Farlow Rubber Supply, Inc.

570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farlow Rubber Supply, Inc. and Local 141, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, CLC. Case 21-CA-9879 October 7, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 13, 1971, Trial Examiner Leo F. Lightner issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,[ conclusions, and recommendations of the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F LIGHTNER, Trial Examiner: This proceeding was heard before me in Los Angeles, California, on June 15, 1971, on the complaint of General Counsel, as amended, and the answer of Farlow Rubber Supply, Inc, herein called the Respondent.[ The complaint alleges violations of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived closing argument, and briefs filed by the General Counsel and Respondent have been carefully considered. Upon the entire record,2 and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and I find, that Respondent is a California corporation, engaged in the repair and servicing of rubber products at its plant in Los Angeles, California. In the normal course and conduct of its operations, Respondent annually performs services for which it receives an amount in excess of $50,000 from customers, each of which annually purchases from suppliers located outside the State of California or sells to customers located outside the State of California goods, products, and services in excess of $50,000, or whose gross annual volume of business exceeds $500,000. The complaint alleges, the answer admits, and I find, that Respondent is, and at all times has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 141, United Rubber , Cork, Linoleum & Plastic Workers of America, AFL-CIO, CLC, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 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, Farlow Rubber Supply, Inc , its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order. I The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wa/I Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings A. The Issues The principal issues raised by the complaint and answer, and litigated at the hearing, are whether the Respondent: (1) engaged in conduct constituting interference, restraint, and coercion, thus violative of Section 8(a)(1) of the Act by, (a) William Brown or Chadwick Brown, in November 1970 or January 1971, at or near Respondent's plant, threatening employees with discharge because of union membership, ' A charge was filed on March 12, 1971 A complaint was issued on April 29, 1971, and amended at the outset of the hearing herein, limited to the location of the Respondent's plant The amendment was a change in location from 743 Ceres Street, Los Angeles, to 17907 South Figueroa Street, Los Angeles Thereafter, counsel for Respondent asked William F Brown, president, when the plant was moved from Los Angeles to Gardena, and was advised that this had occurred on June I I find this conflict of no consequence to the decision herein 4 Certain errors in the transcript have been noted and corrected 193 NLRB No. 70 FARLOW RUBBER SUPPLY, INC sympathies, or activities; or (b) William Brown or Chadwick Brown, in November 1970 or January 1971, near Respondent's plant threatening to close the plant because of union membership, sympathies, or activities of its employees; or (c) William Brown or Chadwick Brown, in November 1970 or January 1971, interrogating employees concerning their union membership, sympathies, or activities, or that of other employees; or (d) William Brown or Chadwick Brown, in November 1970 or January 1971, at or near Respondent's plant, promising economic or other benefits to induce employees to forego their support of the Union; or (e) William Brown or Chadwick Brown, in November 1970 or January 1971, at or near the plant of Respondent, soliciting employees to engage in surveillance of the union activities of their fellow employees; or (2) whether the suspension of Marvin W. Jackson, on March 1, 1971, or his discharge, on March 3, 1971, and Respondent's failure and refusal thereafter to reinstate him, were discriminatorily motivated and thus violative of the provisions of Section 8(a)(3) and (I) of the Act. Respondent, by answer, denied the commission of any unfair labor practice. B Supervisory Personnel The complaint alleges, the answer admits, and I find, that William F. Brown, president, Chadwick Brown,3 secretary- treasurer, and Huston Neely, plant manager since January 1971, at all times material herein, except for the limitation stated as to Huston Neely, have been and are agents of Respondent, within the meaning of Section 2(13), and supervisors, within the meaning of Section 2(11) of the Act C. Background Since December 1968, Respondent has been jointly owned and operated by William F. Brown and Chadwick Brown, who hired no plant superintendent prior to January 1971. A petition for election in Case 21-RC-12066 was filed on January 25, 1971, reflecting an estimated total number of employees, in the unit, of 12 A stipulation for certification upon consent election was executed on April 7th A tally of ballots, of an election held on April 16th, reflects 16 eligible voters, who cast 5 votes for and II votes against the Union. The record is confused relative to the time and extent of the union activities of the employees, and more particularly of Marvin Jackson, alleged discriminatee herein. According to Jackson, the employees began discussing the possibility of seeking union representation in October 1970. Jackson acknowledged that all of these discussions were after working hours, in the evening, in a bar identified as Rockaway. Thomas Schulte, employed by Respondent at the time of his testimony, asserted the conversation relative to obtaining union representation commenced in the middle of 1970 and Jackson was a participant. 9 Referred to in the record as Bob The precise recitation of Schulte , which I find incomprehensible, was "Well, I believe that they were either mailed to me or to Marvin Jackson Marvin had told me, oh, last November or January or something, that the cards were actually mailed to me I don't remember but they could have been " 5 Leitsch asserted that he , at the time of his testimony , was manager of 571 According to Jackson, he selected the particular union because he saw an advertisement identifying the union on the back of an unidentified sport shirt. Jackson asserted that in early October he contacted Joe Guerrero, whom he identified as an organizer and representative of the Union, from whom he obtained authorization cards. However, Schulte asserted that the authorization cards were mailed to Schulte in November or January.' Asked if Jackson distributed any of the authorization cards to other employees, Schulte responded, "He may have. I distributed most of the cards, but he possibly gave out some too." Jackson asserted that he never passed out cards at the plant but, inferentially, did pass out cards during his conversa- tions with other employees at the Rockaway Bar. While Jackson related that he attended four or five union meetings, the time and place of these meetings is obscure. D. Interference, Restraint, and Coercion Harold G. Leitsch was employed by Respondent, from the latter part of October 1970 until the end of March 1971, initially as a grinder and later on other jobs.5 Leitsch related that in November 1970, he drove Chadwick Brown a distance of 5 or 6 city blocks, in Respondent's truck, to enable Chadwick Brown to pick up his car, which was being repaired. Leitsch asserted that in this short span of time Brown inquired whether Leitsch had heard anything about the "union coming." Leitsch responded in the negative. However, Leitsch asserted that he advised Brown that if the Union did come in "it's going to be your own fault because you have made a lot of promises to the employees, from what everyone has told me, that you have not kept. I said what you should do is try to make some kind of a set-up or doing something for them if you don't want the union in." Leitsch stated that Brown asserted that it the Union came in Brown knew of four employees he was going to fire. Leitsch asserted that he advised Brown that Leitsch did not think that this was really the way to solve the problem or to do things. Leitsch asserted that Brown then stated that if firing the employees did not work they would close up the business. Leitsch asserted that he advised Brown that that would not solve the problem, that if Brown wanted to have any kind of a business where he had a good relationship he and the employees had to work together. Leitsch asserted that the conversation terminated with Brown requesting Leitsch to advise Brown if Leitsch heard anything and that Brown wanted Leitsch to identify who was active on behalf of the Union. Leitsch acknowledged that he did not hear anything about the Union, inferentially from other employees in the plant, until a week after the related conversation with Chadwick Brown. While Chadwick Brown did not expressly deny the recitation of Leitsch, and did acknowledge making inquiries relative to employees' knowledge of the union, I find Leitsch to have been unimpressive as a witness. I find an apartment, drove an ice cream truck, and was also an ordained priest in the American Orthodox Catholic Church He explained that he took his training, to become a priest, in New York City and that it comprised one year of working with the bishop and the pnmate, the latter being identified as W H Swinger His current activity in the matter of conducting religious services is obscure 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no other evidence in the record of threats by either of the Browns, of the types described. I also find it improbable and implausible that Leitsch, having denied knowledge of the existence of any union activity, would seek to advise management how to avoid such a possibility I am therefore constrained to reject the testimony of Leitsch except as to the portion related to the initial inquiry. Ken Myer has been employed by Respondent for approximately 2 years as a machinist Myer asserted that he had two conversations relative to the Union with manage- ment. He first talked to Chadwick Brown, in late November or early December 1970, in the shop. According to Myer, Brown advised that he had heard a rumor about union activity and inquired if Myer was involved. Myer credibly related that he responded that someone had approached him, inquired about Myer's opinion about the Union, and that Myer had responded that he had not formed any opinion at that time. This terminated his conversation with Brown. The second conversation was in late December in the plant office. Chadwick Brown called Myer into the office and William Brown was present. One of the Browns, Myer was uncertain which, inquired if Myer was involved in any union activity. Myer asserted that he didn't know anything about union activities, but the Union might be a solution to some of the problems the employees had around the shop like bad working conditions. Myer asserted that Chadwick Brown made some comment about absenteeism and tardiness which needed correction also. William Brown asked Myer which union the employees would contact and he responded that he did not know. Myer, having his memory refreshed by his pretrial statement, asserted that one of the Browns asked if he had signed an authorization card or passed out authorization cards and that he responded in the negative. This ended this conversation. Thomas Schulte credibly related that, in December 1970, after work one evening, he met Chadwick Brown in a bar near the plant. During an extended conversation, Schulte mentioned that conversations, apparently comprised of false reports, were initiated by employees to see if they would be repeated to management and come back to the employees. Schulte asserted that Chadwick Brown respond- ed "Oh, you mean like the union?" Schulte asserted he responded in the affirmative. I find this incident of no consequence since it does not constitute interrogation However, the conversation permits an implication that Brown had heard of union activity, from unidentified employees. Marvin Jackson, alleged discriminatee herein, asserted that in early January 1971, at approximately 3 or 3:30 p.m., he had a conversation with Chadwick Brown, who inquired if he had heard anything about union activities starting at Farlow Rubber, to which he responded in the negative. Jackson asserted that he also had a conversation with William Brown in January 1971, after working hours one evening, at the Rockaway Bar, during which William Brown inquired whether Jackson had heard anything about a union being started at Respondent's plant, to which 6 Inaccurately stated by Jackson to have been in November 1969 7 While the record reflects that Jackson absented himself from his employment, by Respondent, for approximately 2 months, in the spring of 1970, during which time he apparently sought employment by competing Jackson responded that he did not know anything about it. William Brown denied having a conversation with Jackson relative to the Union. On this conflict, I credit William Brown. William Brown asserted that he could remember "very vaguely" asking Ken Myer if Myer had heard any rumors about the Union being organized in the shop, however, he could not place the time of the conversation and could not recall making any reference to absenteeism or tardiness. Asked on how many occasions he had talked to employees relative to the union activity in the shop, William Brown responded that he did ask some employees if there was any union activity in the shop, and it might have been as early as August or September 1970; however, he could not recall bunging it up more than one time, or precisely to whom it was that he directed the inquiry. It is undisputed that William Brown did address the employees, at a meeting of the employees, 3 days before the election, during which he expressed his views relative to the union. There is no contention that this speech was violative of the Act. Chadwick Brown could not remember if he had a conversation with Myer relative to the Union, asserting that he may have asked him if there was union activity in the shop. Chadwick Brown also asserted that he may have asked several employees if there was union activity in the shop but it was "no more or less than that." Chadwick Brown asserted that he had heard a lot of rumors that there was union activity and that a union would be coming in. Everyone who was asked denied knowledge. Chadwick Brown asserted that there was no badgering and no inquiry as to whether the employees were "doing this or that." Chadwick Brown could not identify the employees to whom he addressed his questions. I find both William Brown and Chadwick Brown credible witnesses on the basis of demeanor, as well as from a careful scrutiny of their testimony and consideration of its plausibility. Accordingly, my findings are limited to interrogation of the identified employees. The Suspension of Jackson on March 1 and His Discharge on March 3 Jackson commenced working at Respondent's plant, for the predecessor owner, in November 1962. Prior to the acquisition of the Respondent by the Brown brothers in December 1968,6 Jackson for 4 years had been foreman, and during that period of time had worked in the office in pricing, as well as running a lathe in the shop. At the time of his termination he was building rubber rollers.? Jackson asserted that he slipped on a carpet, at home, and hurt his back. He called the plant, on Tuesday, February 23, reported that he had hurt his back and intended to seek medical attention from a doctor. On Wednesday, February 24, he reported for work and was advised by Neely, plant superintendent, that he should have a doctor's certificate certifying that he was capable of returning to work. Jackson acknowledged having advised firms, I find that the evidence relative to Jackson's activity, in either February or March, or possibly in April or May 1970, too remote for consideration or discussion herein FARLOW RUBBER SUPPLY, INC. 573 Respondent, inferentially Neely, that he had been attended by Dr. Mueller, who allegedly was located in Huntington Park.8 William F. Brown related that when Jackson was advised that he needed a medical release, Jackson asserted he would obtain it and be at work on Thursday. Jackson did work all day on Wednesday. On Thursday, about 10:30 a.m., Jackson advised William F. Brown, by telephone, that he had been unable to reach the doctor who had treated him, identifying Dr Mueller as the doctor in question, and advising that he would attempt to obtain a release later the same day and be at work Friday morning. Jackson did not report for work on Friday, but did call William F. Brown at approximately 10:30 a.m. At that time , Jackson advised that the doctor would not give him a release until the doctor was paid, and Jackson inquired if he could pick up his paycheck, in order to be able to pay the doctor and obtain the release. Brown responded that the payroll would be ready, at the usual time, approximately 3 p.m. Friday is plant payday When Jackson arrived at the plant, he inquired of William Brown if the payroll had been prepared. Brown responded that Charlotte Stilson, secretar- y and bookkeeper, who makes up the payroll, was then preparing it. The plant office is comprised of two rooms. One room is the office of William F. Brown and Chadwick Brown. In the outer office, Charlotte Stilson has her desk next to a safe or vault.9 Charlotte Stilson had been employed, by Respondent, for approximately 1 year at the time of her testimony. The books and records of Respondent are under her control and it is her responsibility to lock them in the safe at night. She related that she saw Jackson about 3 p.m. on Friday, February 26, at which time he inquired if he could have his paycheck, which had not yet been prepared. She advised him accordingly. She related that, at that time, she had on her desk all of the records of Respondent, including accounts receivable, accounts payable, customer ledgers, price records, and time cards. During the time Jackson was in the office, Hale came in, for a short period, then left. Jackson inquired if Falcon Wheel was contributing to Stilson's salary, and she responded in the negative. Jackson then asserted that if Falcon Wheel was not then contribut- ing that he knew for a fact that in the future, they would be paying part of Stilson's salary and that he had that information from a reliable source. Jackson then inquired as to the hourly rate being paid another employee, identified as Joseph Fierro. Stilson responded that she could not give him that information. Jackson then advised Stilson that if Stilson would go to the restroom Jackson could look at the records and Stilson wouldn't have anything to do with it. Stilson advised Jackson to forget it, that Stilson could not leave the office or let anyone see the books as they were her responsibility. After Jackson's paycheck had been prepared, Stilson handed it to William F. Brown, for signature. Upon receiving his check, Jackson left the office. Stilson promptly advised both William F. Brown and Chadwick Brown as to the request which Jackson had made. Stilson asserted that she was "shook" by the experience as she was scared to leave and did not know how to handle the situation. William F. Brown credibly related that as a result of Stilson's report, he and his brother, Chadwick Brown, decided to suspend Jackson for 3 days to provide them essential time to analyze "what the repercussions could be and why he was doing what he did or why it happened and what was the reasoning behind it and everything else." William Brown advised Neely to contact Jackson at home, over the weekend, and to advise him that, as a result of what had happened at the office, both Browns had decided to suspend him for 3 days, until they could make a decision on what else to do. Neely did not reach Jackson prior to Jackson's arrival at the plant on Monday morning, at which time Neely advised him of his suspension. On Monday morning, Jackson presented a doctor's report signed by Dr. G. W. Rheinchild.10 Jackson, appearing as a witness during General Counsel's case-in- chief, asserted that Neely, on March 1, advised that Jackson was suspended for 3 days for "harrassing the secretary and trying to get information from her." Neely advised that this related to the events of the prior Friday. Jackson acknowledged asking Stilson what hourly rate Fierro was being paid. He also acknowledged that she advised that she could not give him that information as it was confidential. He denied asking Stilson to leave her desk and go to the restroom so he could look at the records. On this conflict, I credit Stilson. William F. Brown credibly related that later the same day, Monday, March 1, in a telephone conversation in which his brother, Chadwick Brown, participated, that Jackson inquired about the suspension and William Brown advised that they were going to analyze what Jackson did and then make a determination as to the action they should take, and he would be advised if they were going to terminate him or allow him to continue as an employee. Brown asserted that Jackson advised that he was only "kidding" in his conversation with Stilson. Brown related that he advised Jackson that Jackson had placed the Company in jeopardy, since it involved everyone working in the plant if the records had been removed or taken out or copied. Brown related that Respondent is a job shop, that the accounts have taken years to build up, and that knowledge of the identity of Respondent's customers would have tremendous value to the competitors. William Brown related that he and his brother had put in a fireproof vault in preference to machines which they needed, in the plant, to protect the records against fire or theft. William Brown asserted that Jackson then inquired about his vacation pay, asserting that he was entitled to I week's vacation pay. Brown advised Jackson that he was not entitled to vacation pay but they would have to make a determination on that matter and that Jackson would be advised by Wednesday. While Chadwick Brown's recitation of the conversation B Jackson asserted herein that so far as he knew there was no Dr Mueller in Huntington Park His explanation of the reason he gave the name of Dr Mueller, as the attending physician, was that he did fall and hurt his back "and sometimes if you don't tell them a lie, they just don't understand the reason and t wanted to protect my job " 9 Stilson's office was described as approximately 10 feet square, and the adjacent vault as being about 6 feet square . The outer office also contains a desk used by Larry Hale, who was identified as president of Falcon Wheel Corp, the distributor for Respondent 10 Jackson acknowledged that Dr Rheinchild did not treat him and never examined him, but had prepared the statement based entirely on Jackson's report that he had been injured on February 23 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Jackson, on Monday, March 1, is not four-square with the recitation of his brother, I do not find any variation which would cause me to modify my credibility findings. This is particularly true since Jackson was not recalled as a rebuttal witness, and thus did not dispute the recitation of either William F. Brown or Chadwick Brown relative to his conversations with them on March 1, 2, or 3. William Brown related that he had a further telephone conversation with Jackson on Tuesday, March 2. On that date, Jackson advised both Browns that if he was not given his vacation pay, he would go to the labor commissioner and have Respondent's time cards audited, asserting that he did not believe that the employees had been paid for all of their overtime. William Brown asserted that he advised Jackson that he was welcome to go to the commissioner or anyone else William Brown related that he advised Jackson, in a telephone conversation, on Wednesday, March 3, that he and his brother had decided to discharge Jackson because of Jackson's efforts to compromise the Company, that they had lost confidence in him and felt that he was untrustworthy, and that they did not know why Jackson wanted Company records but were aware of his attempt to obtain them. Brown asserted that Jackson's response was that he was "kidding." i i William Brown related that, on Monday, March 1, an employee, identified as John Tracey, advised William Brown and his brother, Chadwick, that Jackson had been attempting to go into the rubber business as a competitor. William Brown asserted that Tracey advised that, in January, Tom Schulte and Jackson approached Tracey to go into business with them and with Milton Cooper, who at that time owned the building in which Respondent was located Cooper also owned a building in what is identified as the Watts section of Los Angeles, which contained 10 thousand square feet, with heavy power, and which was vacant. Tracey advised that Cooper's daughter and son-in- law were going to manage the business, that Jackson and Schulte were going to put up $2,500 each. They advised Tracey that he would have a better job and make more money and could have a part ownership. According to Brown, Tracey related that Jackson and Schulte had discussed this matter with him on two or three different occasions. Tom Schulte, recalled as a witness for Respondent, related that he did attend a meeting with Cooper and Jackson. He was uncertain if it was in December 1970, or January or February 1971 The meeting was at a building 1 i Jackson acknowledged that he was advised that he was suspended for 3 days, and thereafter he was advised that he was being terminated However, Jackson's version of his discharge notice was that he talked to Cha4wick Brown , who advised that he was terminating Jackson "because I was working for the union and trying to get valuable information for them from the secretary " I do not credit this assertion of Jackson, for the reasons explicated, infra 11 William Brown related the nature of the business of Respondent as rebuilding industrial rollers, molding rubber products, building manhole gaskets and cutting them, casting polyurethane resins, casting polyurethane on mandrels, and cutting washers off them In other words, they are a job shop industrial rubber company 11 In fact, William Brown asserted that one reason he was hesitant about discharging Jackson was the fact that Jackson is a good rubber builder, and that it takes a long time to train a good rubber builder It was for this reason that Brown was not anxious to dispense with the services of owned by Cooper near 100th Street. The meeting was for the purpose of discussing whether they could go into business, with Cooper supplying a substantial portion of the capital. According to Schulte, Jackson estimated that it would require $25,000, while Schulte' s estimate was higher. The proposed business was identical to that of Respondent.12 Schulte related that Jackson was familiar with the rubber business.13 Schulte related that he is the polyurethane man at Respondent's plant and would have assumed the same responsibility in the proposed plant. Schulte asserted that they discussed who would be employed and how many would be involved, and Cooper indicated that his daughter and son-in-law would be interested. Schulte acknowledged that he discussed this matter with Tracey a few days later . Cooper inquired why they thought they could get business or, alternatively, if there was that much business around town and Jackson responded that he could get the customers and pricing necessary. t4 CONCLUDING FINDINGS 1. Interference, restraint, and coercion It is beyond question that the interrogation engaged in by William Brown and Chadwick Brown was violative of the proscriptions of Section 8(a)(1) of the Act. Prior to the Blue Flash case,15 all interrogation relative to union member- ship, activities, and desires was held to be per se unlawful. In Blue Flash the Board found legitimate reason for inquiry, when conducted with appropriate safeguards. The Board held that the test is whether, under all the circumstances, interrogation reasonably tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act. The Board further elaborated in its decision in the Johnnie's Poultry case 16 in which the Board stated that the purposes which the Board and Courts have held legitimate (permitting interrogation) are of two types: verification of the union's claim to majority status to determine whether recognition should be extended. . . . and investigation of facts concerning issues raised in a complaint, where such interrogation is necessary in preparing the employer's defense for the trial of a case. There is no indication in this record of the existence of either of the conditions outlined by the Board in the Johnnie's Poultry case, nor were the enumerated safeguards taken. Accordingly, I find the interrogation of employees Jackson, but on balance decided it was too dangerous to continue him 11 Jackson's sole appearance as a witness was during General Counsel's case-in-chief and preceded the testimony of William Brown and Schulte Jackson was not called as a rebuttal witness Jackson acknowledged that he and Schulte approached Cooper with an idea of interesting Cooper in going into the rubber business Jackson placed the time of meeting as before January However, Jackson denied knowledge that Cooper had a building in Watts Jackson, in conflict with Schulte, denied advising Cooper that he could obtain a customer list and the pricing structure Jackson asserted that Cooper was to invest $15,000 while he was to raise either $2,000 or $4,000 Jackson denied approaching Tracey, asserting that Tracey approached him Jackson then asserted that the meeting with Cooper was 6 months prior to his discharge Where Jackson's testimony is in conflict with the others, set forth supra, I do not credit Jackson 15 Blue Flash Express, Inc, 109 NLRB 591 16 Johnnie's Poultry Company, 146 NLRB 770, 775 FARLOW RUBBER SUPPLY, INC. by William F. Brown and Chadwick Brown, in each instance, as found in the section titled "Interference, Restraint, and Coercion," coercive and thus violative of the provisions of Section 8(a)(1) of the Act. There is not a scintilla of evidence in this record that William Brown, at any time, threatened any employee with discharge because of his union membership, sympathies, and activities, or threatened to close the plant because of the union membership, sympathies or activities of the employees, or promised economic or other benefits to induce the employees to forego their support of the Union. or solicited an employee to engage in surveillance of the union activities of fellow employees The only evidence that Chadwick Brown engaged in any of these enumerated activities was the testimony of Leitsch, which I have found not credible. Absent evidence to support the allegations of paragraphs 10, 11, 13, and 14 of the complaint, I will recommend dismissal of said allegations. 2. The suspension and discharge of Jackson An essential condition to a finding of discriminatory conduct by an employer is evidence from which it may be inferred that the employer had knowledge of the employ- ees' union activities. In numerous cases the Board and Courts have held that direct knowledge of an employee's union activities is not a sine qua non for finding that an employee had been discharged because of such activity, but may be inferred from the record as a whole. The number of employees and the abruptness and timing of the discharge are among the factors to be considered. Wiese Plow Welding Co., Inc, 123 NLRB 616. Jackson, who asserted that he did pass out authorization cards, related that no supervisor and neither of the Brown brothers ever saw him passing out authorization cards or doing anything of that nature. Jackson acknowledged he never had any conversation with the Brown brothers or any supervisor with respect to who had signed authorization cards. Jackson's testimony was that all of his conversations relative to the Union were away from the plant, after work, at the Rockaway Bar Jackson makes no contention that any reference was made to the Union at the time he was advised of his suspension for 3 days by reason of the events of Friday, February 26 It is patent that the Brown brothers were aware of the union activities in the plant, by reason of the petition for election, which was filed on January 25. It does not follow that either Brown was aware of Jackson's activity. In fact, Jackson asserted that when he was asked by Chadwick Brown if he knew anything about the Union, in January, he denied such knowledge. Jackson asserted that he was advised, at the time of his termination, by Chadwick Brown, that he was being terminated because he was working for the Union "and trying to get valuable information for them, from the secretary." William F. Brown denied any reference was made to the Union at the time of discharge, asserting Jackson was advised that he was being discharged by reason of his effort to obtain confidential company records, causing the Browns to 17 In so finding I am not unmindful of the fact that Chadwick Brown corroborated William F Brown as to the reason for the discharge of Jackson I am also aware that Chadwick Brown was self-contradictory on 575 conclude that they could not trust him. On this conflict I credit William F. Brown on the basis of demeanor as well as the plausibility of his recitation in the light of the facts in the record.17 I have found an absence of knowledge of Jackson's union activities, on the part of Respondent, at the time of discharge. However, were I convinced the Browns had such knowledge I would nevertheless find an absence of the credible evidence essential to support a finding of discriminatory motivation for the discharge. Long Island Airport Limousine Service Corp., 191 NLRB No. 16. Accordingly, for the reasons set forth, and on the entire record as a whole, I find there is insufficient credible evidence to support a finding that Respondent was discriminatorily motivated in effectuating the discharge of Jackson. I shall recommend the dismissal of the allegations of the complaint related thereto. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce, among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer, engaged in commerce and in an activity affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 141, United Rubber, Cork, Linoleum & Plastic Workers of Amenca, AFL-CIO, CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By engaging in the conduct set forth in the section entitled "Interference, Restraint, and Coercion," to the extent therein found, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Respondent, in suspending Marvin W. Jackson on March 1, 1971, and in discharging Marvin W. Jackson on March 3, 1971, did not engage in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged, and is engaging, in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the nature of the unfair labor practices committed, the commission of like or related unfair labor the matter of his mention of Jackson's union activities at the time of discharge My resolution is based upon an evaluation of the record as a whole 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices reasonably may be anticipated. I shall therefore 8 (a), (b), and (c), paragraphs 9, 10, 11, 13, 14, and 15, of the recommend that Respondent be ordered to cease and desist complaint be, and they are hereby, dismissed. from in any like or related manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and conclusions of law, upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following- RECOMMENDED ORDER is Respondent, Farlow Rubber Supply, Inc., its officers, agents, successors, and assigns, shall. I Cease and desist from: (a) Interrogating employees in a manner violative of the provisions of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with, restraining , or coercing, its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959 2. Take the following affirmative action designed to effectuate the policies of the Act- (a) Post at its place of business, in Los Angeles, California, copies of the notice attached hereto marked "Appendix." 19 Copies of said notice, on forms to be furnished by the Regional Director for Region 21, shall, after being duly signed by an official representative of the Respondent, be posted by it immediately upon receipt thereof, and maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Trial Examiner's Decision, what steps Respondent has taken to comply herewith. 20 It is further recommended that unless, on or before 20 days from the date of the receipt of this Trial Examiner's Decision, Respondent shall notify said Regional Director that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an Order requiring Respondent to take the aforesaid action. It is also recommended that the allegations of paragraph 18 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the 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 'y 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 20 In the event this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 20 days from the date of this Order what steps Respondent has taken to comply therewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees in a manner violative of the provisions of Section 8(a)(1) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized by Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. FARLOW RUBBER SUPPLY, INC. Dated By ( 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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5229.