Sasser Tractor Co., Inc.

SASSER TRACTOR CO. 43 Sasser Tractor Co., Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No. 20, Local Lodge No. 428. Case 20-CA-5302 October 10, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On July 29, 1969, Trial Examiner George H. O'Brien issued his Decision in the above-entitled proceedings, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions, and Respondent filed cross-exceptions, to the Trial Examiner's Decision, together with briefs in support of such exceptions and cross-exceptions. 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 made by the Trial Examiner at the hearings and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-exceptions, the briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. The Respondent excepted, inter alia, to the Trial Examiner's finding of a possible inference of unlawful motivation which would support a prima facie case of unlawful discrimination In view of our decision herein, we find it unnecessary to pass on the correctness of the Trial Examiner's findings in this connection TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE H. O' BRIEN,Trial Examiner On May 27, 28, and 29, 1969, a hearing was held in the above-entitled matter in Stockton, California, at which all parties appeared and participated. The complaint, issued by the Regional Director for Region 20 of the National Labor Relations Board on March 25, 1969, is based on a charge filed by the Union on November 19, 1968, as amended March 11, 1969, and alleges violations of Section 8(a)(1) and (3) of the, National Labor Relations Act Upon the entire record' in this case, including my observation of the witnesses, and after due consideration of the briefs filed by counsel for the General Counsel and by counsel for Respondent, I make the following FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Sasser Tractor Co., Inc , herein called Respondent, a California corporation with its principal place of business located in Tracy, California, is engaged in the business of selling at retail and of servicing farm machinery. Its annual sales at retail exceed $500,000 in value and it annually purchases and receives goods and products valued in excess of $50,000 from California suppliers which had obtained the said goods and products directly from sources outside the State of California. Respondent is an employer within the meaning of Section 2(2) of the Act engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge No 20, Local Lodge No. 428, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges and the answer denies that employees James Reinke and Robert Silva were discharged on October 28, 1968, and that Robert Reeves was discharged on December 2, 1968, "because of their activities on behalf of the Union." The complaint further alleges and the answer denies that Respondent on October 25 and October 26, 1968, through its supervisor Russell Halford, threatened employees with discharge or other reprisals, and through its president, Arthur Sasser, on January 6, 1969, threatened employees with discharge or other reprisals. The answer further denies that Russell Halford was, on the dates alleged, a supervisor within the meaning of Section 2(11) of the Act or an agent of Respondent within the meaning of Section 2(13) of the Act. Respondent's counsel in his brief argues in substance 1. Russell Halford is neither a supervisor nor an agent of Respondent, and no statement by Russell Halford is binding on Respondent 2 Russell Halford did not utter the alleged threats. 3 Arthur Sasser did not utter the alleged threats. 4 James Reinke was discharged on October 28, 1968, for leaving work without permission on October 24 and for failing to report for work on October 26. The discharge of Reinke was the result of the cumulation of 'Respondent's unopposed post-hearing motion to correct the transcript is granted, and said motion is incorporated in the record as Trial Examiner's Exh I The General Counsel's motion to make one additional correction is also granted In transcript p 40, 1 20, the words "stop, Mr Halford" are deleted and the words " start. Mr Reinke" are substituted therefor 179 NLRB No. 8 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD many complaints Respondent had against Reinke including poor work habits, poor attitude, and disinterest toward his job 5 Robert Silva was discharged on October 28, 1968, for failing to report for work on October 26, and because he exhibited poor work habits and was inefficient 6 Reeves was not discharged, but was laid off for lack of work on December 2, 1968. 7 Respondent did not know of any union activities by Reinke, Silva, or Reeves The General Counsel states that the prime evidence on which he relies to establish Respondent's knowledge of union activities and its unlawful motivation for the discharges is an "admission against interest" by Russell Halford I assume that by the words, "admission against interest" he means (I) a statement in Russell Halford's pretrial affidavit that in October 1968 he was Assistant Service Manager with power to hire and fire, and (2) Testimony of Raymond Swanigan that Russell Halford stated on October 24 that he had been instructed by Arthur Sasser to discharge Reinke and Silva "because they went off to see the union " Thus, the ultimate issue in this case is joined on "What was the motive of Respondent9" Resolution of this issue depends, almost exclusively, on the credit to be given to the testimony of Raymond Kenneth (Bud) Swanigan B The Service Department Respondent is a franchised dealer in many types and makes of farm machinery Its store and adjacent shop and lot occupies several acres east of Tracy on Route 50, a main highway from San Francisco Bay cities to Stockton and Sacramento Arthur Sasser is president, William Freeman is vice president and general manager, Earl Reedy was assistant general manager, and Marvin White is service manager. Maintenance, repair, and overhaul of farm machinery is performed by service employees, only about 8 of whom are experienced and qualified on all types of equipment Respondent's policy has been to hire young men, without experience, and train them Mechanics, experienced and inexperienced, have their own hand tools and use in common the heavy tools in the shop and yard None is assigned any particular bench or work station, and much of the work is performed in the yard at a considerable distance from the office of the service manager There were 25 service department employees in September 1968 and this number had dropped to 19 as of May 1969 A very large part of Respondent's business has been the sale of tomato harvesters These are large intricate machines which retail in the neighborhood of $30,000 each Respondent sold 66 harvesters in 1966, 39 in 1967 and 52 in 1968 In 1968, 238,000 acres in California were planted to tomatoes and 5 million tons were harvested. Previous high production in any one year was 3 million tons This gross overproduction resulted in tomato acreage being reduced to 150,000 acres in 1969 and was, in part, responsible for the fact that from January through May 1969 Respondent sold only one harvester In previous years during the winter, over 50 harvesters had been painted in Respondent's shop In the winter of 1968-69 Respondent had only one harvester to paint By September of 1968 it was apparent to Sasser that the overproduction of tomatoes meant that he would not be selling harvesters in 1969, and he conceived the idea of selling overhauls to their owners, so he could keep his service department working To this end he decided that Richard Halford should call upon the owners of the approximately 200 harvesters in the San Joaquin Valley. Richard Halford had started with Respondent 13 years before as a young man without experience He was then and is now a fully qualified mechanic and was Respondent's service manager. At the same time Marvin White was hired to be service manager White is not a mechanic His previous experience includes agricultural college, district representative for Allis Chalmers (one of the manufacturers whose franchise Respondent holds) and manager of a farm equipment agency Russell Halford, Richard's cousin, who is also a fully qualified mechanic and who has worked for Respondent for 8 years was selected to go out in the field to sell parts to equipment owners and a specially equipped truck was purchased to aid him in this endeavor. Russell Halford was then shop foreman and substituted as service manager in his cousin's absence On some date in September the service department employees were called together and Sasser announced that as of October 1, White would be service manager, that Richard Halford would remain in Tracy long enough to facilitate the transition and would then take to the road, that Russell Halford would also be on the road but would be in the shop part time to assist them with service problems and that Stanley Rippin, another fully qualified mechanic would be available for assistance There is no evidence that Sasser said anything about the future authority of White, or the Halfords' or Rippin, and no credible evidence that any title was assigned to the Halfords or to Rippin On October 1, 1968, White assumed his new duties and occupied the service manager's desk, facing a large glass window which overlooks the entire service area C The Union Activity Some of the younger servicemen had formed the habit of crossing the highway to Foster's cafe after work for a cup of coffee before going home On Tuesday, October 22, 1968, the group comprised Robert Silva, Robert Reeves, Darnell Batel, Fred Sarale, Gerry Nichol, and James Reinke They discussed their long hours, low pay, being required to work overtime at a straight hourly rate, low number of holidays and the need for a union When they dispersed about 5 30 p m. it was decided that Gerry Nichol, when he got home, would look in the telephone book and call "a couple of unions" and see what could be done On Wednesday morning, during work, Raymond (Bud) Swanigan suggested to Reinke that they call the International Assn of Machinists, of which he was an active member. When Nichol reported to the group at the 10 a m coffeebreak that all union offices were closed the night before, the group decided to go to Nichol's home at noon and to telephone the I A M. in Stockton from there. Nichol called the I A M , was informed by a secretary that the business agent was out to lunch and left his name and telephone number and Reinke's name and telephone number with the request that the business agent call one of them on Saturday. Wednesday evening the same group continued their discussion over coffee at Foster's Cafe. Employees are required to punch out for their noon lunch hour and to punch in again when they resume work in the afternoon On Thursday, October 24, Nichol, Batel, Silva, Reeves, and Reinke ate lunch together in a leanto in the back of the shop Nichol and Reinke decided that they would not wait for Saturday, but would just "take the rest of the day off" and visit the union office that afternoon. Since White was not in his office, Reinke asked SASSER TRACTOR CO. 45 Silva to explain his absence to White, and Nichol asked Reeves to tell White why he was absent Although Russell Halford was in the shop, none of the four spoke to him Since Reinke lived in Manteca, 12 miles from Respondent's store, a company truck had been assigned to him for his use in going to and returning from work. Silva, his brother-in-law, who also lived in Manteca rode with Reinke as a passenger About I p m on Saturday Reinke, with Nichol as passenger, drove in the company truck to his home There Nichol and Reinke changed to Reinke's private automobile and proceeded to the I A M office in Stockton There they met business representative Harry Werner, obtained union authorization cards and a copy of the contract which the I A M had with J M Equipment Company and invited Werner to a meeting to be held at Nichol's home on Monday Evening, October 28 Reinke and Nichol then drove back to Foster's cafe and when the rest of the group joined them after work, reported the results of their trip to Stockton On Monday evening, October 28, Harry Werner met with a group of Respondent's servicemen at the home of Jerry Peterson There is no evidence on this record of any further or later union activity Jerry Peterson was still employed by Respondent in May 1969 D The Discharges of Reinke and Silva When White returned from lunch on Thursday, October 24, he observed the company truck leave Respondent's lot and turn toward Stockton (which is also the most direct route to Manteca) with Reinke and Nichol in the cab White looked at the timecards and saw that neither had punched in for work that afternoon He asked Russell Halford where they had gone and Halford replied that he did not know During the afternoon White received conflicting reports from Silva and from Reeves Silva told White that "Jim got sick " Reeves told White that Reinke and Nichol had gone to pick up Nichol's wife because she was sick On Friday, October 25, Nichol arrived at the shop well before the starting time of 8 a.m White asked where he had been and Nichol replied that he had taken Reinke home sick and stayed with him the rest of the afternoon Nichol at the same time announced that he had another job, was quitting Respondent and was giving notice until the following Wednesday When White replied that notice was not required, Nichol left without punching in Reinke punched in at 7 52 on Friday after Nichol had left Reinke told White that he had had a doctor's appointment the previous afternoon, had forgotten about it until just before he left and had asked Silva to give White this message Reinke asked White if he had received the message There is no evidence that White made any reply It was Sasser's practice to go through the shop once or twice each day On Friday afternoon, October 25, about 4 30 on a regular round he asked White, "Marvin, how are the boys doing'[" Sasser had previously told White that "we were going into a terrible winter", that layoffs would be necessary, that White should observe his men closely and "the people who will not work, we are going to have to lay them off first" White replied to Sasser's question "Art, some of these young guys, I just can't get them to do anything They parade up and down the shop, they drink cokes, they climb up on top of the tractors and sit, just defy me to do anything Art I am frustrated I don't know what to do " White also mentioned that on occasion when a mechanic was reassembling a piece of machinery he would find that one of his fellow workers, as a practical joke, had removed and hidden one of the "key" parts When Sasser asked for names White replied that he did not know who was responsible for the practical jokes, but they seemed to occur in the area where the younger men were working, and as an illustration of loafing White said "Well, look at Reinke down there Reinke wouldn't even put his coveralls on this afternoon to work." The time was then about 4 45 Quitting time was 5 p m White saw Silva and Reeves run into the locker room Sasser heard banging and loud voices He went to the locker room door and, as he started to open the door, someone slammed against it When he did get the door open he saw an overturned barrel, soiled work clothing scattered over the floor, and Reeves and Silva. There was no one else in the room Sasser in emphatic language castigated both at length, reminded them that they were required to work until 5 and that the time they were wasting was being charged to some farmer who had left equipment with Respondent for repair He charged Silva with sleeping under the tractors, messing up pickup trucks, and getting lost on purpose on service calls He warned both of them, "If you are not going to shape up you can get out of here " Silva clocked out at 5 06 p m and got in Reinke's pickup Sasser saw Reinke walking toward the west end of the shop, caught up with him, put his arm on Reinke's shoulder and said, "Jim, I think you have a problem, I want to fix it for you " Their conversation was lengthy, serious and cordial, and Reinke and Sasser agree as to its substance, though contradicting each other on some of the details In essence, Sasser observed that Reinke was not putting forth the work of which he was capable and Sasser was trying to get at the underlying reason. They agree that Sasser stated that Reinke's work was falling oft and asked what was bothering him Reinke did not deny that his work had slacked, but stated that he did not like steaming off tractors for other mechanics to work on, when those other mechanics were no more competent than he They agree that Reinke said he would like to work on Diesels Sasser did not deny Reinke's testimony that he had Reinke in mind for more money, but was waiting because Reinke's work has slacked off and Sasser wanted to find out why The conversation ended with Sasser asking Reinke to talk to Silva and try to get him to "straighten up " Reinke had clocked out at 5 06 His conversation with Sasser lasted from 45 minutes to I hour During all this time White remained in his office and Silva waited in Reinke's truck As he was leaving Sasser told White that he thought Reinke would "straighten up". The service department at the Tracy store is open seven days a week In August 1968, 12 of the servicemen then in Tracy were divided into three groups designated as Crews A, B, and C All three groups worked Monday through Friday, two groups worked on Saturday and one group worked on Sunday Saturday and Sunday work was equalized by rotating the crews. A daily schedule for the period from August 18 through November 24 was posted by the service department timeclock Adjacent to the schedule was the following notice- 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TOMATO HARVEST CREWS 1968 Sundays available for work with the following Saturday and Sunday off. CREW A CREW B CREW C Chuck Clemons Carl Babbitt Bruce Ecker Dick Halford Russ Halford Stan Rippin Walt Vengley Gerry Nichol Fred Sarale Darnell Batel Bob Silva Jim Jenson After September Ist, add Don Machado Bob Chance Jerry Peterson J<m Reinke Jack Roberts WEEKDAY STARTING TIMES- Rotate weekly following the Sunday on duty 6 00 A.M -5.00 P M 8 00 A M.-7.00 P M. 10 00 A M.- As Needed Sasser,; White and,Richard Halford testified (and Reinke denied) that when Reinke returned from Five Points he was assigned to Crew B, because Silva also lived in Manteca and by having both men on the same crew they could travel to and from work in the same company truck. Reinke testified that he relied on the schedule and considered himself in Group C He further testified that he did not know whether or not he was supposed to work on Saturday, October 26. On the Posted schedule, Crew B and Crew C were both scheduled to work Saturday, October 26. Only crew A was off duty on that date S Silva testified that he knew he was scheduled to work on Saturday. Neither Reinke nor Silva reported for work on Saturday morning and neither phoned in. At sometime between 9 a m and 10 a.m. White went to Mr Freeman's office. On direct examination White testified. A Yes I went in to talk to Mr. Freeman about it because they [Reinke and Silva] had not shown up for work and left us shorthanded And I told him that, evidently, Mr. Sasser's talk had not taken effect on them, that they weren't interested; so Mr. Freeman said to terminate them, it was my responsibility to the shop to put it on a producing basis, and we felt that the only way we can do it was by terminating the dead wood. Q Was anything further said? A. Not that I can recall Under cross-examination White testified. Q When you spoke to Mr. Freeman on Saturday, October 26, how did Mr. Silva's name come into the conversation? A. We were discussing personnel, about Mr. Reinke and Mr Nichol, and there were a group of them that were involved in the non-productive situation, such as, practical jokes and horseplay that we didn't feel could continue 'Starting and quitting times on the chart are meaningless The chart shows crew B starting at 6 a in on October 28 and Crew C starting at 8 a m Respondent's witnesses testified that starting time on October 28 was 8 am All testimony is that quitting time on Friday October 25 was 5 p m , yet the chart shows quitting time for crew B as 7 p in and quitting time for crew C "as needed " Q Now, when you say a group of employees involved in non-productive work, such as horseplay, etc., what employees were you referring tog A. I was referring to Mr Reinke, Mr. Silva, Mr Reeves, Mr. Martinez Q Anyone else9 A. I believe that was the group Q. Mr Nichol? A Yes Q. And so all five of these employees were discussed on Saturday October 26, is that it? A. Yes. Q Did you appraise Mr Freeman of the fact that Mr Nichol had terminated his employment? A. I don't think so, no. Q. What was said about him on that morning9 A There wasn't anything we said about Mr. Nichol. It was just that I inadvertently put his name in because he was in this group. Q You didn't tell Mr Freeman that Mr. Nichol had terminated his employment the day before? A No, I had told Mr Reedy about it. Freeman testified on direct examination that on Saturday, October 26, in the mid morning in Freeman's office. A Marvin came to me. He said Gerry Nichol and Jimmy Reinke had left at noon Thursday without any explanation and didn't return for work. He was concerned about it because Gerry Nichol had done it a couple of times previously. He asked me what we should do about it. Q And what did you say9 A. I told him that if that was the case, that we would I explained to Marvin that we did have very tremendous down-currents of the business and the shop wasn't paying anyway, that under those circumstances, if the individuals exhibited that they didn't want to work, to terminate them when they came back to work Q Was anything else or further said on that occasion? A I asked him if he had any idea where they went or what they were doing. . . Marvin said he had no idea what they did at that time because nobody told him Under cross-examination Freeman testified Q Wasn't it a fact that on Saturday, October 26, Mr Nichol was no longer working for the Sasser Tractor Company9 A. Not to my knowledge. Q Didn't Mr. White tell you that? A No, sir. Q. Didn't Mr. White tell you that he had quit the day before? A I said he didn't tell me that. Q. What did Mr White say when you told him to terminate Mr. Nichol and Mr. Reinke9 A He said he followed my instructions and terminated them when they returned - if they returned to work. Q Do you know who terminated Mr. Silva? A. Yes sir. Q. Who? A. Mr. White Q Did he get your permission before terminating him? SASSER TRACTOR CO. 47 A. Yes, he did. Q When did he speak to you about it? A. He spoke to me the Saturday prior to the Monday, which was the 26th, and I asked him where Reinke went and how he had gotten home; and he said that as far as he knew, he was with his brother-in-law, [Silva] or his brother-in-law was involved in this thing, and I told Mr. White at that time definitely Reinke and Nichol should be terminated, and anybody else that didn't exhibit the attitude that they wanted to perform the service that they were being paid in the shop, and going home when they felt like it, should be terminated and should clean up their shop. * * * * * Q. What did Mr. White say about Mr. Silva? A He mentioned that Silva had a bad attitude and he thought that he was with Mr. Reinke that afternoon. Q. What afternoon are your referring to? A. Thursday afternoon. Q. Thursday afternoon, is that when Mr. Reinke left? A Well, Mr. Reinke left at noon. Q. And Mr. White said he thought Mr. Silva left? A He thought Mr. Silva was involved in Mr Reinke's going home that afternoon because they had - the details of it I didn't get except for the fact that Mr. Reinke had to get home Q So that you didn't instruct him to terminate Mr. Silva on Saturday, October 269 A. Not specifically * * * * * Q. Did the two of you decide that Jim Reinke and Gerry Nichol were going to be terminated? A. That was definite. Yes. * * * * * Q. When did he terminate Mr. Nichol? A. That's what I thought to explain. I think he let it ride, that Mr Nichol had given his notice to quit. Q. When did Mr. Nichol give his notice to quit? A Monday. Kenneth (Bud) Swanigan testified that on Saturday, October 26, White was not in the shop, that he received his work assignment from Russell Halford, and that shortly before or shortly after the 10 a m. coffeebreak I was working in the west end of the shop by myself He [Russell Halford] came up, as always, and we began to talk. He made a few opening - Q. Give us the whole conversation just as you recall it, from the very beginning to the very end. A. He said, after these fleeting remarks to me, he said, "I will have to do something Monday that I do not particularly enjoy." I said, "What is that?" He said, "I am going to have to fire two men." I said, "Who are they?" He said, "Jim Reinke and Bob Silva." And I said, "What for?" and he said, "The old man heard they went off to see the union and they were going to cause the shop a lot of trouble." And I said, "I sure hate to hear this because these men have families and it's wintertime and these jobs are scarce." He said, "I know this." And then he walked away; but he said as he walked away, that maybe he could get Mr. White to do the job . . . . He said, "There's going to be others." Russell Halford testified that the only words which he addressed to Swanigan on Saturday were, "good morning" and he specifically denied making any of the statements which Swanigan attributed to him. On Monday morning, October 28, Reinke reported for work at about 8 a.m. Reinke testified. As I walked in the door, back door of the shop there, Marvin White came out of his office and he walked up to me and he said, "Jim, I've got to talk to you Friday night the old man looked at your time card and told me to terminate you". I said, "Have you got my check9" He said, "We will pay you till noon." I said, "Okay." White testified I just told Reinke that I was going to have to terminate him. He didn't ask why, and I didn't give him any explanation .... He said, "Well, I was expecting it " I told him I would pay him for four hours and to take his personal tools out of the truck. * * * * * Q. In that conversation, did you state to him in words or substance, "Art looked at your time card Friday night and told me to terminate you and pay you for four hours?" A No. Silva testified that when he first arrived at the shop about 10 a.m on Monday morning, (starting time was 8 a m.). Well I was going to explain to him [White] why I didn't come in. I wanted to tell him. He told me - well, I was going to tell him why I was not there that morning when he went on to tell me that Art looked at my time card that previous Friday and terminated me White testified He [Silva] walked up to the outside of the parts counter and I asked him how come he was late and he said his wife was sick. I asked him why he didn't call. He said he didn't know, and at that time, I already had his check made out and laid it on the parts counter and told him he was terminated, and he picked it up and left. Q In that conversation with Silva, did you tell him in words or substance that he was being terminated after Art looked at his time card the previous Friday? A. No, I did not. Q Why was Silva terminated on October 28? Why did you have his check made out9 A. Well, for approximately the same reason as Reinke; poor work habits, inefficiency, and being late for work and not calling in, and being away on Saturday. Later on Monday Reinke and Silva drove to Stockton and reported to the Union that they had been discharged On Monday evening the union meeting was held at the home of Jerry Peterson. The Union's charge filed November 19 alleges that Nichol was discharged on October 25 and that Reinke was discharged October 28 and does not name Silva. E. Incidents in the Employment of Reinke and Silva James Reinke was employed continuously by Respondent from May 1966 to October 28, 1968. In the spring of 1967 when reprimanded by Richard Halford for his bad attitude, for refusing to do the type of work asked of him, for visiting with the men and getting a little slow, Reinke threatened to quit. Halford replied "There's the time clock, punch it if that's the way you feel and go 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home " Reinke did not accept the invitation Halford then told Reinke that if he would go out in the yard for a while and get a little more experience Halford would put him working on tomato harvesters, which was what he wanted to do. Reinke did well in the yard, was put to work on tomato harvesters and learned the job so well that when service men were dispatched to Five Points in June 1968, Reinke, with a junior assistant, was assigned to field maintenance, away from the shop without any immediate supervision In 1967 Respondent opened a branch store at Five Points, 30 miles southwest of Fresno and 151 highway miles from Tracy Shortly before the start of the tomato harvest in the Five Points area in June 1968, several mechanics were dispatched from Tracy to service the harvesters and to remedy any malfunction in the field Fred Herbold, a senior mechanic was placed in charge of the operation Reinke and Silva were on the Five Points crew, Silva returned to Tracy in August, and Reinke in September. In early July 1968 Fred Herbold phoned from Five Points and told Richard Halford that he was having trouble with Reinke, who could not get along with the men and would not follow orders Sasser testified that Halford reported to him He said that the supervisor had called and said that he could no longer work with Jim Reinke, it was going to be either him or Jim Reinke should leave. I said "Dick, let me go down and flush this thing out Sometimes young people, when they are tired and hot will say this I will go down and try to be the patch-up guy and put this thing together", which I was able to do When Sasser arrived at the Five Points store at about fifteen minutes before quitting time he found a congenial group in the showroom comprised of Fred Herbold, Jim Reinke, Jack Roberts, another mechanic, and two customers, each with a quart bottle of beer Sasser testified Well the first thing I said is, "Hi, Hello," and I said, "This is really something!" and I walked out the back because these things are pretty hard to take. Later I came back and said this, "Wouldn't this be some great scene for the president of our bank to walk in and see or the manager of one of our big customers in this territory Wouldn't this be something to seep" One of the customers said, "We are customers." I said, "If in the future you want to take a drink, go back in the trailerhouse provided for you and drink your beer, but don't have it here in the place of business," and they took it pretty well and that was the end of that session About 2 days later, Halford visited Five Points, took Reinke aside, said he had had some complaints about not following orders and directions, that Reinke was to take his orders from Fred Herbold, and that if he didn't shape up he would be sent home Reinke made no reply In Mid July the ranch foreman of the Giffin Ranch telephoned and complained to Richard Halford that Reinke and his assistant were not doing a competent job of maintaining the harvesters. Giffin Ranch is Respondent's largest customer. Sasser told Richard Halford to go back to Five Points and to work with Reinke "because we can't have the guy walk off " Sasser also went to Five Points and had lunch with the purchasing agent for Gifford Ranch. When they returned from lunch Sasser observed that Richard Halford and Reinke were working together and working well, and within a few days they had the "bugs straightened out " Shortly before his return to Tracy a new truck which Reinke was driving became stuck in a tomato field. When it was pulled out by a tractor, the tow chain, which had been improperly attached, bent the front bumper Reinke in reporting the incident to Reedy in Tracy stated that he thought the truck had slipped because it still had factory issue tires, and not the oversize tires with which other trucks of Respondent was equipped. The tires on the truck were changed within a few days Reinke was not criticised at the time for damaging the bumper The bumper was repaired on October 28 Sasser, on at least two, and possibly three occasions observed one of his pickup trucks parked in front of the Circle Bar, a saloon in Manteca The trucks are brightly painted with Respondent's name prominently displayed. Sasser described one incident in detail. About 1.30 a.m in late September 1968 while driving through Manteca he saw one of his trucks in front of the saloon. He stopped and took the number Next morning he checked the number with Richard Halford, who said "Well, that's Jim He didn't show up this morning and I called his wife and she said he had the flu " Sasser testified I talked with [Reinke] about three or four days later. I said, "Jim, if you are going to be downtown having a whiskey or something, don't take our pickup down there any more " He just kind of grinned because - I knew his temperament, too He runs hot and cold We needed him badly. Reinke denied that he had ever parked a company truck by the Circle Bar and denied that Sasser had spoken to him on the subject. Reinke described an incident in 1967 when he was questioned by Richard Halford Reinke told Halford it was not his truck, that the truck was one assigned to another employee, Dave, who also lived in Manteca and who frequently ate at a restaurant adjacent to the bar Sasser testified that in October 1968, while driving on Highway 50 toward the shop, he observed two of his trucks racing toward him. He recognized Reinke and Silva as the drivers. Richard Halford testified that at Sasser's request he called Reinke and Silva to his office, told them that they had been seen racing the trucks and if they were caught doing it again they could be discharged Reinke denied racing in the truck Silva was not questioned on the subject On one occasion, about a week before Reinke's discharge, Freeman, White and Sasser observed Reinke, standing idly and watching another mechanic work. None of the three spoke to Reinke In mid October Sasser saw Silva and Reeves operating forklifts in a negligent manner and reprimanded them. White on several occasions spoke to Silva about keeping his work area clean and about spending too much time visiting Silva was not questioned on the forklift incident, nor on the subject of any reprimand by White. F. The Layoff of Robert Reeves Reeves was hired in February of 1968. He was not a mechanic. Between June and August he was stationed in Bakersfield and performed services there and in Porterville for Respondent . After his return to Tracy in August he did yard work and painting of used equipment. There were two other employees doing the same work, John Aretakis and Alex Martinez. Reeves was in the group which met at Foster's cafe He was with the group when Nichol telephoned the Union at noon on October 23, and he attended the meeting at Jerry Peterson's home on SASSER TRACTOR CO. 49 October 28. Reeves testified that in the locker room on October 25 Sasser had told him that his work had been pretty good but was slacking off, told both Reeves and Silva that they had been watching the clock too much and warned them both that if they did not "straighten out" they would be terminated On November 20, 1968, Freeman received a copy of the union's original charge. On Friday, November 29, John Aretakis was laid off for lack of work On Monday, December 2, Reeves was called to the office of Sales Manager John West and told by West that sales were bad and Respondent did not have enough work to hold him West also stated that Respondent would like to have Reeves back in the spring and would consider taking him back in the spring if Reeves had not obtained other work West testified I talked to him because Mr. Sasser and Mr Freeman were not there, and Mr White was not there that day and we had discussed Mr. Reeves a couple of times prior and decided that we would terminate him or lay him off. Sasser testified that Martinez was retained because he was senior to Reeves, and had been trained to do some work other than yard work and painting Sasser explained that Larry Peterson, who had been hired earlier in November was retained because Peterson was 40 years old (Reeves was 19) and claimed to be a mechanic familiar with older equipment. Larry Peterson did not work out and was laid off three months later. Page Jones (55 years old) who was also hired in November was retained because he claimed to be a mechanic familiar with older machines. Jones was laid off in February Swanigan testified on direct examination that in his opinion Jones was not a mechanic On cross-examination it developed that this opinion was based on two incidents. On one occasion Jones had connected a battery with the polarity reversed, and on the other occasion Jones had asked Swanigan's advice on how to attach an air filter. and in this he was confirmed with ritual consistency by all of Respondent's witnesses, that after October I, 1968, Russell Halford neither exercised nor possessed any of the indicia of supervisory authority listed in Section 2(11) of the Act It is true that there is not a single instance in this record of Russell Halford having exercised any supervisory function Each of the General Counsel's witnesses testified with ritual consistency that he received instructions from both Halfords and from White When Nichol and Reinke "took off ' on Saturday afternoon they did not communicate with Halford, nor did they leave any message for Halford. Each independently left a message for White It was the practice of less experienced mechanics to ask the more experienced for advice, as witness Jones asking advice of Swanigan In a shop as small as Respondent's there was certainly no need for more than one full-time supervisor, and that one was White. Prior to White it was necessary to have a backstop for Richard Halford, who was a mechanic and was, on occasion, required to be absent from the shop on service calls One solid fact emerges from the foregoing. On January 24, 1969, Respondent's President, in possession of all his faculties, and in the presence of his chosen representative, an expert in labor relations, solemnly stated that Russell Halford was then a service manager and possessed statutory indicia of supervisory authority. There is nothing in this record even suggesting any grant of additional authority to Russell Halford on or after October 1, 1968. It is not the exercise of supervisory power, but its existence which creates the classification. Ohio Power Co v. NLRB , 176 F 2d 385, 388 (C A 6) I find that at all times material herein Russell Halford was a supervisor within the meaning of the Act H Sasser's Report to All Employees, January 6, 1969 G The Supervisory Status of Russell Halford in October 1968 On January 24, 1969, Sasser made a written statement to a Board Agent in the presence of Whitney Foster, of the California Association of Employers. This statement, signed and verified by Sasser, contains, inter alia, the following text The company's officers include William A Freeman, vice president, Evelyn R Sasser, vice president, Ernest Robertson, secretary treasurer The service managers are Richard Halford, Marvin White, and Russell Halford Bill Freeman has general responsibility above these men. There are approximately 35 men in the service department and the three service managers supervise their work. All three service managers hire and fire employees after discussing with Bill Freeman. All three direct the men in their work, grant wage increases and both recommend and grant promotions in their own right All three do the same work, supervise personnel, direct and instruct them. There is no hierarchy among the three service managers although I might call Richard Halford the senior service manager. Sasser, on the witness stand, testified that Russell Halford was never Service Manager, that prior to October 1, 1968, he was Assistant Service Manager under his cousin Richard Halford, and that in his cousin's absence he exercised supervisory functions Sasser further testified, On Monday, January 6, 1969, Sasser assembled his entire staff (about 50 employees) in the conference room Everyone was there from the vice president to the janitor, including the sales force and the office force Sasser talked from 8 a.m to 9 30 a m Swanigan sat about 20 feet from where Sasser was standing Swanigan openly took notes of the entire talk, and was invited by Sasser to come to his office after the talk to check his notes with Sasser's. Swanigan did not accept the invitation. Swanigan testified, on direct examination. The meeting opened with comments and observations on the trip he had just returned from - I believe from Florida somewhere - on company matters And then he pulled the drapes apart and revealed the full wall-board there, chalk board On this chalk board, he explained the total financial breakdown of the company's business for the month of December, showing the company had a loss of $57,000 - $57,119 - and it was all there on the board, and he said, "There is a reason for this The reason is that we have had labor trouble in the shop, and the reason for this labor trouble is that the farmers have heard that we are going to unionize and that we were having union trouble and that they deliberately stayed away because they will not patronize a union shop " He said that "We are not going to tolerate any more of this kind of trouble and, incidentally, the troublemakers are no longer with us If we go union, if we unionize this shop, we can't sell certain lines of our products," one of them being the 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F M.C , the other being the new grape-picker that was under development, and indicated that there were other lines but not mentioned by him. He said that "If we go union, management can no longer communicate with personnel in the shop We can't give bonuses, we can't fire, we are now paying what we can afford for our help and if they don't like it they know where the gate is." Q Was there anything said about the past growth of the company9 A. He stated that the men who made this company grow would not sign a union contract, and followed that with a statement that there wasn't a man working there that would qualify as a union journeyman, besides that Sasser testified that it was his custom to hold a meeting of all employees in January of each year to report on the state of the business He opened the January 6 meeting by showing on a graph that the business curve was straight down Sales had dropped from more than $300,000 per month to less than $50,000 per month. The payroll was $55,000 per month. Shop sales in December were only $570. The talk covered approximately 10 major problems which had contributed to the Respondent's financial strait. The union part of the talk occupied about 4 minutes altogether. Sometime in mid December a farmer had told Sasser that his employees were holding union meetings in Foster's cafe Sasser stated that generally farmers were opposed to unions and reminded his audience that Respondent was catering to farmers. As an illustration he stated that if he wanted to take advantage of this prejudice he could invite a union to throw up a picket line, pointing out that Safeway's business was enhanced by union pickets. He stated his belief that one reason for the loss of business was the rumor that Respondent was going to unionize. He read a short excerpt from an article in "NATION'S BUSINESS"' identifying the source and inviting anyone who wished to come to his office and read the article. He concluded the union part of his talk with the admonition. If you people are talking about union keep it quiet. Don't make a big noise about it because the farmers will not bring machinery into our shop. Sasser announced that another reason for the decline in business was the poor work and the excessive cost of the service department. He attributed this to such horseplay as squirting cokes, squirting grease on hand wrenches, to hiding essential parts of disassembled machines, and to just plain loafing on the job. Of Respondent's approximately 25 service employees, some 6 to 10 had been suspected of horseplay Sasser stated that some of these "were no longer with us" and warned that further horseplay would not be tolerated, and that anyone who would not put in a full day's work for a full day's pay would be terminated. Prior to the meeting one of the office girls had told Sasser that she was thinking of quitting because the company was having financial problems. Sasser concluded the meeting by stating that the people who had made the company grow were still with it and assured his auditors that they would "pull this thing out of the fire if we all work together." He specifically denied stating that the men who made the company grow would not sign a union contract, and denied casting any aspersions on the abilities of his mechanics. 'Excerpt was from article entitled "Union's are Raiding your Rights," Volume 56, No 12 (December 1968) pp 34 and 36 'I RAYMOND KENNETH (BUD) SWANIGAN Before Sasser went into business for himself he and Swanigan had worked together in the same shop, and were members of the same A F.L union. Swanigan is regularly employed at the Atomic Energy Test Site near Tracy In 1963 he agreed with Sasser that when Respondent had work for him, and when it would not interfere with his regular job, he would also work for Respondent. In October of 1968 and through December 20, 1968, Swanigan worked for Respondent with some regularity the hours of 8 a.m. to 12 noon on week days and all day on Saturdays. Swanigan was not assigned to a service "crew" and his name did not appear on the posted work schedule. On January 6, 1969, he reported for work at 8 00 a.m , spent the first hour and a half in Sasser's meeting and sometime later in the day told White, that since there did not appear to be any work for him he was laying himself off No work having developed, Swanigan picked up his tools and severed his connection with Respondent later in the month Swanigan had been a member of the I.A M. since 1961 and was one of five or six men who succeeded in organizing the test site shop almost 100% for the I A.M. Sasser and White were aware of the fact that Swanigan was a union member. In my evaluation of Swanigan's testimony, I do not discount his sincerity. I am convinced, however, that his recollection has been distorted by partisanship, by a belief that he was, in part, responsible for the discharge of Reinke and Silva, by a felt necessity for self-justification, and a felt need to make amends Had Sasser, in fact, made the statements attributed to him by Swanigan, there should have been some corroboration by some witness, particularly since it appears that Respondent offered full cooperation to the Regional Office in its investigation That Swanigan remembered only what he chose to remember of Sasser's speech is further evidenced by his testimony. "this was the only part of the meeting that was relative to this situation", and by the fact that although Swanigan took notes, he could not remember many of the points made in the article from the Nation' s Business, read by Sasser. Swanigan's need for self-justification is illustrated by his testimony that when a motor which he had overhauled "blew up", the cause was not any negligence of his, but the failure of the operator to maintain coolant at the proper level. Swanigan had spent 89 hours on the overhaul. When he finished there was a leak in the water pump, which would have required two or three more hours to remedy. Swanigan considered that he had discharged his responsibility by telling the yard man, Aretakis that he should continue to add "water, or coolant or whatever," and by making mention to someone "I don't know who exactly, but it had to be someone in a place of responsibility" that the engine would burn up in twenty minutes if the water level became low At another point at which corroboration could be anticipated, a contradiction emerged. Reinke testified. Well Gerry got on the phone and he called the International Association of Machinists. The reason he called them was Earlier in the day I had been working with Bud Swanigan and he had suggested that. Swanigan testified: Q. You were instrumental in helping Reinke and Silva to contact the Machinists union? A. No sir. I gave them no help ... . Q Didn't they come and talk to you about who to contact to organize the Sasser Tractor Company9 SASSER TRACTOR CO. 51 A They may have I didn't give them any specific answers. Maybe I gave them some general advice, but no specific directions. Q Didn't you tell them to contact the I A M A. No sir, I did not tell them to do this Q Did you tell them who to contact9 A No sir I discredit Swanigan's testimony as to his conversation with Russell Halford on five grounds (1) His refusal to give the entire conversation; (2) Halford's denial; (3) The fact that Swanigan was the only witness in this entire proceeding to testify to receiving any instruction from Russell Halford, (4) His testimony that White was not in the shop on Saturday, (5) Surrounding circumstances which make such a disclosure by Halford to Swanigan highly improbable Among these circumstances are the fact that White and Sasser were still in the shop after Reinke and Silva left the night before Sasser had relieved his feelings by reprimanding Silva and Reeves and had parted with Reinke on wholly amicable terms. Sasser was not in the store on Saturday. White was in the store on Saturday If, contrary to all probabilities, Sasser had given instructions to Russell Halford, and not to White, it is wholly incomprehensible that Halford would have disclosed to an avowed union advocate that two employees were to be discharged for union activity, particularly where he found the task distasteful and contemplated asking his own superior, White, to perform the act Circumstances tend to confirm Sasser's version of his January 6 talk. If, as contended by the General Counsel, Sasser's sources of information were sufficiently prompt and accurate to enable him to immediately fix upon and discharge Nichol, Reinke and Silva, those same sources would have told him that all union activity had ceased and there would therefore have been no occasion to mention union at the January 6 meeting. On the contrary, if Sasser had only recently learned of the union meetings at Foster's cafe it was reasonable for him to advise his employees of possible consequences and to request them to conduct such activities out of the sight and hearing of Respondent's customers. Finally this talk was delivered while a charge that Respondent was engaging in unfair labor practices was under investigation and at a time when Sasser was being advised by an expert in labor relations. That he would make the open confession and naked threat described by Swanigan is most unlikely J Summary and Concluding Findings The ultimate issue in this case is one of motive. The General Counsel places his prime reliance on the testimony of Ray nond Swanigan that Russell Halford announced on Saturday, October 26, that Reinke and Silva were to be discharged because they had gone to the Union. Respondent's primary defense is that Russell Halford did not make the statement attributed to him by Swanigan, and its secondary defense is that Russel Halford was, on the date in question, neither a supervisor under nor an agent of Respondent and that no statement made by Halford was in any way binding on Respondent. Respondent further avers that there is no credible evidence that Respondent either knew or suspected any involvement of any of its employees with any union until after the discharges and layoff; that Reinke and Silva were discharged because a decline in business required belt tightening; the service department was overstaffed, it was necessary to get rid of nonproducers, that Reinke and Silva were nonproducers, and that the precipitating cause was their absence without reason or without notice or without excuse on a scheduled work day, leaving the shop temporarily shorthanded. Reeves was laid off because of the necessity for further curtailment and the absence of need for anyone with his particular skill At about the time of Reeves' layoff two persons were hired who claimed to have special qualifications. It turned out that neither met expectations and both were shortly thereafter terminated I have found the testimony of Swanigan to be unreliable and I therefore find that there is in this record no direct evidence of discriminatory motive There remains, however, the possible inference of unlawful motivation from the following facts, which I also find (1) Respondent's service shop is a "small plant", (2) the union discussions took place in a public restaurant frequented by Respondent's customers, (3) the timing of the discharges, (4) the relative absence of prior warning; (5) Condonation of prior conduct of a similar nature; (6) Repudiation of portions of their pretrial affidavits by Sasser and Russell Halford; (7) sharp conflicts between the testimony of Freeman and of White as to their conference on Saturday, October 26; and (8) union animus admitted by Sasser These factors in the aggregate make out a prima facie case of unlawful discrimination and place on Respondent the burden of going forward, and demonstrating as a minimum, that the discharges of Reinke and Silva and the layoff of Reeves were for cause Respondent has more than met this burden through the testimony of Marvin White While White's testimony contains some self-contradictions, these are minor and insubstantial. In material substance White is corroborated by Sasser, by Richard Halford, and to some extent by Reinke and Silva. I was particularly impressed by White's firm and forthright contradiction of the testimony of Freeman. Witnesses were not segregated Shortly after the conclusion of Freeman's testimony Mr White took the witness chair. Freeman is White's superior, and an officer of the Respondent. I find Freeman's testimony to be so loaded with self-contradictions and so implausible in the light of the situation existing on the morning of October 26, as to be completely unworthy of credit. As a final comment: Strong partisanship is apparent in the testimony of every witness and I have taken this fact into account in assessing credibility However, it is the General Counsel who has the burden of proof, and the inconsistencies, exaggerations, and misstatements by Respondent's witnesses do not constitute affirmative proof of violation I therefore find and conclude. 1 Russell Halford, on Saturday, October 26, 1968, was a supervisor within the meaning of the Act 2 James Reinke was discharged by Marvin White because White had been advised by Sasser that layoffs were impending, because White was dissatisfied with the performance of Reinke as an employee and because Reinke absented himself without notice and without leave on Thursday afternoon, October 24, and all day Saturday, October 26, 1968 3 Robert Silva was discharged by Marvin White because he had been advised by Sasser that layoffs were impending, because White was dissatisfied with the performance of Silva as an employee and because Silva absented himself without notice and without leave on Saturday, October 26, 1968. 4. As of the date of the discharge of Reinke and Silva neither White, nor Freeman nor Sasser either knew or had 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason to suspect that either had engaged in any union activity 5. Robert Reeves was not discharged Reeves was laid off because Respondent had only sufficient work for one man with his qualifications, and a senior man was retained to do that work 6 On the date of Reeves' layoff no responsible officer or agent of Respondent knew or had reason to suspect that Reeves had engaged in any union activity 7 Sasser did not on January 6, 1969, nor on any other date admit that any employees had been discharged for union activity nor did he threaten any employees with "discharge or other reprisals because of their concerted activities " 8 Russell Halford did not, on October 25, or on October 26, 1968, nor on any other date threaten any employees with "discharge or other reprisals because of their concerted activities" CONCLUSION OF LAW The allegations of the complaint that Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(I) and (3) and 2(6) and (7) of the Act have not been sustained RECOMMENDED ORDER It is recommended that the complaint be dismissed in its entirety