Hyster Co.

192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hyster Company and United Steelworkers of Ameri- ca, AFL-CIO. Case 10-CA-9160 July 14, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 25, 1972, Trial Examiner Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt her recommended Order.1 Contrary to our dissenting colleague, and as noted more fully by the Trial Examiner, we find that the record discloses with respect to the issue of agency, that Maddox, chairman of the Town Council, was more than merely a prominent citizen who served as a reference for some of the Respondent's employees. Maddox testified that he discussed job applicants 75 to 100 times with Paul, the Respondent's personnel manager, that he referred 25 to 35 employees to the Respondent and that he spoke to Respondent's employees about their jobs on 10 to 15 occasions. Applicants Stanford and Carruth were advised to see Maddox by the Respondent's personnel manager, Paul. Applicant Taylor was advised by the Respon- dent's employees to talk with Maddox, and the same advice was given to applicant Smith by "people talking." The Respondent made no effort to discour- age the apparent impression of job applicants, its employees, and people in the community that Maddox was its apparent agent. Applicants Taylor; Smith, Stanford, and Carruth were 'each hired after individual conversations with Maddox. During these conversations, Maddox interrogated the applicants concerning their union activity and sympathy, threatened the discharge of employees who signed union authorization cards, and threatened that the Respondent would move away if the employees chose to be represented by the Union. Maddox also made appearances at the plant and discussed with the employees the problems a union might create. Based on the foregoing, we find, contrary to our dissenting colleague, that Maddox's conversations with Smith, Stanford, and Carruth warrant the Trial Examiner's 8(a)(1) findings and remedy. Concerning Stanford's discharge, the facts of which are more fully set out by the Trial Examiner, the record shows that Maddox, as a result of his interrogation of Stanford, became aware in early August that Stanford had signed an authorization card and that Stanford thought that a Union "would help things out." Before this conversation, Stanford had received a merit increase and had been offered the opportunity to transfer to a job in which he could make more money. About 2 weeks after the conver- sation, a few days after the Respondent's personnel manager and Maddox returned from a 10-day vacation together, Stanford was discharged without any advance notice. Stanford's foreman was called back into the plant from the first day of his vacation to prepare Stanford's termination report and to advise Stanford of his discharge. Stanford's job continued to be performed after his discharge. Concerning the Respondent's retention of union adherents who were more active than Stanford, we agree with the Trial Examiner that a violation of the Act does not have to be wholesale to be a violation. The record shows that Stanford is the only employee whose union sympathies were shown to have been known to Respondent, and the only employee discharged. With respect to Stanford's alleged warnings as to his job performance, we note, as did the Trial Examiner, that Stanford was never told that his performance was so poor as to place him in jeopardy of discharge or disciplinary action. To the contrary, employees Carruth and Smith, whom Stanford supplied with parts, testified that Stanford adequately performed his work. The record shows that Stanford was unaware of two adverse informa- tion reports which were a part of his personnel file and further indicates that, in any event, the dates on which the reports were written are doubtful. In the foregoing circumstances, we agree with the Trial Examiner (1) that the Respondent had knowledge of Stanford's union sympathy and activity, and (2) that Stanford's discharge was discriminatorily motivated, so as to be violative of Section 8(a)(3) of 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 1 The Respondent has excepted to certain credibility findings made by were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 the Trial Examiner It is the Board's established policy not to overrule a F 2d 362 (C A 3). We have carefully examined the record and find no basis Trial Examiner's resolutions with respect to credibility unless the clear for reversing her findings. preponderance of all the relevant evidence convinces us that the resolutions 198 NLRB No. 11 HYSTER COMPANY that the Respondent, Hyster Company, Sulligent, Alabama, its officers, agents, successors, and assigns shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER, dissenting in part: I would affirm the Trial Examiner only with respect to the 8(a)(1) findings based on the state- ments and conduct of Respondent's personnel manager, Billy Paul, and would dismiss all other allegations of the complaint. I find the record evidence far too slim to support a finding that Mr. Maddox, chairman of the Town Council, was an agent of Respondent. The Industrial Development Board, of which Maddox had previ- ously been chairman, engaged in a practice common to many communities which attempt to attract industry-i.e., that of purchasing land, erecting a plant, and leasing it to an industrial concern on a nonprofit arrangement, financing the promotional venture through a bond issue. Clearly such arrange- ments create no agency relationship. The only other evidence tending to support an agency relationship is the Trial Examiner's findings that Maddox played a role in the employment of certain individuals by Respondent. The record does show that Maddox, a prominent local citizen, was frequently listed as a reference by employees, and that Respondent checked out such references. Be- yond that, which would, of course, have no probative value in establishing agency, the Trial Examiner's findings are supported by very little solid evidence. While she found that Smith, for example, had been advised to consult Maddox, the record shows that Smith on his own initiative had gone to Maddox, Maddox had suggested Smith apply at Respondent's plant, and Smith then listed Maddox as a reference. She also found that Carruth was told to see Maddox before reporting to work, but the record of Carruth's testimony on this point is so confused as to be almost unintelligible. Taylor was not advised by anyone on Respondent's behalf to see Maddox. Thus, the record would much more securely support a finding that local people seeking ajob with Respondent found it to be to their advantage to have the support of a prominent local citizen, and that a number of them believed Maddox to be such a person, and also one whose recommendations were valued by Respondent. Such facts do not establish a preponderance of evidence-nor indeed even a prima facie case-of agency, either as a matter of general law or on the basis of any existing Board precedent. Thus, I find no grounds for holding Respondent liable for any improper statements made by Maddox and would impute no knowledge to Respondent of events known only to Maddox. 193 As to the 8(a)(3) finding, there is both a paucity of evidence of knowledge by Respondent of Stanford's union activity, no proof of any animus toward Stanford because of his limited union activity, no evidence that any other employee (many of whom were far more active union supporters than Stanford) suffered any kind of discrimination at the hands of Respondent, and ample proof that Stanford had been warned many times during his probationary period of the inadequacies of his performance. In that state of the record, I cannot agree that the Trial Examiner's finding of an 8(a)(3) violation should be allowed to stand. The above reasons underlie my partial dissent, the scope of which is set forth in the first paragraph of this opinion. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: This case was tried in Vernon, Alabama, on November 22 and 23, 19711 on a complaint issued on October 1 against Hyster Company pursuant to a charge filed on August 23 by United Steelworkers of America, AFL-CIO, alleging various acts of interference with employees' rights in violation of Section 8(a)(1) of the Act2 and the discriminatory discharge of an employee in contravention of Section 8(a)(1). All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses . The parties waived oral argument and after the hearing the General Counsel and Respondent filed briefs. Upon the entire record, observation of the witnesses , and consideration of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. Respondent is, and has been at all times material herein, a Nevada corporation, with an office, plant, and place of business in Sulligent, Alabama, where it is engaged in the manufacture, sale, and distribution of lift truck parts and material-handling equipment. During the past calen- dar year, a representative period, Respondent sold and ;shipped finished products valued in excess of $50,000 'directly from its Sulligent plant to customers outside Alabama. Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. United Steelworkers of America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 1 Except where otherwise indicated , all dates herein are in 1971 2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, IU.S C. Sec 151, et seq ) 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that on several occasions in June, July, and August Respondent, through William Paul,3 its personnel manager at Sulligent, and its agent, James H. Maddox, chairman of the Sulligent Town Council, inter- fered with employees' rights guaranteed by Section 7. In addition, it is alleged that on August 18 Respondent discharged employees Willis Stanford because of his union activities. In addition to the usual factual and credibility questions, the issue of Maddox's role as an agent of Respondent is raised. B. The Setting Lamar County is essentially rural but has some relatively small industry. At least as recently as 1969 it was a nonunion island surrounded by areas in Alabama and Mississippi with unionized plants. According to Respon- dent's personnel manager, there are now two unionized plants, of unspecified size, in Lamar County.4 The evidence establishes that the union or nonunion status of all businesses within the area is generally well known in the community. Respondent, with its principal office in Portland, Oregon, is a large company with facilities in various locations in the United States and in several foreign countries. In 1969 Respondent decided to build a new plant. Before choosing a site it investigated several locations, including Sulhgent, Alabama. Commencing in April 1969, Respondent's representatives conferred with members of the Sulligent Industrial Development Board, a public corporation created in 1961 for the purpose of promoting industry within the town. Its members are elected by the Town Council. The board obtains any needed funds from the Town Council. James H. Maddox was chairman of the board from its creation until 1964, when he became chairman of the Town Council, in which capacity he now serves. He operates a Ford sales and service agency and an American Oil Company dealership in Sulligent. Among the town's most eminent native sons, Maddox has been a guiding light and dominant force in the activities of the Industrial Board, including its relationship with Respondent. Also intimately involved in the board's activities is Frank Buckley, a local businessman and mayor of Sulligent. Respondent's representatives initially inquired about such social matters as housing, schools, churches, transpor- tation, etc., and such industrial facts as the availability of suitable land, power, trainable labor, etc. A. A. Mann, who was to be the plant manager, asked if there were any unionized plants in Lamar County and received a negative reply. In October 1969 Respondent chose Sulligent as the site for its plant and a tentative agreement was executed by Respondent and the board around February 1970. Respon- 3 At the hearing, Mr Paul identified himself as Billy Paul, which is the name by which he is known and which he apparently uses for all purposes A Stanford, however, quoted Maddox as having said in August 1971 that there are no unionized plants It is possible that Maddox made that statement about the town of Sulligent, as distinguished from the entire county of Lamar. dent commenced some operations in an existing building in the nearby town of Beaverton. On June 1, 1970, a formal agreement was executed, under which the board was to purchase the necessary land, build the plant according to Respondent's specifications, and supply specific equipment. The board, as "lessor," was to finance the entire project by issuance and sale of $2.5 million in tax-free mortgage bonds, amortizable over 19 years, ending in June 1989. The project and any income and profits therefrom were also to be taxfree. As "rent," Respondent is to pay the amounts of the principal and interest on the bonds as they become due plus expenses of the trustee. The "lease" runs until 1995, with options in the Company to renew until 2010 at an annual "rent" of $2,000. Respondent has the option to terminate the lease and/or purchase the project for $1,000 upon payment of the amounts due on the bonds. While the board is formally designated as a "lessor," it is the sole source of financing, with the town's credit pledged in the substantial amount of $2.5 million .5 Manifestly, the town's financial involvement alone makes it, in practical effect, if not technically, a joint venturer critically concerned with the successful operation of the plant. Respondent introduced into evidence an article from the editorial page of the page of the Danville, Illinois, Commercial-News of September 1, 1971. The article, entitled "Hyster's Newest Plant Vital in Sulligent, Ala." resulted from a visit paid by representatives of the newspaper, when they were graciously entertained by company officials with local dignitaries, including Maddox and Mayor Buckley. The newspaper item says, inter alia: One is struck with the youthful work force, both office and manufacturing . . . . Each new employee, un- spoiled in thought or work habits, is trained on the job. s s a r s Sulligent as a location was no accident. Twenty communities were studied by experts. Sulligent won over a Mississippi town because of such matters as better schools, sewers, water supply, town attitudes, etc. Maddox and Buckley, apparently major spokesmen for the "town attitudes," are both outspokenly opposed to labor unions, having expressed the opinion that unionization would hamper the growth of Sulligent and damage the local economy by strikes. Personnel Manager Paul, the top-ranking Sulligent native at the plant, shares Maddox's and Buckley's opinions on unionization. The Sulligent plant began operations around the end of February or early in March, with the Beaverton plant continuing to perform certain auxiliary operations. By April, total employment reached 70, where it stayed until August 18, the date of the discharge here involved. At the time of the hearing, there were 100 employees. The physical plant was so designed and constructed as to allow for great expansion. 5 Maddox testified that the board was originally organized to refinance McCoy Manufacturing Company, a local garment plant. According to Maddox, in that connection the board issued $100,000 of bonds in 1961 and $150,000 in 1965. In November 1971, with around 375 employees, McCoy had closed (hopefully not a permanent closure). HYSTER COMPANY Respondent has held several ceremonial and social functions attended by company officials and the town's officials and eminent citizens. There also has been at least one major event, dedication of plant, with general community attendance. At all such functions great emphasis has been placed on the Company's hopes and plans for expansion. The eventual goal is a work force of 500 to 600 (or even possibly 800) employees. Respondent has pledged to make the plant a truly local, community project, eventually to be managed by local citizens. C. The Events Here Involved 1. The alleged violations of Section 8(a)(1) a. Billy Paul Mr. Jack Bradley, a Sulligent native, now lives in Birmingham, Alabama. He appeared at the hearing as a "Union Representative" on behalf of the Charging Party but did not testify. Paul, also a native of Sulligent, had also lived in Birmingham for an unspecified period preceding March 1970, when he had returned to Sulligent to work for Respondent. Paul testified that he had seen Bradley infrequently in Birmingham. On cross-examination Paul conceded that he was aware of Bradley's identification with the Union .6 Bradley initiated a campaign to organize Respondent's Sulligent employees, but it is not clear when such activity began. Paul testified that he had seen Bradley in Sulligent as early as August 1970 but the two men had not spoken until sometime around April or May 1971, at which time Bradley said he was working, not vacationing. Other than Paul's testimony, there is no affirmative evidence of Bradley's presence or organizational activity in Sulligent at any time before the middle of July 1971. Employees Freddy Carruth, Joe Wayne Smith, and Willis Stanford (the alleged discriminatee herein) testified that they signed union authorization cards on July 14, 16, and 19, respectively. They became the employee organizing committee and solicited cards from other employees. Respondent contends that the testimony concerning the signing and solicitation of cards, and the dates thereof, should be discredited because no cards were offered in evidence and, apparently, because Bradley was not called to corroborate the employees' testimony. The acts of signing and the dates thereof were relevant, but these facts could be established by oral testimony. The testimony of the employees was undisputed and Respondent has adduced neither evidence nor argument which would tend to provide any basis for disbelief. Under such circum- stances, corroboration was unnecessary and not in the interest of expeditious hearing. Carruth testified that he signed a union card, upon Bradley's solicitation, at his home on July 14. Shortly 6 "Q You knew Jack Bradley was employed by United Steelworkers, didn't you'' A. Yes sir, I knew he was employed by TCI, Tennessee Coal and Iron in Birmingham I knew he was a-I knew he was a steward-is that what you call it?" 7 According to Carruth , the Union was discussed at virtually all the "gnpe sessions" that Paul periodically held with groups of employees Carruth maintained that Paul somehow caused employees to raise the subject Although there was considerable testimony concerning the "gnpe 195 thereafter, in Paul's office, Paul asked Carruth if he knew "Jack Bradley was around." When Carruth said he knew "nothing about it," Paul said, "Well, you'd better watch out because we'll be down' for us to watch our step." Carruth testified that, although he has known Paul a long time and frequently drops by Paul's office to chat, July 15 was the only time Carruth specifically recalled their speaking of the Union.7 Paul, on the other hand, testified concerning three occasions on which he and Carruth talked about the Union. Paul testified that in March, while they were still working at the Beaverton plant, Carruth came into Paul's office- ... he was awfully upset. He just said, Billy, I understand I've been linked with the Union, there's a rumor going around in the shop." And I said, "Freddy, don't worry about rumors, just do your job." And he said, "Well, I just wanted you to know I haven't been.8 Paul further testified that on July 1 Carruth reported that Bradley and another man had visited Carruth's home and spent a great deal of time trying to persuade Carruth to sign a union card. And then, according to Paul, Carruth visited Paul's office on July 15 and volunteered the information that "Jack's back in town" and Carruth understood that Bradley was "seeing some of our people." Paul replied that he knew Bradley was in town but had not heard anything about Bradley's visiting employees at their homes. Paul maintained that Carruth had taken the initiative in each conversation and that Paul had not asked him any questions. Respondent contends that Carruth "lied unabashedly about the timing of [his] conversation with Paul" because he said that Paul called him into the office "right after [he] signed the card" and "right there," while also testifying that he had signed the card at home. However, immediate- ly before using the quoted words, Carruth had dated the conversation as "right after July the 14th or the 15th." Nothing in Carruth's demeanor or in his occasionally imprecise choice of words suggests to the Trial Examiner that the witness was fabricating or attempting to give the impression this his conversation with Paul occurred within minutes after the card was signed. On the other hand, Paul's testimony is confused . If, as Paul maintained, Carruth had reported on July 1 concerning a home visit by Bradley, Paul could not have disclaimed knowledge of such home visits when talking to Carruth on July 15. It is most unlikely that Carruth, who, as one of three employee organizers, had solicited 15 or 20 union cards, would have voluntarily mentioned Bradley's activity to Paul. Respon- dent has suggested no explanation for such apparently self- defeating conduct by Carruth. On the basis of the probabilities, together with careful observation of the demeanor of the witnesses, the Trial Examiner credits sessions," the complaint does not allege any violations based on these meetings 8 Foreman Kenneth Hierman testified that Carruth made a similar statement on August 2. The complaint does not allege any conduct of Hierman as violative of the Act, and Carruth was not examined concerning any such conversation with Hierman. Maddox's testimony concerning statements by Carruth is discussed below 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carruth as to his conversation with Paul on or about July 15. Paul's statements, as quoted by Carruth, amount to a question designed to elicit information concerning organi- zational activities among the employees and a threat of unfavorable, though unspecified, consequences to the employees if they dealt with Bradley, a union organizer. As such the statements were violative of Section 8(a)(1). Employee Johnny Lynn Taylor testified that in March, while still at school, he applied to Paul for employment with Respondent. In June he spoke to Maddox about the matter. Three weeks later he saw Paul again and was hired. Taylor testified as follows concerning the final interview: ... [Paul] started, he wanted to tell me about the plant, how young it was and how it was growing, and he asked me did I know anything about the Union and I told him no, I hadn't worked under a union plant. And he told me if any of the union people came around and seen me not to sign a card, to come back and tell him what we talked about. Taylor said that the interview lasted about 20 minutes, a substantial part of which was devoted to the Union, but Paul "just talked mostly about how the plant was going to grow," and "said if the Union come in it wouldn't grow." Taylor said very little-"mostly listened." Taylor was sure that it was not he who had raised the subject of the Union. According to Paul, the hiring interview was a fairly long one, in which Paul emphasized the plant's rosy prospects and Taylor's opportunities for a great future if he worked hard. Paul testified that he also outlined the Company's work rules and similar matters. Paul denied that a union or unions had been mentioned at any time during the interview. The Trial Examiner credits Taylor and, on the basis of his testimony, finds that Paul unlawfully interrogated Taylor concerning union activities and solicited him to report on future activities. Stanford testified that in his final employment interview, on June 1, he told Paul that Mayor Buckley has advised Stanford to tell Paul that "I didn't care anything about the union, that the work was the only thing I was after."9 Paul then said that he understood that Stanford worked under a union at the Walker Manufacturing Company, whereupon Stanford said that he had done so "only for about two months." According to Stanford, Paul then said "that they didn't want a union up there at the plant, that if everybody could work together, they wouldn't care anything about a union." Stanford was thereupon hired and reported to work the next day. Despite Paul's denial, the Trial Examiner credits Stanford. Respondent argues that Paul's statements, as quoted by Stanford, do not establish unlawful interrogation, since Paul was at most making an observation which called for no reply. The fact that Stanford had previously worked for Walker was stated on his employment application and it was a matter of common knowledge that Walker was a unionized plant. In the Trial Examiner's opinion, Paul's reference to Stanford's prior employment at a unionized plant could have had no purpose other than to elicit some indication of Stanford's feelings or opinions about unions at the time of the interview. Stanford's reply that he had worked in a union shop for only a short time was a natural reaction of a job applicant to Paul's statement. According- ly, the Trial Examiner finds that Paul unlawfully interro- gated Stanford. Paul's additional statements concerning the undesirability of a union appear to have been permissible expressions of opinion. Their context, being an employment interview, is insufficient to convert them to violative statements. b. James H. Maddox (1) Agency The great community of interest between Respondent and the town of Sulligent (through the Town Council and the Industrial Development Board) is manifest. Theirs was not a common commercial lease arrangement but rather a situation in which the community has staked its credit in the amount of $2.5 million and Respondent has been afforded tax-free operations financed by tax-exempt bonds issued by a public body. There is a continuing interdepen- dence of town and company. As chairman of the Town Council (and previously chairman of the Industrial Development Board), Maddox is vitally concerned for the success of the venture. And, as would be expected, he has considerable influence with both the Company and the local citizens. On direct examination, employee Taylor testified that, on the advice of some Hyster employees, he had spoken to Maddox when seeking a job with Respondent. On cross- examination by Respondent's counsel, Taylor testified as follows: Q. Did you hear of anybody else getting a job by talking to Mr. Maddox? A. I've heard about some going to see him. Q. He's a pretty influential guy, isn't he? A. Yes. Q. He can get a guy around town, can't he? A. From what I hear he could. Maddox testified that he has discussed job applicants with Paul 75 to 100 times and has referred from 25 to 35 employees to Respondent. "Probably 10 or 15 times" Maddox has spoken to preser t employees of Respondent about their jobs. It was stipulated that, of Respondent's current employees, 24 listed Mayor Buckley and 15 listed Maddox as references on their employment applications. There is considerable evidence of the role played by Maddox and Buckley in relation to the employment of specific individuals. For example, Carruth's application, filed on October 13, 1970, listed Maddox as a reference. In an interview, Paul told Carruth to talk to Maddox. About 2 weeks later Carruth, without having seen Maddox, re- turned to speak to Paul. Paul told Carruth to report to work the next Sunday evening, but to see Maddox before then. When he arrived at the plant at the designated time, Carruth met Maddox just outside the door. Maddox spoke of the great future of the plant and its virtues for a young employee. According to Carruth, Maddox "said if we ever went union and we go out on strike and all that, that 9 Stanford's prior contact with Buckley is discussed below. HYSTER COMPANY 197 Hyster would move out on us. Said it just won't be the same, if it stayed it wouldn't ever grow no more." 10 Employees Taylor and Smith both testified that after they had filed applications for employment with Respon- dent but had not been hired, they were advised to consult Maddox. Taylor's advice came from Hyster employees, and Smith's came from his father, a former employee of Maddox, and from "people talking." Each of them was hired shortly after having spoken to Maddox. Stanford filed an employment application with Respon- dent in April 1970, but was not hired at that time. In May 1971 some of his friends who worked for Respondent told him that if he wanted a job he should see Maddox. Thereupon Claudeus J. Collins, a district commissioner of Lamar County, under whom Stanford was then working, spoke to Maddox and thereafter reported to Stanford that he should see Paul. Stanford did so and for the next few days tried unsuccessfully to reach Paul by telephone. On Tuesday, June 1, Stanford telephoned Paul's office again and was told that Paul was busy but would return the call. Stanford left his present telephone number, which was in a service station where Stanford had stopped in the course of his work. It was not a station he regularly frequented. Shortly thereafter Mayor Buckley telephoned Stanford. According to Stanford, Buckley said that he understood from Paul that Stanford wanted to work for Hyster. Buckley then said that "they tried hard up there to get the plant, that they didn't want no union." When Stanford replied that he did not care about the Union and his only concern was to get a job, Buckley said it would be a good idea for Stanford to repeat that to Paul when he went to see him . Stanford went to see Paul the next day and was hired. Buckley conceded that he telephoned Stanford. He maintained that he called only to say that he heard Stanford was in line for a job and that Hyster was a fine company to work for. Buckley said that he normally makes such calls, since, as the mayor and a concerned citizen, he engages in such social niceties. He did not explain why such a gracious gesture could not have awaited a more propitious time, when Stanford was at home, not on his job. Buckley denied that Paul had asked him to call or that he had told Paul he would call Stanford. However, Buckley was unable to explain precisely how he had learned where Stanford could be reached at that time. He conjectured that he had probably got the number from Stanford's parents, who had visited Buckley's hardware shop, but he conceded that he might have got it from Respondent. There is no explanation of how Stanford's parents might have known Stanford's whereabouts at that time. And there is no evidence that Paul himself ever did return Stanford's call. The only reasonable inference, therefore, is that Buckley called Stanford at the request and/or on behalf of Paul, and the Trial Examiner so finds. Buckley conceded that in his telephone conversation he "got around to telling [Stanford] how [Buckley] felt about unions," which was decidedly negative. Stanford further testified that around the end of July he was told by Paul to go to see Maddox. Stanford did not see Maddox until August 9. At that time Maddox and Stanford talked about ordering some parts for repair of Stanford's car. According to Stanford, with the automobile business concluded, Maddox turned to the subject of the Union. Maddox asked if he had ever spoken about the Union to Stanford and Stanford said "No." Maddox then asked how Stanford felt about a union, and Stanford replied that it would help. Maddox then asked if Stanford had signed a union card, to which Stanford answered in the affirmative. Stanford's testimony continued: [Maddox] said, "Well, let me tell you some things then," he said that no other companies was organized and that the plant would pick its things up and move away. And he said if anyone was caught, you know, talking about union or anything like that, the company would fire them... . Paul denied having told Stanford to see Maddox. Maddox and Paul both testified that they had been out of town together on a vacation on August 9. Maddox, however, testified that about a week or 10 days before that he had talked to Stanford about ordering parts for Stanford's car and had also spoken about the Hyster plant. But he denied that the subject of the Union was mentioned. Maddox testified that he had said he hoped things were going well at the plant and "That thing means a lot to me and I'd hate to have any trouble up there and things don't go as planned .... I'm looking forward to the day they are working five or six hundred people up there." Stanford testified that he established the date of this conversation because he had gone downtown to get some medicine for his baby and the date on the medicine bottle was August 9. He did not produce the bottle. Paul and Maddox testified that they and their families had been on vacation, in a hotel, at the time. They did not produce any receipts. In its brief, Respondent says that the date of this conversation was an "unimportant detail." The Trial Examiner believes that the participants considered the date "unimportant" and thus had no motive for falsifying. The Trial Examiner believes that in this instance Maddox's recollection is the more accurate and thus finds that conversation between Maddox and Stanford occurred around August 1 rather than August 9, as Stanford recalled. Despite Stanford's error as to the date, the Trial Examiner credits his testimony that Paul told him to see Maddox and also credits Stanford's version of the conversation with Maddox. The General Counsel contends that the foregoing evidence establishes that Maddox, as chairman of the city council, was an agent of Respondent. I I Respondent, on the other hand maintains that the evidence establishes only that Maddox, as an eminent, influential member of the community, assisted local citizens in securing employment by serving as reference for them. The close relationship between Respondent and the 10 This conversation, occurring more than 6 months before the charge Such an allegation would have been surplusage because there is no was filed, is not alleged or found to be violative of the Act It is referred to allegation that Buckley engaged in any conduct violative of the Act. The only as part of a pattern in determining the relationship between Maddox evidence concerning Buckley is relevant , however, since his position vis-a- and Respondent. vis Respondent and the town is similar to Maddox 's and tends to show a 11 There is no allegation that Mayor Buckley was Respondent's agent pattern of relationship between the town officials and Respondent 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD board, was, of course, a matter of general public knowl- edge. Not only had the plant been financed by bonds issued by the board, but the town officials were prominent- ly included in all publicized ceremonial events conducted by Respondent. The evidence establishes that, before Hyster chose Sulligent as the site for its plant, it sought and secured information that there were no unions in Lamar County. There is no evidence that thereafter Company and town representatives "officially" discussed the union situation. But there was no evidence denying the reasonable assumption that on a private or unofficial basis the matter was discussed. Paul testified that he and Maddox had discussed unions "in general" but had not discussed the possibility of one coming into the Hyster plant or the means of keeping unions out of the plant. This testimony, however, is inherently incredible. There would be nothing unlawful or sinister in their conferring on the most effective means for countering a union organizational campaign. So long as there was no coercion or unlawful interference with employee rights, there is no reason why the Company could not enlist the persuasive powers and advice of the citizenry. The Trial Examiner discredits Respondent's contention that a virtual wall was erected between the Company and the town so far as unionization was concerned. Even in the absence of specific credited evidence that Respondent had individual employees speak to Buckley or Maddox, the evidence as a whole would establish that Respondent's representatives and the mem- bers of the Industrial Board and the Town Council so acted as to hold Maddox out as an agent of the Company. While no two cases ever present identical facts, the Trial Examiner believes that the present case falls within the precedent of Colson Corp. v. N.L.R.B., 347 F.2d 128, 137 (C.A. 8), cert. denied 382 U.S. 904, enfg. 148 NLRB 827; N.L.R.B. v. Lake Butler Apparel Co., 392 F.2d 76 (C.A. 5), enfg. in pertinent part 158 NLRB 863, 873-874; Amalga- mated Clothing Workers [Hamburg Shirt Corp.] v. N.LR.B., 371 F.2d 740, 744 (C.A.D.C.), enfg. 156 NLRB 511; Henry I. Siegel Co. v. N. L. R. B., 417 F.2d 1206 (C.A. 6), enfg. in pertinent part 182 NLRB No. 88. In the words of Judge Leventhal in the Hamburg Shirt case, the Trial Examiner here finds that Respondent's conduct was such as to lead to "the employees' reasonable and predictable conclusion that the business leaders in inveighing against the Union were serving in effect as organs of communica- tion from management." In the main, Respondent appears to have used the community leaders as prestigious spokesmen so that company officials could personally avoid violative statements. Respondent cites Ottenheimer and Company, 144 NLRB 38, 39, fn. 1, and Sparton Manufacturing Co., 150 NLRB 948. In Ottenheimer there appears to have been no "joint venture" between the employer and the community. A 12 Respondent quotes the following sentence from Ottenheimer "Even if we were to assume that Respondent's failure to disavow the action of [the lessor] constituted an affirmance thereof, there is still lacking an essential element for the creation of an agency relationship in that there is no proof that [the lessor] purported to act as the agent of the Respondent . That statement should be contrasted with the later pronouncement by the District of Columbia Circuit in Hamburg Shirt v N.LR B, 371 F.2d at 744 "Clasped together under the stimulus of small town economics, the group of businessmen had formed a corporation which leased the premises to the respondent, but, so far as appears, it was a straight commercial lease transaction, as distinguished from the present case, where the local government's credit was pledged through tax-free bonds and without profit. Additionally, there was no evidence that Ottenheimer had initiated or participated in the lessor's antiunion activities, whereas in the present case the Trial Examiner has found that Paul on occasions caused Maddox or Buckley to speak to employees. Further, in Ottenheimer there is no indication that employees or others had any reasonable basis for believing that the employer and the lessor corporation were acting in concert. The holding was simply that the lessor "did not become the agent of Respondent merely because Respondent re- mained silent after it learned that [the lessor] had repeated its own threat that unionization of the plant would cause it to move." In Sparton, while the land on which the plant was built had been virtually donated, there was no continuing financial relationship between the company and the community. There was no evidence that the company had either instigated or ratified any action by the two local citizens who had made the invidious statements in issue. Finally, it should be observed that, except for Sparton, no later case has cited Ottenheimer as authority on the point here in issue . The more recent judicial and Board cases cited above represent the current trend.i2 (2) Statements to employees Employee Smith had sought Maddox's assistance in obtaining employment with Respondent sometime in February.13 He signed a union card on July 16, thereafter solicited cards from other employees, and served as one of three employees composing the organizing committee. Sometime around the end of July he visited Maddox's place of business to obtain some parts for his car. Smith testified that he was called into Maddox's office. Accord- ing to Smith, Maddox asked if Smith had seen Bradley, who Maddox understood was "down here trying to organize Hyster." When Smith said he had not seen Bradley, Maddox said, "We don't want a union in Hyster, not right now. . . . Maybe about five or six years." Maddox asked Smith to tell any union supporters "to put it off for five or six years." Despite Maddox's denial, the Trial Examiner credits Smith and finds that Maddox's question concerning Bradley was unlawful interrogation designed to elicit information concerning the employees' union activities. Employee Carruth testified that around the middle of July he was at Maddox's place of business to make a downpayment on a tractor he was buying. Carruth testified that he was called into Maddox's office, where Maddox spoke approvingly of the Hyster plant. Carruth's testimony continued: ". . . then he brought up he heard I had been Company and the community were linked in a kind of point venture , rooted in an overlap of financial interest. In this context the Company's silence is expressive The Company made no effort to dissipate the impression that the local entrepreneurs spoke with its authority , nor did the Company repudiate their grim forebodings of the consequence of Union victory." 13 Statements made by Maddox at that time are not alleged as violative of the Act The evidence leaves in doubt whether such statements were made within the 6-month period allowed under Sec. 10(b). HYSTER COMPANY 199 pushing the union, for me to go and get my name cleared up with Billy Paul. When I was going out the door, he told me that they had 50 men to every one man working there watching out for the union." Maddox conceded that he had had a conversation with Carruth on or about July 14. According to Maddox, Carruth was executing a contract in the bookkeeper's office, beside Maddox's private office. Maddox testified that Carruth volunteered the information that the "union people" had been to his house and stayed a long time, despite Carruth's desire to go to bed. According to Maddox, Carruth asked what Maddox would have done and Maddox replied that he "would have turned [his] back on them and went to bed." Maddox also testified that Carl Reeves, his bookkeeper, was present during the conversa- tion. Reeves was not called to testify. Carruth signed his union card on July 14 and, as a member of the organizing committee, solicited 15 to 20 other cards. Under the circumstances, it is most unlikely that he would complain to Maddox about the Union's activities. On the other hand, it would be natural for Maddox to express his opinion as to the disadvantages of unionization. On all the evidence, including careful observation of the demeanor of the witnesses, the Trial Examiner credits Carruth.14 Maddox's telling Carruth to get his "name cleared up with Billy Paul" amounts to a potent, if indirect or veiled, threat of adverse treatment for adhering to the Union. The statement that "they had 50 men to every one man working there watching out for the union," which Carruth attributed to Maddox, is, standing alone, somewhat ambiguous. However, when coupled with the further statement that Maddox had heard that Carruth "had been pushing for the union," it can readily be understood as a statement creating the impression that the union activities of Respondent's employees were being kept under surveil- lance. Accordingly, the Trial Examiner finds that Respondent, through Maddox as its agent, violated Section 8(a)(1) of the Act on or about July 15 by creating the impression of surveillance and by threatening adverse treatment for supporting the Union. As found above, around the beginning of August, following a direction by Paul, Stanford spoke to Maddox. Stanford's and Maddox's contradictory versions of the substance of the conversation are set forth above. Summa- rized, Stanford testified that Maddox said that Respondent would move away if a union came in and threatened that anyone caught talking about the Union would be dis- charged. Maddox maintained that he simply asked "How everything was getting along at the plant" and said he hoped things were all right because he would "hate to have any trouble up there and things don't go as planned." Maddox did not indicate what kind of "trouble" he had in mind which would cause things not to "go as planned." On all the evidence, including careful observation of the demeanor of the witnesses, the Trial Examiner credits Stanford. On the basis of his testimony, it is found that 14 In the Trial Examiner's opinion, contrary to Respondent's, Carruth's possible failure to distinguish between Maddox's pnvate office and the bookkeeping office at his place of business is no reason for doubting Carruth's veracity or accuracy Since the bookkeeper did not testify, the Trial Examiner is inclined to credit Carruth's testimony that the conversa- Respondent, through Maddox as its agent, unlawfully interrogated Stanford concerning his union activities, and threatened discharge for union activity and plant removal if the employees chose to be represented by a union. 2. The discharge of Willis Stanford a. The basic contentions Stanford signed a union card on July 19 and then solicited cards from other employees. As previously found, around the beginning of August, in answer to questions by Maddox, Stanford said he thought the Union would help at the plant and disclosed that he had signed a card. About 2 weeks later, a few days after Paul and Maddox returned from a 10-day vacation together, Stanford was discharged, without any advance notice. Based on all the circum- stances, the Trial Examiner specifically finds that Maddox passed on to Paul the information he had obtained about Stanford. In addition, even absent such specific evidence of company knowledge, because of the smallness of the plant and the general nature of this closely knit small communi- ty, it would be reasonably inferred that the progress of the Union's organizational activities and the identity of the active employee solicitors were known to Respondent. N. L. R. B. v. Pembeck Oil Corp., 404 F.2d 105, 110 (C.A. 2), remanded 395 U.S. 828. The abruptness and timing of Stanford's discharge establish a prima facie case of discriminatory action violative of Section 8(a)(3). N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829; N.L.R.B. v. Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5). "The Company had the burden to come forward with an adequate explanation for discharging [Stanford] once a prima facie case of possible discrimina- tion had been established by the General Counsel." N.L.R.B. v. Standard Container Co., 426 F.2d 793, 794 (C.A. 5). Respondent maintains that the primary reasons for Stanford's discharge was that he was an unsatisfactory employee. The timing and abruptness of the discharge were allegedly dictated by Respondent's desire to terminate the employee before the end of his 90-day "probationary period." Contributing to the discharge, though of second- ary importance,15 according to Respondent, were Respon- dent's decision to change its method of handling materials and its being overstaffed. b. The chronology Stanford commenced working for Respondent on June 2 as a "material moveman." Using a gasoline powered forklift truck, he brought materials from the storage area outside the production area to the various machines and removed finished products from the machines. In general, he learned what materials were needed by watching the machines, by having machine operators tell him when they tion took place in Maddox's pnvate office. 15 In its brief Respondent says. "Like the elimination of the moveman job, the inflated employment level would not, without more, have brought about Stanford's discharge .. " 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD needed materials, and by receiving material slips from the machine operators. He also was responsible for providing the machine operators with empty chip barrels for scrap and for removing full chip barrels. He also was charged with keeping tote boxes in place, with the aisles between rows of machines clear. His first supervisor was Larry Butler. On June 21 Butler recommended Stanford for a merit increase of from $2.16 to $2.27 per hour. The recommendation, approved by P. Carter, Paul, and Plant Manager A. A. Mann, read: Willie seems to be learning how to carry out his duties well and is open to any suggestions that would improve these duties. He has also made some suggestions on how to speed up the operation of his duties. Butler testified that he recommended the increase because Stanford had suggested that the material move- man be supplied with a schedule of production for the next 3 to 4 days so he could better anticipate the men's needs.16 Butler did not inform Stanford of the merit increase before its effective date, July 5. As of June 28 Butler was transferred to the second shift. He testified that, during the short time between his recommending the raise and his transfer, he noticed Stanford's work "gradually starting" to deteriorate. How- ever, Butler filed no "information reports," did not mention the matter to his superiors, and did not say anything to Stanford, even, apparently, when he informed Stanford of the merit increase. Kenneth W. Hierman took over as first-shift foreman, supervising Stanford, as of June 28. He testified that practically from the beginning he found Stanford's work deficient. Sometime after becoming first-shift foreman, Hierman gave Stanford an undated, handwritten list of the specific duties of the material handler's job. He discussed this list, item by item, with Stanford. Hierman testified that on the same day he prepared a formal "information report" concerning Stanford's performance. Respondent introduced the report, with the handwritten list of the duties of the job attached. The text of that report reads: I don't feel that Willie is doing his job properly. He does not keep material supplied to the various work stations until it is too late and the operators have to either stand and wait on him or do their own moving. Assuming that Willie didn't understand his duties, I ask him to come into the meeting room and we sat down and talked about his job and I outlined his duties and told him what we expected of him. We also talked about his standing around and talking too much when there was lots of work to be done. The report bears the date July 15 and is signed by Hierman, Paul, and Robert Guengerich, who arrived in Sulligent as the new plant manager on July 14, Hierman testified that he discussed the report with Paul, "[a]t the time [he] made it out." Guengerich testified that he saw the report the week following July 16 and 17. The printed report form has a line for the employee's signature. Paul testified that such reports are "always" shown to the employees and Hierman testified that foremen are suppos- ed to show them to the employees concerned but he does not always do so. It is undisputed that this report was not shown to Stanford. As hereafter set forth, the accuracy of the date on this report is doubtful. Guengerich, accompanied by Ned Snow, Respondent's director of management action staff, had amved to take over as plant manager in Sulligent on July 14. They spent the first few days observing the operations. According to Guengerich, his first negative "observations" concerned "the lack of work . . . the general disorder in the new factory, and . . . [the] material handling procedure... . He and Snow discussed the matter on July 16 and again on July 17, when they called Paul in to join the discussion. Guengerich testified that Respondent's "production inventory records indicated" that there were about 15 excess employees. Learning that six additional employees were scheduled to report for work on Monday, July 19, Guengerich and Snow asked Paul to cancel those hirings. Paul did stop three of the prospective employees from reporting. According to Paul, the other two had already served their termination notice periods at their former jobs. Guengerich testified that on July 17 they reviewed a "list of employees and probationary employees" and finally agreed to permit the two employees to report on Monday because they "agreed there was some uncertainty in the work loads." According to Paul, at the July 17 meeting Snow complained that no probationary employees had been discharged within the past 90 days. Thereupon a list of employees was produced and they "discussed all the entire group of employees" and thejobs, including material moving. Guengerich said that that job could be eliminated because the material-handling system was to be changed and "the job hasn't been performed as it should be." There is no suggestion that any reference was made to any "information report" on Stanford. Stanford testified, without contradiction, that he signed a union card, on Bradley's solicitation, on Monday, July 19. As previously found, around the beginning of August Stanford revealed this fact to Maddox. Respondent introduced into evidence an "information report" dated August 5 concerning Stanford. It is signed by Hierman as the supervisor and countersigned by Guenge- rich and Paul. The text reads: Willie seems to know what his job is but he would rather visit, than try to keep his work up. We have to ask him to straighten areas that he is supposed to keep straight. And hunt him when we need things moved. Hierman testified that this report was occasioned by his having seen Stanford, without his forktruck, standing watching some steel being unloaded on the loading platform. Hierman rebuked Stanford, who returned to his work forthwith. Stanford testified that at the time in question he was taking a permissible break. There are no set times for breaks at the plant, employees being at liberty to take short breaks for drinking soft drinks or using the restroom at their convenience. As was true with the one dated July 15, this report was not shown to or discussed with Stanford and the line for the employee's signature is blank. Again Hierman ex- plained his failure to show the report to Stanford by stating 16 This suggestion was apparently implemented in substance when the method of handling materials was revised around October 1, some 6 weeks after Stanford's discharge. HYSTER COMPANY that it had been made out after Stanford had left for the day. But Hierman conceded that supervisors are not required to submit such reports to the personnel office the day they are prepared. Guengerich testified that he saw and read that report on August 6. The accuracy of this date on this second report is also questionable. According to Respondent, Snow, having left the Sulli- gent plant around July 23, returned on August 16. Guengench testified that around 1 p.m. on August 17, as he and Snow were returning to the plant from lunch, they saw Stanford standing around on the shipping dock, outside the plant. Nothing was said to Stanford at that time. Guengerich and Snow proceeded into the office, where Snow proceeded to berate Guengerich. According to Guengench, Snow was particularly irate because nobody had been discharged since his prior visit. Snow said, as he had in July, that his extensive experience taught that it was impossible for any management to hire as probationary employees only workers who eventually proved satisfacto- ry. Snow was especially disturbed that no probationary employees had been terminated, while, as previously noted, two new employees had been taken on as of July 19. Paul was summoned to join the discussion and he also was criticized. Then, concluding this conference, Snow asked Guengench "when [he] was going to do something about this material handling situation." However, according to Guengerich, a change in the system had been decided on in July and its effectuation had to await receipt of a second walkie handtruck, which had been ordered. According to Guengerich, the discussion between him and Snow resumed on August 18. In this connection, Guengerich testified: [Snow] and [I] entered into the conversation again on probationary employees and material handling me- thods, and we called Billy Paul into the office and asked him about Willis Stanford, instructed Billy to go get Willis' personnel file and return and we sat there and reviewed his performance from his personnel file. Foreman Hierman was then at home having that day started a 10-day vacation. At Guengerich's request, Paul called Hierman into the office. Guengench testified: ... Kenny [Hierman] came into work and into my office. We discussed our problem, handed Kenny Willis' folder and asked him to read it and tell me if this man was going to make it. Kenny read through it and said ... "He's just not really doing any better. He visits too much, talks too much, he constantly has to be badgered to move material." So I told Kenny to think about it, we were going to go to lunch. After lunch we would get back together and talk about it some more. I returned from lunch and Kenny said, "We're going to have to turn him loose." I agreed. Hierman prepared a "termination report" and an "inform- ation report," which were then countersigned by Guenge- rich and Paul. The termination report indicates that Stanford was being discharged for unsatisfactory work and that he would not be rehired. The written text reads: Willie spends to much time visiting with anybody that 17 Stanford testified that the termination report in the record was not the same as that shown to him at the time of the discharge It appears likely, however, that he simply had failed to read the continuation of the remarks 201 will talk instead of working. We have talked about this before but any improvement is only temporary. Willis is on a probationary period and [continued on reverse side] we feel that it is unfair to keep him any longer when he don't seem able to adapt to our work.17 The accompanying "information report" reads: Willie is still spending to much time visiting instead of working. I don't feel that Willie has a desire to do his work or utilize his time, and unless some body would have the time to direct his every move I don't feel that he will ever become a good employ [sic]. Shortly before the end of the shift Hierman called Stanford into the office, informed him of the discharge, showed him the termination reports, and solicited his written statement and signature. Stanford refused to sign. According to Stanford, Hierman said that there was nothing personal involved. Hierman corroborated the absence of any "hard feel- ings." Stanford reminded Hierman that sometime previ- ously Hierman had offered Stanford a transfer to opera- tion of a machine, at which position he could make more money than he was making as the material moveman. Stanford, having refused that offer when it was made, suggested he could now be put at a machine off by himself, where he could not talk to other employees. Hierman rejected the suggestion. At his request, Stanford then spoke to Guengench. Guengerich maintained that the decision to discharge Stanford had been made by Hierman and Guengerich felt he had to back up the discriminatory decisions of first-line supervisors. He also rejected Stanford's suggestion of a transfer to a machine. Stanford testified that Guengerich offered to provide a recommendation if needed. c. Discussion (1) Claimed overstaffing Hierman testified that when he was called into the plant on August 18 Guengerich said "that we had too many employees and we had to cut some down." However, Guengerich testified that he "would not say [they] had lack of work" at that time. As Respondent itself says in its brief, "the employment picture had improved by the time of Stanford's discharge." According to Respondent, the number of "excess" employees had declined from 15 to 5, at most, despite the fact that two new employees had reported for work on July 19 and no employees had been terminated. Guengench testified that shortly after he arrived at the plant in July, accompanied by Snow, he addressed the employees, saying that, while there was then an apparent lack of work, management had great hopes for expansion and would be devoting considerable effort to increasing the work of the plant. According to his testimony, the thrust of his remarks was reassurance to the employees, with no intimation of any anticipated reduction in force, either permanent or temporary.18 Such assurances were repeated at employee meetings, which are held at approxi- on the back of the form 18 Guengench testified "All I said was, I reassured them You know, I'm new on the scene, what I saw I liked, as you know the plant was, designed to (Continued) 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mately monthly intervals. Respondent consistently made public statements concerning anticipated growth. The fact is that by September Respondent's net employ- ment level had increased by three employees.19 By the time of the hearing, in November, employment had risen from 70 to 100. (2) Undischarged employees At the hearing Respondent attempted to introduce into evidence certain employee production records, the purpose of the offer being, in the words of Respondent's counsel, to "prove that Mr. Carruth is substantially ... below the performance of other employees listed on the document." Respondent argues that Carruth was probably the most active union supporter and "was vulnerable to discharge on the basis of his performance being marginal." From these facts Respondent apparently argues that Carruth's continued employment negatives an antiunion motivation in Stanford's discharge. It is perhaps more reasonable to argue that the retention of Carruth despite his "marginal" performance seriously undermines Respondent's insistence that inefficiency virtually required Stanford's discharge, particularly when Carruth's allegedly inferior productivity coincided with the period in which Respondent contends the plant had some 15 extra employees. In any event, it has long been recognized that an employer's failure to discharge all union activists does not negative an antiunion motivation for discharges shown. "A violation of the Act does not need to be wholesale to be a violation." N.L.R.B. v. Puerto Rico Telephone Co., 357 F.2d 919 (C.A. 1). "The fact that respondent retained some union employees does not exculpate him from the charge of discrimination as to those discharged." N.L.R.B. v. Nabors Co., 196 F.2d 276 (C.A. 5), cert. denied 344 U.S. 865. Finally, it may be observed Stanford is the only individual employee whose union sympathies were shown to have been known to Respondent. According to Respondent's witnesses, Carruth had voluntarily disa- vowed any such sympathy. (3) Alleged "elimination" of Stanford's job After Stanford's summary discharge on August 18 material handling was performed on a somewhat makeshift basis. For a week or so the forklift was operated by a summer employee who was unable to operate his machine because of an injury. Around the end of August that employee left Respondent's employ to return to school. Thereafter the forklift was operated by employees who were temporarily out of work or by machine operators to obtain their own parts.20 Around October 1 the system was changed so that a expand and that's what I was going to put my efforts to bring more work into support the overhead I told them that we did have a lack of work in house, for people not to get excited about it , my every effort would be spent getting work into the house." 19 According to Paul, two employees were hired in July, two in August, and six in September , six employees quit in July and August Stanford was the only employee discharged. 20 This fact reinforces the conclusion heretofore reached that there were no "excess" employees at the time of Stanford's discharge forklift truck brought the material from outside to a supply area within the plant, from which individual operators got their own materials, using battery-powered, hand-directed trucks. The forklift truck was used for moving materials or products within the production areas only upon specific request, on infrequent occasions. The forklift operator's title is "material supply man," rather than "material moveman," which had been the designation of Stanford's position. The revised job was not under Hierman's jurisdiction, but rather assigned to the inventory supply department. The revised position does not entail moving material or products within the production area and, so far as appears, the successor employee is not charged with keeping the interior of the plant in a neat and orderly condition. The new employee has somewhat more invento- ry responsibilities than Stanford had had. The record is silent as to whether Vaughn, the present material supply man, was previously employed by Respondent and, if so, what his prior job was. The evidence thus establishes that, while Stanford's job was somewhat revised, it was not eliminated. An employee now works full time supplying materials for the machines removing finished products, and providing and removing clip barrels. As did Stanford, he uses a forklift truck. Even is it be assumed that Stanford's job was "eliminat- ed," such elimination could not practically occur until there was a viable alternative method of handling materi- als. The existing method was continued until the new equipment arrived around October 1. Thus, the alleged "elimination" of the job could not explain Stanford's precipitous discharge on August 18. (4) Stanford's "probationary" status Respondent's emphasis of Stanford's "probationary" status deserves some analysis. First, it should be noted that Respondent's employee handbook does not refer to "probationary" employees as such; nor does it specifically state that unsatisfactory employees will not be retained beyond 90 days. All it says is that persons who do not meet production standards by the end of 90 days will be subject to "disciplinary action." There were no "production standards" applicable to Stanford's job. So far as the present record indicates, the major effect of an employee's having completed 90 days is that his wage is then raised to the level established for the particular job he is then performing, as distinguished from the lower wage range at which new employees work. In practice "probationary" employees are no more vulnerable to discharge than are "regular" employees. Since Respondent entered the area, it has discharged more "regular" than "probationary" employees.21 Stanford had received a merit increase effective July 5, a month after starting to work. To minimize the probative 21 Paul's testimony was "Q. ( By the Trial Examiner). Did you testify that four probationary employees in addition to Stanford have been fired9 A No, ma'am, eight, including-Now, I'm almost positive it's eight I would have to actually look at my personnel records to know Q Have any been fired who have been there more than 90 days? A Yes, ma'am Q How many9 A Oh, another 10, 12, 15 maybe. Again, I'd have to look About 25-28 people have either been terminated or resigned since we started Q. I'm talking about those just terminated involuntarily Fired. A. Well, we discussed with them, we felt that involuntarily future would be greater HYSTER COMPANY 203 effect of this fact, Respondent maintains that, at least prior to Guengerich's arrival, 80 percent of the probationary employees had received merit raises during their proba- tionary periods. If that is accepted as true, the necessary inference is that employees not receiving such increase were notoriously or hopelessly unsatisfactory. Yet there is no evidence that such employees, or any of them, were discharged. Employee Richard Hargett, called by Respondent, testified that he had received a merit increase when he was shifted from an unskilled job to skilled maintenance work. He testified: ". . . your merit increases would be by how you could do your job. If you did a real good job and they thought you were performing real good you would get a merit raise after so many days, after say 30 days or two months or something like that." Thus, at least employee Hargett did not consider merit increases as routine for probationary employees.22 There is no evidence that Stanford was ever warned of possible discharge or other disciplinary action if his performance did not reach a satisfactory level by the end of a so-called probationary period. If a probationary employee had been performing well enough to receive a merit increase, one would reasonably expect that he would be warned of his precarious plight. Hierman maintained that he did not even know that Stanford had received a merit increase-a fact which casts considerable doubt on the alleged practice of periodically reviewing probationary employees. (5) Stanford's alleged deficiencies As previously observed, Butler testified that he noticed a "gradual" decline in Stanford's performance between June 22 and 26. He further testified that thereafter he had occasion to observe inadequate performance by Stanford. However, Butler did not mention this to Stanford or, apparently, to anybody else. He did nothing to counter- mand his recommendation of a merit increase. Hierman testified that at least once every day he had to tell Stanford to do something. And Hierman said that very often he had to go find Stanford to have material delivered to employees who were waiting for them. Hierman maintained that frequently it took him up to 10 minutes to locate Stanford and that 50 percent of the time Stanford would be found talking to some employee. On cross- examination, however, Hierman conceded that Stanford's job required him to move around the plant, and, because of the distances involved, it could take Hierman as much as 10 minutes to find Stanford when he was doing precisely what he was supposed to be doing. And Hierman further conceded that it would be necessary for Stanford to talk to other employees in the course of his duties. discussed with them, we felt that involuntarily . . future would be greater elsewhere " Respondent did not produce any employment records 22 Paul testified that shortly after arriving Guengench announced a change, under which employees would henceforth not be evaluated until the end of their first 90 days because "you can't determine if a man really is deserving of an increase until his 90-day probationary period is over" Guengench did not testify to any such change 23 As said by Trial Examiner Ohlbaum in Federal Envelope Co, 147 NLRB 1031, 1036• "1 have also taken into account that all [the specified witnesses 1 are still employed by Respondent and therefore, by testifying as Although working under the supervision of Butler and then Hierman, Stanford also had to service the employees working under Foreman Frank Seripin. On direct exami- nation Seripin testified that he often had to look for Stanford and that 25 percent to 30 percent of the time he found Stanford off his forklift, standing talking to employees. According to Seripin, there was no need for Stanford to leave his truck to talk to the machine operators. Seripin later raised to 75 percent the number of times Stanford was found off his truck, standing talking to employees. The discrepancy was unexplained. Seripin and Hierman testified that Seripin spoke to Hierman about the problem on two occasions, once in the first week of July and once toward the latter part of July. Seripin's alleged dissatisfaction, however, was never noted in Stanford's personnel file. Most significant is Hie-man's testimony that he had daily complaints from machine operators who, paid on an incentive basis, were being prejudiced by Stanford's failure to keep them supplied with materials when needed. Although Respondent called three employees as witnesses, none of them was questioned concerning Stanford's work. There was no corroboration of Hierman's testimony concerning employee complaints. On the other hand, the General Counsel presented two employee witnesses who testified unequivocally that Stanford performed efficiently and kept them properly supplied. Respondent would apparently seek to discount the General Counsel's testimony and excuse Respondent's failure to present primary evidence of employee complaints on the ground that, in the words of Respondent's brief, "it is generally inferred that employee witnesses will testify in corroboration of other employee witnesses." But the established presumption is to the contrary. See Bush Hog, Inc., 161 NLRB 1575, 1580, enfd. 405 F.2d 755 (C.A. 5).23 According to Paul, the two employees who testified to Stanford's efficient performance had previously disavowed any union sympathies. It is unlikely that such persons would voluntarily give false testimony adverse to Respon- dent. As previously noted, Stanford was never warned that his performance was so poor as to place him in jeopardy of discharge or disciplinary action. On the other hand, according to Paul, Stanford was specifically warned twice in July that, as set forth in Respondent's employee handbook, "Excessive garnishments of wage assignments" might "be cause for disciplinary action." These warnings were given when Stanford's uncle suggested that he might garnish Stanford's wages if Stanford did not turn over the proceeds from a horse that Stanford had sold for the uncle. No garnishment was brought, so the incident could not serve tojustify Stanford's discharge.24 Respondent contends that Stanford failed to fulfill his they did in a sense exposed themselves to economic peril in the form of job retaliation of various varieties, and that their testimony in that sense was contrary to their own best interests, so to speak " Cf. N LR.B v Gissel Packing Co, 395 U S 575, 608, "We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union , particularly where company officials have previously threatened reprisals for union activity in violation of § 8(a)(1)." 24 In its brief Respondent argues that Paul's warning Stanford about the possible effect of garnishments "shows the Company's desire to have helped (Continued) 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligation before leaving work each day to see that the machines were all supplied with sufficient materials for the second and third shifts. Hierman testified that Stanford was supposed to do this but never did, and that Hierman had spoken to him about this deficiency. Although the handwritten list of Stanford's duties does list the require- ment, Stanford denied having had this responsibility. Nobody explained how the obligation could have been met. So far as appears, it would have presented considera- ble difficulty, since there was then no storage area within the plant and the evidence clearly indicates that there was sufficient space at each machine only for the material then being worked on. It was for this reason presumably that it was so important that Stanford not delay in removing finished products and full chip barrels and promptly supply new material and empty chip barrels when needed. Apparently machine operators could not be (or at least were not) supplied at one time with sufficient material for the entire shift. The shortage of space at the machines was the prime reason for Respondent's insisting upon Stan- ford's seeing that tote boxes were kept out of the aisles and for the ultimate decision to discontinue the use of a forklift truck for internal movement of material. In any event, Guengench indicated that the first-shift material handler was not required to service the other two shifts. In describing the temporary makeshift operation following Stanford's discharge. Guengerich testified that the first- shift machine operators obtained their own materials -"Just like on the second and third shifts." Finally, it should be noted that Stanford's failure to supply materials for the second and third shifts is not referred to on the termination report or on any of the three "information reports" introduced into evidence by Respondent. The evidence does establish that sometime after Hier- man became first-shift foreman he did talk with Stanford and gave him a handwritten list of his specific duties. Stanford conceded that this was helpful to him. According to Stanford, Hierman did not then "chew" Stanford "out." The employee report referring to this list corroborates Stanford's view, saying that the list was provided because Hierman [a]ssum[ed] that Willie didn't understand his duties." Stanford on his part acknowledged that Hierman had once spoken about Stanford's spending too much time talking to employees. Hierman, who testified that he had spoken about the matter more often, conceded that on each occasion the conversation was very brief and Stanford immediately went about his work. There was no affirmative evidence that Stanford's excessive talking to other employees was for extended periods or unrelated to his work. Hierman conceded that, to some extent at least, it was necessary for Stanford to talk to other employees in the line of duty. Hierman did not specifically corroborate Seripin's view that it was unncessary for Stanford to get off his truck for such talk. And even Seripin failed to testify that alighting from the truck would itself cause any substantial delay. Stanford testified that in his termination interview with Guengerich Stanford referred to a recent "gripe session" in which "someone mentioned they needed another forklift, and a lot of times [Stanford] was tied up doing stuff, working," and Guengerich "said he was working on that." This testimony was uncontradicted. It may be inferred that the revised system of handling materials was the result of Guengerich's "working on" the problem. The evidence as a whole fails to establish that Stanford's performance or conduct was so deficient as reasonably to lead to summary discharge without warning or notice. If his performance was short of fully meeting the plant's needs, the major problem lay in the inadequacy of the established method for handling materials, as evidence Snow's and Guengench's almost immediate decision to revise and administratively reorganize the system. (6) The circumstances of the discharge The immediate circumstances of the discharge require analysis. As heretofore noted, Hierman was called into the plant from his vacation. The explanation that Respondent was desirous of effectuating the termination, if there was to be one, before Stanford's "probationary" period ended is not entirely convincing. One is tempted to ask why the matter could not be left for Hier man's return on August 30, a day or two before the end of Stanford's first 90 days. If the discharge could be effected so expeditiously on August 18, presumably it could be done on August 30 or 31. Significant questions are why Hierman's presence was required at all and why he had to review Stanford's personnel file before he could express an opinion as to whether Stanford was "going to make it." If the informa- tion reports dated July 15 and August 5 (and signed by Guengerich) were in Stanford's personnel file, it is difficult to understand what further information Guengench and Snow needed. If necessary, Hierman could have been asked on the telephone if Stanford had shown any recent improvement. If, as Hierman testified, the need to criticize Stanford on at least a daily basis had persisted unabated, there is no apparent reason for his having to review the personnel file before expressing his opinion. Hierman testified that before being called into the plant on August 18 he had no intention of firing Stanford. On the contrary, he had previously offered Stanford a transfer to a job where he could realize higher earnings. Hierman did not indicate what he found in the file that changed his mind. The only item in the file which Hierman presumably ad not prepared or previously seen was Butler's successful recommendation of a merit increase. That document could hardly have led Hierman to decide in favor of discharge. And there is no suggestion that Butler's explanation or views were solicited. The foregoing discussion necessarily leads to considera- tion of the "information reports" bearing the dates July 15 and August 5, the existence of which was never disclosed to Stanford. If Hierman had made out the first report at the same time he prepared the undated list of Stanford's duties, it is reasonable to assume he would have shown it to Stanford. Stanford secure his job with Hyster" The Trial Examiner does not fully understand why Respondent would want to help Stanford "secure his job" if, as Respondent contends, his work had been unsatisfactory for over a month and the Company had decided to "eliminate" Stanford's job and wanted to discharge excess and/or "probationary" employees HYSTER COMPANY On the other hand, if he was sufficiently dissatisfied with Stanford's work to prepare the report, he would hardly have recorded his "assumption" that Stanford simply did not fully understand his duties. Further, if the report had been prepared by Hierman and read by Paul on July 15, presumably it would have been mentioned in the confer- ences on July 16 and 17, when Snow was allegedly complaining about the failure to discharge any "probation- ary" employees and the plant's overstaffing. And Guenge- rich would probably have taken some action the next week, when he said he saw and signed the report. This, it should be added, was after Respondent maintains it had decided to "eliminate" Stanford's job. Thus, the evidence as a whole casts considerable doubt on the accuracy of the July 15 date appearing on the first information report. The second report is dated August 5. There is no substantial evidence that around that time Paul or Guengench, who signed the report, considered discharging Stanford despite Respondent's testimony that Snow had emphatically insisted on the necessity of discharging unsatisfactory "probationary" employees. Paul's and Guengerich's apparent ignorance of the report when Snow returned to Sulligent in the middle of August leads the Trial Examiner to doubt whether that report was complet- ed on August 5, the date it bears. In any event, whenever the information reports were prepared, they played no causative role in the discharge. The discharge was instigated by management personnel, who then were at great pains to place the onus on Hierman. Since the change in the method of handling materials could not be effectuated immediately, and in view of Guengench's concession that there was no shortage of work at the time, the reasonable inference is that management's initiation of the discharge was motivated by unspoken and unrevealed considerations. The involvement of Hierman was designed to hide management's role so as to make it appear a routine operational event rather than a "policy" decision. The discharge came within a few days after Paul and Maddox returned from a vacation they had taken together. Whether the timing of Snow's second visit was purely coincidental, it was providential. The entire sequence of events leads to the inference that Respondent was "making a record" for the discharge of Stanford, who had admitted his union sympathies to Maddox. d. Conclusion The record as a whole, together with careful observation of the witnesses, leads the Trial Examiner to conclude that high-ranking management had Stanford discharged shortly after learning of his union sympathies and activities and for the purpose of discouraging union membership, in contravention of Section 8(a)(3) and (1) of the Act. 25 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. CONCLUSIONS OF LAW 205 1. James Hill Maddox, chairman of the town council of Sulligent, Alabama, acted as agent of Respondent. 2. By coercively interrogating employees concerning union sympathies and activities; by soliciting an employee to report on union activities; by threatening employees with discharge for supporting the Union; and by threaten- ing that the plant would close down or move away,if the employees chose to be represented by the Union, Respon- dent, through Billy Paul, personnel manager of its plant in Sulligent, Alabama, and James Hill Maddox, its agent, interfered with, restrained, and coerced employees in the exercise of their rights under Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1). 3. By discharging Willis Stanford on August 18, 1971, and failing and refusing to reinstate him thereafter, Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The General Counsel has not shown by a preponder- ance of the evidence that Respondent has engaged in any unfair labor practices other than those found above. THE REMEDY Having found that Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that Respondent be ordered to cease and desist therefrom and take affirmative action of the type customarily ordered in such cases. Having found that Respondent discnminatorily dis- charged Willis Stanford in violation of Section 8(a)(3) of the Act, the Trial Examiner will recommend that Respon- dent be required to offer him immediate and full reinstatement, with backpay, to be computed in the manner established in F. W. Woolworth Company, 90 NLRB 289, together with interest at 6 percent per annum in accordance with 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, the Trial Examiner hereby issues the following recommended: 25 ORDER Respondent, Hyster Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning union activities involving Respondent's plants in Sulligent and Beaverton, Alabama. (b) Threatening discharge of employees who sign union authorization cards. 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 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Threatening to move away or close down the Sulligent, Alabama, plant if the employees choose to be represented by a labor organization. (d) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discharging any employee or by discnnunating in any other manner in regard to hire and tenure of employment or any term or condition of employment. (e) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form or join labor organiza- tion, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act: (a) Offer Willis Stanford immediate and complete reinstatement to his former job or, if that position is no longer in existence, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in "The Remedy" section of this Decision. (b) Notify Willis Stanford, if he is presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. (c) 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 and compute the amount of backpay due under the terms of this recommended Order. (d) Post at its facilities in Sulligent and Beaverton, Alabama, copies of the attached notice marked "Appen- dix." 26 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. 26 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." Dated By APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the law and we have been told to post this notice about what we are committed to do. The Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. We assure all of our employees that: WE WILL NOT do anything that interferes with these rights. WE WILL NOT threaten employees with plant closure, removal of our operations , discharge, or any other types of reprisals if they join or support United Steelworkers of America, AFL-CIO, or any other labor union. WE WILL NOT unlawfully interrogate employees concerning their union membership, activities, or desires, or concerning any union activities among our employees ; and we will not request that employees report to us concerning any such activities. WE WILL NOT discharge or otherwise discriminate against employees because they select the United Steelworkers of America , AFL-CIO, or any other labor union, as their collective-bargaining representative. WE WILL offer Willis Stanford immediate and full reinstatement to his formerjob (or, if that job no longer exists, to a substantially equivalent job) without prejudice to his seniority or other rights and privileges. WE WILL make Willis Stanford whole for any loss of earnings he may have suffered by reason of his discharge by us on August 18, 1971, together with interest. WE WILL notify Willis Stanford, if currently serving in the Armed Forces of the United States , of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after his discharge from the Armed Forces. HYSTER COMPANY (Employer) (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. HYSTER COMPANY 207 Any questions concerning this notice or compliance with Peachtree Building, Room 701, 730 Peachtree Street, NE., its provisions may be directed to the Board's Office, Atlanta, Georgia 30308, Telephone 404-526-5760.