thompson, and Johnson on a path to the shed on the west side of the yard for material to fill, a customer's order. They were standing at the cutoff saw located on the west side of the yard . Fred Blaine admitted standing with Thompson at the saw on this date , but denied he made any statement to him about the Union. He testified that the path was 20 to 25 feet from where he and the others were standing . Johnson recalled stand- ing with Blaine in the yard many times talking over things to be done , but did not recall being with Blaine and Thompson on August 4, at the cutoff saw. He did not recall anything said by Blaine to Thompson about the Union while they were standing in the yard. General Counsel did not call Thompson to give testimony regarding this alleged incident. On the testimony of Sayre, Blaine , and Johnson, I do not credit Sayre's testimony. There is a question whether Sayre was 6 feet away from Blaine , Thompson, and Johnson or .20 to 25 feet from them, and a question whether he could actually overhear what was said. The, key witness was Thompson. The General Counsel did. not call him. On this evidence, the burden to call him did not shift to Respondent Cotton. On Friday evening , August 8, 1969, when Foreman Fred Blaine handed out the paychecks, he talked to the drivers and yard personnel. He told them they were required to report to work- on Saturday unless they reported to Respondent Cotton by Friday evening or early Saturday morning that they could not work. He stated to them at this time that if the Union came in the hours of work would have to be cut to 45 hours a week. The average workweek ran '60 to 65 hours a week.' All hours over 45 were overtime . Blaine did not disclose the basis for this statement, including Perry was referring to the successful organization of Cotton's employees by the Union , and the execution of a collective-bargaining contract with a union security clause in it The evidence does not disclose whether Dials, Sr or Gillespie were aware of the basis for Perry ' s statement to them Dials , Sr , was a supervisor under the Act, but there is no evidence that he had knowledge he was a supervisor within the meaning of the Act, or that supervisors could not be required to assume union membership or pay union dues or other assessments to retain their employment if a union had a collective -bargaining contract. with Respondent Cotton with a union security clause There is no evidence that Gillespie was a supervisor, or believed he was, or had knowledge that supervisors could not be required to comply with a union security clause in a collective -bargaining contract 6 Driver Castle and Millman Shamblin gave this testimony Fred Blaine admitted he made the statement to the employees - the circumstances that would, require the.,reduction in hours, what party or parties would be-responsible for the reduction, or whether the reduction would be due to circumstances beyond the control of Respondent Cot- ton - On Friday, August 22, 1969, , Johnson asked driver Castle how he; felt about the Union, and also asked him the number of employees who were present at the union meeting on August 21, 1969. The employees interested in the Union attended union meetings on Thursday at 7:30 p. m., beginning Thursday,. August 7, 1969. Castle told Johnson how he felt about the Union. Johnson in conversing with Castle after the latter had told him his position about the Union, said, "It would hurt us on our overtime if it got in ." Johnson was helping ' him load a truck. The conversation took place around 2 p.m. to 3 p.m.7 In the morning of a rainy day, on' or about August 23, 1969 , about five or six employees were standing in a shed out of the rain. Johnson said to them that if the Union was in they would be sent home when it was raining.' The employees who happened to be in Respondent Cotton's yard during a rain were permitted to take shelter until the rain ceased. The exceptions were when - trucks had to be loaded or unloaded or loads delivered. The employees taking shelter remained on employer ' s time . During a workday in the following week some employees had lunch in the big shed recently built by Cotton. The • lunch period began at 11:30 and ended at 12 o'clock' noon. These employees were a little late returning to work. They were talking about baseball. Johnson came through the shed, and seeing the employees said to them that, if' the Union came - in `there would be no more coming back late from' lunch.' Johnson did, not disclose the basis for either one of the two statements." On or about Friday, August 15, 1969, Shamblin, a millman, employed 7 to 8 years by Cotton, received an increase of $6 per week in his weekly paycheck. When Sayre, a leadman in the mill at Respondent Cotton, was transferred, effective August 7, 1969, to Respondent Blaine , Shamblin was assigned to Sayre ' s job in Respond- ent Cotton 's mill. Fred Blaine , sometime during the day of August 15,' said to Shamblin, "When you -see your check tonight, remember,. if the Union's in here it might not be like that." On the same day, Emerson Blaine , president of Respondent Cotton and president ' This is Castle 's testimony Castle testified that only he and Johnson were present Castle 's testimony is unrebutted I have credited Castle's testimony 8 Castle , Cooke , and Shamblin gave this testimony Johnson testified generally ' that in conversations with employees where the Union was mentioned, he might have said in a group of people ^'"'We probably won't have a chance to do this or something like that, if a union comes in " He denied he went to anybody and said directly that employees would not be able to do things like work overtime or stand idle in a shed out of the rain on Respondent Cotton's time After evaluation of Castle's, Cooke's, Shamblin's, and Johnson's testimo- ny in context, and the demeanor of Castle, Cooke, Shamblin, and Johnson, I have credited the testimony of Castle, Cooke, and Shamblin 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Respondent Blaine, with offices at both companies, asked Shamblin if he had seen his check.9 Respondents Cotton, Blaine, and Arlington gave three general wage increases in 1969. They were each an increase of 5 percent. They were given on January 3, May 2, and November 7. In the representation pro- ceedings involving Respondent Cotton, the Regional Director, on October 27, 1969, issued his decision, and directed that an election be held at Respondent Cotton. The organizational activity at Respondent Cotton began the first part of August. In 1965, 1966, and 1967, the Respondents gave general wage increases. They were given on September 17, 1965; April 1, 1966; September 2, 1966; and December 1, 1967. In 1968, Respondents Blaine and Arlington gave a general wage increase on May 3. Respondent Cotton withheld a general increase because of the organizational activity at Cotton by the Union. The Union had filed a petition for certification on April 17, a stipulation for a consent election was entered into on May 2, 1968, and a Board-conducted election was held on May 24, 1968. 19 Bill Blaine testified that wage increases were given when the economic condition of the companies warranted it, and that the decisions to grant them were made about 3 months before they were made effective. He furnished no financial details on which the increases were premised, other than to say that under the account- ing procedure Respondents use, each of them has a trial balance at the end of each month, and from it knows the economic or financial condition of the compa- ny. They know definitely the profit situation from the yearend financial report. Arlington's report is received from the accountant in March. He agreed that increases in lumber prices affected the economic conditions of Respondents in 1968, but stated that these prices went down in 1969. He also testified that his father, Emerson Blaine , had started as an employee, and believed in giving wage increases whenever the economic conditions of Respondents warranted them. D. The Transfers and Discharges I Robert Sayre It is undisputed that on August 5, 1969, about 2 to 2:30 p.m., Fred Blaine notified employee Robert Sayre, employed as a leadman in the mill at Respondent Cotton, to report the next day to Respondent Blaine to work in the mill. Sayre signed a union card on August 4, 1969. When Fred Blaine instructed Sayre to report to Respondent Blaine, he told him the transfer was temporary, and that he was to work in Respondent 6 This is Shamblin' s testimony Respondent ' s counsel did not question Fred Blaine about this incident when he testified as a witness for Respondent Emerson Blaine did not appear or testify at the hearing I have credited Shamblin' s testimony It is unrebutted See N L R B v A.P W Produce Co , 316 F 2d 899, 903 (C A 2), and other authorities cited therein 10 The evidence of wage increases was furnished by Bill Blaine, on cross-examination as a witness for Respondents The dates of repre- sentation proceedings were stipulated Blaine's mill for the remainder of the week because it was behind and had to catch up. About 4 years previously, Sayre, who began his employment for Respondent Cotton in April 1961 or 1962, had been transferred temporarily for 2 days to Respondent Arling- ton to help with the building of trusses. Sayre reported to Blaine on August 6, punched the clock, and worked. When he had worked an hour, one of the female employees in Respondent Blaine's office came to where he was working and asked him to sign some papers. He said he was there only for 2 days, and she replied that she understood he was to be there for good. Sayre then talked to Emerson Blaine about the transfer. He asked Blaine why he was transferred, and Blaine replied that Respondent Blaine , like Respondent Cotton, was a two-man mill. One employee only was working in the Blaine mill. Sayre then said that he did not wish to work at Respond- ent Blaine and wished to remain at Respondent Cotton since the distance from his home to Blaine was longer than the distance to Cotton and because he had worked a number of years at Cotton. Emerson Blaine replied, "Quit or work." Sayre went back to work in Respondent Blaine's mill and was still working there when he testified at the hearing on November 17, 1969. Sayre has received the same hourly rate at Blaine that he received at Cotton, but has worked less overtime. At Cotton he worked 60 to 65 hours a week. The regular hours at Blaine , 45 hours, have been the same as the regular hours at Cotton. On August 7, 1969, Sayre punched out at 5 p.m. and went to Respondent Cotton. He arrived there about 5:15 to 5:30 p.m. There was a union meeting scheduled for 7:30 p.m. When he arrived at Cotton, the employees were on a "break." It was for half an hour. He talked to the employees who were to work overtime after the break. Assistant Yard Foreman Johnson asked him if he was going to the union meeting and he said yes. When Sayre reported to work the next morning, Emerson Blaine said to him that he did not want him at Cotton anymore as he was over there pushing the Union. Sayre replied that that was the reason he was transferred to Respondent Blaine from Respondent Cotton. Emerson Blaine remained silent and walked away. Shortly after the transfer, driver Cooke, who was employed at Respondent Cotton, made a pickup at Respondent Blaine for Cotton. When he returned to Cotton, Fred Blaine asked him the question, "Is Sayre still talking about the Union over there 9"11 " This is Sayre's testimony except for the question Fred Blaine asked driver Cooke That is Cooke's testimony Fred Blaine testified on direct examination as a witness for Respondent that at the time of Sayre's transfer to Respondent Blaine , Respondent Cotton had three millmen and Blaine had one. Each is a two-man mill After the transfer each had two He testified that Sayre had many friends at Cotton and was well liked He testified that the week following the week of the transfer someone told him that Sayre was at Cotton after 5 p in three or four times, and he immediately went to Emerson Blaine and asked him why Sayre was down at Cotton He testified that he said to him he thought Sayre was hired at Blaine , and was working there, and told him to tell Sayre to stay out of Cotton because he did not want him meddling in the work at Cotton after 5 p in He testified that Sayre came down to Cotton around 5 15 to 5.30, walked COTTON LUMBER COMPANY 291 2 Augustus Daniels It is undisputed that Daniels was notified on Thursday, August 7, 1969, about 5 to 5:30 p.m., by Fred Blaine that he was transferred to Respondent Arlington; Fred Blaine instructed Daniels to report there the next morn- ing; Daniels reported to the yard foreman at Respondent Arlington at 7:30 the next morning, August 8, and then was assigned to work in the building where trusses were built ; Daniels worked in this area at Respondent Arlington on Friday, August 8, and Saturday, August 9, until about noon; and about 8:30 a.m. on Monday, August 11, 1969, Daniels was notified by Foreman Preece that he was discharged because he did not work on Saturday afternoon. I have found supra, that Daniels signed a union card on August 2, 1969, and solicited and obtained signatures on 12 or 13 cards on August 4 and 5, 1969, and had in his possession on the evening of August 5, 20 or 21 signed cards which he gave at that time to Dave Taylor, the vice president of the Union. The Union in a letter dated August 7, 1969, to Respondent Cotton demanded recognition as bargaining representative of a unit of Respondent Cotton's employees. On August 8, 1969, about 5:15 p.m., Foreman Bob Johnson asked Sayre if he was going to attend the meeting of the Union scheduled for 7:30 p in. that evening. When Fred Blaine informed Daniels on the afternoon of August 7, 1969, that he was to report to Arlington the next morning to work there, Daniels asked him why he was transferring him 12 Blaine denied he had anything to do with the transfer. Daniels said to Blaine through the yard, and was talking about the Union Blaine testified on cross-examination that he did not object to the first time Sayre came to Cotton after his transfer to Arlington when he was waiting for a meeting of the Union, and the men were on a coffeebreak, but objected to the continuation of the first visit, that Sayre was there several evenings after the first visit and talked to the men after the coffeebreak while they were working He testified he did not know what they were talking about As previously found , Emerson Blaine did not testify or make an appearance at the hearing There is a conflict between Sayre 's testimony that Emerson Blaine talked to him on Friday, August 8, about his visit to Cotton, and Fred Blaine's testimony that he did not talk to Emerson Blaine about Sayre' s visiting Cotton until the week following the week of the transfer , and until Sayre had made several visits to Cotton There is also a conflict in Fred Blaine ' s testimony on direct examination giving the clear inference that he objected to Sayre's visit to Cotton on August 8 , and his testimony on cross-examination that he did not object to this visit I have found after evaluation of the conflicting testimony in context, and the demeanor of the witness- es, that Fred Blaine did object to Sayre's Friday, August 8 , visit, and his talking to the employees, because he felt he was talking to the employees about the Union I have also credited Sayre' s unrebutted testimony that Emerson Blaine said to him on Friday, August 8, 1969, that he did not want him at Cotton anymore as he was over there pushing the Union I have also credited Cooke's unrebutted testimony that Fred Blaine asked him when he returned to Cotton from a delivery to Blaine if Sayre was still talking about the Union at Arlington " These findings dealing with the transfer and discharge of Daniels are premised for the most part on the testimony of Daniels I have credited his testimony after evaluating it along with the testimony of Fred Blaine and Foreman Bob Johnson of Respondent Cotton, and that of Bill Blaine , Foreman Archie Marcum , and Foreman Larry (Red) Preece of Respondent Arlington and the demeanor testimony of these witnesses The basis for the resolution of the conflicts in the testimony is stated infra that he was transferring him to Arlington and Sayre to Blaine because they were organizing for the Union. Fred Blaine heatedly denied he was . Daniels told him he did not have transportation to Arlington , that he had been riding with someone working at Cotton Blaine asked him to get some, as it was necessary that he go to Arlington. He told Daniels he would have to report to Arlington the next morning if he wanted to work. Paul Bosart, the yard foreman at Arlington, to whom Daniels reported on Friday, August 8, told him to report to Arlington's office. He reported there, was given a W-2 form to fill out, and was told to report to Foreman Larry (Red) Preece in the shed where trusses were built . He was not there so Daniels reported to Foreman Archie Marcum. Marcum asked him what he had been doing and he answered he had been a truckdriver. Mar- cum handed him an order calling for the cutting with an electric saw of 49 2 by 4's at an angle . Daniels had had no experience operating an electric saw He had had experience as a forklift mechanic in addition to that of truckdriver Some employee showed him how to operate the electric saw and he did the best he could. As found, Daniels worked in this shed all day Friday. Daniels received no instructions about work on Saturday. Friday evening, about 5 p.m., he asked Yard Foreman Bosart if he should report for work on Saturday. At Cotton, Daniels had worked a half day on Saturday. When circumstances required it, he worked until I or 2 p.m. Bosart said he did not know. The employees in the shed or mill where he had been working told him they worked a half day on Saturday. Daniels looked for Marcum for information about Satur- day work but could not find him. Daniels clocked in at Arlington at 7:30 a.m. on Satur- day morning. He went to the shed or mill where he worked on Friday. Marcum was not there Larry (Red) Preece was in charge . He assigned Daniels to loading a truck with trash and driving it to a dump and unloading it. Daniels did this work . Preece then assigned him to loading a truck. After he finished this job, Preece assigned him to helping some other employees in building stairways. About noon he asked Preece how long he was expected to work, and Preece answered that some employees worked until 5 p.m., and asked him if he wanted to work until 5 p.m. Daniels answered that he did not bring any lunch and asked Preece if the catering truck came on Saturday, and Preece answered that it did not come on Saturday. Daniels did not bring a lunch on Saturday at Cotton as he usually worked only half day. On Saturday, at Cotton , the catering truck came early in the morning or about noon. There was a restaurant across the street from Cotton. There was no restaurant in the vicinity of Arlington . Daniels asked Preece if he could leave as he did not bring any lunch . Preece replied "all right, go ahead." He clocked out at 11:30 a.m. and went home. Daniels saw some other employees clocking out about the time he did. Daniels clocked in at 7:30 a.m. on Monday, August 11, 1969. He went to the shed where he had been 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working . Archie Marcum assigned him to work connect- ed with the building of trusses . Marcum left the shed or mill . Daniels asked Preece where he could find some 6 feet 2 by 4's for, braces, and Preece said he would not need them , that he was going to fire him for not working all day Saturday. Daniels replied that he had to be kidding as he was the one who had told him on Saturday at noon that he could go home. Preece then. said that he was doing what he was told, and if he did not do it he would get what Daniels was getting. He added that he did not want any hard feelings. Preece asked Daniels to report to Arlington 's office. Daniels went to the office accompanied by Preece. Dan- iels had asked him to go with him. Daniels refused to clock out, and Preece clocked out for him. Preece said to the personnel in the office that he was firing Daniels for not working all day on Saturday. Daniels asked Preece if he could give him in writing the reason he was being fired . At this time, one of the three persons told Preece he was wanted in the inner, office. Preece did not return After waiting a while , Daniels left. He received nothing in writing. Fred E. Blaine testified that Bill Blaine said to him that he needed a man at Arlington , and he said he' had a man who would fit the bill . He was a mechanic as well as a truckdriver . He testified he knew Daniels had been a forklift mechanic . Thursday evening he would go to Arlington as Bill Blaine needed a man. Daniels said he had, no transportation as he was driving with someone who worked at Cotton. Blaine asked him to try. to get some as it was necessary that he go to Arlington . Daniels said he would not go and that was it. He told Daniels -he would have to tell Bill Blaine he would not go and, Bill Blaine would have to get another man. He called Bill-Blaine and told him Daniels would not go , but Friday morning he found that Daniels showed up at Arlington. - Marcum testified ,- as Daniels did,-that he worked in the truss department . He said that he and Preece were foremen . He said he had a conversation with Daniels at noon on Saturday , August 22, the last day he worked . It is undisputed that the last Saturday Daniels worked was August 9 . Daniels asked Marcum if he could go home, and he said to Daniels -he had to talk to Preece . On cross-examination , he testified that Daniels said he wanted to leave to pick up his check at Cotton It is undisputed that Daniels worked Monday through Thursday at Cotton. Fred Blaine testified that he did not know how Daniels picked up his check . Fred Blaine did not work on Saturday . Marcum testified that Daniels carried a lunchbox on Saturday when he talked to him On cross-examination he testified that the five or six employees who worked for him on Saturday carried their lunchboxes on that date , and that the catering truck did not come to Arlington on Saturday. Marcum testified that he only saw the box Daniels carried. He did not know if it had any contents. Preece testified on direct examination he talked to Daniels about noon, on Saturday . He said Daniels came by him in the truss department where he was He was carrying a lunchbox in his hand . He said that he had worked a half day and was going home. On cross-examination , Preece testified that he saw Daniels carrying a lunchbox when he saw him about 11:15 a.m. He asked him where he was going because he saw him carrying the lunchbox . He testified he talked to Daniels on Friday , told him they worked long hours in the evening and on Saturday , and showed him what to do. It was cleaning up and stacking lumber. He did not recall telling, him the catering truck did not come on Saturday or that Daniels asked him. He did not deny that Daniels was correct in stating that the catering truck did not- come to Arlington on Saturday. He gave no testimony that the lunchbox he said Daniels was carrying contained a lunch or had contained, one that Saturday Neither he nor Marcum testified that Daniels had a lunchbox when he reported for work on Saturday. Daniels could ' have left it overnight at Arlington. Preece testified that all employees worked on Satur- day, August 9, except one or two who gave notice on Friday or who were ill' on Saturday. He' testified that generally they worked to 4 p.m. or 5 p.m. on Saturday, but quit at 3 to 3:30 p.m. if they had a chance. But Preece also testified that an employee does not work on Saturday unless he is requested on Friday evening to work on Saturday . Bill Blaine testified in the representation proceeding that the employees at Arlington worked a half day on Saturday. He testified in this proceeding that his testimony in the representation proceeding was not correct. Preece also testified on cross that he discussed Daniels with Bill Blaine before he discharged him He said to Blaine that his department did not accomplish what he expected because one of the men left at noon . He said to Blaine he was going to fire him. Blaine . replied he was the foreman . Preece testified he always checks with Bill Blaine before doing anything of this nature. Blaine had not talked to Preece before Daniels showed up on Friday, but had called him on Wednesday to tell him he was bringing another man in . He expected him on Thursday Preece again stated he fired Daniels for not working a half day on Saturday . He also testified that at noon on Saturday he ordered Daniels to stay and told him he needed him. He also repeated his testimony that Daniels cleaned up around the saw and stacked the lumber. Bill Blaine testified that Marcum and Preece told him that Arlington was desperate for help. It needed a man. Bill Blaine called Fred Blaine Thursday, August 8, and asked him if they had a man who could help them out. This is what they usually did. Fred Blaine said it would be tough on Cotton to give them a man, but since they were hurting he would send the last man employed. His name was Daniels. Fred Blaine called back the same day-, and said to him to strike his commitment he would send them Daniels as he refused to go to work at Arlington . He was making other arrangements on Friday morning when he learned that Daniels had reported to Arlington. Marcum and Preece told him on Monday morning that Daniels had left on his own on Saturday . He agreed with Preece's position that Daniels should be fired, and they fired COTTON LUMBER COMPANY - 293 him. He discussed with Preece and Marcum all factors involved in the discharge including the possibility Daniels was not aware of what was expected of him on Saturday, and the fact Daniels was a new man at Arlington They decided to fire him anyway. Blaine also testified that from time to time he contacted a local employment agency, Spot Labor, seeking persons he could hire as employees. It was his recollection that when he was told by Fred Blaine that Daniels would not report to Arlington one of the men in Arlington's office called Spot Labor. In evaluating the testimony of Respondents' witnesses I have been mindful that Emerson Blaine is the president of both Respondent Cotton and Respondent Blaine with an office at the location of each 'of these companies, and that Bill Blaine, his son, is the president of Respond- ent Arlington; that Emerson and Bill Blaine own the stock of all three companies, and Emerson Blaine coordi- nates the operations of the three , companies, acting in the nature of a general manager; and that Emerson Blaine and Bill Blaine formulate the labor policy for the three Respondents. I have credited Sayre's testimony that Emerson Blaine informed Sayre after the latter's transfer to Respondent Blaine, and his telling Emerson Blaine that he did not wish to be permanently assigned to Respondent Blaine, that he had to work at Respondent Blaine or quit. This attitude is consistent with Respond- ent Cotton's attitude reflected in Daniels' testimony that he was told by Fred Blaine on August 7, 1969, that he had to report to Respondent Arlington on August 8, 1969, if he wanted to work. I have credited Daniels' testimony. Daniels was not given the option by Fred Blaine to stay at Cotton or transfer to Arlington The option was to work at Arlington or not have a job. Consistent with the attitude of policymakers Emerson Blaine and Bill Blaine, the latter instructed Fred Blaine to transfer Daniels to Arlington He may have given the pretextual reason to Fred Blaine that he desperately needed a man at Arlington and had to request one from Cotton. However, Preece's testimony discloses that at most only an unskilled laborer to clean up around the electric saw and stack lumber was needed, not an experienced truckdriver and former forklift mechanic like Daniels. The unskilled help needed could have been obtained from Spot Labor, the employment agency from which Respondent obtained personnel. One would have to be childishly naive to believe the testimony of Bill Blaine and Fred Blaine that Respondent Arlington resort- ed to placing Daniels in this work at Arlington for ordinary economic reasons It could be that Fred Blaine had nothing to do with the transfer other than to carry out the instructions of Emerson Blaine and Bill Blaine . Daniels testified that Fred Blaine said to him that he had nothing to do with the transfer Fred Blaine and Johnson ran their part of Cotton's operation in an efficient manner and would not transfer a skilled employee needed at Cotton to an unskilled job at Arlington unless there was a special compelling reason such as an order to do so from policymakers Emerson and Bill Blaine. Blaine, Preece, and Marcum may have conferred on the morning of August 11, 1969, prior to Preece's notice to Daniels that he was discharged, as Preece and Bill Blaine tes- tified. But it was not to consider discharging Daniels for not working Saturday afternoon It was to see that the true motive for the discharge was concealed. The testimony of Respondent's witnesses on its face, without Daniels' testimony, discloses that Daniels could not be expected to know on Friday evening from the informa- tion he received from Respondent's officials whether he was required to work on Saturday afternoon, especial- ly when he had worked only a half day at Cotton and was a new employee at Arlington. It also discloses that absent a special compelling motive Daniels would not have been discharged even if the circumstances were present that Respondents contend were present. Daniels could have had a lunchbox when he spoke to Marcum and Preece at noon on Saturday There is no testimony that they asked him if there was a lunch in the lunchbox, or that there was a lunch in the lunchbox Daniels did not deny that he was carrying a lunchbox or testify he had one. Respondent's Marcum testified that the reason given by Daniels for leaving at noon was that he wished to pick up his check at Cotton for the prior Saturday and the 4 days of that week he worked at Cotton. Preece testified he refused to work even though he ordered him to do so. Daniels would have been childishly naive to testify at the hearing that he did not have a lunch with him on Saturday if he had carried a lunchbox with him at the time he talked to Preece, and there was a lunch in the lunchbox Daniels' demeanor testimony does not disclose that type of mentality. He may have left the lunchbox overnight on Friday evening if he carried one. Upon consideration of all the testimony, including demeanor testimony, in context, I find the credibility of Respondents' witnesses with respect to this issue to be highly questionable and less than the credibility of Daniels. I find from this evaluation that Daniels' testimony of what happened is a plausible statement of what occurred. I have, therefore, credited Daniels' testimony except to the insubstantial extent my findings differ from it. The difference exists with respect to the conversation he had with Fred Blaine on the evening of August 7, 1969. The Regional Director on October 27, 1969, in his decision that accompanied his direction of a Board- conducted election at Cotton made the evidentiary finding that Arlington furnished free lunches on Saturday, in connection, with his finding that a unit of employees at Cotton was an appropriate unit for representation. Respondents did not assert free lunches on Saturday as a defense in their answer, at the hearing, or in their briefs to Daniels' testimony that he was permitted to leave on Saturday because he did not bring his lunch. Marcum and Preece, Respondents' witnesses, testified that on Saturday Daniels had a lunchbox. Mar- cum testified that the five or six employees who worked under him had lunchboxes Marcum also testified that the catering truck did not visit Arlington on Saturday. I have credited Daniels' testimony that Preece told Dan- iels that it did not come to Arlington on Saturday 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There would be no need for lunchboxes on Saturday, if free lunches were furnished . Furthermore , if there were free lunches, the catering truck would visit Arling- ton on Saturday because it would bring the free lunches. There was no restaurant nearby as was the case at Cotton. The Regional Director 's Decision and Direction of Election was offered by General Counsel , and received as background evidence showing the Union 's organiza- tional activity at the time of the conduct allegedly viola- tive of Section 8(a)(1) of the Act , and the alleged discrimi- natory transfers and discharges violative of Section 8(a)(3) of the Act. The record does not disclose, the basis for the Regional Director' s finding that Arlington furnished free lunches on Saturday . In offering the evi- dence relating to Daniels ' discharge , General Counsel, Respondent , and Charging Party made no reference to the finding of the Regional Director with respect to free lunches on Saturday at Arlington . The evidence before me shows clearly that Arlington did not provide free lunches on Saturday , and I so find . The issue is clearly relitigable . See Amalgamated Clothing Workers of America, AFL-CIO v. N.L.R. B., 365 F.2d 898 (C.A.D.C.), and Heights Funeral Home, Inc. v. N.L.R.B., 385 F.2d 879 (C.A. 5). 3. Albert Perry It is undisputed that when Perry came to Fred Blaine's office about 5 p.m. on Friday , August 22, 1969, to receive his weekly paycheck , Fred Blaine told him that it was his last check . Foreman Johnson was present. Perry testified that he asked Fred Blaine for the reason for his discharge , and Blaine replied that he was discharging him for pushing the Union Perry tes- tified that Johnson followed him to the gate of Cotton's premises after notice of the discharge , and said he hated to see him go, that he was as good a man as they had. Perry testified that he was outside the gate of Cotton 's yard at 7:30 a.m. the next morning, which was Saturday , August 23, 1969 , and as Johnson approached the yard he asked him if he was fired for pressing the Union , and Johnson nodded yes . Castle, as a witness for General Counsel , corroborated this last colloquy between Perry and Johnson . It is unrebutted by Respondents. Fred Blaine testified that when he gave Perry the discharge notice on Friday evening , August 22, he said to him , "Perry I have had all I can take and that's it. I warned you twice ." He denied he mentioned the Union when he fired him . Johnson , who testified for Respondents , gave no testimony regarding this incident. I have found that Perry was one of the three employees who made the original contact on August 2, 1969, with Dave Taylor, vice president of the Union . He, as well as Daniels and Castle , received cards from Taylor Perry testified that he talked to all employees about the Union except three or four . He did not ask employees Gillespie, Briggs, or Dials, Sr., to sign a card . These three employ- ees testified for the Respondents. He talked to them, however , about the Union. As I have found, about August 7, 1969 , Perry, Daniels, Bill Thompson , Milton Williams, Ray Dials, Sr., and Gillespie had a conversa- tion about the Union . In this conversation , Perry dis- closed clearly that he felt strongly about the Union and the desirability of the employees being represented by the Union . I have found that Perry and Gillespie were having a heated discussion about the Union before the larger conversation started . I have also found that Gillespie said he would leave employment at Respondent Cotton rather than join the Union , and also said that employees starting union organizational activity would be thinned out like crabgrass as was done during the organizational activity in May 1968. This latter statement was made in the presence of Ray Dials, Sr . Dials did not disavow it as coming from Respondent Cotton. Perry testified that a couple of weeks after he signed a card on August 2, 1969 , and after Sayre was trans- ferred, Fred Blaine , outside his office , said to him "I heard you're talking about a union . You're a good man," and he replied , "Fred you're talking hearsay." He testified that a few days later , in the morning, in the big shed the other side of the yard, Fred Blaine walked through and said to him, "Perry, it doesn't do a damn bit of good to talk to you about a union." Some other employees were close by. Dials, Sr., and Gillespie were in the group of employees. Perry testified he knew of no rule by Respondent Cotton that he could not talk about a union or pass out union cards on company time. And he testified that neither Fred Blaine nor Johnson criticized his work, and one of them said he was doing good work . Perry's final testimony on direct examination was that he tele- phoned Fred Blaine about a week before the hearing and asked him for his job back , and he said that if he came back to work they would have to do the same thing over again, that is, discharge him again for pressing the Union . This testimony is unrebutted. Fred Blaine testified that he and Perry met outside his office as Perry testified , and that they talked about Perry's activity on behalf of the Union. He said he told him he had complaints about him from his help, that "they were being pushed or pressed or talked to about a union ," which they did not enjoy, that he was not paying him to push anything except work, and while he had nothing against him personally, he was aggravating his help and he did not want anymore of it. He also testified , as Perry testified , that there was a second time he spoke to Perry about his union activity According to Blaine , a half dozen or more employees came to him saying he was aggravating them and never shutting up. Blaine testified he said to Perry that he had warned him once before , and if it happened again , "This time it was it ." He said Perry denied he was soliciting employees about the Union. Blaine then testified he called him in again and said, "This was it , I couldn 't put up with it; I couldn 't pay him for standing around looking when he had work to do and trucks to roll." He did not hear him say a word. He finished his testimony about Perry's discharge with the words, "When I fire a man I don 't say another word to him , that's it." He denied he mentioned the COTTON LUMBER COMPANY 295 Union when he discharged him. He also testified that Perry's work and the work of the men he talked to suffered by Perry's activity, although he did not mention the effect on the workload to Perry. In his testimony , Fred Blaine gave the names of employees who were irritated by Perry's talking about the Union. They were John Briggs , Gillespie, Zack Fuller, Ray Dials, Sr., Johnson , Hobsen , and Henry Barsden . He said Briggs complained a number of times over several weeks . Briggs said to him that he had better get Perry off his back John Briggs , a truckdriver for Respondent Cotton for 12 years, testified that Perry told him one day, in the middle of the morning, that he was too old to find a job somewhere else, and he had better join the Union. He also said to him , "Hey, old man when are you going to join the Union." He testified he com- plained to Fred Blaine three times, and said to him, "Have him get off my back and let me alone ." Briggs also testified he was known as "Old Man of the lumber company." Gillespie who had been employed by Respondent Cotton for 14 years, and who was loading trucks in August 1969, testified that Perry was on his back all the time about the Union. Gillespie referred to the argument he had with Perry about the Union about which I have made findings supra . According to Gillespie, Perry pushed the Union everytime he came in contact with him. He would ask when he was going to join the Union or if he was going to join it . He told him that when the Union came in he was going to be out of a job. He complained to Fred Blaine . He did so because Perry was doing this talking during working hours , and it bothered him Ray Dials, Sr., employed 10 years 'by Respondent Cotton, as a part-time supervisor when Johnson is acting for Fred Blaine, and the remainder of the time as a loader and rank-and-file employee , testified that on one occasion Perry told him that if he did not join the Union he could not work at Respondent Cotton This was the only time Perry talked to him about the Union. It was the conversation participated in by a number of employees on August 7, 1969 ( supra). He complained to Fred Blaine about this statement by Perry. He talked to Perry a good deal as he was his friend. He heard Perry say things to other employees, "more or less as a joke most of the time ." He testified on cross-examination that in the conversation of August 7, 1969, he may have said he would not work for Respondent Cotton if the Union came in, but that he did not recall saying it I have found that Gillespie made this statement . Dials also testified on cross-exami- nation that the discussion at Perry's truck on August 7, 1969, which Perry and Gillespie were loading, did not prevent him from doing his work. Zack Fuller, employed 8-1h years by Respondent Cot- ton, and employed as a truckloader in August 1969 and at the time of the hearing, testified that Perry asked him to fill out a union card and to attend a meeting of the Union. He also said that the employees would have to join the Union if they worked there. He repeated what Perry said to Fred Blaine when Perry first asked him to sign a card . Perry made the same request to him a few additional times . Perry would make the request when he was loading his truck . Fuller testified his work was never disrupted by Perry's talk about the Union. He and Perry had talked about other things when he loaded Perry's truck prior to the union activity. After evaluation of all the evidence regarding Perry's discharge in context, and the demeanor testimony of the witnesses giving testimony , I credit Perry' s testimo- ny. I also credit Fred Blaine ' s testimony of what he said to Perry about his organizing activity and that he warned him to stop it. I also credit his testimony that employees Briggs, Gillespie , Dials, Sr., Hobsen, Barsden, and Fuller reported to him that Perry talked to them about the Union. I do not credit his testimony that Johnson reported to him that Perry solicited him about the Union. Johnson ' s testimony is silent that he did. I do not credit Blaine 's testimony , however, that Gillespie, Dials, Sr., Hobsen , and Fuller reported Perry's activity because he irritated them, or as Gillespie testified because he interfered with the work in the yard . Foreman Dials testified that Perry did not interfere with his or other employees ' production , that his contacts with him were friendly, and the contacts he overheard Perry making with other employees about the Union were made in a joking manner . Zack Fuller , a loader, testified that Perry' s talking to him about the Union did not interfere with production . They talked when he was loading Perry's truck. Prior to the Union' s organizational activity they talked about other things. Gillespie"s demeanor on the witness stand disclosed him to have a strong animus against the Union. I find that it affected substantially his credibility as a witness. This same animus is reflected by the heated manner he displayed on August 7, 1969, in the conversation he had with Perry and in the one he then had with a number of other employees about the Union when he boasted that the employees who started union activity would be cleaned out like crabgrass. I find that Gillespie was not a credible witness when he testified , and give no probative weight to his testimony. Briggs, a middle-aged employee with 12 years' tenure, was irritated by Perry's joking suggestion to him that he join the Union as he could not get a job anywhere else. He was referred to in Respondent Cotton's yard as the Old Man by all the employees. He could not have been irritated by this identification of him by Perry. Perry was considered to be a good truckdriver by Fred Blaine and Johnson . Moreover , Respondent Cotton was a busy operation . This means he was out on delivery a considerable amount of time each day from the time the organizational activity began on August 2 to August 22, 1969, when he was discharged . Briggs, a vetern truckdriver was also out of the yard making deliveries a considerable amount of time each day. Absent evidence giving specific instances and their dates, a reasonable inference is that Perry' s request to join the Union, coupled with the statement that he could 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not work 'there unless he joined the Union, was made by Perry to Briggs at most three times. Perry solicited all the other employees except three in the limited time he was in the yard so he did not have the time to be on Briggs' back enough to cause him to complain to Fred Blaine. Moreover, Briggs' crusty demeanor on the witness stand and his long tenure as a truckdriver disclose he did not have the extra sensitivity to Perry's remarks that, in the circumstances of this incident, would have caused him to complain about them to Fred Blaine. r Hobsen and Barsden did not testify. While they may have reported to Fred Blaine that Perry contacted them about the Union, I do not credit Blaine 's testimony that they complained to him because Perry irritated them or because he interfered with their production, The nature of the testimony given by the witnesses who testified regarding complaints they made to Fred Blaine indicates otherwise. I find that if Hobsen and Barsden had been called by Respondents as witnesses their testimony would have disclosed that Perry did not interfere with their production or irritate them sub- stantially and that his conduct standing alone did not cause them to report to Fred Blaine. There was another reason. ' I have not credited Sayre's' testimony regarding a conversation he testified he overheard on August 4, 1969, between Fred Blaine and loader Bill Thompson, in the : presence of Foreman Johnson, and in which Blaine, said to Thompson to let him know anything he heard about the Union, because the evidence did not disclose clearly whether Sayre was within hearing distance, and counsel for the General Counsel did not call Thompson to testify. Blaine denied he made the request of Thompson, and Johnson did not recall the conversation. However, the testimony of so-called com- plaints to Fred Blaine by Fred Blaine, Briggs, Dials, Sr., and Fuller, Johnson's failure to mention the com- plaints Blaine said he made to him when he testified, the failure of Barsden and Hobsen to testify, and the demeanor of the witnesses who testified show that the information given to Fred Blaine about Perry was in response to a request by Fred Blaine to these employees to report to him anything they heard about the Union and would not have been given otherwise. Gillespie is the exception. I have found that he is not a credible witness. Analysis and Findings and Conclusions of Law and Fact On the foregoing evidentiary findings and credibility resolutions, I make the findings and conclusions of fact and law which are contained in the following paragraphs. Respondents Cotton, Blaine, and Arlington constitute a joint employer. While each has a separate corporate identity, they are in fact one employer with respect to ownership, operation, authority, and the formulation and carrying out of all policy matters including labor policy Control of the joint employer is vested in and exercised by Emmett Blaine and Bill Blaine , his son.13 When Fred Blaine interviewed or hired Cooke, Castle, and Daniels in February, May, and June, 1969, respec- tively, he interrogated them regarding their feelings about unionism and their prior experiences with unions, in violation of Section 8(a)(1) of the Act. 14 When Fred Blaine said to employees that if the Union came in their weekly hours of work would be cut from 60 to 65 hours to 45 hours, as he was distributing paychecks in the evening of Friday, August 8, 1969, he threatened employees in violation of Section 8(a)(1) of the Act. When Foreman Johnson said to driver Castle in a conversation he had with him on August 22, 1969, which he initiated, that employees would be hurt on overtime if the Union succeeded in representing the employees; when on or about August 23, 1969, he said to employees, as they were standing in a shed out of the rain on Respondent Cotton's time, that if the Union came in they would be sent home during a rain, and when in the following week when employees were returning late from lunch he said to them there would be no more returning late from lunch if the Union came in, Johnson threatened employees in violation of Section 8(a)(1) of the Act. Fred Blaine's and Johnson's suggestions of economic harm due to unionization had the natural tendency to imply retaliation for supporting the Union since they were not based on demonstrably probable consequences beyond Respondents' control ''' Johnson in his August 22, 1969, conversation with Castle, violated Section 8(a)(1) of the Act when he asked him how he felt about the Union, and how many employees attended the meeting of the Union held the prior evening. This conduct was both interrogation and the ' giving of an impression of surveillance 11 I find infra that Sayre's transfer effective August 6, 1969, from Respondent Cotton to Respondent Blaine was and is discriminatory and violative of Section 8(a)(3) and (1) of the Act. Employee Shamblin's promotion to lead- man, in Sayre's place at Cotton with an increase in wages reflected in his August 15, 1969, paycheck is an illegal benefit and promise of benefit and violative of Section 8(a)(1) of the Act., So are Fred Blaine's statement to Shamblin of August 15 that when he saw his check that night he should remember that if the Union came in it might be different, and Emerson Blaine's pointed question of August 15 to Shamblin if he had seen his paycheck." 11 Senco, Inc, 177 NLRB No 102, Marine Welding and Repair Works, Inc. 174 NLRB No 102, Transportation Promotions, Inc, 173 NLRB No 114, and Decker Disposal, Inc , 171 NLRB No 124 14 Northrup Carolina, Inc , 167 NLRB 649 15 NLRB v Gissel Packing Co , 395 U S 575, 618, N L R B v Dowell Di vision, Don Chemical Co .420 F 2d 480 (C A 5) 16 Blue Flash Evpress. Inc . 109 NLRB 591. Struksnes Construction Co , Inc 165 NLRB 1062. St John's Assoc tares Inc , 166 NLRB 287, enfd 392 F 2d 182 (C A 2), and Mobile Paint Manufacturing Company of Delaware, Inc , 168 NLRB 783 17 See Phillips Industries, Inc . 172 NLRB No 232, Great Scott Super Market, 156 NLRB 592, 601 COTTON LUMBER COMPANY Respondents ' third wage increase to Cotton , Arling- ton, and Blaine on November 7, 1969 , was a benefit to chill the union organizational activity, and violative of Section 8(a)(1) of the Act . It was the third general increase in the year 1969. Respondents at the most gave no more than two increases in prior years. This one followed the October 27, 1969 , Decision and Direction of Election of the Regional Director. There is no substantial evidence , economic or otherwise, to support this unusual and extraordinary third general increase . Bill Blaine's conclusionary testimony of the reason for the increase is not persuasive when apprised against other Conduct which I have found violative of Section - 8(a)(1), and the transfers and discharges which I find infra are violative of 'Section 8(a)(3) and (1) of the Act.'A The statements made by Gillespie in the conversation of August 7, 1969, in which he , Dials, Sr., Perry, Daniels, Milt Williams, and Bill Thompson participated are not violative of Section 8(a)(1) of the Act. Gillespie , a loader, and Perry, a truckdriver, were loading Perry's truck. They were engaged in a heated conversation about the Union. Perry, an organizer for the Union, and Gillespie, militantly antiunion , expressed their opinions about the value of union representation . Either one could have started the conversation . Gillespie hollered to Daniels and Milt Williams to join the conversation and, after they joined, asked Daniels how he felt about the Union. Perry told them . Dials, Sr., and Bill Thompson joined the conversation shortly afterwards: In the course of the conversation Perry told Dials, Sr., and Gillespie they would have to join the Union if it represented the employees The petition for certification filed by the Union on August 8, 1969 , asked for a unit including working foreman . Gillespie told the group he would quit his job at Cotton rather than join the Union. He also said that those starting the Union would be thinned out like crabgrass as was done at the time of the organiza- tional activity in 1968. The evidence 'does not disclose that Gillespie has supervisory status. Respondent is not responsible for his statements Dials, Sr., spends most of his working time loading trucks as a rank -and-file employee and associates with the other rank-and-file employees. There is no evidence that at the time of the conversation he was working in 'Johnson ' s job of foreman. I do not find from the evidence any endorsement by Dials, Sr., of what Gillespie said The participants in the conver- sation were truckdrivers and loaders , and expressed their convictions strongly and affirmatively as men of their type do. Dials, Sr ., a friend of Perry, disclosed in his testimony that he enjoyed the expressions of opinion by Perry. He did not believe Perry's statements to other employees which he overheard to be coercive. Dials, Sr , informed Fred Blaine that Perry said that he would have to join the Union if the Union came in, but, as I have found supra, this report , like the others of the same nature, was in response to an instruc- tion to him and others by Blaine to report to him " Exchange Parts Company, 131 NLRB 806, affd 375 U S 405 297 anything he-heard about the Union . The conversation was, a casual ' conversation ., Dials ', Sr., and Gillespie did not participate in it as agents of Respondent . Gillespie obviously had a low boiling point . I have found him herein to be a, man of questionable credibility in view of his militant antiunionism . I have not credited his testimony that Perry engaged in organizational activity that hampered production and harassed employees .' Simi- larly, I do not draw the inference that in the conversation of August 7, 1969 , he spoke for Respondents , especially in view of the more temperate attitude of Dials, Sr., who on occasion , acts as a supervisor for Respondents. 19 Sayre's transfer from Cotton to Blaine , effective' Wed- nesday, ' August 6, 1969 ; Daniels' tranfer from Cotton to Arlington , effective Friday, August 8 , 1969; the dis- charge of Daniels, effective Monday , August 11, 1968; and the discharge of Perry, effective August 22, 1969, were made by Respondents to chill the Union 's organiza- tional activity, dissipate its strength , and prevent it from obtaining a majority of votes in the forthcoming election.20 I The evidence shows that Fred Blaine , Emerson Blaine, and Bill Blaine were aware of the Union' s organizational activity at least from the beginning of the card signing on August 4 , 1969. Daniels and Perry were the leaders of the organizational activity Johnson , Ray Dials, Sr , and Gillespie who worked in the yard with the rank- and-file employees kept Fred Blaine posted about the union activity,, and Fred Blaine , in turn , kept posted his brother, Emerson Blaine , the president and treasurer of Cotton and Blaine , the treasurer of Arlington, the general manager of all the enterprises , and the owner with Bill Blaine , his son , of all the stock in all the enterprises . Sayre signed a union card on August 4, 1969, and attended the meetings of the Union held each Thursday beginning with Thursday, but evidence does not disclose his engaging in the type of activity on behalf of the Union - engaged in by Daniels and Perry. However, evidence discloses that the Blaines were of the opinion that Sayre was substantially involved in the union activity. I refer to Johnson 's inquiry to Sayre on August 7, 1969, when he appeared at Cotton about 5:15 p.m. after working at Blaine during the workday, whether he was on his way to the union meeting to be held that evening ; Emerson Blaine ' s warn- ing to Sayre on August 8, 1969 , to stay away from Cotton as he was over there pushing the Union, and Fred Blaine's question , after Sayre 's transfer to Blaine, " See N L R B v Power Equipment Company 313 F 2d 438 (C A 6) 2" Respondents contend that if they are a joint employer they are entitled to a finding that the employees of all of them as a unit constitute the appropriate unit for the purposes of the representation proceeding in Case 9-RC-8255, and not just a unit of Cotton ' s employees The Regional Director , in his Decision and Direction of Election of October 27, 1969, found a unit of Cotton ' s employees to be appropriate This is the unit requested by the petitioner In his decision , the Regional Director sets out his reasons and supporting authorities for his holding Under Sec 102 67(f) of the Board ' s Rules and Regulations, this holding of the Regional Director is not relitigable in an unfair labor practice proceeding The courts have upheld the Board Pittsburgh Plate Glass Company v N L R B, 313 U S 146, 158, N L R B v West Kentucki Coal Company, 152 F 2d 198, 200 (C A 6) 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to driver Cooke on his return to Cotton from a pickup at Blaine, whether Sayre was still talking about the Union over there. The timing of the transfers and discharges, in relation to the union activity, the demand for recognition, the petition for certification as representative, and the antiun- ion conduct of Respondents violative of Section 8(a)(l) of the Act, placed the burden on Respondents of present- ing substantial evidence explaining the transfers and discharges.21 I do not find persuasive the explanation in the defense of Sayre's transfer to Blaine that Blaine was a two- man mill like Cotton, and Blaine had only one Than instead of two while Cotton had three, when analyzed with the other evidence. As stated, there is present the general union animus, and animus against employees actively engaging in the union activity. Shamblin, who was promoted to Sayre's job or leadman, was pointedly referred to the increase in wages in his paycheck by Emerson Blaine , and was warned,by Fred Blaine that things might not be as rosy as the promotion and increase in wages if the Union came in. There is also present the factor that Fred Blaine told Sayre on August 5, that the transfer would be only for the remainder of the week, and he could finish the work he had to do at Cotton when he returned the following Monday, and when Sayre reported to work at Blaine on August 6, he was informed the transfer was permanent, and after he talked to Emerson Blaine and told him he preferred to work at Cotton because he would have a transportation problem getting to Blaine, and he had long tenure of employment at Cotton, Emerson Blaine told him bluntly to work or quit. As I have previously found, Respondents were of the opinion that Sayre was substantially involved in the union activity. Respondents' defense to the transfer from Respondent Cotton to Respondent Arlington, in the heat of the organizational activity at Respondent Cotton, of Daniels, a leader in the organizational activity, is that Respondent Arlington was in dire need of an employee at Arlington and had to rely on Cotton to furnish him. Respondents' witness Preece, the foreman in charge of Daniels, at Arlington, testified that Daniels, a truckdriver at Cotton and a former forklift mechanic, was assigned to cleaning up around the electric saw and stacking lumber in the truss making department when he was transferred to Arlington. He received the same wages he received as a truckdriver at Cotton. Emerson Blaine and Bill Blaine , the owners of all the Respondents, and Fred Blaine and Johnson at Cotton run an efficient economic operation. They would not, in ordinary circumstances, have transferred Daniels, whose truckdriving skills were urgently needed at Cotton, to the unskilled job of clean- ing around the electric saw and stacking lumber at Arlington. Bill Blaine's testimony discloses that Arling- ton had access to personnel through Spot Labor, an " N L R B v Great Dane Trailers, Inc , 388 U S 26, 34, N.L.R.B v Fleets ood Trailers Co , 389 U S 375, Duncan Foundry and Machine Works, Inc , 176 NLRB No 31, and Atlanta Newspapers. Inc . 172 NLRB No 152 employment agency in Columbus, Ohio. There is no testimony that a worker could not have been obtained from Spot Labor to do the work to which Foreman Preece at Arlington testified Daniels was given. Respondents defend Daniels' discharge in the early morning of Monday, August 11, 1969, only 2 workdays after the transfer, on the ground that he quit work at noon on Saturday, August 9, 1969, when he was ordered to work in the afternoon. I have credited Daniels' testimony that although he attempted to find out Friday evening, August 8, if he had to work longer than a half day on Saturday, he was not able to obtain This information I have also credited his 'testimony that he worked only a half day at Cotton, and assumed, in the absence of information to the contrary, that the workday ended at noon on Saturday at Arlington, and did not bring a lunch with him. I have also credited Daniels' testimony that he asked Preece if he could leave at noon on Saturday because he did not bring a lunch and Preece told him to go ahead. Daniels saw some employees checking out for the day at noon. I have not credited Preece's testimony that at noon on Saturday he ordered Daniels to work on Saturday, and he refused. I find from the testimony of Preece, the foreman at Arlington, in regard to work on Saturday that it is not clear whether employees do not work on Saturday unless they are notified on Friday evening they are to work on Saturday, or whether they are expected to work unless notified otherwise. I also find from Respondents' evidence that it is not clear how long the employees work on Saturday. Bill Blaine in the representation proceeding testified that the employees worked a half day on Saturday at Arlington, but testified in this proceeding he was in error in giving this testimony Preece testified that on Friday he said to Daniels that some employees worked long hours on Saturday. I do not credit this testimony. I have found that he did not tell Daniels anything about working on Saturday. But assuming he did for the purpose of argument, such a statement did not inform Daniels if he had to work longer than a half day on Saturday. It is undisputed that the catering truck did not come to Arlington on Saturday This alone indicates that only a few persons worked on Saturday, and they worked only a short day. Then there is Bill Blaine 's testimony that Daniels may not have known when he left Arlington on Friday that he had to work in the afternoon of Saturday. I have found that Daniels did not have a lunch with him on Saturday even though he may have had a lunch- box with him on Saturday when he checked out. The testimony of Respondents' witnesses, particularly the testimony of Bill Blaine and Preece, that Daniels was discharged because he left Arlington at noon on Saturday, August 9, after refusing to work Saturday afternoon although ordered to do so, is clearly pretextual, especially when viewed with the credited testimony of Daniels, the background evidence of the union activity, the evidence of the union animus of Respondents, and the timing of the transfer and the discharge in relation to the union activity COTTON I UMBER COMPANY 299 1 Respondents' defense of its discharge of Perry on August 22, 1969, is that he continuously harassed employ ees at Cotton about the Union, a number of them complained to Fred Blaine about Perry's conduct, and Respondents finally had to discharge him after warning him twice to leave the employees alone I have found that Perry, a truckdriver and an efficient employee, was one of the employee leaders of the organizational activity, and talked about the Union to nearly all of the employees at Respondent Cotton The Regional Director's Decision and Direction of Election of October 27, 1969, was still pending when Perry was discharged I have found that Respondents granted a general wage increase on November 7, 1969, to chill unionism and dissipate its support Respondents efforts to defeat the union activity at Cotton were still in effect on August 22 and thereafter even though the card solicitation, demand for recognition, and the filing of the petition for certification had taken place in the week ending August 9, 1969 I have found that Respondents' evidence does not support its defense that Perry in organizing for the Union harassed employees and interfered with their production Respondent Cotton did not have a no-solici- tation rule 22 I have found that certain employees at Cotton reported to Fred Blaine after Perry approached them about the Union I also found, however, that these reports were made not because of any harassment or interference with their production, but because Fred Blaine instructed them to report to them anything they heard or saw about the Union Respondents used the reports made to Fred Blaine pursuant to his instructions to support Respondents' pretextual explanation that Perry was discharged because he hampered or harassed employees and interfered with their production There is Perry's unrebutted testimony corroborated by the testimony of Castle that on the morning after Perry's discharge Foreman Johnson nodded yes to Perry's ques- tion if he was fired for pressing the Union Respondents' explanation of Perry's discharge is not supported by substantial evidence The preponderance of the evidence on the record as a whole shows that Respondents discriminatorily transferred Daniels and discharged him, and discrimina- torily discharged Perry, because of their union activity, and to chill the Union's organizational activity and dissi pate its strength It also shows that they transferred Sayre, in their belief that he was substantially engaged in union activity, because of union activity, and also to chill the Union's organizational activity and dissipate its strength The object of this conduct was to discourage membership in the Union This conduct violates Section 8(a)(3) and (1) of the Act 23 12 See N L R B v United Steel Workers of America CIO 357 U S 357 In the absence of a rule the question is whether the organizational activity interfered with production or discipline N L R B V Poster Equipment Compan ) 313 F 2d 438 (C A 6) enfg as modified 135 NLRB 945 and remanding for resubmission of order 29 N L R B v Great Dane Trailers Inc 388 U S 26 34 N L R B v Fleetitood Trailer Co Inc 389 U S 375 K'imp Togs Inc 148 NLRB 196 N L R B v Tru Line Metal Products Compam 324 F 2d 614 616 (C A 6) enfg 138 NLRB 964 cert denied 377 U S 906 On the finding that Fred Blaine s two warnings to Perry, prior to his discharge, to cease communicating with employees was to provide a pretextual basis for his discharge, and to chill his union activity, I find and conclude that these warnings, in themselves, are an independent violation of Section 8(a)(1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above , have a close , intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce V THE REMEDY Respondents have been found to have engaged in conduct violative of Section 8(a)(1) and (3) of the Act I shall recommend that they be ordered to cease and desist from engaging in such conduct, and to take the affirmative action specified It is designed to effectuate the policies of the Act The extent of Respondents' illegal conduct calls for a broad order N L R B v Entwistle Mfg Co , 120 F 2d 532 (C A 4) Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following CONCLUSIONS OF LAW I Respondents jointly are an employer, and severally each is an employer within the meaning of Section 2(2) of the Act, and jointly and severally are engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 Respondents , in violation of Section 8(a)(1) of the Act, have interrogated and threatened employees, and have given them the impression of surveillance , to inter fere with their rights under Section 7 of the Act to become members of the Union, engage in union activity and other concerted activity, and select the Union as collective bargaining representative 4 Respondents , in violation of Section 8(a)(1) of the Act, have granted wage increases to employees, and have promised them other benefits to interfere with rights under Section 7 of the Act to become members of the Union, engage in union activity, and select the Union as collective-bargaining representative 5 Respondents, in violation of Section 8(a)(3) and (1) of the Act, discriminatorily transferred employee Augustus Daniels from Respondent Cotton to Respond ent Arlington, and then discharged him because he engaged in union activity and to chill and dissipate NLRB v D Armigene Inc 353 F 2d 406 409-411 (C A 2) enfg 148 NLRB 2 N L R B v WTVJ INC 268 F 2d 346 347-348 (C A 5) enfg 120 NLRB 1180 and Ames Reads Mn Concrete Inc 170 NLRB No 174 enfd 411 F 2d 1159 (C A 8) t 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the organizational efforts of the union at Respondent Cotton, and thereby discourage membership in the Union. 6 Respondents, in violation of Section, 8(a)(3) and (1) of the Act, discriminatorily discharged employee Albert Perry because he engaged in union activity, and to chill and dissipate the organizational efforts of the Union, and thereby discourage membership in the Union. 7. Respondents, in violation of Section 8(a)(3) and (1) of the Act, transferred employee Robert Sayre from Respondent ,Cotton to Respondent Blaine because of his union activity, or their belief he engaged in substantial union activity, and to chill and dissipate the organization- al efforts of the Union, and thereby discourage member- ship in the Union. 8. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing facts and conclusions of law, and upon the entire record in the case, I recom- mend that the Board enter an order requiring Respond- ents, their officers, agents, successors, and assigns, to: 1. Cease and desist from: (a) Interrogating and threatening employees, giving them the impression of surveillance, giving them wage increases, and promising and giving them other benefits, in regard to their rights to engage in union activity, to assist Teamsters Union, Local 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any, other labor organization, -or to select or authorize it to act as their collective-bargaining representative. , (b) Discouraging membership in Teamsters Union,, Local 413, affiliated with the International Brotherhood of Teamsters; Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by transfer- ring or discharging employees because they engaged in union activity or other concerted activity, or otherwise discriminate against them in regard to the hire • and tenure of their employment or any term or conditiqn of employment, because they engage in union activity or other concerted activity. , (c) In any other manner interfering with, restraining, or coercing-employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, or to refrain from any and all 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 I find will effectuate the purposes of the Act: (a) Offer immediate reinstatement to employees Augustus Daniels and Albert Perry to their former or substantially equivalent employment at Respondent Cot- ton without prejudice to their seniority and other rights and privileges, and make them whole, for any loss of earnings they may have suffered by reason of the discrim- ination against them with interest at 6 ,percent per annum, as provided in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing,& Heating Company, 138 NLRB 716. (b) Offer immediate reinstatement to employee Robert Sayre to his former or substantially equivalent employ- ment at Respondent Cotton either by transfer from employment at Respondent Blaine or otherwise, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, with interest at 6 percent per annum, as provided in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their rights to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military and Service Act, as amended, after dis- charge from the Armed Forces. (d) 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 relevant and material to Respondents' compli- ance with the provisions of this Order. (e) Post in conspicuous places at their plants in Colum- bus, Ohio, including all places where notices to employ- ees are customarily posted, copies of the attached notice marked "Appendix."24 Copies of said notice on forms provided by the Regional Director for Region 9, after being duly signed by an authorized representative of Respondents, shall be posted by them, immediately upon receipt thereof, and maintained by them for 60 consecu- tive days thereafter. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt by the Respond- ents of this Decision, what steps the Respondents have taken to comply therewith.'-' 24 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the said Rules and Regulations, be adopted by the Board and become its findings, conclu- sions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 2S In the event 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 Respondents have taken to comply herewith " COTTON LUMBER COMPANY IT IS FURTHER RECOMMENDED that unless on or before 20 days from the date of the receipt of this Trial Examen er's Decision and Recommended Order the Respondents notify the Regional Director in writing that they will comply with the foregoing Recommendations, the National Labor Relations Board issue an order requiring the Respondents to take the action aforesaid APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate or threaten employees, or give them the impression of surveillance, or give them wage increases or promise or give them other benefits , to interfere with , coerce , or restrain them in regard to their rights to engage in union activity , to assist Teamsters Union , Local 413, affiliated with the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America , or any labor organization , or to select or authorize it to act as their collective bargaining representative WE WILL NOT discourage membership in the above Union , or any other labor organization, by discharging or transferring employees because they engage in union activity or other concerted activity, or otherwise discriminate against them in regard to the hire and tenure of their employment, or any term or condition of employment , because they engage in union activity or other concerted activity WE WILL NOT in any other manner interfere with , restrain , or coerce employees in the exercise of their rights to self organization, to form labor organizations , to join or assist the Union, or any other labor organization , to bargain collectively through representatives of their own choosing, or to engage in any other concerted activities for the purpose of collective bargaining , or other mutual aid or protection WE WILL offer immediate reinstatement to employees Augustus Daniels and Albert Perry to their former or substantially equivalent employment 301 at Cotton Lumber Company , and will offer to employee Robert Sayre to immediately transfer him from Blaine Lumber Company to his former or substantially equivalent employment at Cotton Lumber Company , or to otherwise immediately place him in such employment , without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earings they may have suffered by reason of the discrimination against them , with interest at 6 percent per annum All our employees are free to become , or refrain from becoming , members of Teamsters Union, Local 413, affiliated with the International Brother hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, or any other labor organization Dated By COTTON LUMBER COMPANY , ARLINGTON LUMBER COMPANY, AND BLAINE LUMBER COMPANY (Employer) (Representative) (Title) Note We will notify Augustus Daniels and Albert Perry if presently serving in the Armed Forces of the United States of their rights to full reinstatement to their former or substantially equivalent employment at Cotton Lumber Company, and Robert Sayre if presently serving in the Armed Forces of the United States of his right to be fully transferred or otherwise placed in his former or substantially equivalent employment at Cotton Lumber Company , 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 is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not bd altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions , may be directed to the Board's Office , Room 2407 Federal Office Building , 550 Main Street , Cincinnati, Ohio 45202 , Telephone 513-684-3686