Martin-Marietta Corp.

SOUTHERN CEMENT CO. Southern Cement Company , Division of Martin- Marietta Corporation and United Cement, Lime and Gypsum Workers International Union, AFL-CIO. Cases 10-CA-7015, 10-CA-7015-2, and 10-RC-7093 June 26, 1968 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On March 19, 1968, Trial Examiner Herman Tocker issued his Decision in the above-entitled consolidated proceeding, finding that the Respon- dent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not engaged in other alleged viola- tions and recommended dismissal of such allega- tions . The Trial Examiner further recommended setting aside the election held on June 22, 1967, in Case 10-RC-7093. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner 's Decision , the exceptions and brief, and the entire record in this proceeding, and hereby adopts the Trial Examiner 's findings,' con- clusions, and recommendations, except as modified herein. We agree with the Trial Examiner that the Respondent violated Section 8(a)(1) of the Act and interfered with the election by President El- lison's speeches to the employees and Supervisor Miller's conversation with employee Underwood. We would also find that Miller's admitted system- atic interrogation of other employees constituted coercion and interference in the context of this proceeding. However, we do not adopt the Trial Examiner 's finding that Miller threatened em- ployees other than Underwood as, in our view, the record does not support such finding; nor do we find, in the circumstances, that the statements 383 made by Supervisor Blackerby to employee Smelley violated Section 8(a)( 1) or interfered with the elec- tion. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Southern Cement Company, Division of Martin- Marietta Corporation, Atlanta, Georgia, its officers, agents , successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete from the Trial Examiner's Recom- mended Order paragraphs 1(a) and I(e) and re- letter the remaining paragraphs accordingly. 2. Delete from the Appendix the first and sixth indented paragraphs. 3. In the fifth indented paragraph of the Appen- dix delete the following words: "We do not promise and." IT IS HEREBY FURTHER ORDERED that the com- plaint be, and it hereby is, dismissed, insofar as it alleges unfair labor practices other than those found herein by the Board. IT IS FURTHER ORDERED that the election which was held on June 22, 1967, among the employees at Respondent's plant in Atlanta, Georgia, be set aside, and that Case lO-RC-7093 be severed from Case 10-CA-7015 and 7015-2 and that it be re- manded to the Regional Director for Region 10 for the purpose of conducting a new election in the ap- propriate unit at such time as he deems that cir- cumstances permit the free choice of a bargaining representative. ' The Respondent has excepted to the credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner 's resolutions with respect to credibility unless the clear prepon- derance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We find no such basis for disturbing the Trial Examiner's credibility findings in this proceeding TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN ToCKER, Trial Examiner: This proceed- ing, with all parties represented, came on to be heard before me at a hearing in Atlanta, Georgia, commencing November 28, 1967, and concluding on December 1, 1967. We are concerned with objections to a represen- tation election and with charges alleging unfair practices of a division of Martin-Marietta Corpora- 172 NLRB No. 38 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion , the Respondent . The charges were filed by United Cement, Lime and Gypsum Workers Inter- national Union, AFL-CIO, the Union, following its filing of objections to the election. On May 15, 1967, the Union filed a petition that it be certified as collective-bargaining representa- tive of the employees in the unit involved. The elec- tion was conducted June 22 pursuant to a duly ap- proved Stipulation for Certification Upon Consent Election . Out of approximately 64 eligible voters, 31 cast valid votes for, and 32 cast valid votes against, the Union. No ballots were challenged. The Union filed objections on June 23. It also filed charges alleging unfair labor practices. A first charge , twice amended, was filed July 12, 1967. As now amended , it involves only alleged interference with and restraint and coercion of employees in the exercise of their protected rights. In another charge , filed August 4, it is asserted that Respon- dent wrongfully discharged one Winston Leonard Giddens for the purpose of discouraging member- ship in the Union and also engaged in "other acts and conduct" amounting to interference with pro- tected rights. The objections were that there had been wrong- ful interrogation and threatening by foremen and supervisors regarding the union activities of em- ployees, alleged captive-audience speeches during which promises of benefits and threats of adverse consequences were made in the event that the Union won the election , and, finally, threats by foremen and supervisors that there would be ad- verse consequences if the Union was selected. In a report , issued September 1, the Regional Director ruled that the objections filed raised "ma- terial and substantial credibility issues which can best be resolved by a hearing." He accordingly directed that such a hearing be held. Thereafter, on September 29, 1967, the Regional Director, on behalf of the General Counsel, issued an order consolidating the cases and, upon such consolidation , issued the complaint . In substance, after the usual formal and introductory allegations, it alleged ( I) wrongful interrogation by supervisors of employees concerning their union membership, activities , and desires and those of other employees; (2) that supervisors had threatened employees that they would be laid off if the Union was successful in .its campaign ; (3) that a supervisor had threatened employees that the plant would be closed if the Union was successful ; (4) that a number of super- visors had threatened employees that the Christmas bonus would be eliminated if the Union was suc- cessful ; (5) that two supervisors had threatened white employees with replacement by Negro em- ployees and assignment to less desirable jobs if the Union was successful ; (6) that a supervisor had created the impression that the Company was en- gaged in the surveillance of employees ' union ac- tivities; ( 7) that Respondent 's division president had promised that it would pay " wages equal to those currently being paid at neighboring union plants if the Union was defeated "; and (8) that Respondent wrongfully discharged and failed and refused to reinstate an employee , Winston Leonard Giddens, because of his union activities. Respondent filed its answer on October 11, 1967. It denied all factual and conclusory allegations on the basis of which any finding of violation of law might be made. The Issues These are the basic issues . Had the Respondent interfered with protected rights of its employees by (a) promising them benefits if they refrained from union activities , ( b) threatening them with adverse consequences if they engaged in such activities or chose the Union as their collective-bargaining representative , and (c ) seeking to give them the im- pression that their union activities were being watched ? Had Giddens been discharged because of his union activities? Collateral to the issue concern- ing the alleged Giddens discharge is the question whether he did not actually quit his job or , having given notice of his intention to quit at some in- definite time in the future , had been instructed to appear for work on the day following the giving of that notice with simultaneous acquiescence in his "quit" by informing him that that day would be his last day, which was followed by his abandonment of his job or his final termination for failure to report on that last day. Finally , and this will depend on what findings are made and what conclusions are reached upon the charges of unlawful interferences with protected rights of employees , should the election be set aside? Preliminary After notice to counsel , the Trial Examiner, upon his own motion , not having received any objections to proposed corrections of the transcript, duly is- sued an order directing that the transcript be cor- rected as more particularly therein set forth. After counsel supporting the complaint had rested, Respondent called as its first witness Mr. C. H. Ellison , Jr. It was developed in his testimony that, while he held an office, "President of Southern Cement Company," this company was not an entity but was merely a "chart division " of Mar- tin-Marietta Corporation. It was then agreed that the complaint be amended to allege that Southern Cement Company was an operating division of Martin -Marietta Corporation , a Maryland corpora- tion; that said division, Southern Cement Company, was the only division of Martin-Marietta involved in this proceeding ; and that, wherever reference had been made in the complaint to Respondent, that reference was to be deemed to refer to and mean the Southern Cement Company division . The cap- tions of the proceedings remain as before. The resolution of the issues in this proceeding SOUTHERN CEMENT CO. 385 requires conclusions to be based on the degree of credibility to be accorded to the oral testimony given at the hearing . That a witness is credited or is not credited or that the testimony which he has given is regarded as credible or not to be accepted as credible does not mean , in the former case, that he always has told the truth or, in the latter case, that he always has lied and perjured himself. It means simply that the sum total of all the evidence, the probabilities , and a weighing of the probabilities dictate the end result. Moreover, if I do or do not credit certain portions of a particular witness' testimony , it does not follow that I regard his entire testimony as worthy or as unworthy of being credited nor should it be assumed that , if I had con- sidered but have not referred to a particular portion of such a witness ' testimony, I would or would not have credited it. Other factors taken into considera- tion are the demeanor and conduct of the witnesses on the witness stand , their apparent candor or ap- parent lack of it, their objectivity , their bias or their prejudice , their understanding of the matters con- cerning which they testified , and whether their testimony ( in whole or in part ) has been con- tradicted or impeached sufficiently in material aspects . Additional factors have been suggested in Jencks v. United States, 353 U.S. 657, 667. Finally, the effect which leading questions might have had on the answers elicited thereby is not to be over- looked. Now, upon the whole record and, after carefully reading and considering the briefs submitted by counsel and the arguments made therein , and hav- ing the foregoing factors in mind , the following are my FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND JURISDICTION Martin-Marietta Corporation is a corporation duly organized and existing under the laws of the State of Maryland. Its principal office and place of business is in New York City, New York. Southern Cement Company is a division of Martin-Marietta and its offices and places of business are in Atlanta and Tate, Georgia . This division is engaged in the production and manufacture of Portland cement. It is the only Martin -Marietta division involved in this proceeding . Wherever reference has been made or will be made to "Respondent ," such reference shall be deemed to be to Southern Cement Company. Respondent has admitted that it is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Labor Management Relations Act of 1947, as amended . The National Labor Relations Board has jurisdiction of this proceeding and of the Respondent. Ii. THE LABOR ORGANIZATION INVOLVED United Cement , Lime and Gypsum Workers In- ternational Union , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. It filed the charges and the objections to the elec- tion . Wherever reference is made to "Union" in this decision such reference is to it. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Supervisor Fleming's Conduct Charles R. Fleming is supervisor of Respondent's maintenance department. There are three divisions in that department: The packhouse or shipping divi- sion in which there are 15 or 16 men under the su- pervision of a foreman, John Ireland; the crusher division, in which there are 4 or 5 people under the supervision of another foreman , James Payne; and the maintenance gang, supervised directly by Flem- ing. Foremen Payne and Ireland are under Fleming's general supervision. Charlie W. Smelley is employed in the main- tenance division and Fleming is his immediate su- pervisor. According to him: At the very beginning of the campaign, in March 1967, Fleming asked him who he thought was for the Union and who was the leader. Then, about 2 weeks before the election (early June) Fleming asked him about what he had been hearing about Smelley 's part in the campaign and informed him that he had talked to other em- ployees seeking to get them to vote against the Union even though they had signed union cards. He said that, in his talks to the night-shift employees in the packhouse, he had let them know that the whole shift could be laid off because the Company could ship cement from a nonunion plant in North Birmingham, Alabama. There were similar conver- sations "off and on." Although Smelley had testified on direct that Fleming had told him he had talked to the other employees against the Union , on cross-examination he was led into testifying that Fleming , after asking him whether he was for the Union and ascertaining that he was against it, enlisted his aid to urge other employees to vote against the Union. Because of Fleming's alleged remark about layoffs in the packhouse, he tried to talk certain employees out of voting for the Union-Herman Ruff, William Adams, Henry Connell, and Linwood Willingham. Connell, testifying on behalf of the Respondent, de- nied that Smelley ever had spoken to him about the Union or about layoffs. The others were not called by either side. No effort was made to rebut Con- nell's testimony . Although there was no effort to corroborate that of Smelley this is not too impor- tant because , except for the alleged talks to other employees, it does not appear that Fleming's talks with him were overheard by others . In response to my effort to clarify the testimony, Smelley said that Fleming had told him that , if Respondent "went union," the North Birmingham plant, being non- union, would be unable to ship to Respondent and 354-126 O-LT - 73 - pt. 1 - 26 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this would result in the layoff of the nightshift. This was contrary to what he had testified on direct. Another employee , Oscar Hawkins, who works in the crusher division under Foreman Payne , testified that about 2 or 3 days before the election Fleming asked him if he could handle Joe Muse and Charlie Smith and keep them from "going union." Although he had told Fleming that he was against the Union , he really was for it and, for that reason, did not talk to Muse and Smith as he had been requested . Another time , about a week before the election , Fleming told him to tell the men in the packhouse that when shipping slackened in the win- tertime they would be laid off and not assigned to other work if the Union came in. A former employee , Brown Hardnett , testified that Fleming had told him variously that if he kept the Union out the Christmas bonus always would be paid and if the Union came in "the bonus would be cut out." This was not reported by him in his pretri- al statement to a Board agent . When this was brought out he became quite belligerent and as- serted that Cecil Ryan , Joe Thomas , and a man nicknamed " Pepsi Cola" all would testify to the same effect . None of these was called. Samuel Rhines , a current employee who had been working on the crusher during the time in- volved , testified that in June , in response to a question by Fleming as to what he thought about the Union , he "told him it wasn't true " and that he "wasn 't for the Union." Fleming then asked him to talk to the other men and told him that if the Union came in the plant would be shut down half the time and that it would get cement from the other plants in Alabama . At or about the same time Fleming asked him, in addition to other questions about the prior election, whether the older men had signed union cards . His testimony about the threats of layoffs or discharges becomes very much suspect in view of other testimony given by him to the effect that no boss ever told him he would be fired and that the talk about layoffs and discharges was the talk of the employees , particularly the older men who had worked at the Alabama plant. This talk was, "[T]hat we didn't need a union." Winston L . Giddens is the employee allegedly discharged in violation of Section 8(a)(3) of the LMRA , as amended. He started to tell about al- leged remarks by Fleming by referring to "a day or two after the election " but quickly changed the time to "after (he) signed the union card " follow- ing an interjection by counsel . He signed the card on March 1 and, a day or two later , as he was going to work , he was beckoned by Fleming who al- legedly said to him , "[ Did Mr. Wheeler , the union's representative ] offer you a nickel to sign the card." Giddens testified that he told Fleming he did not know "what [he was] talking about ." Fleming then said, allegedly, "I know that you signed the card .... Did he offer you a nickel? ... Well, I just wanted to tell you that if the Union came in Joe Thomp- kins," a Negro , would have his job and Giddens would be doing Thompkins' less desirable job. Then , several weeks later, before the election, Fleming and Giddens were having a conversation in which Giddens asked Fleming what would happen if the Union came in , to which Fleming allegedly replied that the Christmas bonus would be cut out. This was the only manner in which the Union was mentioned in this conversation . Still another in- cident involving Fleming was recounted by Gid- dens . Fleming is alleged to have said , in a conversa- tion with him and one Baugus , that if the Union came in the bonus would be cut out and he would not want to lose it because , when it was paid, he was able to eat and drink like the President. (Bau- gus' version of this sort of remark by Fleming was that it was made on two occasions-the first at the preceding Christmas when the bonus was paid and Fleming said , "Well, I can go home tonight and drink liquor like President Johnson ," and the second when somebody said it would not " be long till Christmas," to which Fleming remarked, "Yeah. That's one time I can drink the liquor like President Johnson.") Fleming was called as a witness in defense. He denied that he had engaged in any of the interroga- tions, accusations , threats , conjectures, remarks, demands, and the expressions suggesting that he or Respondent was engaging in surveillance of the union activities of any of its employees . He denied that he had solicited the aid of any employee to dis- suade others from union activities . He denied also that he had said or speculated that , if the Union was selected, packhouse employees would have to be laid off because the union -organized plants would not ship to Respondent, or because Respon- dent would get cement from other plants in Alabama, or because all the work could be done by the day shift. He admitted that he had made a re- mark to the effect that when he received the Christ- mas bonus he could eat or drink like the President but denied that he had associated this remark with any comment to the effect that the bonus would be discontinued if the Union were selected . He denied as well that he had made any statement referring to Giddens having received a nickel from Organizer Wheeler for having signed the card or that, in the event of organization , colored persons would get the jobs held by whites and whites would be trans- ferred to the less desirable work being done by the former. Fleming disclaimed having had knowledge of the organizing campaign until the time after he was in- formed that Union Organizer Wheeler had made a demand for recognition. I find it difficult to believe that a supervisor in a plant such as the Respon- dent's, which numbered among its employees many strong opponents of the Union , did not have an im- mediate awareness of the campaign just as soon as it commenced . It is necessary , however , for me to decide whether , despite my own doubts as to some of his testimony , the evidence in support of the charges involving him is of sufficient probative SOUTHERN CEMENT CO. 387 value to justify findings that he engaged in the in- terrogations, threats, remarks, and observations al- leged against him. Smelley's testimony about his ef- forts to dissuade others from voting for the Union pursuant to Fleming's request are not corroborated by any person to whom he allegedly spoke and one of those persons has denied that he spoke to him. There was no effort to rebut this denial. Hawkins testified elsewhere about two incidents involving Foreman Payne, both of which I unqualifiedly re- ject below. Hardnett, in my opinion, was a thoroughly unreliable witness. Rhines' testimony makes me wonder whether the alleged threats, in- terrogations, etc., were actually distortions of con- versations among the men themselves and thoughts nurtured in their minds by the fears they had of what would or could transpire in the event that they selected the Union as their bargaining representa- tive. As far as Giddens is concerned, I have con- cluded on the basis of his recital of the events re- lated to his allegedly wrongful discharge, that he is prone to tailor his recollection of events and con- versations in a manner calculated to achieve the result sought by him rather than as they actually happened. While I am not that convinced by Fleming's testimony to enable me to find that he did not com- mit the violations charged to him, I am equally un- convinced by the testimony of the employees that he did. For that reason I must conclude that the charges in which he is alleged to have been in- volved should not be sustained. The testimony in support, as I review it in its entirety and in relation to other testimony, just does not have that degree of substance and probative value so to persuade me. B. Supervisor Payne's Conduct James H. Payne is the foreman of the crusher division and, in turn , is supervised by Fleming. In setting forth here the matters in which it is claimed he was involved I shall defer (as I have done with Fleming ) for a separate section of this Decision the evidence related to the alleged wrongful discharge of Giddens. Oscar Hawkins worked in the crusher division under Payne's supervision . He still is employed by Respondent . He testified about an incident involv- ing a moving transport belt. If it occurred, it could be regarded both as interrogation whether he had signed a.union card and as a threat that, if he had signed it , he would be permitted to be dragged by the belt and seriously injured . He testified that, in the presence of three other employees, Samuel Rhines, Brown Hardnett, and Fred Hayes, Payne had directed him to go under "the hammer mill to get a piece of metal." He remembered to ask Payne whether the belt had been "locked up." According to him , Payne said , "I don't know whether it is or not if you sign one of those Union cards.... We might let you go on up." Hawkins testified that he told him he had not signed. This, he claimed, hap- pened on June 22, the day of the election. Although on direct examination he had testified that he had been sent under the belt to get a piece of metal, on cross-examination he said that at the time "a piece of metal was on the belt ...... and that Payne had sent him "on the belt to get it." When asked about the availability of locks for the purpose of locking the belt and his obligation to lock it if there was a need, he admitted that locks were available and that he was "supposed to lock it out before we go under." He sought to explain his failure personally to lock it by saying that when a person is in a hurry he doesn't do anything and, re- gardless of safety rules, "They want you to get in a hurry." He asserted that it would take 5 or 10 minutes to get the lock and put it on. He was asked to and did repeat the alleged conversation with Payne and he used the exact words that he had used previously. However, it appears that in the af- fidavit that he furnished to a Board agent he had set forth the incident somewhat differently: "On the day of the election, Mr. Payne, my supervisor asked me how I was going to vote . I said ` I was going to vote no.' He said, `Alright then. I won't start up that belt on you then."' This is materially different from his trial version . In his trial version he had testified that, on being instructed to go under the belt, he inquired of Payne whether the belt was locked, while , in his pretrial affidavit , there is nothing at all about a lock or locking the belt. It is to the effect that Payne merely told him , on his answering that he was going to vote "No" in the election, that Payne would not start up the belt. Both Hawkins' and other testimony cause me to doubt very seriously that the incident as portrayed occurred. On direct he had testified that he had to get under the belt but on cross he testified that the piece of metal was on it . If it was on it there was no need to go under and it easily could have been picked off by anybody. Moreover, if an occasion had arisen where he had to get under the belt, as admitted by him, he was supposed to lock it out if he had a lock. He admitted that a lock was available but explained his failure personally to lock it by saying, "When you get in a hurry you don't do anything." Elsewhere, although once he had testified that he had to get under the belt and at another time had testified that the metal was on the belt, he testified , "I was on the belt." Because this in effect was a third version, and a strange possibili- ty (he being on a moving belt), he was asked, "You were on the belt?" And he answered, "Yes." It was sought to corroborate Hawkins ' testimony about the belt incident by that of another em- ployee, Brown Hardnett. Although Hardnett had worked for Respondent for about 5 years, he volun- tarily had left its employ about 3 weeks before the day of the hearing. His version of the incident is substantially identical with that given by Hawkins in his initial testimony . On the basis of the sum total of all Hardnett's testimony , plus his digressions to 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD irrelevant matters, plus his attitude and demeanor on the witness stand , and, finally , variance between his pretrial statement to a Board agent and his testimony at the hearing , I am persuaded not to give credence to any of his testimony. Hawkins testified that employee Samuel Rhines also was present when this incident occurred. He had been employed by Respondent for almost 1 I- 1/2 years and still was employed at the time of the hearing. His version , though in some respects cor- roborating that given by Hawkins , is different. He testified that Payne actually had shut down the belt before sending Hawkins "to get some metal off the belt." After he allegedly had asked Hawkins if he had signed the union card and was told by Hawkins that he had not, according to Rhines, Payne said, "That let[s] me know whether to turn the belt on or not." ( This is similar to Hawkins ' versionain the pretrial statement.) On cross-examination, it developed that Rhines thought the incident oc- curred while Hawkins "was on the conveyor belt" 2 or 3 weeks before the election , not on the day of the election as had been testified by Hawkins. Although Hawkins had testified that he took Payne 's remark seriously, not as a joke, and Rhines had testified substantially to the same effect and that he did not think he laughed or that anybody laughed and regarded it as a joke, it appears that in his pretrial statement to a Board agent he had said, "Payne jokingly told Hawkins that he signed one, too, and told him to turn the belt on, referring to a conveyor belt." This sort of discrepancy between his testimony and that given by Hawkins, and between his pretrial statement and that given by him at the hearing, and other testimony given by him as to the manner in which he came to the building in which the Board 's offices are located, lead me to conclude that , to the extent that he sought to corroborate the testimony about the belt incident, his testimony should be disregarded. I disregard as well that portion of his testimony re- lated to this incident in which he said that Payne addressed him at the same time either accusing him that he had signed a union card or inquiring whether he did. Freddie Hayes, an all-round helper working for the Respondent, is the third person who , according to Hawkins, also had been present when the belt in- cident occurred . He never heard Payne threaten to turn on the conveyor belt when anybody was on it or under it . According to him , and quite believable, if a piece of metal fell on the belt one would walk alongside it and just pick it off. There is no necessi- ty to stop the belt to do that . In response to my questions, he brought out that there could be occa- sions when the belt had to be stopped and when things "down in the bottom " had to be cleaned up. In that event whoever goes down there would put a lock on the belt and, while some employees carry their own locks, there are locks all over the place. These are available to anyone having a need for them , but the normal practice would be for an em- ployee to take it up with "the bossman" or the operator and "[L]et him know what's going on so that he will stop the belt. The ideal place to have the belt stopped is not at the belt itself, but at the place where the crane is being run because the man who is running the crane is not in a position to know what is happening down below and, not knowing, he might start it up again . The foreman has nothing to do with stopping the belt. He never heard a foreman "give instructions to an employee to go down and clean it out, or to stop the belt." Foreman Payne unqualifiedly denied that the belt incident ever had occurred and that he had inquired of Hawkins as to who was the union leader. To turn on a conveyor belt while an em- ployee was on it or under it would be most brutal and amount to murder or attempted murder. Payne testified, quite credibly, that one does not joke about turning on the conveyor belt. It seems to me to be a most logical and sensible practice, as testified by him, "We just don' t go under or on it or under the belts." It is my conclusion that neither the alleged inter- rogation as to whether Hawkins and Rhines had signed union cards nor the threat involving the turning on of the belt transpired. Hawkins told also of an alleged incident which occurred during the voting . According to him, an employee, Cochran, upon his return from the bal- loting, boasted that he had pretended that he did not know what to do with his ballot after marking it and that he came out holding it exposed so that the company observer might see that he had voted against the Union. This prompted Payne, according to Hawkins , to suggest that he do the same. Such conduct, if it occurred, undoubtedly would be a wrongful interference and it could be regarded as well as a threat in that an employee , so directed, reasonably might understand it as implying that ad- verse consequences would ensue in the event of a union victory and that , therefore, he had better vote against the Union and make known this fact to the Company. That Hawkins may have regarded it as a joke does not alter my view of such conduct. Cochran remembered the incident . His version was that, on returning to his job after voting, Payne was among a group of men who "were popping off about" how they were going to vote and this prompted him to say that there had been no doubt in his mind on how to vote and that he had "voted no and [was] not ashamed to let the union side or the plant side, Mr . Bentley, look at [his ] ballot." He had been excused without cross -examination but was recalled and added that Payne had not said anything to him or any other employee about the election and had not told Hawkins to show his bal- lot to the company observer. Other than this, his testimony on later cross-examination was substan- tially as on direct. He might have left the group be- fore Payne made the alleged remark to Hawkins but he did testify that at the time he left some of SOUTHERN CEMENT CO. the other men started drifting away and that he did not remember seeing Hawkins at the time. Payne denied that he had suggested on the day of the election that any employee hold or exhibit his ballot in such a way as to let the company observer know how he had voted . He admitted , however, that on that day Cochran had come down to the crusher and had remarked to the persons there that, if anybody had any doubt about the manner in which he had voted , his ballot had been open and the observer could have seen it. While it is entirely possible that Payne might have made some observation to the group with respect to Cochran's statement ( regardless of whether the statement was as related by him or by Cochran), I am wholly unconvinced that on the very day of the election he told Hawkins in the presence of the others who had been engaged in a serious discussion of the voting, or told the others, or made an open and public remark , that the way to vote was to fumble the ballot so that the Com- pany's observer would be able to see how the vote had been cast. It is my belief that he did not make any such remark. Hawkins testified to additional interrogation by Payne . When Wheeler, the Union's organizer, first came to the plant , according to Hawkins, Payne asked him if he had seen him and he answered that he had not . Then, for about 2 weeks before the election , Payne asked him repeatedly if he knew who was the leader in the Union but again he an- swered in the negative. A continual repetition of in- terrogation as to who might be the leader of the or- ganizing campaign so long after its commencement and during the 2 weeks immediately preceding the election would appear to be entirely so belated as to defy credibility. Payne denied ever asking any employee who was the union leader and that he had urged any employee to tell him while at the same time promising that it would not be held against him. These denials do not reach the alleged inquiry of Hawkins as to whether he had seen Wheeler, the Union's organizer, at the time when Wheeler first came to the plant . However, during cross-examina- tion, an answer was elicited from him to the effect that he had met Wheeler during a prior organizing campaign but never used the name Wheeler in any conversation with any employee and never spoke to any employee about the Union. He admitted, how- ever, on cross-examination, that employees had drawn him into conversations about the Union and what would or would not happen if it organized the plant. He insisted that he always had taken the posi- tion that he did not know . This has, to me, the ring of truth because I am quite certain , on the basis of my observation of the witnesses , that a fear of the consequences of union activity and union organiza- tion permeated a large sector of Respondent's em- ployees . I would be very much astonished if, having such states of mind , employees did not constantly seek out their supervisors for the purpose of discussing the possibilities of the future. 389 I credit Payne 's denials and do not credit the testimony given by Hawkins. Employee Giddens testified that "just about every day" he, fellow employees Baugus and Bent- ley, and Payne engaged in conversations in which Payne told them that "if the Union came in we'd lose our Christmas bonus and all overtime . We'd be lucky to get forty hours a week. And if there was nothing for me to do ... I would be sent home." But Bentley and Baugus testified credibly that they never heard Payne engage in any conversations in which he mentioned the consequences attendant upon union organization . I do not credit Giddens' testimony that Payne waged a general and daily campaign of threats. Giddens testified also as to other alleged inter- ference and intimidation by Payne. There was an incident when Giddens had to do some work in the rain and other occasions when , according to him, Payne told him (presumably in a sarcastic vein) that Union Organizer Wheeler would not have him doing work like that. He testified also that Payne told him that if the Union came in Hardnett, a Negro, would have Baugus ' job and Hawkins, also a Negro, would have his job. (This last was brought out by a leading question.) Then Giddens testified about an incident involving an alleged rumor (real or imaginary) linking him with the Union. When he expressed his concern about this to Payne, accord- ing to the tenor of his testimony, Payne warned him that he had better go to Plant Manager Rowlett to kill the rumor. If it happened as testified by Gid- dens I would have no difficulty regarding Payne's instruction as an implied threat of the probability of adverse consequences for being linked to the Union and a suggestion of the desirability of not so being linked. I do not credit Giddens and again credit Payne on these phases. Implicit in Giddens' testimony, as well as in the testimony of other em- ployees (whether it was engendered by the em- ployees themselves or from external sources), there seemed to be this all-prevalant fear that any con- nection with the Union would result in dire con- sequences for any employee so connected. Accord- ing to Payne, fear was evident in Giddens' concern and, for the purpose of allaying it and so that Gid- dens' mind might be relieved, he suggested that Giddens make known to Rowlett that the rumor was not true. Giddens did this and, in fact, was told by Rowlett that it was his "privilege to vote the Union if [he] wanted to, that [Rowlett] wouldn't hold it against [him]." Also , Rowlett assured him that anybody, he and Baugus, if qualified for a better job would get "moved on up." I credit Payne's denials of the remarks about what work Giddens would be doing and regard his version of the "rumor" incident (corroborated by Plant Manager Rowlett) as the more likely and therefore the true version. 1 reach the same result on the alleged threat that union organization would result in the assignment of Negroes to jobs held by whites. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Supervisor Miller's Conduct himself under interrogation about his pretrial con- ferences or conversations with the union represen- tative and counsel supporting the complaint, and a comparison of his testimony with that given by Miller, persuade me that the Jencks factor is not controlling and that Underwood was a generally credible witness. The remoteness of Underwood's work in Respon- dent's plant from that with which Miller was con- cerned simplifies the problem of resolving the credibility issue here . Either Miller had engaged in a regular or systematic practice of talking to all the men, as had been testified to by Underwood, or he had not. If the former, the likelihood of Un- derwood's report of the conversation would be enhanced and, if the latter, I would approach the issue with a great deal of skepticism . On direct testimony , Miller denied having had any conversa- tion with Underwood and affirmatively stated that he remembered none. As a consequence, he denied having asked Underwood or any other employee what he thought about the Union. He denied also the threat of layoffs in wintertime and the remarks about slackening off of work in the packhouse dur- ing wintertime . During cross-examination he reaf- firmed his prior denials that he had not talked to Underwood or to other employees about the Union. He admitted , nevertheless, that he had spoken to them about Union Organizer Wheeler having asked for recognition and had told them that both Plant Manager Rowlett and he felt that the Union did not have the majority which it claimed. He admitted also that he had told them that, if in fact it did have a majority , something was wrong and that he had sought to ascertain what were the "gripes ." He ad- mitted also that the talks which he had had with employees were had with them "individually." This brought him to concede that some of the employees to whom he spoke might have been from the shipping department although he insisted that he did not remember Underwood as having been one of them. This canvass was undertaken upon the in- struction of Plant Manager Rowlett. It is my conclusion that Miller engaged in a syste- matic interrogation and interview program with whatever employee of the plant he was able to meet, that this program was undertaken as a coun- terattack against the organizational campaign fol- lowing Union Organizer Wheeler's filing of his request for recognition, and that it was undertaken by him under express instructions from Respon- dent's Plant Manager Rowlett . Although he stated initially that his objective in conducting his inter- views with the employees was merely to ascertain their grievances , he admitted later that in addition to this he undertook to emphasize to them the benefits received by them from the Company. As between Underwood and Miller, I have no dif- ficulty selecting Underwood as the person whose testimony should be credited. I find, accordingly, that Respondent , by Miller, did engage in the inter- rogation of employees concerning their union ac- John Miller is project manager and resident en- gineer for construction , concerned with the con- struction of an expanded facility at the premises of the Respondent . He has held this position since Oc- tober 1966 . His duties did not embrace any super- visory activities over the employees who, it is claimed , were subjected to wrongful conduct on be- half of the Respondent . He is named in the com- plaint as having participated in the interrogation of employees , the threat or threats that employees would be laid off if the Union was successful in its organizational campaign , and the threat that if the Union was successful the Christmas bonus would be eliminated. Watson Underwood , who had been working in the shipping department for the Respondent during the last 4- 1/2 years under the immediate supervi- sion of John Ireland , testified that shortly after the petition for an election had been filed he found it necessary to go to the supply room office for the purpose of making a telephone call. On his arrival there , Supervisor Miller, who had been there before him, engaged him in conversation , asked him what he thought about the Union , and engaged in a discussion as to what would happen in the event of the organization of the plant by pointing out that during the wintertime work gets slack and, although under the present practice the men in the packhouse are transferred to other jobs and given other work , if the Union came in the practice would be discontinued because , as soon as the Company caught up with its shipping, the men in the packhouse , not being needed until the following summer , would be laid off. Miller also told him that if the Union came in the Christmas bonus would be discontinued. According to Underwood the conver- sation had been started when Miller came up to him, remarked that he wanted to talk to him because he had talked "with some of the guys" about the Union , and also that he would like to talk with him for the purpose of ascertaining what he thought about it. During cross-examination it was brought out that Underwood had failed to mention the alleged threat about the elimination of the Christmas bonus in an affidavit given by him to a Board agent . He explained this by saying that he had forgotten about it at the time he was giving the statement but remembered it after he had left the Board agent. He did , however , fail to inform her so that she might include it. Inasmuch as his Christmas bonus had amounted to as much as $300 in previ- ous years, his failure to mention this alleged threat in his statement to the Board agent would render his credibility vulnerable in the light of what was said by the Court in Jencks, 353 U.S. 657, above, about the bearing which inclusion in trial testimony of matters not set forth in a pretrial statement may have on evaluation of credibility . On the other hand , Underwood 's general demeanor on the wit- ness stand and the manner in which he handled SOUTHERN CEMENT CO. tivities and desires, that it did threaten employees that in the event of organization the Christmas bonus would be discontinued, and finally that it did threaten, in the event of organization, that when shipping became slack in the wintertime the em- ployees in the packhouse would be laid off until ac- tivity resumed in the summertime. D. Supervisor Blackerby's Conduct Charles Blackerby is a plant chemist employed by the Respondent. He has been in that position for about 4 years. He supervises seven people. It is al- leged in the complaint that on February 6 and June 8, 1967, Respondent, by him, threatened to lay off its employees and to discontinue payment of the Christmas bonus if the Union was successful in its organizational campaign. Charles Smelley testified that Blackerby had spoken to him when Union Organizer Wheeler first came down to the plant, also about 2 weeks before the election, and again on the day before the elec- tion . He did not tell us at the hearing the substance of the first conversation but he did say that in the second conversation Blackerby had reminded him that his father had worked for the Company for many years and that the Company, having been good enough for him, ought to be good enough for Smelley; also that the Christmas bonus would be cut out if the Union came in ; and that "when the other union companies go on strike [Respondent would] have to come out with them." Then further, according to Smelley, on the day before the elec- tion, Blackerby came to him and remarked that it was against the labor law for a foreman to talk to the men at a time so close to the election and that he was depending on "guys" like Smelley to talk to them and to get them to vote against the Union. Blackerby testified that he was acquainted with Smelley and identified him as working in the crusher room on a maintenance gang. Blackerby's supervisory duties do not extend to Smelley's de- partment. He has no direct or indirect control over it. He rarely comes in contact with Smelley. He de- nied having had any conversations with Smelley wherein he sought to have him influence other em- ployees against the Union or stated that the Christ- mas bonus would be discontinued if the Union was successful, or that some employees would be laid off and would have to go on strike when other com- panies were struck. He did however volunteer, in response to a question directed to striking by Southern Cement's employees if other companies were struck-"If they ask me that, that was my opinion . I had no way of knowing." He amplified this further, saying, "Well, if an employee asked me that we were Union and the other companies were out on strike , would they have to be out, too. And I says, I assume that's the way it would be, I don't know." He testified that this had been "in answer to a question." On cross-examination, he admitted that a few employees asked him questions of this 391 nature . He stated, however, that he did not recall any other questions asked about the Union. His failure to recall questions extended to such as those which might involve the Christmas bonus, layoffs during the wintertime, and irregularity of work. He denied also that he had had a conversation with Smelley about the Union. In view of Blackerby's admission that he had par- ticipated in conversations with employees in which he had expressed the opinion that, if the Company were organized and other companies went out on strike, Respondent's employees also would have to go on strike, I credit Smelley's testimony to the same effect. However, as I view Blackerby's testimony, his disclosure of the fact that he had ex- pressed this opinion is indicative of his desire to state the facts as he honestly recalled them. That being the case, I credit his other denials of remarks attributed to him by Smelley. Nevertheless, as in- dicated, I do find that Respondent, by him, did in- terfere with the Union's organizing campaign by seeking to discourage employees from joining the Union because of a fear that if other union-or- ganized plants went out on strike they too would have to go out on strike and thus lose employment even though they might have no quarrel with or grievance against the Respondent. This was not al- leged in the complaint and the complaint was not amended to conform to the proof. Nevertheless it did become an issue and , since there had been no objection to its inclusion in the testimony, it must be deemed to have been tried by "implied consent of the parties ...." Consequently, under the first two sentences of Fed. R. Civ. P. 15(b), this matter must be treated in all respects as if it had been raised in the complaint. As a consequence, I find that Respondent did interfere with the organizing campaign by seeking to have its employees believe that, in the event the Union was successful in or- ganizing Respondent's plant, even though they had no quarrel with or grievance against it, they would have to go out on strike and thus lose earnings when other companies "were out on strike." E. C. H. Ellison's Conduct C. H. Ellison, Jr., is president of Southern Ce- ment Company. The charges against the Respon- dent in which he is allegedly involved derive from speeches made by him to the employees. They were captive-audience speeches in the sense that the em- ployees were required to attend. The charges are that during the course of these speeches he threatened that the Respondent would lay off its employees and would eliminate payment of the Christmas bonus if the Union was selected as their bargaining agent and, if it was not, that the Respon- dent would pay wages equal to those currently being paid at neighboring union plants. Ellison finds it desirable to make speeches to the employees from time to time because he believes they have a tendency to forget the good things 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about their employment and it is therefore impor- tant to remind them . He customarily makes two speeches a year. In 1966, the year before the year involved in this proceeding , he made two, one just prior to the beginning of July and the other just be- fore Christmas. A speech around the beginning of July normally would be made in connection with the Company's practice of reviewing its wage struc- ture at or about that time. It frequently had granted increases in July. The speech just before Christmas, apart from its holiday aspect, I assume normally would be concerned with the Christmas bonus which the Company seems to have paid regularly for a number of years. During 1967, however, El- lison made two speeches prior to July. These were made because of the Union 's organizing campaign, one on or about May 17 and the other on June 20. The May speech was made 2 days after the Union had filed its petition for an election and the June speech was made 2 days before the Board-con- ducted election. Although both speeches were planned in ad- vance , Respondent claims that neither had been written out and read to the employees. This was so even though they were not spontaneous or on the spur of the moment but had been planned in ad- vance of delivery. Mr. Ellison claims that they were rather short , not more than 10 minutes each, and that they were extemporaneous. For the purpose of memorializing what he had said during the course of these speeches , he prepared memoranda or notes purportedly outlining or summarizing what he had said. These were prepared about a week or 10 days after he returned to his office in Birmingham from Atlanta, the place where he had made the speeches. According to him , he did not consult with any other person for the purpose of refreshing his memory as to what he had said and he agreed at the hearing that the memoranda which he had prepared do not set forth everything that he had said. These memoranda were not offered in evidence and, in any event, would not have been acceptable in view of the circumstances under which they were prepared. They were, however, utilized quite frequently by counsel for the Respondent during the course of the examination or cross-examination of witnesses . Testimony by particular employees that they remembered that Mr. Ellison did say cer- tain things quoted from the memoranda, or that they did not remember that he had said certain things, or might not have said other things does not appear to me to be entitled to very much weight or to be regarded as having any substantial degree of probative value. The important factor about both speeches is that they were made with direct reference to the union organizing campaign. In point of time, one was made 2 days after the filing of the petition and the other 2 days before the election . Counsel for the Respondent stressed in their brief , "[TJhe Com- pany's supervisors were men of sophistication in labor relations ...." Being so sophisticated, their alleged failure to have the Ellison speeches prepared and set down in writing in advance is a factor which I am unable to overlook in my search for what must be regarded as the true facts of what actually had been uttered or sought to be conveyed by Ellison in his talks . Regardless of whatever else Mr. Ellison might have said in these talks, I am required only to determine whether during the course of his remarks there were conveyed to the employees threats that they would be laid off or that their Christmas bonus would be eliminated if the Union was successful and a promise that if the Union was defeated the Company would pay wages equal to those currently being paid at neighboring union plants . As far as the time elements are con- cerned , whether the remarks were made in both speeches, or in one and not in the other , or partially in one and partially in the others is not important here . Respondent was in a better position to fix the time elements than was counsel supporting the complaint in his presentation of witnesses. If the threats and the promise were made , whether at the May meeting or the June meeting , or at both, they would be cognizable violations in this proceeding. Ellison testified that in the May speech he re- minded the employees about the benefits which they were receiving from the Company , the life in- surance policy, the Blue Cross-Blue Shield plan, the retirement plan, the company policy not to lay off people during the slow season, and its willingness to pay somewhat higher wages and permit overtime rather than have a surplus of men . He reminded them that , in the preceding winter during the slack season, there had been no layoffs and he told them that Respondent had had the practice of paying wages equal to or better than the competition in the area . He reminded them that it had given them a bonus every year but one, but that there never was any promise that it would be given because, in order to give it, a company had to earn the money first. He pointed out, however, that the Company had been able to earn money and that a bonus had been paid over a period of 20 years . He had men- tioned talk of union activities and had said that he "wanted them to give serious thought to that." So much for the first speech. During the second speech he informed the em- ployees that there was to be an election 2 days later, that he wanted everybody to vote, assured them that it was their right to vote, and stated that the Company intended to abide by the laws govern- ing elections. He asked them to reflect upon the treatment they had received, advised them that the Company had been able to take care of them in the past , and that he did not want them to be misled by vague promises . Although he again mentioned the bonus in that speech , he said that his remark was virtually the same as it had been in the first speech and he cautioned that he was not able to promise anything . It is his general practice to speak of bonuses in the past tense because a bonus cannot be paid unless the money with which to pay it is SOUTHERN CEMENT CO. earned . The job situation was mentioned . The em- ployees were informed of the expansion program and the hope was expressed that it would result in more jobs, and more money and better paying jobs for the employees. He touched on the fact that dur- ing the past year business had not been up to ex- pectations but he attributed this to the tight money situation which had resulted in curtailment of nu- merous construction jobs. Tight money had boosted interest rates to as high as 7- I /2 percent and people were unable to pay that rate. Cement shipments had not come up to expectations and the Company was without highway jobs at the time . He expressed the feeling that the latter part of the year would be better even though the cement business benefits from improved business conditions only after a lapse of time from the beginning of such improve- ments . He admitted saying that employees at Universal Atlas Cement companies in Alabama and elsewhere had gone out on strike in sympathy with employees who had struck that company's plant in Missouri because of a dispute concerning an auto- mation contract . This, he had observed , was indica- tive of the fact that strikes affect people even though they are not directly involved in the disputes which cause them . He sought also to ex- plain why the preceding year 's bonus seemed to have been less than that of prior years by pointing out that this had resulted from the increase of the withholding tax. He categorically denied having said at either meeting that , if the employees found a union plant paying more than Southern , Southern would match it, that if the Union came in some employees would be laid off or that the Christmas bonus would be cut out, or that the Company could do more for its employees than the Union . As to the last, he as- serted that he merely had invited the employees to review the Company's past history and what it had to offer them and had expressed the opinion that it was able to take care of them. Although he denied that he had informed the employees that the Com- pany did not want a "bunch of outsiders coming in and telling him what to do," he admitted saying that the Company. had done a good job and did not need anybody to come in and help it change its pol- icy. On cross-examination , although he admitted that he had invited the employees to compare their wage rates with those in union plants, he denied that he had promised them that if they found a union plant paying more than Respondent did, he would match that pay scale . The extent of any promise or assurance with respect to the future was limited only to a review of the Company 's historical pattern of paying equal or better compensation than competitors in the area and that he saw no reason for changing that policy. He repeated that he had told the employees that they had a right to compare Respondent's wage rates in Atlanta with those of other plants in the area and that he felt 393 sure they would find they were equal to or greater than those in the other plants. Also on cross-examination, he admitted, as he had stated on direct, that he had referred to Christ- mas bonuses at both meetings. He pointed out that he had reminded the employees that a bonus was based entirely on the Company 's ability to earn the money to pay it and that no promises ever could be made that it would be paid . He did, however, sug- gest that they look back over the years and note that a bonus had been paid over a long period of time. He agreed also that he had reminded his listeners that the Company had kept them in con- tinuous employment even when business became slack and that he had invited them to check as to what the other competitive plants did. He did the latter because he was not able to tell them what they did. He specifically denied asking the em- ployees to vote against the Union but said that he merely had expressed the hope that they would sup- port the Company. The foregoing summarizes Ellison's testimony, both on direct and on cross. Vice President of Operations Arthur P. Hunter next was called. His recital of Ellison's speeches does not disclose any indication of a threat or promise having been made. He testified that Ellison had not even used the words "union plant." He de- nied generally all the allegations as to the making of threats or promises in the event of the Union's suc- cess. Contrary to what Ellison had testified to, he initially agreed that the latter had made a remark which would indicate that he "did not want a bunch of outsiders coming in and telling them what to do." However, he quickly modified this to conform to Ellison's version. Like some of the General Counsel's witnesses, he testified that Ellison had re- minded the employees that he had been a good representative for them for the purpose of obtain- ing increases, bonuses, and fringe benefits, that he and the Company did a better job representing the employees than outsiders could, and that outsiders could offer them nothing. He answered, "Yes," to a question by Respondent's attorney whether Ellison had said, "[t]hat the company could do more for the employees than the Union." On cross-examination he again denied that El- lison had mentioned the Union in the meeting. He corroborated Ellison's testimony to the effect that Ellison merely had pointed out that a Christmas bonus was dependent on the Company's making money. While he also corroborated Ellison's testimony that the latter had not asked the em- ployees to vote against the Union, not like Ellison, he testified that the latter had stated no preference as to how employees should vote at the upcoming election. Plant Manager Rowlett was called to give his ver- sion of the speeches. His version suggests that those speeches merely were a normal review of company relations with employees calculated to maintain and continue good employee morale. 'Specifically with 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to wages, according to him , Ellison stated the Company 's policy to pay wages equal to those of competitive plants in the area provided that its business prospered . The employees were asked to look at the Company 's past record as far as layoffs were concerned . They were reminded that the Company always had tried to provide jobs for peo- ple and to keep them working continuously throughout the year . The reference to the Christ- mas bonus was to the effect that it was dependent on the Company 's ability to make money and, as far as the future was concerned , the employees were asked only to look at the past and were told that the Company hoped to continue in the future what had been done in the past . He denied that El- lison had said that if the Union came in the bonus would be cut out. Contrary to Ellison 's admission that he had men- tioned the Union, Rowlett said that Ellison had not. While he asserted that wages had not been placed on a comparative basis with those being paid in other plants he did say that Ellison had spoken about the Company 's objective to pay wages equal to those paid by competitive plants in the area. Also, contrary to what Ellison had testified to, he testified that nothing had been said about layoffs at Southern Cement. Supervisor Blackerby was unable to remember the dates on which the speeches had been given but he did attend two meetings-one just prior to the election and the other in May . According to him, Ellison spoke only of past benefit practices and fringe benefits , did not speak about the Christmas bonuses or to the effect that if employees found a union plant paying more than Respondent the Company would match it or that, if the Union was successful , employees would be laid off or the Christmas bonus discontinued . On cross-examina- tion, he testified that Ellison had not mentioned the Christmas bonus in his speech and had not referred to wage rates . However , almost in the same breath he said that Ellison had remarked that the rates would compare favorably with what other cement and time plants were paying . He repeated , contrary to what Ellison had testified to, that Ellison had not mentioned the Union in either of the speeches. Although Ellison had testified rather in detail that he had explained why promises could not be made to the employees , Blackerby testified that he mere- ly had told them that he could not make promises and had not told why. Some rank-and-file employees also were called to testify on behalf of Respondent with respect to the Ellison speeches. George Walker Bentley, a crusher operator who had been employed by Respondent for 12 years, at- tended both speeches. In general, he said that El- lison had reviewed what the Company had done for the men , what its practices had been , and what were the benefits in the nature of hospitalization, life insurance , vacations , etc. Contrary to Ellison's testimony , he said that nothing had been said about the Christmas bonus . He denied also that Ellison had referred to layoffs of employees or that he had said the Christmas bonus would be discontinued if the Union was successful . He did not remember whether Ellison had made a remark to the effect that the yearly wage increase would be given as usual . He interpreted Ellison 's remarks as having been to the effect that, because employees had been getting a raise every 4th of July for the 12 years he had worked there and , in addition, a Christmas bonus , the Company would continue this practice . He remembered , however , that the prac- tice had not been consistent because a wage in- crease had not been given in 1966. He did not hear Ellison tell the employees that if they found a union plant paying more than Southern Cement he would match it. On cross-examination , he agreed that Ellison had said something close to or similar to a remark to the effect that he always had represented the men and would like to continue so to do. He denied however that Ellison had informed them that this representation costs them nothing whereas they would have to pay the Union if it represented them. He insisted that he had not heard the words "union" or "Christmas bonus" mentioned at either meeting. Jerry Baugus was called to testify , briefly, about Ellison's remarks . The substance of what he re- membered was that Ellison had spoken mainly about the Company's policies and of what it had done in the past , and had remarked that he had represented the employees in the past and would represent them in the future . He did not remember any remarks about insurance but, when prodded about hospitalization, he recalled that something had been said about it but did not remember what. All he remembered about bonuses was that their computation had been related to hours and that no promises had been made . He testified that Ellison had mentioned layoffs indirectly to the extent that he had referred to the Company's policy not to lay off people when work got slow. Cutting out of over- time had been mentioned as the alternative for layoffs. (This interpretation is somewhat different from the references to it by complaint witnesses who, as will appear below , testified that Ellison had threatened that overtime would be discontinued if the Union was successful.) Baugus did not recall any comparison between union plants and Respon- dent's, nor did he remember that the word "union" had been mentioned in the speeches . The only reference to a yearly raise which he recalled was that it could not be promised and he had heard nothing said specifically about layoffs or bonuses. On cross-examination, although an effort was made to get him to testify , contrary to Ellison's direct testimony , that a union plant or union plants had been mentioned during the speeches , he said that there had been talk about some plant and somebody had said it was a union plant but he was unable to remember where the plant was or SOUTHERN CEMENT CO. anything else about the remarks. It did appear, as he had protested while testifying, that his memory was short and vague about what had been said and about what had not been said by Ellison during his talks. Morris Poe, another rank-and-file employee, a tankloader, was called. He recalled that Ellison had spoken about various benefits enjoyed by the em- ployees at Respondent's plant but stated that no mention had been made of Christmas bonuses and layoffs, and that no comparisons of wages paid at other plants had been made at any of the speeches. He said that Ellison had not told the employees that if they found a union plant paying more than Respondent , Respondent would match it. He de- nied that Ellison had said that if the Union came in some of the men would not work throughout the year or that any would be laid off. He said that El- lison had told the employees they could vote any way they wished. On cross-examination , although it was not disputed that Rowlett and Hunter also had spoken, he qualified his answer that others probably had spoken by saying he was not sure. He insisted that Ellison had not made "any derogatory remarks about the Union." In substance, he said that Ellison merely pointed out to the employees what the Company had done for them, that Ellison was not trying to influence them against the Union but was trying merely to show them "the beautiful part of the Company." He admitted that Ellison had men- tioned the Union in his speech at the time that he pointed out that Organizer Wheeler was trying to organize the plant but said that he voiced no opinion on the effort. To the extent that there was any reference to the organizing campaign he un- derstood Ellison's objective to be to emphasize the "beautiful points of the Company" and thereby persuade the employees "to look down upon ... the Union." Nevertheless, Ellison "did not lambaste the Union whatsoever, or say anything bad" and he did not say anything about what the Union could or could not do. Contrary to Ellison's testimony, he said that Ellison had not said anything about and had not mentioned the Christmas bonus. According to him, there had been no remarks that the Com- pany had paid the bonus for many years and hoped to be able to continue paying it, depending on whether or not it made a profit. He denied also that Ellison had reminded the employees that they worked throughout the year without layoffs while those at other plants were laid off when business became slack in the wintertime. Jimmie D. Spencer is another rank-and-file em- ployee, a loader in the packhouse. He testified that Ellison had urged the men to be sure to vote but had advised them to vote in any manner they wished, had stated that Respondent's future looked brighter than ever, with more business and more customers, and, with respect to fringe benefits, had remarked that the Company's record "stands for it- self. Southern Cement always treated the men fair 395 and decent." He was unable to remember any talk about insurance, hospitalization, the Christmas bonus, or layoffs. He testified, however, that Ellison; had informed the employees that if the Union came in he would be unable to talk for them and that, in- stead, a delegation would have to be formed to go to New York to bargain for wages and vacation. As long as he had been president, 15 or 17 years, he had "been talking for the men." He did however say that Ellison had informed them that "Southern Cement always paid more than union plants, that our scale was higher than any union plant." He de- nied that Ellison had stated that if the Union came there would be layoffs but agreed that he had said that Respondent always had found work for the men during slack periods. According to him, El- lison had not threatened that the Christmas bonus would be cut out, that there would be layoffs, or that the plant would close in the event that the Union was successful. On cross-examination he repeated his testimony to the effect that the existing practice of Ellison's bargaining for wage increases would be changed and that this would have to be done by a delegation selected by the employees in the event of organiza- tion. He reaffirmed that Ellison had told the em- ployees that Respondent always had paid more than union plants and that Southern Cement "would match what the Union paid." He denied that El- lison had used the word "layoffs" but asserted that Ellison had said, "He'd always found work for the men. He said the men had worked full time." He denied that anything had been said about the Christmas bonus at either meeting. Two more rank-and-file employees, Labon J. Northcutt and Larry Vaughn, were called in defense. Northcutt admitted that he had been una- ble to hear everything that was said at the speeches. He, like others, testified that Ellison had urged the men to vote, had assured them that the manner in which they voted would not be held against them, and had urged them to check back on what Southern Cement had done for the men in past years . In response to the question, "Do you re- member whether or not at either one of these speeches you attended, that Mr. Ellison said that the company paid as much or more as Union plants and if we could find one that was paying more, we would match it?" the witness answered, "Yes, sir." This seemed to disconcert the interrogator for he immediately asked, "He did say that?" To this Northcutt replied, "Now I don't know whether it was stated like that, or not, but I think he did. He didn't say would match it. He said that they were paying equal to Union pay." He denied categori- cally that at either of the speeches Ellison had stated that if the Union took over some of the em- ployees would not work the year around or, in the event that there was not much to do, employees would be laid off, or that the plant would close. On cross-examination, contrary to his initial testimony, he said that Ellison had not stated that 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent would pay as much as any union plant. He insisted that all that was said was that Respon- dent was "paying about equal to them ." He denied that anything had been said about how the men would be treated in the future or that there had been an explanation why promises were not being made . He said that Ellison had said nothing about Christmas bonuses . He denied also that there had been any reference to layoffs or that Ellison had said that Southern Cement always had kept its em- ployees working through the winter and the slack months without layoffs. The last witness in defense , called with the respect to the Ellison speeches , was Larry Vaughn, a fiscal analyst . He summarized Ellison 's speech as having to do with the position of the Company "sales wise," the probable future outlook , and the probability of a favorable future for the next 2 years. He seemed to be quite hazy about his recol- lection and spoke in generalities to the effect that Ellison had said that he hoped to return at a later date and give the employees good news and had re- marked that another plant had been shut down. After he indicated his desire that he be asked specific questions , counsel proceeded to do so. He answered to the effect that nothing had been said about insurance and that the bonus had not been mentioned specifically but, almost immediately, in response to a subsequent question , he said that El- lison had remarked that the bonus was dependent on sales . When asked about layoffs , he said that El- lison had remarked that the Company never had laid off anybody because of a shortage of work or when or because sales were bad . He denied that El- lison had mentioned the Union by name or had said that if the employees could find a union plant pay- ing better wages Southern Cement "would pay it, or words to that effect." He denied also that Ellison had stated that the Company had been paying the same wages "that the Union paid ," that if the Union came in there would be layoffs and the men would not be working "year-round ," or that Respondent could do more than the Union for the employees and that it "did not want a bunch of out- siders to come in and tell them what to do." He de- nied also that Ellison had said that if the Union came in the Christmas bonus would be cut out, there would be layoffs , and the plant would close. On cross-examination , contrary to the testimony of other defense witnesses , he denied that Ellison had told the employees that it would cost them nothing to have him represent them whereas, if there was a union, they would have to pay for representation . He repeated his prior testimony that no mention had been made of the bonus and he de- nied that Ellison had related to the employees the wages and benefits which they had at Respondent's plant . He said he did not recall any invitation by El- lison that employees compare what they were being paid with what was being paid at other cement and lime plants. The foregoing completes Respondent's version of the Ellison speeches . I have set it forth deliberately in advance of the version given by witnesses in sup- port of the complaint because it demonstrates that there can be as many different versions of hap- penings as there are witnesses , and this even though those witnesses are called by only one side to a con- troversy. Harvey Threatt, Jr., is a laborer employed by Respondent in its shipping department. He has been working there for about 4-1/2 years. His testimony was limited to the Ellison speeches. Ac- cording to him, Ellison had stated that Respondent was paying as much as the Union paid and the em- ployees ought to check around at other plants and, if they paid more , Respondent would match it. El- lison said that he wanted no outsiders to come in to tell him what to do, that the Union did not make jobs nor did it give the jobs to employees , and that employees do not have to pay him for his services but would have to pay for the services of a union representative . Ellison also told them that if the Union was successful some employees would be laid off whereas, at the present time , they worked throughout the year, and that the Christmas bonus would be cut out because nobody could make the Company pay it. On cross-examination , Threatt stated that the re- mark about the Christmas bonus had been made at the first meeting, after the petition had been filed, but that no reference to it had been made at the meeting 2 days before the election . He was not budged from his positive assertion that the first meeting had been held after the petition for an election had been filed . He was correct about this even though it was sought to divert him. It developed, however, that he had not disclosed the alleged threat about the Christmas bonus in his af- fidavit to a Board agent. He was not upset by this and explained it by saying that a person thinks of more things when he comes to court than when he merely goes to an office and volunteers to give an affidavit. Although he admitted that he had remem- bered this after he gave the affidavit , he did not have it added despite the fact that he did have added another afterthought to the effect that El- lison had told the employees that , in the event the Union was successful and business became slack, people would have to be laid off as opposed to the present policy of having people work "year-round." In summary , the highlights, as recalled by Threatt, at the first meeting were that, in addition to the threat about the bonus and layoffs, Ellison had reminded the employees that Respondent paid as much as any union plant paid and told them that if they found one that paid more the Company would match it, that he did not want outsiders com- ing in to tell the Company what to do, and that the- Union made no jobs and did not give employees their jobs . This was all he recalled from the first meeting. All that he recalled from the second meet- ing was that there had been references to the in- surance and pension plan . Although the classic SOUTHERN CEMENT CO. 397 device was utilized for the purpose of confusing the witness and getting him to say that he had not talked to counsel supporting the complaint in ad- vance of the trial , I believe that the witness satisfac- torily survived this attempt. I do not believe that in the pretrial interviews he was induced to testify about the bonus threat which he had not mentioned in his pretrial affidavit . I do believe that it is con- sistent with the truth that he actually did re- member, in preparation for the trial, that the threat about the bonus had been made . The impression he made upon me while testifying overrides his failure to have it added to or set forth as a supplement to his pretrial affidavit notwithstanding that, with respect to the layoff threat, he did have the addi- tion made after he recalled that subsequent to his first interview. Watson Underwood, whom I regard as a credible witness, also testified about the Ellison speeches. He remembered that the first speech, in May, was about the Union. At that meeting, according to him, Ellison told the employees that the Christmas bonus would be cut out if the Union came in but, as far as he knew at that time, it would be paid if the Company's business was good . Ellison also told the employees "there'd be layoffs in the wintertime, that he would not be working regular forty hours as we are now." At the second meeting Ellison told them that the Christmas bonus would be cut out if the Union came in and, if it did not come in and business was good , he was quite sure that the bonus would be continued and another bonus would be paid. He told them also that there would be layoffs in the wintertime as contrasted with the Company's policy of moving men around from place to place so that their employment might be continued. He said that , if the Union came in , more employees would have to be hired for various jobs. He told them that he did not see why employees ought to pay someone to represent them inasmuch as he was representing them and they did not have to pay him. While some remarks had been made about in- surance and pension plans , because he was not in- terested he did not pay too much attention to them. A leading question , justified because of the witness' failure to remember all that had been said , elicited the answer that Ellison had told the employees that, if they did not believe the Company was paying the same as union plants were paying , they could check with those plants and that every time the Union procured a raise in any other plant the Company would give them that raise. On cross-examination it was brought out that the remark having to do with the matching of raises had been made at the second meeting . Although it is not disputed that there had been a total of three meetings , the third after the events involved in this proceeding and just before the Fourth of July, Un- derwood remembered only two. He said he did not attend the third . Other evidence in the record is to the effect that the third meeting was called for the purpose of announcing increases for the year beginning July 1. Underwood testified that he did not remember that at the meetings with respect to which he had testified raises for the coming year had been mentioned . He was quite clear about the fact that the second meeting was the preelection meeting , saying, " I believe it was about two days before the election, two or three days, somewhere along there." After digressing to Underwood's testimony about the Miller interrogation set forth above , the cross- examiner returned to the Ellison meetings. Un- derwood repeated that the statements about the cutting out of the bonus and the layoffs during the winter months had been made during both meetings . His attention was then directed to an af- fidavit which he had signed before a Board agent on July 11. He agreed that he had come to the Board offices upon the suggestion of Union Or- ganizer Wheeler. It developed that there was nothing in the statement about threats with respect to the bonus . Although his bonus had amounted to about $300, he had not remembered at the time he gave his statement that there had been a threat to eliminate it. While he did remember it after he returned home he failed to call the Board agent to have it added. He did not permit himself to be disconcerted by inquiries as to whether he had discussed the case with counsel prior to the hearing and, when ultimately asked as to what he had been told, he stated that he had been told to tell the truth, the whole truth, and nothing but the truth. While it has been said in Jencks, above, that failure to set forth in a pretrial affidavit matters about which a witness testifies upon the hearing may be indicative of the fact that the testimony may not be true, on balance, after observing Underwood on the witness stand , and considering also his testimony in connection with the Miller interrogation, I have concluded that the Jencks factor should not be overriding here. I regard Underwood as having been a credible witness. Additional employee witnesses were called in support of the charges arising from Ellison's speeches. These were Smelley, Hawkins, Rhines, and Hardnett , all of whom had testified with respect to other alleged violations of Section 8(a)(1) of the Act. I shall refer briefly to their testimony although I would be most hesitant to make a finding contrary to Ellison 's version in sole reliance on it in view of the manner in which I have treated it with respect to the other violations. Smelley testified that , at a meeting in the electric shop, Ellison had expressed his failure to un- derstand why people would want a union inasmuch as they would have to pay union dues for services which he, Ellison , rendered without cost to them. Referring to the bonus , according to Smelley, El- lison said that nobody could force him to keep giv- ing it. He also told them to check the union plants and ascertain what they were making there. In this connection he asserted that Southern 's wages were as good as or better than union wages, if the em- 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees could find any better he would match them, and that the company policy was to try to keep men working all the time , not "lay them off like the Union been doing ," a policy which had prevailed even when business was slack . On cross-examina- tion , Smelley testified substantially if not more firmly to the same facts to which he had testified on direct . He seemed to be extremely wary of the cross-examiner and, when asked whether Ellison had said "if the Union came in the Company was going to stop paying bonuses," he said he did not "recall those exact words ." His reply here and to other questions about the Ellison remarks suggest to me that he was trying to be quite careful and meticulous in his testimony . In cases where he refused to adopt specific language contained in the cross-examiner 's questions he nevertheless did not vary his prior testimony and argued that, even though he would not state that Ellison used specific words during the talk, Ellison implied ("im- plicated ") the threats and promises . When extracts from the postspeech memorandums made by El- lison were read to him he answered that he remem- bered some remarks and admitted that others which he did not remember could have been made. Testimony of this nature is not probative that the statements to which Smelley had testified actually were made had not been made. Hawkins testified that Ellison said if the Union came in the Christmas bonus would be cut out, when work became slack the men would not be continued working all year, that he did not want any outsiders coming in and telling him what to do, that if the employees could find any other plant in the area paying more than Southern paid he would pay "equal ... to what they were paying," and that the employees would have to pay the Union for representing them whereas they did not have to pay him for such services . With the possible exception of the alleged remark about year-round work, Haw- kins reaffirmed , on cross-examination, the testimony he had given on direct. The exception with respect to year-round work arises from the condition of the transcript: Q. That is what you said, there wouldn't be any year round work if the Union came in. Now maybe you didn't say that. Am I wrong? A. I don't remember Mr. Ellison said it. 0. Mr. Ellison didn't say that? A. I don't think so. Q. So Mr . Ellison did not make the state- ment there wouldn 't be any year round work if the Union came in? Mr . Ellison said , according to your testimony, that no outsider coming in, he didn 't want anybody from the outside com- ing in and telling him how to run the plant. Now when did he say that? A. I'm not positive on the date. 0. But you are positive he said it? A. That he didn 't want no outsider coming telling him what to do? 0. Are you positive of the exact words that he said? Do you know exactly what he said? A. Exact words? Q. Are those the exact words. A. No. Couldn't be exact. He said-not the exact words. Q. If the other plant paid more, Southern Cement would equal it. A. Right. Q. Now when did he say that? A. I don't remember the dates on it. The answer to the first question quoted shows, as noted above , " I don't remember Mr. Ellison said it." I believe that it should have been transcribed, "I don't remember. Mr. Ellison said it." Although the subsequent question and counsel 's remark fol- lowing the " I don't think so," make it appear that the witness had testified that Ellison had not stated that the year-round work would be discontinued if the Union came in , I would not, on the basis of this transcription , make a finding that Ellison actually had not and that Hawkins had misstated the remark on direct . Inasmuch as my ultimate finding and conclusion on the issue does not rest on Hawkins' testimony the problem whether he testified one way or another need not be resolved even though, when he was brought back to this matter in later cross-ex- amination , he reverted to his initial version and testified that Ellison had said, "That there wouldn't be any year-round work if the Union came in." For the same reason the variations in degree as to the extent of Ellison 's remarks as they are reported in Hawkins ' pretrial statement and as they were stated at the hearing do not rise to any great significance. In view of my general appraisal of Hardnett, noted above, I disregard his testimony entirely. Samuel Rhines was another witness whose testimony I have rejected in several respects. His testimony about the speeches is that Ellison told the employees they didn't need anybody and did not have to pay anybody to represent them, that if the Union came in the Christmas bonus would be cut out, and that the Company would pay as much or more than any other union plant paid. This is cor- roborative of the testimony given by others but I need not rely on it in coming to my ultimate finding and conclusion that the alleged threats and promises were made. On the basis of all the testimony given concern- ing the Ellison speeches , not only that given in sup- port of the complaint but also that given by wit- nesses called in defense and the concessions which Mr. Ellison made as to statements contained in his, speeches, my observation of all the witnesses, and my consideration further of the fact that, although (as stated partially by Respondent's counsel) "The company 's supervisors were men of sophistication in labor relations . . ." they seem to have decided deliberately that Ellison's speech in actual words would not be preserved either in a prepared script or a transcription at time of delivery and my further belief that the Company 's campaign against the SOUTHERN CEMENT CO. 399 Union was a vertical campaign from the top down (Ellison, Rowlett, and Miller) and not horizontal on the foremen's level, it is my finding and conclusion that Respondent, by Ellison, in a speech or speeches made following the filing of the Union's petition and prior to the election, threatened that it would lay off its employees and would eliminate payment of the Christmas bonus if the Union was successful in its organizational campaign and promised to pay its employees wages equal to those currently being paid at neighboring union plants if the Union was defeated in the forthcoming elec- tion-all as alleged in the complaint. F. The Alleged Wrongful Discharge of Giddens According to Winston Leonard Giddens, the events leading up to his alleged wrongful discharge commenced on July 26, 1967, about 10 minutes be- fore 9 a.m., that is to say 10 minutes before normal work-starting time. While he was talking to another employee, Supervisor Fleming beckoned to him and instructed him to go to the shower room until worktime. Fleming 's reason , according to Giddens, was that Giddens "might get hurt." The time, July 26, it should be noted, was more than a month after the Union had lost the election. According to Gid- dens this was not the first time he had come to work before starting time and , on prior occasions, nothing had been said to him about it. His normal practice had been to get to work about 8:15 or 8:30 a.m., go to the shower room, change his clothes, and then walk around the plant talking to the men. Other employees, specifically Baugus and Hawkins, did the same . July 26 passed without incident. On the next morning, when Giddens came to work, al- legedly at 8:30 a.m., he observed Plant Manager Rowlett and Supervisor Fleming standing on the sidewalk talking. He continued on into the shower room. Shortly thereafter, while he was changing his clothes, Fleming came to the shower room and, after speaking to another employee, turned to him and said, "I want you to go to the guardhouse and wait till a quarter till nine before you go to work." Giddens testified that he acquiesced. Next, accord- ing to him, Fleming appeared not to be satisfied that Giddens was taking the time to change his clothes before going to the guardhouse because Fleming came back to the shower room and, after again talking to the other employee, turned to him and said, "I thought I told you to go wait till quarter till nine." Giddens says he replied, "Well, I'm trying to get my clothes on. I'm going as soon as I get my clothes on." At this moment Giddens, as disclosed by his own testimony, started to "boil over" and get himself into a state of resentment and belligerence. As Fleming started to walk out, he asked him why he had to go "wait up there" before going to work and Fleming answered that he had told him on the previous morning that he "might get hurt." Giddens said he argued the point by saying that he had "worked around machinery every day and there's something else to that." Fleming merely answered again that he did not want him to get hurt. He then asked Fleming whether he was trying to "run [him] off" but Fleming denied this. He then invited Flem- ing to go with him to Plant Manager Rowlett to talk about it. Fleming declined but did say to him, "You go see him." Giddens went to Rowlett's office and questioned him as to why he had to wait until 8:45 a.m. to go to work but Rowlett answered that he had instructed Fleming to tell Giddens to go to the guardhouse and wait. Rowlett appeared, according to Giddens, to resent his question. He admits, how- ever, that Rowlett had explained that he wanted to stop Giddens from coming in early, running around the plant, and talking to the men, and that he in- tended "to stop all this gossip going around." Dur- ing this conversation Rowlett insisted that this was a uniform rule for the entire plant. The parties are not in too great disagreement as to the actual hap- pening of the events as distinguished from the al- leged discrimination against and singling out of Giddens up to this point. Later that morning, according to Giddens, after he had been working for awhile, he started to tell fellow employee Bentley what had happened and Payne, overhearing it, joined the conversation. Dur- ing this conversation Giddens testified, "[S]o I told Mr. Payne that I was going to quit, that, one of these days, but that I would give him a notice be- fore I quit and tell Mr. Fleming they'll be hunting another man to take my place." There is a sharp conflict as to whether this is actually what Giddens said to Payne. On cross-examination Giddens changed his ver- sion. He testified, "I told him that he look for another man because I am going to quit one of these days. And he said, `Well, I'll tell Mr. Flem- ing.' And I said, `Well, I'll tell Mr. Fleming and give him two weeks notice before I quit."' Thus, on cross, Giddens injected the additional material to the. effect that the conversation had continued beyond his initial remark to Payne and that in that conversation he had said that he would talk to Fleming and give him 2 weeks' notice. Then, a question or two later was answered with another version, "I told him I'd give him two weeks' notice." When the discrepancy was called to his at- tention he gave still another version, "Quitting one of these days. And then he said, `I'll tell Mr. Flem- ing to hunt me another man.' And I said, `Well, I'll let you know. I'll give you two weeks' notice before I quit."' An affidavit which the witness had signed before a Board agent on August 9 gave this version, "I told my Foreman Payne, that he'd better be hunting him a good man because I was going to quit this place one of these days." He explained the omission of reference to the "two weeks notice" by saying that he didn't think of it at the time that the affidavit was made. It did develop, however, that a week later, on August 16, he made another af- fidavit in which the "two" weeks was mentioned. Payne's version of this conversation (the first of 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD three on that day) was that Giddens had told him that he "had better start looking for him a replace- ment because he was quitting ." According to him Giddens had not mentioned any time but "he just turned and walk off." While Supervisor Fleming was not a party to this particular conversation his testimony tends to cor- roborate Payne's. According to him, Payne re- ported to him at or about 10:30 or 10:45 a.m., "Winston Giddens has just told me to be looking for me another man, he 's quitting." Plant Manager Rowlett's testimony also tends to corroborate Payne's. According to him, Fleming called him at or about 10:30 or I 1 in the morning and reported that Payne had told him that Giddens said he was going to quit and that Payne had better look for another "boy." Additionally, Rowlett testified that he made certain that this had transpired by calling both Payne and Fleming to his office in order to make sure that arrangements had to be made to provide a replacement for Giddens. A Burns Detective Agency employee who is a guard at the gatehouse also testified to the effect that on that morning Giddens had come down to the guardhouse apparently emotionally upset and resentful of the fact that he had been "run-out of the plant earlier until work time ...." Fellow employee George Walker Bentley also corroborated Payne 's version . When Giddens ini- tially came to work that morning he used some profanity and "said he was quitting . Quit working." A little later , when Payne came in , in his presence Giddens told Payne , " about what he told me, that he wasn 't going , he was quitting . He wasn 't going to work there ." Bentley said that he did not hear Payne ask Giddens when he was quitting . Another employee, Baugus, testified that one morning when he came to work Giddens told him that , " he was going to quit." A little later, about 10 or a little after 10 o'clock , Giddens told Payne , "he just as well get another man, I'm going to quit this place." I do not credit Giddens ' version of this conversa- tion with Payne . It is my finding and belief that he actually told Payne at that time that Payne ought to be looking for a new man and that he was quitting. Nor do I credit Giddens ' version of the events which followed. These are the final phases of his as- sociation with Respondent . Payne 's next contact with him was at or about lunchtime as he, Giddens, Baugus, and Bentley were going to lunch . Accord- ing to Payne at that time Giddens informed him that he "might quit right now ." Baugus testified that, as they were filing in to lunch , Payne and Bau- gus were together and Giddens was a little behind Payne . Giddens remarked , " Well, I'm just going to quit this place ." Payne asked him, "Well when are you going to quit Winston so I'll know ?" Giddens replied, "I might quit right now ." He added im- mediately, "Aw, there is no use in talking to you. You're just like the rest of them." Prior to the luncheon conversation, Payne had reported to Fleming that Giddens had said he was quitting and Fleming , in turn , reported it to Plant Manager Rowlett . For the purpose of determining a replacement for Giddens, Rowlett requested Flem- ing and Payne to come to his office. At this meeting in Rowlett's office Payne reported both conversa- tions directly to Rowlett. He then was instructed by Rowlett to tell Giddens that , if he was going to quit, Friday would be his last day to work. Payne fol- lowed this instruction. Around 3 or 3:30 p.m., he informed Giddens that Friday would be his last day of work and Giddens replied, "Well, that's okay, I was going to quit Monday anyway." Payne's only other contact with Giddens on that day was Gid- dens' request that he be permitted to leave after finishing 8 hours of work. Giddens did not report to work as usual on the following morning. This to me appears to be quite important. If he had not quit or conveyed his inten- tion to quit on the preceding day there was no reason at all why he should not have reported to work at the usual time . He was not so rich as not to have use for that day's pay. I do not credit his ver- sion of the 5 o'clock conversation with Payne to the effect that Payne had told him at that time that Rowlett was letting him go and this resulted in his saying , "Well if he is firing me, I'll just go home." Giddens came to the plant sometime after lunch on the following day and went directly to Rowlett's office. When Rowlett asked him what he could do for him, Giddens remarked that Rowlett had "fired" him. Rowlett told him that this was not so but that, on the contrary, he had quit. Giddens per- sisted in denying it and said he would file an unfair labor practice charge against Respondent . Rowlett requested Giddens to wait while he directed Payne to come to the office . When Payne arrived, Payne stated that he had told Giddens that if he was going to quit he could work for the rest of the day and that Friday would be his last day. Giddens denied it and, when Payne refuted this denial , Giddens again said he was going to file a charge against the Com- pany. Rowlett tried but failed to reach the company lawyer and Giddens left with the remark that he had said all he was going to say. It is asked or argued why, when it ultimately came out, at least according to Giddens ' version during the meeting in Rowlett 's office , that Giddens had not intended to quit immediately , no effort was made to retain him . Rowlett 's explanation was that when an employee lets it be known that he intends to quit but leaves the quitting time indefinite the Company has to establish a time for termination so that it may be in a position to continue with its work. This to me seems like a logical explanation and appropriate procedure on the part of manage- ment if it is to keep its business going. Entries made by the plant guard , Camp , support the conclusion that Giddens quit and that, as to the claimed discharge, if it actually occurred, it did not occur until the next day because of his failure to re- port to work at the usual time . Plant Guard Camp kept a logbook in which he reported various in- SOUTHERN CEMENT CO. cidents. The logbook shows that sometime after lunch on the day he did not report for work Gid- dens reported to the main office and that he left after about 25 or 30 minutes . As Giddens was going through the gate , Camp asked him if he was going to work and he replied that he had quit and, with that, drove out. As I view the testimony , it hardly suggests to me that Respondent had any notice of union activities on the part of Giddens and that , because of such activities or because of its desire to discourage membership in the Union , it engaged in a campaign of harassment for the purpose of precipitating a discharge . It is my finding and conclusion that Respondent did not do so . It is further my finding and conclusion that Giddens actually quit his job. His quit was acted upon by Respondent when he was told to work one more day before termination. His termination was made final by his failure to re- port for work on that day . He having failed to re- port for work as he had been requested Respondent was under no obligation to reinstate him or accept his indicated change of mind after he had absented himself on the day which was supposed to have been his last. This portion of the complaint should be dismissed. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the fol- lowing: CONCLUSIONS OF LAW 1. Respondent, by Supervisor Miller, engaged in a systematic , planned interrogation of employees concerning their union activities and threatened them that, in the event of union organization, the Christmas bonus would be discontinued and, when shipping became slack in the wintertime , employees in the packhouse would be laid off contrary to an existing practice of providing work throughout the year. This constituted interference with its em- ployees in the exercise of rights guaranteed to them by Section 7 and was a violation of Section 8(a)(1) of the Act. 2. Respondent, by its Supervisor Blackerby, sought to persuade its employees to believe that, in the event the Union was successful in organizing its plant, even though they had no quarrel with or grievance against it , they would be required to en- gage in a strike and thus lose earnings when em- ployees of other companies were on strike and, by so seeking to persuade its employees , it sought to discourage them from joining or voting for the Union . This constituted an interference with and a restraint upon rights guaranteed to them by Section 7 and Respondent thereby violated Section 8(a)(1) of the Act. 3. Respondent , by President C. H. Ellison, Jr., in captive-audience speeches to its employees made following the filing of the union petition and again, prior to the election , threatened that in the event that Respondent 's plant was organized by the 401 Union it would lay off employees when its prior practice had been to keep them employed steadily, and that it would eliminate payment of the Christ- mas bonus. In the same speech or speeches he promised to pay its employees wages equal to those currently being paid at neighboring union plants if the Union was defeated in the forthcoming elec- tion. The object of these speeches and the particu- lar portions here cited was to induce them to vote against the Union in the election about to be held and otherwise interfere with , restrain, and coerce its employees in the exercise of rights guaranteed to them by Section 7 and Respondent thereby violated Section 8 (a)(1) of the Act. 4. These acts of interference, restraint, and coer- cion are unfair labor practices which tended further to interfere with the employees ' freedom of choice in the election conducted on June 22, 1967, in Case 10-RC-7093, and such conduct warrants that it be set aside. 5. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, as set forth above , having occurred in connection with its busi- ness operations, have a close , intimate , and sub- stantial 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. THE REMEDY Having found that Respondent engaged in the unfair labor practices cited , I shall recommend that it cease and desist therefrom and that it take cer- tain affirmative action as provided in the order recommended below . Because of the nature of the campaign against the Union, vertically from the top as I have indicated above , it is my opinion that a broad cease-and-desist order should be issued. It is further my opinion that, inasmuch as the violations of Section 8(a)(1) of the Act occurred as they did during a period close to and prior to the election and for the specific purpose of having the Union defeated, the election should be set aside. Now, upon the basis of the foregoing findings of fact and conclusions of law , and pursuant to Sec- tion 10(c) of the Act, I recommend the following: ORDER Southern Cement Company, Division of Martin- Marietta Corporation, the Respondent in this proceeding, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in and activity on 354-126 O-LT - 73 - pt. 1 - 27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of United Cement, Lime and Gypsum Work- ers International Union, AFL-CIO, by engaging in any of the acts or conduct more particularly set forth in the remaining subdivisions in this part of this order. (b) Interrogating employees about their union membership , activities , or sympathies in a manner constituting interference , restraint, or coercion within the meaning of Section 8(a)(1) of the Labor Management Relations Act of 1947, as amended. (c) Threatening its employees that the Christmas bonus will be discontinued or that there will be layoffs if the Union organizes the plant or wins the election. (d) Promising its employees that if the Union or any other labor organization is not successful in or- ganizing Respondent's plant it will give them in- creases in wages if such increases are necessary in order to make their wages equal to those at any time being paid at neighboring union plants. (e) Suggesting to or seeking to persuade em- ployees to believe that if the Union, or any other labor organization , succeeds in organizing its em- ployees they will have to engage in a strike or strikes at any time when employees of other union plants strike even though they have no quarrel with or grievance against Respondent. (f) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights to self-organization , to form, join , or assist United Cement, Lime and Gypsum Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- poses of collective bargaining or other mutual aid or protection or to refrain from any and all such ac- tivities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its plant copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 10, shall be posted by Respondent , after being duly signed by its representative , immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter , in conspicuous places, in- cluding all places where notices to employees customarily are posted . Reasonable steps shall be taken to assure that said notices are not altered, defaced , or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of the Decision , what steps the Respondent has taken to comply herewith.' Except to the extent expressly found in the Deci- sion , all other allegations in the complaint shall be and hereby are dismissed. I recommend also that, unless on or before 20 days from the date of the receipt of this Decision, the Respondent notifies the said Regional Director, in writing, that it will comply with the above recom- mendations , the National Labor Relations Board issue an order requiring it to take such action. IT IS FURTHER RECOMMENDED that the election which was held on June 22, 1967, among the em- ployees at Respondent 's plant in Atlanta , Georgia, be set aside and that Case 10-RC-7093 be severed from Cases 10-CA-7015 and 7015-2 and that it be remanded to the Regional Director for Region 10 for the purpose of conducting a new election in the appropriate unit at such time as he deems that cir- cumstances permit the free choice of a bargaining representative. ' In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order " shall be substituted for the words " a Decision and Order" ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read " Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in and activity on behalf of United Cement, Lime and Gypsum Workers International Union, AFL-CIO. WE WILL NOT ask our employees any questions about their membership in the Union or about what they or anybody else might be doing in connection with union activities or the organization of a union in our plant. WE WILL NOT threaten our employees that the Christmas bonus will be discontinued if the Union organizes our plant or if it wins an elec- tion. WE WILL NOT threaten our employees that they will be laid off during slack seasons if the Union organizes our plant or wins the election. WE DO NOT promise and WE WILL not promise our employees that if the Union or any other labor organization is not successful in or- ganizing our plant they will receive increases in wages in order to make the wages paid to them equal to those being paid at neighboring union plants. WE WILL NOT tell any employee or try to get any employee to believe that, if the Union or any other labor organization organizes our em- ployees, our employees will have to engage in a strike at any time when employees of other union plants go out on strike , even though our SOUTHERN CEMENT CO. employees have no quarrel with or grievance against us. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of rights to self-organization , to form, join , or assist United Cement , Lime and Gyp- sum Workers International Union , AFL-CIO, or any other labor organization , to bargain col- lectively through representatives of their own choosing , and to engage in other concerted ac- tivities for the purposes of collective bargain- ing or other mutual aid or protection or to refrain from any or all such activities. SOUTHERN CEMENT COMPANY , DIVISION OF Dated By MARTIN -MARIETTA CORPORATION (Employer) 403 (Representative ) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 730 Peachtree Street, NE., Room 701, At- lanta, Georgia 30308, Telephone 526-5760.