Point St. George Fisheries, Inc.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Point St. George Fisheries, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, Local 364, AFL-CIO. Case 20-CA-4481 June 26, 1969 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On September 4, 1968, Trial Examiner David F. Doyle issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the Charging Party and the General Counsel filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' We cannot agree with our dissenting colleague that the General Counsel has established, by a preponderance of the evidence on the basis of the record as a whole, the violations alleged in the complaint. While it is clear that Plant Manager Davi had general knowledge of the union organizational activities taking place and was opposed to them, the record also shows that before the employees Davi was generally equivocal, making remarks to the effect that the employees could join or not join the Union, it did not matter to him. Further, although there is some evidence from which to infer that Davi had suspicions that employees Robinett and Gerald Wallis were union advocates, it is quite clear he had no actual knowledge of the fact until after he had made his decision to discharge them.' The nub of the case, then, lies in the events that transpired on the parking lot on April 4, for it was those events that precipitated Davi's decision to terminate the alleged discriminatees. 'Although we accept the credibility findings of the Trial Examiner, we do not adopt his characterization of the testimony of one witness as "fabrication" and of another as "an outright lie." 'The implication of the dissent that on April 3 Robinett and Wallis were interrogated specifically as to whether they had signed cards is misleading Davi's credited testimony was that, in view of the telephone call he had received from Mrs. Robinett on April I in which she expressed concern about the union representative "not leaving ", he asked them "How did you make out, boys" Robinett then volunteered, "I did not sign for the union Davi's credited version of the conversation between him and Mrs. Robinett establishes two crucial points. First, Mrs. Robinett corroborated her husband's falsehood of the previous day that he had not signed an authorization card. Thus, with respect to Robinett's union activities, Davi knew no more than he did before. Second, the relationship between Mrs. Robinett and Davi, bad to begin with according to Davi because of her constant prying,' was greatly exacerbated by her accusation that Davi was spreading rumors that she was not actually married to Robinett (immediately refuted by Davi) and by her further accusation that Davi had hired two male employees in order to "play with their girl friends." We do not find inherently incredible the possibility that Davi was at that moment so fed up with Robinett's wife that he impulsively fired Robinett and the person most closely associated with him.' Nor is the General Counsel's case strengthened by the fact that the alleged discriminatees were seasonal workers, the season had ended, and they had little, if any, prospect of more work to perform. Although we deem the circumstances surrounding these discharges suspicious, suspicions and conjecture may not fill the rather obvious evidentiary gap presented in the instant case. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein he, and it hereby is, dismissed in its entirety. MEMBER JENKINS, concurring in part and dissenting in part: Unlike my colleagues, I would overrule the Trial Examiner and find that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Gerald Wallis and Ernest Robinett. However, I agree that the complaint should be dismissed as to Richard Wallis and Larry Cherney, the other two alleged discriminatees. In my view, the Respondent has failed to adequately rebut the prima facie case established by the General Counsel to the effect that the discharges of Gerald Wallis and Robinett were attributable to Respondent' s manifest union animus rather than economic or other considerations. The record clearly shows that Respondent's plant manager, Joseph Davi, who was responsible for the discharges of Wallis and Robinett on April 4, 1967, was aware of the union campaign and their involvement therein. Thus, on March 29, pursuant to a report from an employee that a union agent had visited him at home and left union literature because I had an experience once before where I lost my lob " Wallis then said, "I told the union man that I am satisfied with the way things are now " At that point the conversation concluded 'Davi credibly testified that Mrs Robinett called him several times between February and April 1967 'Gerald Wallis lived next door to the Robinetts and was frequently driven to and from work by them 177 NLRB No. 10 POINT ST. GEORGE FISHERIES, INC. and an authorization card, Davi telephoned the Union's financial secretary-treasurer, Everett Matzen, and proceeded to accuse him of clandestinely attempting to organize Respondent's plant. During the course of the ensuing conversation, Davi intimated that should the Union succeed in its organizational attempt, he, Davi, would either discharge all the prounion employees or simply close down his operation and locate elsewhere. Several days later, on April 1, Union Representative Lallatin called at the Robinett home. Robinett's wife immediately telephone Davi at his home, informed him of Lallatin's presence, and requested his advice. Davi replied that he did not "give a damn what the hell they do because if they want to join they can join and if they don't want to join they don't have to join," but added that they should "just tell him to leave" When Mrs. Robinett replied, "Supposing he won't leave?" Davi retorted, "Then just have him thrown out." Despite the aforementioned telephone conversation, Lallatin, who was not "thrown out," succeeded in obtaining a signed authorization card from Robinett, as he had done from Wallis on a like visit earlier in the afternoon. Upon reporting for work Monday morning, April 3, Robinett and Wallis were met at the timeclock by Davi. In response to Davi's inquiry, Robinett and Wallis denied having signed union authorization cards or, in general , having an interest in the Union.' Nothing further of consequence occurred until shortly before noon on April 4, when Robinett's wife arrived at the Respondent's parking lot to pick .up Robinett for lunch. Davi approached Mrs. Robinett and inquired as to what eventually transpired on the evening of April 1, when Lallatin was at the Robinett home. Mrs. Robinett informed Davi that Lallatin was an old friend, that she and her husband felt sorry for him because he was unemployed and forced to work for the Union and in order to help him out and prove to the Union that he was doing his job her husband had signed a paper simply acknowledging Lallatin's visit. Shortly thereafter Mrs. Robinett and Davi became embroiled in an argument relative to a rumor being circulated around plant to the effect that the Robinetts were not legally married. Davi, after denying responsibility for the rumor and pointing out the admitted culprit, left the parking lot and summoned both Wallis and Robinett to the front office for purposes of picking up their paychecks. Prior to distributing their paychecks, without any 'While the replies, as the majority has observed, were not entirely responsive to Davi's question, "How did you make out, boys?" it is clear to me that their answers more than satisfied Davi's curiosity as to whether Lallatin had been summarily dismissed , as instructed, and, indeed, he did not pursue his inquiry at this time. Further , I would view as untenable the majority' s inference that concern over the union representative "not leaving" originated with Mrs Robinett for the record shows, as noted above, that it was Davi who introduced this subject by flatly stating that they should "Just tell him to leave" 55 explanation of his actions in this respect, Davi showed Wallis and Robinett a blank union authorization card and asked them if they had signed identical cards. After receiving an affirmative reply from both men, Davi uttered an exclamation and then gave them their final paychecks. The Respondent has raised three defenses to the complaint, none of which, in my opinion, substantially negate the prima facie case established by the General Counsel and Charging Party. First, Respondent would have us believe that the discharges were attributable to Davi's perturbation with Robinett's wife's constant pestering which culminated in the parking lot argument. While this, standing alone, may have been a legitimate ground for discharge of Robinett, I fail to see why such action on behalf of Robinett's wife should have any bearing whatsoever on Wallis' job tenure. Moreover, other than the telephone call of April 1 and the parking lot argument, the only other possible irritating contact between Robinett's wife and Davi appears to be confined to one instance in February when Mrs. Robinett inquired about her husband's paycheck. Two contacts in a 3-month period do not in my opinion amount to such annoyance as to warrant discharge. Apparently realizing the weakness in its first defense, Respondent then claims that Wallis was included along with Robinett for discharge because he relied on Robinett for transportation to and from work. However, Davi who, as noted above, made the selection for discharge negates this defense as he acknowledged during the hearing that he was not sure how Wallis traveled to and from work, and that such consideration did not enter into his mind at the time he effected the discharges. Lastly, Respondent defends on the ground of lack of work due to the seasonal nature of its business. Although the record substantiates the Respondent's contention that the first 2 weeks of April constitute a period of transition, i.e., windup of crab season and startup of salmon season, and that the work complement is usually at its lowest at this time of year, it also shows that the Respondent usually keeps a skeleton force to prepare both plant and equipment for the next crop. Moreover, this year, contrary to past years, the Respondent had additional work available due to the fact that it was moving part of its equipment to a new building next door. In addition to the foregoing, Davi again appears to contradict Respondent's contention of lack of work, when he stated that " . . . I was going to let them work until Thursday, April 6 and the next week." Accordingly, in view of all the foregoing, including Respondent's evident hostility to the Union, its shifting and inconsistent reasons for the discharges, and particularly the credited testimony of Plant Manager Davi, which rebuts for the most part the Respondent's defenses, I am constrained to conclude, contrary to my colleagues, that 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's action in discharging Ernest Robinett and Gerald Wallis was predicated upon their union affiliation and thereby violative of Section 8(a)(3) and (1) of the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID F. DOYLE, Trial Examiner:This proceeding, with all parties represented by the counsel named above, was heard by the Trial Examiner at San Francisco, California, on March 13-15, 1968, on complaint of the General Counsel and answer of the Respondent. The complaint herein was issued on June 27, 1967, by the Regional Director (Region 20) and was amended by an order dated February 26, 1968. The complaint was based on a series of charges alleging unfair labor practices filed as follows: (a) The initial charge was filed on April 5, 1967, by Everett A. Matzen, financial secretary-treasurer of the Union. This charge alleged that the Company' had violated Section 8(a)(1) and (3) of the Act by the discharge of two employees named Ernest Robinett and Gerald K. Wallis and by acts which interfered with and coerced its employees. (b) A first amended charge was filed on July 10, by John B. Salazar, attorney for the Union. This charge alleged that the Company had violated Section 8(a)(1), (3), and (5) of the Act by: (1) the discharge of three employees named Robinett, Gerald K. Wallis and Terry Anderson; (2) refusing to bargain with the Union which represented a majority of the Company's employees in an appropriate unit; and (3) other acts which interfered with, restrained, and coerced its employees. (c) A second amended charge was filed on September 26, by the aforementioned attorney for the Union. This charge alleged that the Company, since on or about April 4, had: (1) discriminated against and discharged 40 named employees, hereafter listed, because of their activities on behalf of the Union; (2) since on or about June 24, had refused to recognize and bargain with the Union as the majority collective-bargaining representative of the employees; and (3) had violated Section 8(a)(1) by other acts of restraint and coercion. The list of the allegedly discharged employees attached to this charge names the following:' Ernest Robinett Nellie Micehke Jerry Wallis Myrtle Smith Terry Anderson Tillie Nelson Carol Heard Marion Sorentino Lena Melton Gladys Stevenson Richard Wallis Billie Barber Maud Ward Ruby Barlich Genevieve Smith Enedina Castanon Mabel Smith Sara Castanon Mary Paco (Pacs) Antonia Cruz 'In this Decision, Point St George Fisheries, Inc , will be referred to as the Company or the Respondent ; Amalgamated Meat Cutters and Butcher Workmen of North America, Local 364, AFL-CIO, as the Union or the Charging Party; the General Counsel of the Board and his representative at the hearing, as the General Counsel; the National Labor Relations Board, as the Board, and the Labor Management Relations Act, as amended, as the Act. All dates in this Decision are in the year 1967 unless specified otherwise. 'The employees whose names are underlined have some relationship to the ultimate issues herein Larry Cherney Jerry Jo Cunningham Cecile Grace Ringue Jerine Cunningham Rose St. Clair Ruth Bradley Lilliam Budman Shirley Borgna Alicia Veloria Leontina Deghi Rosemarie Pozzi Raylene Fobbs Mary Merga Frances Romero Maria Packard Refugio Velarde Angelina Daverio Gracida Velarde Lillie Lewis Martha Velarde The multiplicity of charges and alleged discharges were severely reduced before issuance of the complaint, with the result that the complaint, as amended, and presented for hearing alleged only the following violations: (1) that the Company had violated Section 8(a)(1) and (3) of the Act by the discharge of four employees; namely, Larry C. Cherney and Richard A. Wallis on March 31, and Ernest Robinett and Gerald Wallis on April 4;' and (2) that Joseph A. Davi, a supervisor of the Company, had engaged in surveillance of employees' union activities on May 18, and March 13; and (3) had interrogated employees concerning their union activities or sympathies on April 3 and 4. The Company in its duly filed answer admitted certain allegations of the complaint relative to the business operations of the Company, the supervisory capacity of the aforementioned Joseph Davi and that the Union was a labor organization within the meaning of the Act. The answer denied that Supervisor Davi had engaged in surveillance or the interrogation of employees and further alleged that the discharge of the four employees was effected because the crab- canning season had come to an end and the Company had no further need for the services of these men, who were seasonal employees. At the hearing, counsel for the parties were afforded a full opportunity to be heard on all issues presented in the proceeding. Counsel introduced evidence, examined and cross-examined witnesses and filed briefs which have been carefully considered. Upon the entire record in the case and from my observation of the witnesses, I make the following findings of fact: 1. THE BUSINESS OF THE COMPANY The pleadings and a stipulation of the parties establish that the Company is a California corporation with places of business in Santa Rosa and Bodega Bay, California, where it engages in the business of canning, processing and selling fish products at wholesale. During the year prior to the issuance of the complaint, the Company, in the course and conduct of its operations, sold and shipped products valued in excess of $50,000 directly to customers outside the State of California. Upon these facts, I find that at all times material herein the Company has been, and is, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the pleadings and a stipulation of the parties, I find that Joseph A. Davi at all pertinent times was the manager of the Company's business operations, and hence an agent and supervisor of the Company within the meaning of the Act. 'Richard A. Wallis and Gerald K. Wallis are brothers. For clarity in this Decision, Richard Wallis will be called Richard. 'The allegations of surveillance , par VI(a) and (b) of the complaint, were dismissed at the close of the General Counsel's case on motion of Respondent on the ground of insufficient evidence POINT ST . GEORGE FISHERIES, INC. 11. THE LABOR ORGANIZATION INVOLVED It is undisputed , and I find , that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Undisputed Facts It is undisputed that the Company engages in the business of canning and processing fish at its cannery and factory located at Santa Rosa , California . Joseph A. Davi, previously mentioned, testified credibly, and there is no evidence to the contrary , that the nature of this business is seasonal, with the seasons established each year by regulation of the Fish and Game Commission of the State of California . In the fiscal year 1966-67, the crab season began on November 15, 1966 , and continued until April 1, 1967. During this crab season , it is undisputed that the Company employed between 20 and 25 male personnel and 125-135 female personnel . Davi testified without contradiction that in the weeks prior to April 1, the work force of the Company had been reduced to approximately 20-30 women and approximately 10-12 men. Davi explained that there were in the Company's employ approximately six men who worked on a year-round basis and that as the end of the crab season approached he terminated the seasonal employees except for a few men who were assigned the job of making wooden boxes, which would be used in the shrimp or the salmon season later in the year . Among the seasonal employees thus retained were Larry C. Cherney and Richard Wallis ultimately terminated March 31, and Robinett and Gerald Wallis ultimately terminated April 4. It is likewise undisputed that in 1967 the salmon season began on April 15 and ended on September 13; the shrimp season began approximately June 1 and ran until the permitted quota of fish was caught. In the course of his testimony, Davi stated, again without contradiction, that as each season ended and in particular the crab season , the large force of women who performed the canning operation and the force of seasonal male employees were terminated . He stated that the seasonal employees were hired each year from several sources. As the crab season approached , some of the men and women who lived in the area applied for work; some of the workers were furnished by the State Employment Department. Others applied for a job in the course of the year, filling out applications which included their address and phone number. The Effort of the Union to Recruit Members Among the Employees; Davi-Lallatin; Davi-Matzen Jay E. Lallatin testified that he was hired by the Union as an organizer on March 18 and was given the task of organizing the employees of the Company . He began by interviewing employees of the Company at their homes. In the course of the interview , he gave to each an authorization card for the Union and in some cases he also gave the employee a union pamphlet or a copy of the union newspaper . In his testimony, Lallatin was vague as to the extent of his activities or his success in organizing the employees. He testified that he made contact with about 25-30 employees. When he was asked how many of 57 these employees signed authorization cards for the Union, he replied that he did not remember . At that point, counsel for the Union said that he would produce the signed cards and offer them in evidence later in the hearing . This proposal seemed agreeable to all counsel, but later in the hearing counsel for the Union stated that he had changed his mind on this subject, and would introduce into evidence only the authorization cards of the four discriminatees . These cards, which are in evidence, disclose the following sequence: (a) Employees Richard Wallis and Cherney, discharged March 31 , each signed a card for the Union four weeks later on April 25. (b) Employees Robinett and Gerald Wallis signed a card for the Union on April 1 and were discharged three days later on April 4. Regardless of the extent of Lallatin's efforts on behalf of the Union, it is clear that knowledge of the Union's efforts came to the attention of Davi because that company official admitted , in the course of his testimony, that on or about March 28 , an employee named Frank Maniscalso told him that a union organizer interviewed Maniscalso at his home and left with him a blank authorization card and a labor newspaper . According to Davi, he told Maniscalso "To go to work , don't pay any attention to it." Also, according to Davi, he went into the factory some 15 minutes later and found that the men, who were supposed to be making boxes, were gathered in a group around Maniscalso. He went to the group and said, "Frank, don't make such a fuss over nothing. Why don't you tell the men the truth? Let's get through with those boxes." Davi said that he kept the authorization card but threw the newspaper away . He also said that a few other employees voluntarily told him that a union man had visited them at their homes . Davi denied that he questioned any employee about their union activity or affiliation. It is clear from the testimony of Davi that he was not insensitive to the efforts of the Union to organize the plant. He admitted that in the latter part of May, an employee called his attention to a man sitting in a car across the street from the plant and obviously keeping the plant under surveillance. After watching for approximately an hour, Davi, accompanied by an employee, took a pickup truck and drove to a spot in the street , where he could see the man . He recognized the man as one who had applied to Davi for a job in the month of February.' According to Davi, he told Lallatin that he could park there all he wanted to, but Davi didn't want him on company premises. This ended this confrontation. Everett A. Matzen, financial secretary-treasurer of the Union, testified credibly and without contradiction that on March 29, Davi, with whom Matzen was acquainted, called him on the phone at the union office in Petaluma, California. Matzen testified that Davi told him to stay away from the Company, and to tell union organizers Matteoni and Lallatin to stay away, too. Davi said that Reagan had just been elected governor, and that he would knock out the unions; that Davi wanted no part of the Union and that if the Union organized, he would organize the Latins and Negroes and they would see who was in charge. Matzen testified that his secretary took notes of some things said, and after examining these notes testified that Davi said that if the Union organized the plant, he (Davi) 'This man was Jay Lallatin, previously mentioned, organizer for the Union. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would retire and go to Alaska. He said that Matzen was no longer his friend because he organized "like a snake," behind Davi's back, using Lallatin and Matteoni; if Matzen had wanted to organize he should have come to Davi, himself. Davi accused Matzen of sending Lallatin into the plant to get a job in February when in fact Lallatin was seeking to organize the plant. Davi also said that he would not again contribute $50 to the Union's Butcher Ball Program for the benefit of the Union Welfare Fund. On cross-examination, Matzen said that he had known Davi for a number of years and that Davi had made a $50 contribution annually to the Ball Program. He said that Davi reiterated the complaint that Matzen should have come to him about organizing the plant and not sent other persons to do it. Matzen said he felt Davi had mixed up one of his organizers with one for the Teamsters, who had also called on Davi.6 The Discharges of Cherney and Richard Wallis on March 31 ; the Rehire of Richard Wallis Employee Larry C. Cherney testified that he was hired for the 1966-67 crab season in the latter part of February and worked until he was laid off on March 31. On that day he was not given his final check and he was told to keep in touch with the Company and it would inform him if it had more work. A week later, Richard Wallis and he went back to the plant to get their paychecks. They met Davi coming out of the office and they asked him for their checks. Davi said that the checks weren't ready at that moment but the girls would have them very soon. They returned about 10:30 in the morning and they received their checks. Cherney testified that when he was given his check, Davi said to him, "Here is your checks, and don't come back." Cherney testified that during the month of March, prior to the day of his discharge, he had several conversations with Davi about the Union in which Davi asked him if he had joined the Union or if he knew of other employees who had joined. Cherney could not furnish any dates for the conversations, or the names of any third persons who heard these conversations, but he said they occurred approximately twice a week. Cherney testified that in these conversations he told Davi that he "didn't know anything." Both Cherney and Richard Wallis testified that each signed an authorization card for the Union at the request of Lallatin on April 25, approximately 4 weeks after their discharge. Cherney testified that on the day after he signed his card he went to the plant to see, "if the Company had any work for him." He again met Davi who asked him if he had anything to do with the Union, or if he knew anybody who did. Cherney answered that he had signed an authorization card for the Union, but that still didn't put him in the Union. Davi did not comment on this. On cross-examination, Cherney stated that when he received his check, Davi told him that his employment was at an end and that he was not to come back. He also admitted that on the last few days of his employment, the crab had stopped coming to the plant and the men were making boxes and cleaning up the plant. Prior to this date, a large number of employees had been laid off. `Testimony of these incidents was permitted on the General Counsel's claim that they showed Davi' s antiunion animus . It should be noted, however, that no employee is involved in these incidents There were approximately 10 or 15 male employees remaining at the plant when he was laid off. When Davi told him not to come back, Davi did not say anything about the Union; in fact, there was no reference to the Union in the entire conversation. Cherney also admitted that prior to the time that he was laid off he had made it known around the plant that he was planning to go to work for the Forestry Service after he finished working at the Company or he was going to enlist in the Navy and perform his military service. Davi knew of these plans. Cherney admitted that when he went back to the plant and spoke to Davi about his authorization card in late April that he was no longer an employee of the Company. On further cross-examination, Cherney stated that on one occasion he went back to the plant to inquire from Davi, if Davi had received a letter from the Marine Corps, as he was trying to enlist in the Marines. Davi told him that the Company had received an inquiry from the Marine Corps about Cherney's employment and that he had already filled out the questionnaire and returned it to the Marine Corps. He did not ask Davi for a job on this occasion. Cherney also admitted that there was an occasion in September 1967, when he had an altercation with Davi because Cherney was in the company parking lot writing down the license numbers of employees' cars parked in the lot. Cherney admitted that he had been hired by Lallatin of the Union to perform that task. At the time Davi found him taking down the license numbers, Davi asked Cherney to leave the premises and Cherney replied, "Wait until the National Labor Relations Board hears about this." Cherney admitted he was paid $4 by Lallatin for performing this task. Richard A. Wallis testified that he had worked for the Company off and on since the year 1959. He usually worked during the crab season. In 1967 he began working for the Company in January and he was terminated on March 31. While employed he was engaged in "backing" crabs, moving boxes of crabs to and from the tables, where they were processed and doing other work of a manual type. Richard stated that on the day he was laid off by Davi, he had no conversation with Davi about the Union. He also said that for several days prior to his termination his only tasks were making boxes and cleaning up. Some days previous to his termination, Davi had told those employees still on the job that he was putting everybody on a 4-day week because the crab season was coming to an end. On direct examination, Richard testified that he signed an authorization card for the Union on April 25 at the request of union organizer Jay Lallatin. This was some weeks after his termination. He and Cherney met Lallatin by appointment at a local cafe and signed cards. Prior to that time he had not been a member of the Union or engaged in any union activities. Richard said that on the Saturday, after he was laid off, he went to the office with Cherney to get his final paycheck. They met Joe Davi, who told them that the checks weren't ready, so they waited until about 10:30-11 a.m., before they went back. At that time, Davi gave them their checks and, according to Richard, he said, "Don't come back." Richard testified that despite this remark by Davi, that after his termination he went back to the plant about twice a week. On a date which he could not remember in May, he encountered Davi. According to Richard, on this occasion he went to the office and, since Davi was occupied, he went out into the plant and started to talk to some of the girls who were working. Davi came out and waved his POINT ST. GEORGE FISHERIES, INC. 59 arms at Richard and asked him what he was looking for, and Richard replied that he was waiting to see him. Davi said that he didn't think he was waiting to see him, that Davi thought he had come down to the plant to hand out union cards to the people that were working there. Richard denied that he was doing that and Davi said that he thought he was doing that and became angry. Davi finally said, "Well, I don't want you hanging around." Richard then said, "How come, because of the Union?" And Davi replied, "Yes." Then Richard said, "You fired me because of this Union?" According to Richard, Davi said, "Yes." With that exchange Richard went out to the parking lot and sat in his car, but Davi came out and told him to get off the property. On cross-examination , Richard stated that he had worked for the Company since 1959 during the crab season which ended usually in April or May. For many years he had at the end of the crab season gone to work for the Forestry Service as a summer employee in the firefighting corps. He readily admitted that he had communicated his intention to do this again in 1967, and in fact he had gone to work for the Forestry Service in June 1967. He also admitted that when this job ended with the Forestry Service in 1967, he phoned Davi and asked him for a job and Davi put him to work on December 11. He was still employed at the Company at the time he testified. Richard also said that he was a friend of employee Larry Cherney and early in the spring of 1967 had talked to Cherney about the desirability of Cherney's going into the Forestry Service with him and he had agreed to help Cherney obtain such a position . Richard said that on the day he was terminated there were only four or five men, including Robinett and his brother Gerald , still working, making boxes. The Discharge of Ernest Robinett and Gerald K. Wallis on April 4 Wanda Robinett, the wife of the above-named dischargee, is the principal witness of the General Counsel as to these discharges. This witness is a large woman who appears to be the dominant partner in the Robinett marriage . Robinett is a mild-mannered man of slender build and moderate height. He testified quite briefly but his wife testified on all points of this issue. Wanda Robinett testified that her husband began employment with the Company on January 4, and that his employment came to an end on April 4. He had never worked for the Company before. Mrs. Robinett testified that she drove her husband to work each morning, picked him up and brought him back at lunchtime, and picked him up again at the end of the day's work . She testified that in the second week of March, while she was waiting to pick up her husband one evening , she had a conversation with Manager Davi. She said that she was worried whether her husband would have work so she asked Davi how much work there was and how long it would last . Davi said that she didn't have to worry, that he would try to keep her husband on building boxes and cleaning up the plant. On being prompted by another question, she said that Davi said, "That my husband had been a good worker and he did what he was told and he also mentioned something about Jerry Wallis being one of the oldest employees that he had there and he knew how to back the crabs and everything and he was a fast backer." Mrs. Robinett also testified that on a date which she could not remember, Davi called her at her home and asked her if anybody had been to their house to talk to them about the Union. She replied in the negative. Davi then told her to tell her husband and Jerry Wallis to be at the plant at 6 o'clock the following morning. Mrs. Robinett testified that on Saturday, April 1, Jay Lallatin, the organizer for the Union, came to her home around 11 o'clock in the morning. Mrs. Robinett told Lallatin that her husband was on the roof fixing a TV antenna . Lallatin went outside to wait for Robinett to come down from the roof. Mrs. Robinett went to the phone and called Davi. According to Mrs. Robinett, the following conversation occurred, "I told Mr. Davi that the union man was at our home and he said, `Has Ernie talked to him?"' She replied in the negative, and explained that her husband was on the roof. Then Davi asked, if her husband was going to talk to the organizer and she replied in the affirmative. Then Davi said, that if her husband "wanted a union he can join it, and if he didn't, to tell him (the organizer) to get out of the house." On April 4, Mrs. Robinett went to the plant at noontime, as was her custom. She testified that when she drove into the parking lot, Davi came out to the car. He was quite angry. He said that "he had heard that Ernie (her husband) and Jerry (Wallis) had joined the [u]nion and he had their signed cards that they had signed and he knew that they had, and he persisted in asking her if she knew anything about it." She said that she refused to make any answer to Davi, but sat looking out the window of the car. At that point, Jerry Wallis' brother, Richard, and Larry Cherney, both employees who had been terminated on March 31, came on the parking lot and Davi hollered at them, that they should get off the property as they were no longer employees. Davi went to these two men and talked to them and then he said to Cherney, in Mrs. Robinett's presence, "Tell her in front of me what you told me yesterday." When Mrs. Robinett was then asked by the General Counsel what Larry said, she replied that, "it has no bearing on this case, it concerns my husband and myself." She said it was something personal. She did not testify on this point. Then Davi called Jerry Wallis over and said to him, "I know you have joined the union, I have got your card. I know you did." Davi appeared very angry and he said to Jerry, "I don't want the union in here and you are fired. I don't want anything to do with the union." Mrs. Robinett said her husband was not present during this conversation. On cross-examination, Mrs. Robinett admitted in a written statement, which she gave a field examiner of the Board, she said that during the conversation on April 4 with Davi, there were present a man named Ivan Brown, a man named Keith (something), a Mexican man, Richard Wallis, Larry Cherney, and Jerry Wallis. She explained, on further cross-examination, that these men were in the area and could have heard the conversation but the only two actually having the conversation at the car were Davi and herself.' In the course of further cross-examination, Mrs. Robinett stated that when her husband first went to work for the Company they had marital difficulty and she had occasion to phone Davi and ask about her husband's paycheck. Ernest Robinett testified he was employed at the Company from January 4 to April 4 as a general worker. He said he had a conversation with Davi in the middle of 'These persons mentioned in the statement as "in the area" did not testify. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February in which he asked Davi how much longer Davi thought "we would be working" and Davi said he is going to try to keep Jerry Wallis and Robinett "on steady for awhile." He further testified that he had a conversation with Davi in the office of the Company on March 25. Present also were two young lady employees, the bookkeeper and secretary . On this occasion he asked Davi about the rumors he had heard about the Union and Davi said that "if we wanted a union we could have it." Robinett also testified that on March 27 , around 7:30 a.m., he and Gerald Wallis met Davi at the plant and Davi asked Jerry Wallis if anyone had been around to see him. Jerry replied that there had been no one to see him and Jerry then asked "Was there supposed to be?" Later in the day, he and Jerry Wallis were with five or six other employees, including Frank Maniscalso . On this occasion, they were making boxes and all that the witness heard was that Davi said, "If you wanted a union you could have it." Robinett identified an authorization card for the Union and stated that he signed it on April 1, at his home at the request of Jay Lallatin, the union organizer. When Lallatin reached his house that day he was on the roof fixing a TV antenna and later he came down and after talking with Lallatin signed the card. Robinett testified that he had a conversation on Monday, April 3, around 6 p.m., with Davi . He called Davi to find out what time Jerry Wallis and he were to report to work and Davi told him to be at work at 6 a.m., the following morning. Approximately 30 minutes later , Davi phoned him and asked him if he had signed an authorization card for the Union . Robinett replied, "that a union man had been there to see him" but he did not say whether he had signed a card or not. Davi told him to be sure to be there at 6 o'clock because they had a lot of crab. Robinett testified that he didn't have any conversation about the Union with Davi on April 4, until Davi fired him. According to Robinett , Davi came to the place where he was working around 11:30 a.m., and asked him if he had signed a union authorization card . He told Davi that he had signed a card that showed only that a union organizer had been to his house to see him. Then Davi said that as soon as Robinett was done that night he could get out of there, or he could leave now. Robinett said, "If that is the way you want it , I will leave now." Davi then started toward the office, followed by Robinett. On the way they met Jerry Wallis who was also headed toward the office. The two employees waited until Davi came out and gave them their checks. As he did so, Davi said that the men had "better get $80 together to pay the union." Upon being asked another question , he added that Davi said that they should "see what the union could do for us now." On cross-examination, Robinett said that he saw Lallatin on only one occasion, that being the time when Lallatin came to his house when he was fixing a TV antenna. Or. that date, he signed his authorization card. Robinett admitted that the only work he performed in the final days of his employment was the making of boxes and cleaning up for the coming salmon season . For some days before April 4, there had been no crab to be processed, but on April 4 there was a shipment of crab. He said that during the season the Company had about 200 employees at the plant, but on April 4 there were approximately 10-20 making boxes and cleaning up. Gerald Kenneth Wallis also testified , giving his version of his discharge . He testified that he had worked at the Company during two crab seasons. In March 1966, toward the end of the season, Davi talked to him in the picking room and told him that he liked his work and would like to keep him on "all year long." However, it is undisputed that Wallis was injured in April 1966 and did not work for the Company until October of that year. Also, during part of the year he was employed by another company in Santa Rosa at the job of picking prunes. In the 1966-67 crab season, his job was to drive a forklift, back crabs and clean up around the plant. On or about Monday, March 27, he had a conversation with Davi in the presence of Robinett. On this morning when the employees first came to work, Davi was at the timeclock and asked him if some men had come out to his house to see him? He answered in the negative. Wallis then went into the plant and talked to Frank Maniscalso and some other employees. Shortly after this the men were building boxes when Joe Davi came in and started yelling and screaming at Frank, saying, "If you want the union you can have it, and if you don't want it you don't have to take it. Wallis identified his union authorization card, which is dated April 1, and said that he signed it at the request of organizer Jay Lallatin on that date at his home. Gerald Wallis also testified that he had a conversation concerning the Union with Davi on Monday, April 3, between the hours of 2 or 2:30 in the morning. It is undisputed that Davi's home is across the street from the plant. On this occasion, Davi asked Gerald Wallis if he had signed a union card and Wallis replied in the negative. Wallis explained this late hour for this conversation by saying that he and employee Jim Rogers had been sent by Davi to get a truckload of fish at Bodega Bay and they had returned at that late hour. Gerald Wallis also testified that on the next morning, April 4, he had another conversation with Davi about the Union in the parking lot of the plant around 11-11:30 a.m. Present at this conversation were Wanda Robinett, Davi and the witness . Wallis testified that on this occasion Davi called him to where Davi and Mrs. Robinett were talking. Davi then asked if he had signed a union card and Wallis replied that the only thing he had signed was a card that showed the union man was at his house. Then Davi said, "I have to tell you to get your ass out of here and don't come back." Wallis went into the plant and told Robinett that Davi had fired him for signing a card. A few minutes later Davi came to them , and showed them a blank union authorization card , and asked each employee, if this was the card that they signed. They answered, "Yes." Davi then went into the office and in a few minutes came back with a check for each man and said "You'd better get $80 to pay the union because you are going to need it." On cross-examination, Wallis testified that he gave a statement to an investigator of the Board which stated that on Monday, April 3, he worked at Bodega Bay with Jimmy Rogers and that they returned to the plant around 7:30 p.m. As they were driving a company truck, they went to Davi's house to get the key to the garage of the plant and Davi gave them the key. While Rogers was putting the truck in the garage, Davi said , "There's talk about you signing a union card. Have you signed a card?" Wallis answered in the negative . When he was asked to explain this discrepancy in time, the witness said that the interviewer had asked him so many questions he didn't know "for sure" what he was saying , that he had been questioned for five hours. On further cross-examination, he said that he might have been confused or the field examiner of the Board might have been confused. In POINT ST. GEORGE FISHERIES, INC. regard to Wallis' testimony about Davi's conversation with Maniscalso, Wallis admitted that his statement to the field examiner stated that "Davi's face was red and he was ranting and raving, partly in Italian . He was directing his comments to Frank , who was also Italian." Wallis admitted that he did not understand Italian and that the final words of Davi in English were "If you want a union you can have it." Wallis admitted that in the last days of his employment he was making boxes and cleaning up around the plant . On the date he was discharged, there 10-15 employees at the factory, of which four or five were all-year round employees. The Defense The principal witness for the Company was General Manager Joseph A. Davi. His testimony relative to the seasonal nature of the Company's business has been previously reviewed. In 1967 toward the end of March, the crab season began to come to its normal end, so he laid off most of the seasonal employees, keeping a few who were assigned the job of making wooden boxes which would be used later in the year and in cleaning up the plant. On March 31 , the making of boxes was nearly completed so he terminated Richard Wallis and Larry Cherney on this date because he no longer needed their services. Furthermore, it was the well-known practice of Richard Wallis each year to enter the Forestry Service firefighting corps and to serve in that corps during the spring, summer and fall months. Richard Wallis had told Davi that was his intention again in 1967. Davi also had been told that Cherney was going to seek employment in the Forestry Service with Richard Wallis, or failing in that Cherney intended to enlist in the Navy and perform his military duty. He terminated them on March 31, because he had no further need for their services and they were about to voluntarily leave the employ of the Company to follow these pursuits . Davi stated that in the course of their employment he had never discussed with them their own or any other employee's union affiliation or activity; nor did he know whether or not they were members of the Union. He testified that they were laid off for the same reason that the other 150 plus employees had been laid off - the crab season had come to an end. Davi further testified that Robinett and Gerald Wallis were terminated on April 4, 1967, for the same reason - that their seasonal employment came to an end and their services were no longer required . He said that he had kept a few men on, including Robinett and Wallis, after the discharge of the other seasonal employees for the purpose of making boxes and also to clean up the sawdust and nails and other debris on the floor where the boxes had been made. Davi said that on Sunday, April 2, about 2:30 p.m., he received a phone call from Wanda Robinett, who told him that there was a union man at the Robinett home. Then she asked Davi what should she do. According to Davi, he told her that he didn't care what the men did, because "if they want to join they can join, and if they don't want to join, they don't have to join. Just tell him to leave." Then Mrs. Robinett said, "Supposing he won't leave?" Then Davi said, "Then just have him thrown out," and that was the end of the conversation . On the following morning he talked to Robinett and Jerry Wallis at the time-clock at the plant. In view of the telephone call he had received from Wanda Robinett on Sunday, he asked them, "How they made out?" In this he was referring to the fact of Mrs. Robinett's concern about the man "not leaving." Robinett 61 replied, "I did not sign for the union because I had an experience before and I lost the job." Then Jerry Wallis said, "I told the union man that I am satisfied with the way things are now." That ended the conversation. Davi testified that he never questioned any employees about their affiliation or union activities, but some of the employees had come to him and said that a union man had come to their home and left a pledge card. One employee (Maniscalso) gave him a union card and a copy of a labor paper which had been left at Maniscalso's home by the union organizer. He kept the union authorization card in his desk drawer but threw the paper away. Davi also stated that on the day that Maniscalso gave him the union card he told him not to pay any attention to it, and Maniscalso went to work. About 15 minutes later, Davi went into the factory and no one was making any boxes. The men were congregated around Maniscalso who was talking. He went to the group and said, "Frank, don't make such a fuss over nothing. Why don't you tell the men the truth? Let's get through with those boxes." Davi further testified that on April 4, at approximately 11:30 a.m., Wanda Robinett drove into the parking lot at the plant. He went over to her and asked, "how she made out," referring to the visit of the union organizer on the previous day. She said that the union man was a friend of her father's and had worked with her father on one occasion. Then she explained that the boys (her husband and Jerry Wallis) felt sorry for him and signed a paper showing the Union "that this man is actually working, visiting the employees at Point St. George, trying to get them to sign up for the union." Then Mrs. Robinett said that Davi had made accusations about her and Robinett not being married. Davi told Mrs. Robinett that he had said no such thing, and seeing Larry Cherney crossing the parking lot, he called Cherney to the car and said to him, "Wanda is accusing me of going around and saying that she and Robinett are not married," Then Cherney said, "He did not say it, I said it," meaning himself. Then Mrs. Robinett said that the only reason Davi gave Cherney and Richard Wallis a job was because he was trying to play around with their girl friends. At that point, Davi became angry and called to Robinett and Jerry Wallis who were in the plant. He said, "Come over here. Punch your time and I'll have the girl make out your checks." Then he went into the office and instructed the office girl to make out their pay to 12 o'clock and he took the checks out to them where they were waiting on the platform. At that point, they had already been discharged. While the girl was making out the checks, Davi went to the office and took the pledge card that Maniscalso had given him and he asked each man, "Did you sign one of these cards ? " They hesitated, but then replied in the affirmative. He said, "Christ, isn't there anybody that will tell the truth any more?" and he walked away. The checks were ready, so he signed them and gave them to the two employees. Davi denied that he had a conversation with Gerald Wallis about the Union on April 3, at approximately 2-2:30 a.m. Davi said that on that date Wallis and Rogers were sent to Bodega Bay in a truck to get fish, but that they returned at approximately 8 p.m. The timecard of Jerry Wallis, which was identified and put in evidence, shows that Wallis finished work at 8 p.m., on April 3. Mary Canavari, the timeclerk who made out the time slip, testified that both Rogers and Jerry Wallis had stated to her that hour as the time at which they finished work on that day; the day before Wallis was discharged. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings The testimony of the witnesses presented by the General Counsel has been set forth in the prior section of this Decision at considerable length because , as the trier of the facts, I have determined that much of it must be rejected as untrue or unreliable in light of certain undisputed facts which provide an illuminating background for an examination of this testimony. These basic facts with certain comment thereon are as follows: 1. Upon all the evidence herein , including the testimony of the General Counsel's witnesses, it is undisputed that the business of the Company is seasoned in nature with the seasonal periods defined by the Fish and Game Commission of California. 2. It is undisputed that in the crab season the Company employs approximately 125-150 seasonal female employees engaged in canning , etc., and approximately 25-30 seasonal male employees who perform unskilled manual labor in the plant. 3. It is undisputed that the four dischargees named in this complaint were all seasonal, hourly rated employees. 4. It is clear that the crab season in 1967 officially ended on April 1, but prior to that date the force of women employees had been terminated and only a handful of men remained; they were assigned to making boxes and cleaning up the plant. Among this group were the four dischargees. 5. Although the Union, in its charge dated September 26, claimed that 42 employees had been discriminately discharged, the General Counsel, after investigation, issued a complaint naming only these four employees. Under the circumstances, it is reasonable to conclude that the other 150-plus seasonal terminations were effected without discrimination. Thus we are faced with the question - what is the proof that these discharges, unlike other discharges, are discriminatory in nature? 6. An additional remarkable feature of this case is the fact that of the work force of the Company's employees of some 180-plus men and women, this group of four employees, plus one wife, were the only employees who testified that the Company had committed unfair labor practices. With this basic undisputed evidence in mind, we may turn to a consideration of specific testimony. The testimony of Davi, the General Manager of the Company, is in direct conflict with the testimony of the four discriminatees. In their testimony the latter portrayed Davi as "hollering" and "yelling" around the plant in rage at the advent of the Union. Davi on the witness stand impressed the Trial Examiner as a positive person , but not as one who had little or no control of his temper or feelings. As a witness, Davi testified forthrightly, without the slightest hesitation , and his answers were quickly spoken without apparent regard as to whether they advanced or retarded his side of the case , e.g., his ready admission that employee Maniscalso had reported voluntarily to him that a union man had been to Maniscalso's home, or that he had asked Robinett and Gerald Wallis if they had signed a card for the Union on April 4. Sometimes when Davi gave direct denial to specific testimony offered by the employees he was indignant and spoke emphatically , but at all times he was courteous and respectful to all counsel . Davi's manifest candor and his offhand, almost disinterested manner of testifying made him a most persuasive witness. Davi testified that he discharged the four discriminatees because the crab season had come to its end and he no longer required their services. Now let us turn to the testimony of the employees. Richard Wallis and Cherney: These men were discharged on March 31. The record does not disclose that they engaged in any union activities. In fact, they did not join the Union until they met Lallatin at a local cafe on April 25, and after talking to him, signed a union authorization card. April 25 is approximately four weeks after their discharges. It is noteworthy that at the time each of these men were discharged, which occurred separately, there was no word uttered by Davi or either man concerning the Union. Cherney testified that on the day after he signed the card, April 26, he went back to the plant to apply for a job and Davi asked him if he had signed a card for the Union. Cherney also testified that Davi had asked him about his own and the union activities of other employees in the last two weeks of his employment, but Cherney admitted he did not know the dates of these interrogations and no other employee had heard them. According to Cherney, he told Davi he "knew nothing." Davi denied that any such interrogation took place at any time. As between Davi and Cherney, I credit Davi. Cherney's claim of his own union activity and Davi's interrogation is obviously an afterthought inspired by Cherney's later partisanship and brief employment by the Union. I deem Cherney's testimony a fabrication and reject it. Richard A. Wallis admitted that on the day of his discharge neither he nor Davi mentioned anything about the Union. Apparently, like Cherney, Richard was not a union adherent, or did he engage in any union activity prior to his discharge, for he did not sign a card for the Union until April 25, with Cherney. But, according to Richard, on an unspecified date after he signed a card, he went back to the plant and became embroiled in a heated argument with Davi, in which he asked Davi, "You fired me because of this union?" And Davi replied, "Yes." This one word of testimony of Richard is offered as a confession by Davi! What a handy, readymade device to transform a seasonal layoff into a discriminatory discharge, even some months after the discharge! There only one thing wrong with this testimony. The Trial Examiner would be naive indeed if he were to believe such a patent, self-serving statement. In the light of all the evidence, I deem this testimony of Richard Wallis to be an outright lie. I reject the testimony of Cherney and Richard Wallis on these points, not only because of the implausibility or patness of their testimonies but also because of their demeanor and bearing on the witness stand. Both of these men as witnesses appeared at ease until their direct examination approached these crucial points mentioned above, then like schoolboys, who had predetermined to tell a falsehood, they hurried their recital, mumbled it, and seemed relieved once the ordeal of the falsehood was past. As between the forthright, candid, unhesitating testimony of Davi and the clumsy falsifications of Cherney and Richard Wallis, I must accept the testimony of Davi, which is persuasive in itself and is consistent with all the basic facts of the case previously enumerated. Robinett and Gerald K. Wallis. The discharges of these two employees again present a direct conflict of testimony. Wanda Robinett, the principal witness for the General Counsel on these discharges, testified that some days prior to these discharges Davi telephoned her at her home and asked if a union man had called at her home. Davi in his testimony disdainfully denied that this phone conversation had taken place and emphatically stated that POINT ST. GEORGE FISHERIES, INC. he never phoned Mrs. Robinett, although she had phoned him on several occasions about her husband's paycheck when they were having some marital troubles. Both Mrs. Robinett and Davi are in agreement that on Saturday, April 1, she phoned Davi to tell him that a union organizer was at the house and Davi replied that if her husband wanted to join the Union, to join it, and if he didn't want to join, to tell the organizer'to get out. When cross-examined on this point, Davi said that he was at home just sitting down to see a baseball game on television when the call came, and he was irked by the ridiculous nature of Mrs. Robinett's question as to what she should do if the organizer wouldn't leave the house when requested. As to what happened on the day of these discharges, these two witnesses differ. Davi testified he asked Mrs. Robinett how she had made out, and that after receiving her answer Mrs. Robinett accused Davi of spreading a false rumor about her marriage . Now we may pause and ask, Did this element in the conversation actually take place? I must conclude that it did because when she was asked about this part of the conversation on cross-examination, Mrs. Robinett said that this portion of the conversation was about "a personal matter" and had no bearing on the case. Davi also testified that he called Cherney to the car and Cherney accepted responsibility for the rumor, but when Cherney in turn was called as a witness Cherney was not asked about this incident! I deem this important because Davi testified that at that point in the conversation be became fed up at Mrs. Robinett's gossipy charges and he determined to end the employment of her husband at that moment, and did so. He also terminated Gerald Wallis, apparently, because the two men rode back and forth to work together. Davi explained his precipitate action by saying that the men were at the end of the season in all events, so he terminated them on the spot. But at that point, an event occurred on which the General Counsel places heavy emphasis. Davi admitted that while the checks for the men were being prepared he took a blank union card from his desk and asked each man if he had signed the card. They answered in the affirmative and he made the remark about telling the truth. On these admitted facts the General Counsel argues that the close time relationship between the interrogation as to the card and the discharges illustrates that the discharges were discriminatory in nature. Counsel for the Company argues that the discharges were effected because the men had reached season's end and Davi was irked with Mrs. Robinett. As had been stated in decisions of the Board and the courts, in many discharge cases the determination of 63 motive from a few, or obscure facts, is a difficult task, but there are some principles which are of assistance. In general the burden of proof in an unfair labor practice case rests on the General Counsel. In Salinas Valley Broadcasting Corporation v. N.L.R.B.,' the court pointed out that: An unlawful intent is not lightly to be inferred. It cannot rest on remote or speculative evidence. (Citing N.L.R.B. v. Citizen-News, 134 F.2d 970 (C.A. 9)) It should not rest upon an inference which itself rests on an inference.' Also, recently in Lozano Enterprises v. N.L.R.B., 356 F.2d 483 (C.A. 9); the same court cited with approval the following statement from N.L.R.B. v. McGahey, 233 F.2d 406 (C.A. 5): With discharge of employees a normal, lawful legitimate exercise of the prerogative of free management in a free society, the fact of discharge creates no presumption, nor does it furnish the inference that an illegal - not a proper - motive was its cause. An unlawful purpose is not lightly to be inferred. In the choice between lawful and unlawful motives, the record taken as a whole must present a substantial basis of believable evidence pointing toward the unlawful one. [Emphasis supplied.] Applying the principles enunciated above to the testimony here, I must find that the totality of the evidence, which includes the testimony of Davi, which I credit, preponderates heavily in favor of the Respondent. I find, therefore, that the four named employees were discharged because their seasonal employment had come to its normal end and not because they had engaged in union or protected activities. I find further that the alleged interrogation of the four employees, to which the four testified, did not in fact occur. This rejected testimony I judge to be contrivance or fabrication. In his testimony Davi admitted that after he discharged Robinett and Gerald Wallis he asked each if the employee had signed a card for the Union, and Davi then made a remark about telling the truth. I find that this incident is an isolated incident, and that it occurred after their seasonal employment had been terminated and that Davi's question under the circumstances does not constitute interrogation within the meaning of the Act.10 For the reasons stated above, the complaint herein is dismissed in its entirety. '334 F.2d 604 (C.A. 9). 'See quotations from collated cases. "Blue Flash Express, Inc, 109 NLRB 591. Beaver Valley Canning Company v N.L.R B, 332 F.2d 429 (C A. 8).