Barrus Construction Co.

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barrus Construction Company and International Un- ion of Operating Engineers, Locals 500, 500A, 500B, 5000, 500D. Cases 11-CA-4257 and 11-RC-3076 September 29, 1971 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 30, 1971, Trial Examiner Harry R. Hinkes issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices. He also found that the Employer-Respondent's objections to the election held on April 16, 1970, were without merit. Thereaft- er, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications: We agree with the Trial Examiner that the Employ- er's objections to the election held on April 16, 1970, are without merit. Consequently, as the Union received a majority of valid votes cast, and as the challenged ballots are insufficient to affect the results, i The Board ordered that a hearing be held on Respondent's Objections I and 2 as recommended by the Regional Director and on those "issues set forth above," such issues being raised by the Company's exceptions to the Regional Director's report with respect to "Objection 3 and alleged threats of violence and retaliation " The Company contends that under such an order it was entitled to introduce evidence not only in support of its specifically numbered objections but also to establish generally improper threats of violence and retaliation not covered by its specific objections The Trial Examiner ruled to the contrary holding that the hearing on objections would be limited to matter relevant to Objections 1, 2, and 3 and that the disputed language was intended to advert to matters falling within the scope of the specified objections The Company contends the Trial Examiner was in error and that his restricting the scope of the objections hearing was a denial of due process. However, the Company has adverted to only two instances in the record where the Trial Examiner applied his disputed ruling In the first, he permitted company counsel to we shall certify the Union as the bargaining represent- ative of the Employer's employees in the appropriate unit. We shall also order that the complaint be dismissed insofar as it alleges Respondent unlawfully transferred employee Willie Quinn from one job location to another. ADDITIONAL CONCLUSIONS OF LAW 2. Barrus Construction Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. International Union of Operating Engineers, Locals 500, 500A, 500B, 500C, 500D, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 4. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 5. In accordance with the stipulation of the parties, the following employees of the Employer constitute, we find, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All hourly paid production and maintenance employees excluding office clerical employees, professional employees, working foremen, guards, and supervisors as defined in the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Barrus Construction Company, Kinston, North Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges the Respondent violated the Act by transferring Willie Quinn for discriminato- ry reason from one job location to another. continue with its examination of his witness by way of an offer of proof. We have considered such evidence and conclude it warrants no modification of the Trial Examiner's results In the second instance adverted to, the Trial Examiner, on being assured the proffered testimony was being adduced in support of a numbered objection, permitted company counsel to continue unhampered his examination of his witness. Thus, the Company has failed to show that it was in fact restricted by the Trial Examiner's ruling in introducing any evidence , either directly or as an offer of proof, into the record Further, the Company did, as the record amply shows, introduce extensive evidence-most of it of little consequence-dealing with alleged threats of violance and retaliation as part of its case with respect to Objection 2 Consequently, as the Company has failed to show that the disputed ruling in fact restricted its introduction of evidence, we find that such ruling, assuming it was erroneous, was nevertheless nonprejudicial. 193 NLRB No. 62 BARRUS CONSTRUCTION CO. 411 CERTIFICATION OF REPRESENTATIVE It is hereby certified that International Union of Operating Engineers, Locals 500, 500A, 500B, 500C, 500D, has been designated and selected by a majority of the employees in the appropriate unit and that pursuant to Section 9(a) of the National Labor Relations Act, as amended, the said labor organiza- tion is the exclusive representative of all employees in such unit for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY R. HINKES, Trial Examiner: On February 11, 1970,' the Union, the Charging Party herein, filed a petition for an election. A Stipulation for Certification Upon Consent Election was executed by the parties on March 9 and an election by secret ballot was conducted on April 16. The tally of ballots showed 400 eligible voters and that 396 ballots were cast, of which 201 were for the Union, 189 were against the Union, 3 were challenged, and 3 were void. The challenged ballots being insufficient in number to affect the results of the election, the Union won. Barrus Construction Company, hereinafter referred to as the Employer or Respondent, filed objections to conduct affecting the results of the election on April 22. On May 26 the Union filed an unfair labor practice charge with the Board alleging that employee Willie Quinn had been discharged by the Respondent on May 21 in violation of Sections 8(a)(3) and (1) of the Act. On July 6, the Regional Director for Region 11 of the Board issued his Report on Objections and Direction, recommending that the Employer's Objections 3 and 4 be overruled and directing that a hearing be held to resolve issues raised in Objections I and 2. Thereafter, on August 11 the Employer filed timely exceptions to the Regional Director's report.2 A complaint was issued on August 28 with respect to the discharge of Willie Quinn. The Company's answer was filed on September 11, essentially admitting that Quinn was discharged but denying that the discharge was for reasons proscribed by the Act. On September 22, the Board ordered a hearing with respect to the Employer's Objection 3 and "alleged threats of violence and retaliation." The complaint with respect to the discharge of Willie Quinn and the Objections to the election were consolidated by an order dated October 7 as amended on October 27. Respondent's Motion to Sever the Proceedings, filed on October 30, was denied by me on November 13. A hearing was held before me in Kinston, North Carolina, between November 17 and December 2 at which 1 All dates hereafter, unless otherwise specified, are in 1970 s Counsel for the Union urges that the Employer's Exceptions be rejected for failure to serve the Union with copies of the affidavits accompanying such exceptions Upon reconsideration of the arguments advanced by the parties I adhere to my ruling denying said Motion to Reject all parties were represented and were afforded full opportunity to participate, examine witnesses and adduce relevant evidence. Extensive briefs have been received from the parties and have been given careful consideration.3 Upon the entire record in this proceeding I make the following: FINDINGS OF FACT I. JURISDICTION Respondent is a North Carolina corporation with a facility at Kinston, North Carolina, where it is engaged in the business of asphalt paving. During the 12 months preceding the issuance of the complaint, which period is representative of all times material herein, Respondent received at its Kinston, North Carolina, facility raw materials valued in excess of $50,000 directly from points outside the State of North Carolina. The complaint alleges, Respondent's answer admits, and I find that the Respon- dent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, the Respondent's answer admits, and I find that the Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE ISSUES A. Objections to the Election Has the Employer sustained its burden of proving the allegations of its Objections 1, 2, and 3 to the election and, if so, was the election thus invalidated? B. The Unfair Labor Practices Has the General Counsel sustained his burden of proof to establish that Respondent discharged employee Willie Quinn because he engaged in union activities or other activities protected by Section 7 of the Act? III. OBJECTIONS TO THE ELECTION A. Objection 1 At a public meeting of the Employer's employees conducted by Petitioner's representatives in Goldsboro, N. C., at or shortly after the time when Petitioner began actively to organize Employer's employees, and at one or two similar meetings, a Mr. C. P. Snodgrass stated to the meeting in substance that, if Employer's workers would not `sign up' to show their support for Petitioner, the Petitioner's supporters should put kerosene in their lunch boxes. Mr. C.P. Snodgrass is an International Representative for the Petitioner and was especially active in Petitioner's organizing efforts among the 3 Counsel for the Employer has moved to correct the transcript of this hearing in certain respects. Counsel for the Union opposes said motion. Upon consideration of the arguments advanced and my recollection of the testimony, I hereby grant Employer's motion to correct except for these items. p. 913, 1.3, sufficiently to increasingly ; p 1443, 1.6, truck to equipment ; R.'s Exh. p. 14, 1.12, Herpe to Harper' 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer's employees. Approximately 200 to 250 of the Employer's employees are believed to have been in attendance at the Goldsboro meeting when Mr. Snodgrass made the above statement. In support of this objection that Employer offered the testimony of two employees , Leroy Jones and Raymond Goff. Jones testified that he attended union meetings in Goldsboro, North Carolina, "sometime between the middle of January and the middle of April" and possibly even earlier than the middle of January adding "I wasn't paying a whole lot of attention to it." He further stated that he did not think it could have been later than the middle of February . He further stated that Snodgrass and Dixon (union representatives) were at these meetings. On cross- examination , however, he was not sure that Dixon was at the first of the two meetings he attended . According to Jones someone asked how they could get unwilling employees into the Union and Dixon answered "a little kerosene in their lunch boxes might help bring them around ." He correctly identified Dixon at the hearing. Jones volunteered that the men talked about kerosene in the lunchbox but "we treated it like a joke." On further questioning regarding the date of these meetings, he appeared completely unsure of the date except that the meetings were "the first of the year after we had closed up for our vacation " at Christmas . Finally, he testified that he did not hear anybody laugh when kerosene was mentioned adding that he "heard a lot of talk, everybody talking at one time, there could have been somebody that laughed I don't know." Raymond Goff testified that he attended one union meeting in Goldsboro and two other union meetings in Kinston. At the Goldsboro meeting he stated "there was a lot of people up there, some of them about half drunk, and I heard them talking about kerosene up there on the stand, and they said that was one way of making a man join up or else pack up his tools. And there was a bunch of them boys out there talking about one thing or another and if the Union don't come in, the Ku Klux Klan, everything, they were talking a whole bunch of crap up there ." According to him Union Representative Dixon and King did most of the talking but Union Representative Snodgrass did not do much talking. He added that he had seen Dixon and King two more times since then. Nevertheless , he was unable to identify Dixon, who was present during all of Goff's testimony. At the second meeting he attended most of the employees were talking about kerosene "and one thing and another and a bunch of them got up there on the platform and made speeches." He related how employee Mordecai Johnson urged that "The Black Panthers and the Ku Klux Klan ought to go out there and blow up everything Barrus has got." At another point Goff mentioned that he "probably would have went on with the Union myself but when they came telling me, talking about that kerosene and messing with my wife or other people's wives I just told them I didn't want no part of the Union." At the third union meeting he attended Goff stated that Snodgrass "balled up his fist and said that if he heard anybody repeating, he said he was mad enough to back it up if he wanted to and he shoved his old big fist up there." Here, too, according to Goff, kerosene was mentioned . When he asked who mentioned kerosene he answered "You take a bunch of men in a place there, half of them drunk, half of them talking loud, and this, that and the other you can't understand half of what does go on in a place like that." Goff placed the Goldsboro meeting "in February," then "somewheres around the first of February ," then "it might be sooner or later in February I know it was somewheres around the first or the middle of February." He also remembered that Union Representative Snodgrass told ,.some kind of joke" but could not remember whether Snodgrass was telling about the old days working on the railroad. He did remember that everybody laughed. Later Goff stated that Snodgrass may have said that was the way they did it in the old days. The testimony of witnesses called by the Union and the General Counsel concerning Objection 1 was much more specific. Thus, Union Representative King testified that the first employee meeting he attended was on February 1 in Goldsboro. There Union Representative Snodgrass read a letter which Dixon had prepared and which was received in evidence . When Snodgrass was asked what could be done if people did not join the Union , Snodgrass answered "There's nothing we can do. We live in a right-to-work state." He further testified that Snodgrass added that his father said in the old days that people used to put kerosene in nonunion workers' lunch pails but Snodgrass advised the employees not to do that now and everybody laughed. Nothing was said about kerosene in any other union meeting he attended , having attended all except those of January 18 and March 22 . Union Representative Dixon testified that he never used the word kerosene nor told any employee to put kerosene in the worker's lunch pails nor did he hear anything about kerosene at the union meeting of March 22 or in any other meeting he attended , having attended all but the meeting of February 1. Employee Sutton testified that, at the second union meeting held in Goldsboro on February 1, Snodgrass read a letter from Dixon in which Dixon reported that the Company would not recognize the Union. When Snodgrass was asked what could be done about a man not joining the Union, Snodgrass answered there was nothing you could do since the "Reform Bill" had been passed and since this was a right-to-work State . He added that Snodgrass told about his father talking about the old days when the workers on the railroad used to put kerosene in a man's lunchbox and Snodgrass would not recommend it now because it is against the law. Sutton testified that most of the workers laughed at that comment and took it as a joke . Finally, Union Representative Snodgrass himself testified . Accord- ing to him the first union meeting took place on January 18 in Goldsboro. Kerosene was not mentioned there. At the next meeting in Goldsboro on February 1, which he attended together with Union Representative King, Dixon was not present. Snodgrass was asked what to do about getting people to join the Union if they did not want to join. Snodgrass answered that he did not think there was too much they could do because they were in a right-to-work State and in the old days he heard his father speak of putting kerosene in lunchboxes of people who did not join the union, but that was before the "Labor Reform Act" and those tactics were not necessary now. Nothing was said BARRUS CONSTRUCTION CO. about kerosene in any later union meetings . Snodgrass remembered the events of the February 1 meeting particularly since it took place on his birthday and he was not happy about having to work on his birthday for the first time in 15 years. Moreover, he had reviewed his biweekly reports before coming to the hearing and had confirmed the exact date. I credit the testimony of the witnesses presented by counsel for the General Counsel and counsel for the Charging Party, rather than Respondent's witnesses Leroy Jones and Goff. I find the latter's testimony to be confused and confusing. Repeatedly Goff failed to answer questions directed to him making nonresponsive answers. Both witnesses were vague as to the date the alleged threatening remarks were made and both witnesses ascribed the remarks to the wrong speaker. Goff admittedly paid little attention to what was occurring at these meetings, not even recognizing Mr. Dixon at the hearing who had made the threatening remarks. Jones admitted that the employees treated the kerosene remark as a joke. As respects the alleged threat by Snodgrass when he raised his fist and said "if he heard anybody repeat what he said up there he would back it up and say it wasn't true," Snodgrass admitted raising his right hand into a fist. He explained that he did so when he was told there were spies in the room. Snodgrass answered that the spies could go back and tell the Company that the Union meant what it said, gesturing as he spoke. Considering Goff's admitted inattention to events occurring at these meetings and his imperfect recollection of the few things he did testify about, I credit Snodgrass' version of the fist raising incident and find that this gesturing was not a threat nor could it so be construed. I conclude that the Employer has not sustained its burden of proof with respect to its Objection 1, either in establishing that the Union advocated unlawful activity against nonunion employees or in fixing the occurrence of such alleged activity during the "critical period" which extended from February II when the Union filed its petition for an election to April 16 when the election took place. B. Objection 3 3. During Petitioner's organizing campaign among the Employer's employees, Petitioner (i) on at least one occasion offered to pay employee Mordecai Johnson, who at first actively supported and campaigned for the Petitioner, in return for Johnson's agreeing to speak in favor of the Petitioner, at a meeting of the Employer's employees sponsored by the Petitioner; (ii) reportedly from time to time offered to pay other employees to induce them to support and vote for Petitioner; and (iii) reportedly from time to time actually paid other employees in return for their agreeing to support or actually supporting the Petitioner and/or their agreeing to vote or actually voting for the Petitioner. Subpart (i) was dismissed by me during the hearing for failure of proof. Subpart (iii) was dismissed by me during the hearing as surplusage, being necessarily encompassed within subpart (ii). As a result the only issue to be discussed as employer's Objection 3 is subpart (ii): 413 During Petitioner's organizing campaign among the Employer's employees, Petitioner . . . (ii) reportedly from time to time offered to pay other employees to induce them to support and vote for the Petitioner... . The principal evidence in support of this objection was presented by A. J. Jones, a Barrus employee. Jones testified that he attended a union meeting held in Kinston on election eve, April 15. Before the meeting started he was outside with a group of men including Quinn, Sutton, and Union Representative King. According to Jones, a "low chunky colored fellow" who worked for Barrus in Goldsboro came up to Quinn who asked him "Doc, do you have enough money for what you want?" Jones heard him answer "yes he sure did, he had plenty," adding "I got Goldsboro sewed up." Quinn made no response. Jones then asked Quinn about loaning him money to which Quinn replied "you know you can get it, Jeff, you can come up to my house." Jones could not remember ever having seen the man referred to as Doc but assumed he was a Barrus employee because he was present at the meeting. Moreover, he later learned that an employee at Goldsboro was known as Doc. Counsel for the Respondent argues that the obvious interpretation of the conversation between Quinn and Doc is that "money had been paid out in Goldsboro to get the employees there to vote for the Union." I do not so read the record. According to Quinn, borrowing money from another employee and lending money to another employee was a common practice at Barrus. The only money he received from the Union, however, was reimbursement for pay he lost while attending a Labor Board hearing on March 5. He denied ever lending money to get votes for the Union. Quinn admitted lending money to an employee called "Preacher" in March or April. Preacher had complained of a toothache and asked Quinn for a loan of $1.50. Quinn gave him $2.00 and was repaid the following Friday. Later Quinn learned that that man was known as Doc. Sutton, in his testimony, corroborated Quinn's version of the incident in all essential respects. He testified that he had a bad toothache or that he wanted to get some lunch or a cab and that it was hard for Sutton to understand Blount because Blount could not talk plainly. Sutton further corroborated that the employees lend money to each other and have done so for many years prior to the election as well as during the union campaign. Sutton further testified that on April 15, the night before the election, he was with Quinn, A. J. Jones and Union Representative Dixon. He heard Quinn ask Preacher Blount "if the money took care of it." Preacher answered, "yes, he sure appreciated it." He denied Blount saying he had everything sewed up in Goldsboro. Union Representative Dixon also corroborated Sutton's version of the meeting between Quinn and Blount on the night before the election. He testified that as Blount approached Quinn, Quinn asked if it took care of everything and Blount said yes, sir, he appreciated it. Blount himself testified, stating that he is an ordained minister and a preacher at a local church. He remembered talking to Quinn before a union meeting and that A. J. Jones was present. He, too, testified that he had had a toothache one day and received a loan from Quinn. That night he saw Quinn who asked him if he had enough and Blount answered that he had plenty. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After considering all of the evidence on this subject as well as the demeanor of the witnesses on the stand as they testified , I am persuaded that the version given by Sutton, Quinn, Dixon , and Blount should be credited . I find, therefore, that Quinn lent Blount some money when the latter complained of a toothache . This loan was repaid later. On the night before the election when Quinn and Blount attended a union meeting Quinn inquired if it took care of everything, referring obviously to the loan that he had made to Blount . Blount answered that it did and he appreciated it. Nothing was said about Goldsboro. I do not by this conclusion mean to infer that A. J. Jones was not telling the truth as he remembered the incident . I find it more likely, however, that Jones may have been inexact in his remembrance of the event . It is only too likely that there was talk of Goldsboro at the union meeting, perhaps even talk of Goldsboro being "sewed up" and that Jones has mistakenly connected that talk with the conversation between Blount and Quinn . This appears to be very plausible to me in view of the fact that at the hearing Jones was unable to identify Blount as the man with whom Quinn had his conversation that night. It is not likely that Jones would remember minute details of a conversation without recognizing both of the participants . Counsel for the Employer argues, however , that the inconsistencies in the testimony of Quinn , Blount, Dixon, and Sutton lessen the probative value of their testimony. He points , for example, to Quinn's testimony that he lent $2 to Blount and Blount's testimony that he got only $1. Much testimony was received from various individuals establishing the unquestioned fact that borrowing and lending among the employees was a very common practice at Barrus with amounts ranging as high as $100 or more. It is too much to expect that the participants to a loan of $1 or $2 made and repaid 8 months before the participants were called upon to relate the incident would be quite sure of the amount . Counsel for the Employer also cites the testimony of another employee who stated that on the day Quinn gave Blount money, Blount had not complained of a toothache to him that day. The testimony however, does not preclude the possibility that Blount complained to Quinn, without complaining to anyone else. Counsel for the Employer also points to the testimony of employee Horace Jones who testified that during an argument with Blount he said "I understand Willie [Quinn ] has paid you money to get people to vote for the Union," to which Blount replied "You are damned right, I am going to vote for it ." I do not credit this testimony by Horace Jones. I had occasion to consider the temperament and personality of Blount as he testified. I am convinced that he is not the type of person that would use that language . Omitting the profanity, it is just as likely that when Blount told Horace Jones he was right and that Blount would vote for the Union, he was not admitting that he had been paid money to get people to vote for the Union but only that he was going to vote for the Union. In any event, it was Quinn who allegedly offered to pay for union support , not the Union . This would normally dispose of the objection which alleges that the Union made such offers. In accordance with the court 's position in Home Town, Inc., 379 F.2d 241 (C.A. 5), I have, nevertheless, considered, infra, whether the combined effects of all the alleged misconduct may have contributed to an atmosphere which rendered a free election impossible. Monroe Auto Equipment Co., 186 NLRB No. 18, fn. 9. Counsel for the Employer also cites the testimony of Union Representative King who denied that the Union paid any money to an employee for joining the Union and had no knowledge of any employee lending money to persuade Barrus employees to join. He did, however, relate how during the election campaign he and another union representative were at a motel room when five or six employees brought a company handbill to show them. When their visitors asked for some liquor , King and the other union representative said they had to leave but would "chip in" to buy a bottle. King then gave the visitors $3 of his own money and left. Counsel for the Employer argues that King gave them the money to secure or maintain employee support. I find this point of view unreal . There is nothing to indicate that King demanded or expected their allegiance to the Union in return for the $3 gift . Moreover, I fail to see how he could expect much from his visitors in return for what amounted to a gift of 50 cents per person. In sum, I conclude that the Employer has not sustained his burden of proof with respect to Objection 3. C. Objection 2 2. On a Sunday evening in late January or early February 1970, when Petitioner's organizing efforts were in progress, a Willie Quinn, one of the Employer's employees who with Petitioner's knowledge and support actively campaigned for the Petitioner among his fellow-employees, held a meeting of seven (7) of his fellow-employees at his home. The Employer's employ- ees who attended this meeting were Elwood Basden, Jerry Dunn, Paul Dunn, Frank Harper, Willie Quinn, Early Russell, Ricky Sutton and Guy Taylor. At this meeting Quinn stated in effect that those who were present were to be members of what he called a `violence club'; that the members of this club were to `beat up' those would not `sign up' with the Petitioner or who were against the Petitioner ; that the members were to damage the automobile of these employees, that if the members beat up a few of these employees it would change some of their minds so that they would be for the Petitioner; that the members needed to `hush up' the mouth of employee Richard Rouse, who was actively opposing the Petitioner; that something should be done about Rouse's automobile ; that none of those present should say anything to anyone about the `violence club.' Employees Sutton, Quinn and Harper were each selected by Petitioner to serve, and in fact served, as Petitioner's three (3) election observers. It is generally undisputed that some sort of meeting or gathering took place at the house of employee Willie Quinn on a Sunday evening sometime in February or early March. Sutton and Quinn testified that several days before this meeting, while they were at Jacksonville working on U. S. Highway 17, Early Russell complained to them that employees Gray and Rouse had gone to his supervisor objecting to Russell's making more time then they did. Russell said he had $50 to put on anybody that would beat the hell out of those two. Neither Quinn nor Sutton made BARRUS CONSTRUCTION CO. 415 any reply. Instead, they left, leaving Russell. Russell in his testimony denied saying anything about Gray and Rouse on Route 17. He admitted, however, that he heard that Rouse and Gray had gone to his boss sometime around Christmas complaining about the extra work Russell was getting. He asked his supervisor about the report and was told that Rouse and Gray were trying to cut Russell's hours back. Nevertheless, Russell said that he was not angry. On Saturday evening preceding the meeting at Quinn's house Mr. and Mrs. Quinn and Mr. and Mrs. Sutton had dinner out of town and returned to the Sutton's house around midnight where they stayed until around 5 a.m., talking and drinking. The Quinns then went home. Around 5:30 p.m. on Sunday, Quinn's son-in-law, Jerry Dunn, dropped by for a visit. Shortly afterwards Sutton, accompanied by employee Basden, arrived. Not long afterwards employee Guy Taylor came in. The men were talking about various things, Quinn's son who was in the service in Germany, working conditions at Plymouth, etc. The next to arrive were employees Russell, Harper, and Paul Dunn. Russell testified that Quinn had telephoned him that morning around 3 a.m, and had told him a meeting was being held at Quinn's house that night asking Russell to come together with Paul Dunn and Frank Harper. Nothing was said about the purpose of the meeting, nor did Russell ask. Quinn on the other hand denied calling Russell that morning. Russell called Paul Dunn telling him they were going to have a meeting at Quinn's house and asked him if he was going. Dunn went over to Russell's house and they decided to go over. On their way they picked up employee Harper who was visiting at his lady friend's house. When Russell, Harper, and Paul Dunn came in together, Harper told Quinn that Russell had said Quinn had called him and that he (Russell) was supposed to come by and pick Harper up. Quinn answered that he did not know what it was all about, but invited them in. Jerry Dunn saw that Russell had left the lights on in his car on and told Russell but Russell replied it was all right, that he would be leaving shortly. The conversation turned to union matters, and according to Quinn, Jerry Dunn, Sutton, and Harper, Russell said that Gray and Rouse were doing a lot of talking around the shop against the Union and that somebody ought to do something about it, somebody ought to shut their mouths up for them. Russell put his hand in his pocket and said he had $50 to get somebody to do it, slapping his pocketbook, Taylor and Harper spoke up immediately saying they did not want any violence, that it would hurt the union activities. Russell then said, "we had better go" and he left, together with Harper and Paul Dunn. Sutton told Jerry Dunn that they ought to talk to the people around the plant against any violence if anybody was trying to start any violence. This was corroborated by Harper. Then, in turn, Taylor, Sutton, and Basden left. Russell's version of the meeting at Quinn's house differs radically from that given by Quinn, Sutton, Harper, and Jerry Dunn. According to Russell, when he arrived together with Paul Dunn and Harper, Quinn told him that Mrs. Quinn and the children were gone and that they could talk freely. He also asked that no one should reveal what was said to anyone else. Quinn then said that it was necessary to stop Rouse and Gray from talking against the Union so much adding that if Rouse's head was "tightened up" or his mouth "hushed up" it would "change a lot of the rest of their minds.114 Quinn also suggested a threatening tele- phone call, tearing up Rouse's car, and hiring some one to whip Rouse. Taylor then spoke up against any violence and the meeting ended. When Harper, Russell, and Paul Dunn drove back there was no discussion of what had happened at Quinn's house. After Harper was let out Paul Dunn told Russell that he was against violence and getting out. Russell agreed. This version of the event was partly corroborated by Paul Dunn. His testimony relates Quinn's threat to Rouse and no mention is made of Gray. Similarly, his affidavits of April and May make no mention of Gray. The issue, then, is the identity of the person or persons who advocated physical violence against Rouse and Gray at a gathering held at Quinn's house attended by eight employees, Quinn, Jerry Dunn, Sutton, Basden, Taylor, Harper, Russell, and Paul Dunn. Stated alternatively, the issue is whether the Employer has established by a preponderance of the evidence that Quinn promoted the establishment of a "violence club" to inflict injunes and damages to employees in order to secure their support. Counsel for the Employer urges that the version of the meeting given by Russell and Paul Dunn be credited rather than that given by the other witnesses. He argues that Quinn had motivation for threatening Rouse and Gray but that Russell did not. Thus, he cites the fact that Quinn was admittedly a strong union supporter and, since Rouse and Gray were antiunion, Quinn might recommend or threaten violence against them because they were causing the most harm to the union campaign. Moreover, Rouse and Quinn did not get along well, not having spoken to each other for at least a year. Russell, on the other hand, had no motive according to the counsel for the Employer. He argues that Russell had no reason to complain about the attempt by Rouse and Gray to have Russell's hours cut and argues that it is "improbable that such a complaint was ever actually made." This, however, ignores Russell's testimony in which he admitted that when he spoke to his supervisor about the alleged complaint made by Rouse and Gray concerning his hours, his supervisor told him that Rouse and Gray were trying to cut his hours. Counsel for the Employer argues further that even if Rouse and Gray did complain about Russell's overtime, his overtime was in fact not cut and that therefore Russell had no actual grievance. This does not, however, eliminate the probability that Russell was concerned about their efforts to get his pay cut. Again, counsel for the Employer argues that Russell would not be apt to be upset at the time of the Quinn meeting in February or March 1970 since the attempt by Rouse and Gray to have his overtime cut occurred around Christmas 1969. I see no reason to conclude that merely by reason of a lapse of a month or two between the time Russell learned of the complaint by Rouse and Gray and the meeting at Quinn's house, Russell had completely forgotten about the matter. I conclude, therefore, that Russell had sufficient 4 In affidavits executed by Russell in April and May, however, he alleges Quinn threatened Rouse and makes no mention of threats against Gray. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motivation to be upset and to urge reprisals upon Rouse and Gray at the Quinn meeting whether or not Quinn had sufficient motivation as well. Counsel for the Employer further argues that it is substantially more likely that Quinn made the threats than did Russell. He points to the testimony of union witnesses to the effect that Russell made similar threats against Gray and Rouse when he met Quinn and Sutton on Route 17 sometime earlier and that both Quinn and Sutton gave him no encouragement. Counsel argues from this that it is not likely Russell would attempt to raise the issue once again with them. Moreover, argues counsel for the Employer, Russell must have known it would be foolish for him to seek support from Quinn for any prounion scheme since Quinn would suspect Russell's motives, Russell being openly for the Company. Also, Quinn being prounion, would be much more likely to secure the support of the employees who met at his house than would Russell who was procompany. Counsel for the Employer also cites the testimony of other witnesses to the effect that on several occasions Quinn said that if the Union came in and if he got to be the shop steward, Rouse and Gray would have to go. Counsel admits that these statements do not refer to the use of violence but they do indicate Quinn's "deep antagonism" toward Gray and Rouse. It may be conceded that there was hostility evidenced by Quinn towards Rouse and Gray. The issue, however, is not hostility but threats of violence. In conclusion counsel for the Employer urges that I accept the testimony of Russell and Paul Dunn as "simple, straightfor- ward and credible," and reject the testimony of Jerry Dunn who is Quinn's son-in-law as well as that of Sutton, Quinn and Harper, all of whom were active on behalf of the Union's campaign. In support of this conclusion, counsel for the Employer argues that fear was created among Barrus employees that they might suffer violent retaliation if they opposed the Union. He cites the testimony of various witnesses that there were rumors that union supporters were going to whip employees who did not vote for the Union, that employee Goff thought he was threatened by Basden when the latter stuck an object which Goff believed was a knife in Goff's back, and that Early Russell told Rouse, Gray, and employee Shotwell on the morning of the election that a violence club had been formed at Quinn's house to beat up nonunion employees. Gray in turn told Leroy Jones and others. Several employees, both union and nonunion, then carried guns to their jobs. Counsel for the Union, on the other hand, urges a contrary interpretation of the events. As respects the testimony of Paul Dunn corroborating the Russell version of the Quinn meeting, counsel for the Union points out that Dunn's testimony was not free of inconsistencies. Thus, contrary to the version given by everyone else Paul Dunn stated that there was no talk of money at the meeting and that Russell said nothing. Russell, however, admitted that he spoke at the meeting and said he could get up some money and that money was no problem. Also, Paul Dunn testified that Taylor had said they were going in for violence, but it has been conceded by all that Taylor was one who spoke up against violence. I question the probative value of Paul Dunn's corroboration of Russell's testimony. Counsel for the Union also attacks the testimony given by Russell. He points to Russell's testimony concerning an alleged telephone call from Quinn to him at 3 a.m. and Russell's admission that he did not inquire about the purpose of the meeting. He argues that it is not reasonable for one to be called at 3 a.m. in the morning to attend a meeting without the person asking what the meeting was for. Counsel further argues that it is not reasonable that unionist Quinn would call Russell and Dunn to a meeting at his home to set up a violence club when he had no close relationship with either Russell or Dunn and knew that Russell was a company man. Counsel for the Union suggests that Russell was seeking to enlist the support of Quinn in his difficulties with Rouse and Gray who had complained to Russell's supervisor and that Russell brought his friend Paul Dunn hoping for his support as well as Harper who was an active union supporter hoping Harper would be persuasive with other union men such as Quinn. Moreover, I am inclined to agree with counsel for the Union that Quinn could not reasonably think he was helping the Union which he supported by advocating a violence club which would engage in beating up those who would not sign for the Union. Monroe Auto Equipment Co., supra. There is no evidence adduced to demonstrate that the Union needed more cardsigners urgently. Nor is it likely that prounionist Quinn would suggest the creation of a violence club to Russell and Paul Dunn, two men whom he had no reason to believe were supporting the Union. Nor did either Paul Dunn or Russell go to management to warn them about the proposed violence even though the Company invited employees to report threats or intimida- tions. Indeed, Russell admitted that at every company meeting, management invited employees to report any intimidations or wrongdoing, but that he did not come forward to report Quinn's alleged threat. Perhaps the explanation for his silence can be found in his testimony when he was asked "Did you think they were going to beat anybody up?" and Russell answered "No." I note that in spite of his admission Russell executed statements and affidavits to the effect that Quinn's "violence club" was to "beat up those who wouldn't sign for the Union." I note, also, that although he testified that Quinn threatened both Rouse and Gray, his earlier affidavits mention Rouse only. Such inconsistencies as well as his unpersuasive demeanor on the stand dissuades me from crediting his testimony. Moreover, the record does not support a finding that the employees were frightened by these alleged rumors of a violence club. Thus, Gray testified that when Russell told him of a violence club, he believed Russell, and was afraid. Nevertheless, he did not report this to the Company because he "wanted to make sure everything was right before I told them . . . go around and talk to some of the other boys and see how they felt about it." When asked "What difference did it make to you how they felt if you were afraid?", Gray replied "I wasn't exactly afraid myself . . . Q.: So you thought this violence club was one man? Gray: No, I thought the violence club were more than one man. Q.: Why weren't you afraid? Gray: I just wasn't. BARRUS CONSTRUCTION CO. 417 Q.: Were you afraid or weren't you afraid? Gray: Yes, sir, I was afraid. Q: If you were afraid why didn't you go to the company immediately? Gray: I didn't think about it Q: What made you go to the Company later? Gray: I never got a chance to talk with any of the officials . . . I couldn't get in touch with any of them at that time . . . I dust didn't see them Q: Did you ask for them? Gray: No, sir. Q: Then you don't know if they were around? Gray: No, I sure don't Q: After the election you heard more about the violence club? Gray: Yes, sir Q: And it was only when you heard more about the violence club you felt it necessary to go talk to the company officials? Gray: Yes, sir Such vacillating testimony is not worthy of belief. Similarly, Rouse testified that he was not afraid of Quinn who is puny compared to Rouse. He was afraid, however, . . five or six get on you, what can you do?" He admitted that he did not know who the others might be, and Russell did not tell him anybody else was in the club. I find it incredible that Rouse should be afraid of Quinn, a little man, and the only one mentioned. Paul Dunn also testified that he never had been threatened. Union counsel further points out that there is no evidence of any violence committed upon anyone during the "critical period" except an alleged threat by Basden against Goff. Goff testified that on the Monday before the election Basden asked him why he had not attended the last union meeting and when Goff replied that he had a meeting of his own to go to, Basden stuck an object, which Goff believes was a knife, in Goff's back. Goff initially regarded the incident as ajoke but when Basden during the "next couple or 3 days . . . walked around like he could walk right through me and he made special trips by my automobile to stare at my old lady like he would stare through her," Goff decided that it was a threat. Goff admittedly saw no weapon and heard no threat and Basden denied putting anything in Goff's back. It should be noted that I have found Goff's testimony to be confused and confusing. I find his testimony with respect to Basden's alleged threat also quite imaginative. I credit Basden's denial. Turning to the testimony of several witnesses to the effect that Quinn threatened to force Rouse and Gray to leave if the Union came in and if he became shop steward, it appears that employee Young, who was one of the witnesses who allegedly heard Quinn make such a statement, testified that he reported the threat to Rouse and Gray. Gray testified that after he heard of the threat to run him off if the Union and Quinn got in, he went to Quinn, asked him about the threat and Quinn denied saying it. Gray testified that he preferred to believe his informant rather than Quinn because Quinn had lied to him. The "lies" Quinn told him were that the Union was going to get air conditioning in the shop and in the trucks but neither the trucks nor the shop have been air conditioned yet. Gray then reported to Young that Quinn had denied it but Young insisted that he had told the truth. Gray then went with Rouse and Foreman Dunham to Mr. Richardson, president of Barrus Construction Company. Richardson assured both Rouse and Gray that neither could be run off on account of not joining the Union but could work as long as they did their jobs. Rouse and Gray testified that they believed Richardson. It should be noted that at the meeting of Rouse and Gray with Richardson, Gray withheld the information that Quinn had denied making the threat, nor did Gray tell anyone else. Similarly, although the threat was allegedly repeated on the morning of the election, nothing was said about the threat either to any member of management, to the Labor Board government representa- tive attending the election or anyone else. Moreover, such remarks by employees conditioned on the Union winning the election and Quinn becoming steward as well as threats of violence are "more likely than not to elicit a negative rather than a positive response to unionization." Monroe Auto Equipment Co., supra. Counsel for the Employer also cites the testimony of Gray and Goff concerning alleged damage to their vehicles. Gray claims his truck was damaged when someone bent the fender. James Turnage, an employee who had asked Gray on some previous occasion to sign a union card, called Gray's attention to the damaged fender. Gray, however, was unable to place the time when his car was damaged, not knowing if the fender was bent when he came to work that morning or the night before. Indeed, when asked if he had not said the car could have been damaged after the election he answered "possibly it might have been damaged .. . well, I don't know, I can't remember everything." The extent of the damage was not fixed nor did Gray ever have the car repaired. I find this evidence of violence much too tenuous to base any findings upon. Counsel for the Employer also cites the testimony of Goff with respect to damage to his truck. According to Goff, when he took his truck out after the election it did not operate correctly and the brakes did not work. Upon examination, he found his air hose lines crossed and the light cord socket torn off. He reported the damage to Rouse who told him that his fan belt was broken, too. Goff also claims that some 5 or 6 weeks after the election he found that someone had tripped the fifth wheel lock on his truck which would have caused him to lose his load if he had not noticed it. I have commented previously on the nature of Goff's testimony. Here, too, the alleged damage to his truck is unclear. Employee Jones who was in the truck with Goff admitted that equipment is apt to go wrong at all times. Employee Basden testified that he used Goff's truck just before Goff did, found the fan belt broken and replaced it. He also found the light connections would not fit the trailer because of the different type socket and had the wires taped together so that the socket would not be needed and the mechanic removed the socket which he brought back to the Company. Moreover, Basden testified that if the hoses are crossed the brakes become locked and the truck cannot be moved. I credit Basden's testimony and find Goff's testimony inadequate to demonstrate the commission of any violence. Moreover, it is hard to see how alleged 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violence occurring long after the election would invalidate the results of that election held previously. In summary, I find that the Employer has not sustained its burden of proof to establish by a preponderance of credible evidence that at a meeting at Quinn's home, Quinn proposed a violence club to beat up employees who would not sign up with the Union or who were against the Union, that they were to damage the automobiles of these employees, that if they beat up a few of these employees it would change some of their minds, and that they needed to hush up the mouth of employee Rouse. Instead, I find in spite of inconsistencies and discrepancies in the testimony of many of the witnesses who testified, a gathering of some sort was held at Quinn's home and that employee Russell advocated violence against Rouse and Gray but that that suggestion was not adopted by the others present at the gathering that Russell, nonetheless, spread a rumor of violence among a few employees who after the election reported the threats to management without ascertaining the truth or falsity of such threats; and that there is insufficient evidence that the employees were frightened by these rumors of violence, at least until after the election. Accordingly, there was no "general atmosphere among voting employees of confusion and fear of reprisal for failing to vote for or support the Union" and nothing to deter such employees from exercising their free choice at the election. Golden Age Beverage Company, 167 NLRB 151, enforcement granted, 415 F.2d 26. There is nothing in the record to indicate that any employee was interfered with at the election poll. Even those to whom Russell repeated the alleged threats of violence on election day apparently cast their ballots freely and without hindrance. It is impossible to prevent irresponsible talk during an election campaign. The test, however, is whether the desires of the voters were interfered with. This record contains no such evidence. Counsel for the Employer argues that the undisputed fact that several employees carried guns to work corroborates the allegation of an atmosphere of fear surrounding the election. Employees Rouse, Gray and Shotwell testified that they as well as other employees, naming Russell, Quinn, Paul Dunn, Goff, Leroy Jones, and Koontz, carried guns after the election. It would appear that their testimony demonstrates only that until the election they found it unnecessary to carry a gun for their self protection. Their vote, therefore, at the election was not coerced and their carrying of guns after the election does not demonstrate that they were so coerced before the election. Employee Jones testified that he carried a gun before the election when he heard of the violence club from employee Gray. Counsel for the Employer concedes, however, that since Gray learned about the violence club only on election day and told Jones later that day, that Jones must be mistaken about the time. Employee Goff testified that he carried a gun both before and after the election but his carrying of a gun before the election was because of a threat he received some 9, 10 or 12 years ago not apparently connected with the Union campaign or the election. Quinn also carried a gun before the election, once to demonstrate it to a prospective purchaser at the plant and on other occasions when he was permitted to do so after having been assaulted by some outsider. Koontz also testified that he carried a gun before the election, but his testimony is so uncertain that I do not credit it. Thus, he stated, "If I don't make no mistake, I think I carried the gun about 2 or 3 days before the election...." In short, it does not appear that there was any carrying of guns among the employees before the election so as to give rise to an inference that there was a general atmosphere of fear which affected the results of the election. IV. THE UNFAIR LABOR PRACTICE The Respondent Union commenced its organizational campaign among Barrus employees in January 1970 and held its first meeting on January 18. Willie Quinn attended practically every meeting the Union held thereafter beginning in February through November 1970, some 25 to 30 meetings all together. On March 5 Quinn informed his supervisor, Dunham, that he had been subpoenaed to attend a representation hearing on the petition of the Union and showed the subpoena to Dunham. Dunham corroborated Quinn's showing him the subpoena on March 5 and admitted that he knew it was a subpoena from the Union for Quinn to attend the Labor Board case. Six days later Quinn who had been working on highway 17 in Jacksonville, North Carolina, was transferred back to the truck shop. As a result, Quinn lost approximately 3 hours of work each day representing his paid travel time. Dunham testified that his decision was motivated entirely by business considerations and that the subpena for the March 5 hearing had not affected his decision in any way. According to Dunham the route 17 job was finishing up so that there was no justification for maintaining two mechanics on the road. Consequently, it was more appropriate that an equipment mechanic remain in the area to service some two or three dozen pieces of construction equipment compared to only two or three trucks there. Quinn contradicted this version, testifying that there was more equipment on the job on March 5 than there had been all winter and that there was a Company policy permitting a worker to go out in the spring and summer if he had been out in the winter. Moreover, Quinn testified that when he did return to the shop he found only two trucks which took three days to repair. After Quinn was moved from Jacksonville, the Company sent another employee, Dale, to replace him. According to Quinn, Dale was only a heavy equipment mechanic, whereas Quinn worked with both heavy equipment and trucks. Employee Sutton, however, corroborated Dunham's testimony to the effect that after Dale replaced Quinn on route 17 there was only about half of the heavy equipment that had been there before. It would therefore appear that Quinn may have been mistaken about the volume of work remaining on route 17 when he was transferred back to the shop and that there is insufficient evidence to demonstrate that his transfer was not for legitimate business reasons. On Friday night following March 5 the Company held a supper for employees at which the Company gave reasons why they did not want the Union. Foreman Brown in talking to the employees stated "Quinn, you and Sutton are not invited because you went to the hearing and you know all the answers." BARRUS CONSTRUCTION CO. 419 As related above, around March 25 employee Young told employee Gray that Quinn had said that if the Union was voted in and if Quinn became steward, that Quinn would run Gray and employee Rouse off their jobs. Young repeated the story the following morning to Rouse in Gray's presence . Gray told Quinn about the threat that Quinn had allegedly made but Quinn denied the threat. Gray and Rouse then spoke to their foreman , Dunham, and subsequently to Richardson , Respondent's president, who reassured them that their jobs were secure . Richardson advised Harry Downs, counsel for Barrus, that two employees had reported being threatened by Quinn. On April 3, Downs met Young and Gray and took written statements from them describing Quinn's threats. Downs also repeated the same assurances Richardson had given, that neither Quinn nor the Union would have any power to force Barrus to fire Gray . Richardson and Downs agreed that Richardson should warn Quinn against threatening any fellow employee . The next morning Richardson went to the truck shop to warn Quinn, but when he got there Foreman Dunham told him that Quinn and another employee, Turnage , had already asked to see him. Quinn and Turnage came into the office . There Quinn told Richardson he (Quinn) had been accused of threatening employees but that the accusations were untrue. Turnage added that he never heard Quinn made any threats and that Quinn would not do such a thing . Richardson testified that he told Quinn and Turnage that he was not accusing anybody, that he did not want any trouble, and that he would let any man go that he considered was causing trouble . He admitted that he knew Quinn had come to try to clear himself and that his coming to Richardson was voluntary . Richardson thereafter reported to Downs that Quinn had come to see him about these rumors of threats, but he did not tell Downs that Quinn had denied the rumors. According to Downs, after the election of April 16 the Company received information of certain occurrences, unrelated to Quinn, which, if true, might justify setting aside the election . Employees Russell and Paul Dunn and three other employees gave the Company signed statements which were forwarded to Downs and Barrus' management asked Downs whether Quinn's employment should not be terminated in light of the allegations contained in the documents . Downs answered that ". . . greater effort should be made to establish the validity of the allegations before termination was made." Accordingly, Downs went to Kinston , North Carolina, early in May and interviewed Russell, Paul Dunn, Leroy Jones, Rouse and Gray. He also obtained statements from Rouse, Gray and Young. These statements refer to the meeting at Quinn's house where Quinn allegedly proposed the formation of a violence club and advocated violence. It should be noted that none of these informants were present at that meeting . Some of the statements also refer to Quinn's alleged threat to run Rouse and Gray off the job if the Union was voted in and he became the steward . Downs nevertheless took no steps against Quinn , explaining that he had an appointment with the NLRB agent regarding the Company's application to set aside the results of the election and assumed that the agent would want to examine these individuals and substantiate the allegations . The NLRB agent came to Kinston on May 19 and obtained statements from Russell, Paul Dunn, Gray, Rouse, Leroy Jones and Young. He gave them to Downs who then called Attorney Vaas relating the information that had been received and discussing, "whether from a legal point of view the discharge of Mr. Quinn would be appropriate ." Downs also spoke to Richardson and Mewborn, the Company vice-president, and it was agreed that Quinn would be discharged. It was further agreed that they would simply advise Quinn that he was being terminated for having made threats against fellow employees without revealing the identity of the individuals who had given statements . Richardson said nothing to Downs about Quinn having voluntarily come to him previously to deny threatening other employees. No disciplinary action was taken against any of the other employees who had attended the meeting at Quinn's house. One of them, Jerry Dunn, had quit shortly after the election . As to the others, Downs testified that he felt there was inadequate justification to take disciplinary action against employees who were only present but who had not spoken up advocating violence. He has not taken any action against them although he admits that he believes that the violence group still exists. The next morning Richardson went down to his office a little earlier than usual and asked Foreman Rouse to bring Willie Quinn to his office. Rouse and Quinn came to Richardson's office where Vice President Mewborn was already. Richardson told Quinn that he was being discharged for making threats against other employees and that his check was being prepared . According to Richard- son, Quinn asked "Can you prove it?" to which he answered "I think we can." According to Quinn, however, he asked Richardson whom he supposedly threatened and Richardson replied that he did not have to reveal that information. When Quinn expressed the belief that he had a right to know, Richardson said "You'll have a chance to prove your innocence." Nothing else was said and, in due course, Quinn's check was brought to the office . Richard- son then told Rouse to go with Quinn to pack up his tools. Rouse later returned to ask how to handle Quinn's unemployment compensation slip. Richardson instructed Rouse to indicate that Quinn had been discharged for cause, specifically, misconduct-threatening other employ- ees. Counsel for the Respondent argues that "... regardless of whether or not Quinn uttered these threats , Barrus' conduct in investigating the charges against Quinn and in discharging him is consistent with the proposition that Barrus believed the evidence of Quinn's guilt and discharged him for that reason ." There seems to be little doubt that .the gathering at Quinn's house during the Union's organization campaign, at which time the eight employees attending the gathering spoke about union matters, among other things, constituted protected activity. Quinn's alleged advocacy of threats of violence might constitute misconduct sufficient to justify his discharge. See, however, Corrrveau & Routhier Cement Block, Inc., 171 NLRB No. 113, where the Board found the employer to have violated Section 8(a)(3) of the Act in discharging an employee who had told other employees at an organization 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting held off company premises, that he would "see them down the road." The Board held such conduct not of an egregious nature sufficient to deprive an employee of his Section 7 rights. Although this decision was reversed upon appeal, I am, of course, bound by the Board's decision. Assuming arguendo, that Quinn's alleged advocacy of violence was unprotected, I have, however, found that he did not advocate violence. Quinn, therefore, was not guilty of misconduct as alleged . It is well established that ... when, in the course of protected activity, employees are accused of misconduct and a respondent takes action affecting their employment tenure based on a belief that the employee has engaged in misconduct, such an honest belief would be an adequate defense to a charge of discrimination for refusing to reinstate such employee unless it affirmative- ly appears that such misconduct did not in fact occur. Burnup & Sims, Inc., 137 NLRB 766, 772. See also Trailmobile Division, Pullman, Inc, 168 NLRB 230, 240. Accordingly, I find that Respondent's discharge of Willie Quinn for alleged misconduct was unwarranted. Respondent's discharge of Willie Quinn, even if unwar- ranted, does not necessarily give rise to a violation of the Act, which depends upon a finding that Respondent's motivation in discharging Quinn was his union or concerted activities. In this respect there is no doubt that Respondent was well aware of Quinn's prominence in the union movement . It knew that he had been subpenaed to attend the representation hearing before the Board on March 5 and that he was an observer for the Union at the election . Indeed, at four or five meetings of employees called by the Company to discuss the Union, Downs, speaking on behalf of the Employer, told the employees that if they could look around and see who was pushing hardest for the Union they would know who the shop steward would be. Although Downs testified that he did not believe he looked at Quinn "particularly," he admitted that he "assumed" that the employees would know he was talking about Quinn and "subjectively" intended for them to know that he meant Quinn. There can be no doubt that the Company regarded Quinn as the leading unionist. Was Quinn's discharge attributable to his union activities? The language of the Court in Shattuck Denn Mining Corp., v. N.L.R.B., 362 F.2d 466 (C.A. 9) is appropriate: ... heavy reliance is placed on cases indicating that the mere fact that good cause for a discharge does not exist is not a basis for inferring that the discharge was based upon an unlawful motive, that the fact that an employee is engaged in union activity is not, taken alone, proof that the discharge was for that reason, that suspicion is not enough to support a finding, that an employer may discharge for any reason or no reason and so has no burden to justify his action, that inferences must be based upon evidence, that it is not the job of the Board to judge the severity of punishment imposed by the employer, that lack of antiunion bias is to be considered in the employer's favor, and that the Board may not infer an unlawful motive if the evidence equally supports an inference of lawful motive. Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive could be brought to book. Nor is the trier of fact-here the trial examiner - required to be any more naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the surrounding facts tend to reinforce that inference. [Emphasis supplied] I turn therefore to the surrounding circumstances. I note that the Employer learned as early as Apn13 that Quinn had allegedly threatened to cause Rouse and Gray to leave the employ of the Company when employee Young furnished a statement to that effect to the Company, and that it allegedly decided to warn Quinn. Actually, however, it was Quinn who approached Richardson to deny the rumor. Richardson gave no indication that he believed the rumor and, in any event, instituted no disciplinary action against Quinn. After the election of April 16 the Company learned of the gathering at Quinn's house and his alleged advocacy of threats and violence. This information was obtained from various employees but actually originated from only two employees, Russell and Paul Dunn, who attended the meeting at Quinn's house. None of the other six employees who attended the meeting at Quinn' s house were interviewed by the Company. Instead, Quinn was discharged on the strength of information given by these two employees only and despite his earlier denial of any threats; also, in spite of employee Turnage who accompa- nied Quinn when he spoke to Richardson denying the alleged threats. At the hearing it developed that Quinn, as well as Jerry Dunn, Sutton and Harper, denied Quinn threatening violence at the meeting. Moreover, Downs himself admitted that when he first heard of the alleged violence club that was created at Quinn's house he felt that "greater efforts should be made to establish the validity of the allegations." He, too, was apparently not satisfied that the mere allegations of two of the attendants at the meeting were sufficient to establish Quinn's misconduct. His efforts, however, at establishing the validity of the allegations leave much to be desired. Knowing the identity of all the eight participants at that meeting, he made no effort to interview Quinn, Jerry Dunn, Harper, Basden or Sutton. Downs attempted to explain his failure to interview these participants saying that he felt he was "limited to interviewing persons who indicated that they were availa- ble." Accordingly, he limited himself, apparently, to those employees who voluntarily came forward. It should be noted, however, that although Taylor did not come forward, Downs traveled some 35 miles from Kinston to interview Taylor at his job location. Taylor refused to discuss the incident. Significantly, when Taylor failed to corroborate the versions given by Russell and Paul Dunn, Downs should have had his suspicions aroused concerning those versions and should have intensified his efforts to interview Quinn, Sutton, Harper, Basden, and Jerry Dunn. Instead, he abandoned such efforts. Downs was not sufficiently concerned about the alleged violence club to BARRUS CONSTRUCTION CO. 421 call in the police, increase the plant guards nor speak to Basden about Goff's claim that Basden had put a knife to his back. Downs explained that he was not satisfied that it was a knife. In short, the Company did not consider discharging Quinn when it heard that he had allegedly threatened to run Rouse and Gray off the job if the Union came in and he became steward. Indeed, there is some doubt that the Company even ever warned Quinn about that. On the contrary it was Quinn who came forward to clear himself of any such charges. Then later, when it learned from two of eight participants at a meeting at Quinn's house that Quinn had allegedly threatened violence and realized that "greater effort should be made to establish the validity of the allegation," it, nevertheless, discharged Quinn without establishing the validity of the allegations made by Paul Dunn and Early Russell. Moreover, the reaction of the Company when it felt that Quinn had advocated a violence club is odd, to say the least. When Quinn had allegedly threatened to run Rouse and Gray off the job if the Union came in and he became steward, Downs and Richardson decided to warn him. When the Company learned Quinn had allegedly advocated the creation of a violence club with damage to automobiles and injuries to persons a much more serious offense, it gave him no warning nor did it even explain to him exactly why he was being discharged. Indeed, it was completely disinterested in any denials Quinn might make, having already decided to discharge him before he had been given an opportunity to deny the charges. It is clear to me that the Company had decided to rid itself of the one individual whom the Company regarded as the prime union leader and seized upon the allegations made by Early Russell and Paul Dunn to justify its discharge of Quinn without attempting to ascertain the truth of the allegation, in fact, avoiding further investiga- tion which might have corroborated Early Russell's or Paul Dunn's allegation or contradicted those allegations. Under such circumstances I cannot conclude that Barrus had an "honest belief" that Quinn had engaged in misconduct. I note that when Quinn's claim for unemployment compen- sation was heard by the Employment Security Commission of North Carolina, the Company also claimed that it had discharged Quinn because it had received complaints from some of the employees that Quinn was threatening them. In support of that contention, the Company submitted the affidavits of the employees. The Commission found, however, that there was "insufficient evidence to show that his discharge was due to misconduct in connection with his work." The decision, though not controlling or decisive here, is certainly relevant and corroborative of my conclusions . Supreme Dyeing & Finishing Corp., 147 NLRB 1094. The Company having failed to establish an honest belief in Quinn's misconduct , it was not incumbent upon the General Counsel to go forward with evidence to prove that Quinn had not in fact engaged in such misconduct. Rubin Bros. Footwear, Inc., 99 NLRB 610, 611; N. L. R. B. v. Plastic Applicators, Inc., 369 F.2d 495 (C.A. 5). The General 5 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and recommended Order herein Counsel did, however, go forward with evidence to prove that Quinn had not, in fact, engaged in such misconduct as found above. Accordingly, I conclude that Respondent discharged Willie Quinn and failed to reinstate him because of his prominent union activities of which it admittedly was aware, having discussed such activities among its top management personnel. Moreover, these activities were resented by the Respondent as evidenced, among other things, by the statement of Foreman Brown excluding Quinn from a company dinner for its employees, as well as by its failure to investigate thoroughly accusations of violence made against Quinn. CONCLUSION OF LAW Respondent discharged and failed to reinstate employee Willie Quinn because of his union activities in violation of Section 8(a)(3) and 8(a)(1) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies of the Act. Having further found that the Respondent discharged employee Willie Quinn and refused to recall him in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Respondent offer him immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discharge or failure to recall by payment of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of Respondent's offer of reinstatement less any net earnings during this period and in the manner described in F. W. Woolworth Co., 90 NLRB 289, together with interest thereon at 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 5 ORDER Respondent, Barrus Construction Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union or concerted activities for the purpose of mutual aid or protection by discharging or otherwise discriminating against employees because they have engaged in union or concerted activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the Union or any other shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organization, to bargain collectively through repre- sentatives of their own choosing or to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection or to refrain from any such activity. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer employee Willie Quinn immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any losses he may have suffered by reason of the discrimination against him in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records, and reports and all other records necessary to analyze the amount of backpay due under this order. (c) Post at its Kinston, North Carolina, place of business copies of the attached notice marked "Appendix." 6 Copies of the notice on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discnminatorily discharge any employ- ee to discourage union activity on behalf of the INTERNATIONAL UNION OF OPERATING EN- GINEERS, LOCALS 500, 500 A, 500 B, 500 C, 500 D, or any other labor organization, or discriminate against employees in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization or to join or assist the Union or any other labor organization or to bargain collective- ly through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make Willie Quinn whole for any loss of earnings he may have suffered by reason of the discrimination against him. BARRUS CONSTRUCTION COMPANY (Employer) to insure that said notices are not altered, defaced, or Dated By covered by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.? 6 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " r In the event that this recommended Order is adopted by the Board after exceptions have been filed, notify the Regional Director for Region 11, in writing within 20 days from the date of this order, what steps Respondent has taken to comply herewith (Representative) (Title) This is an official notice and must not be defaced by anyone. This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 919-723-9211, Extension 3609.