Famet, Inc.

FAMET, INC. 409 Famet, Inc. and International Association of Machin- ists and Aerospace Workers, AFL-CIO, Local Lodge No. 1327. Case 20-CA-7242 March 15, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 23, 1972, Administrative Law Judge' Herman Marx issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and the Respon- dent filed a brief in opposition to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. Contrary to the Administrative Law Judge, we find that the Respondent wrongfully discharged employee Rutledge in violation of Section 8(a)(3) of the Act. In reaching this conclusion, we are persuaded by the General Counsel's principal contention that the Administrative Law Judge failed to consider and properly apply all of the material evidence relative to the issue of Rutledge's discharge by Plant Manager B. Katshen (erroneously shown as Katchen in the attached Decision). As found by the Administrative Law Judge, employee Rutledge was by far the most active union protaganist among the production and maintenance workers in Respondent's plant. Indeed, it appears that Rutledge was the only employee affirmatively engaged in organizational activity. Thus, early in November 1971, on his own initiative, Rutledge visited the Union's headquarters and inquired about the procedures incidental to organizing his cowork- ers. He was furnished with basic information relating to the mechanics of union organization and given a supply of union authorization cards which he was instructed to distribute among the employees for 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 2 Rutledge made no attempt to proselyte employee Beardslee who, from the record, is a personal friend of Respondent's plant manager and officer, Katshen, and who testified for the Respondent at the hearing herein 3 Subsequently, on February 1, 1972, following a Board election, the Union was duly certified as the statutory bargaining agent for these employees 4 In the plant production area there are separate work benches provided their acceptance and execution. Immediately there- after, and while on Respondent's premises, Rutledge personally disseminated these cards among the employees in the prospective bargaining unit so that in a day or two he had contacted 10 of the 11 employees concerned.2 Some of them signed the cards forthwith; others took them and promised to give further consideration to the matter.3 In this context, we note the comparative smallness of Respondent's plant and the fact that all three of Respondent's managers or supervisors were almost continually among and around the other employees because they all performed regular production work at various times.4 Thus, by virtue of circumstances, Respondent was obviously capable of exercising very close observation of all aspects of its employees' work and behavior throughout each workday. Employee Rutledge was discharged on November 12, 1971, a few days after the foregoing activity occurred. Late in the morning of that day, Plant Manager Katshen was distributing paychecks to the employees and when he approached Rutledge's work station he observed Rutledge engrossed in conversa- tion with employee Aiello. Katshen handed them their paychecks and said nothing to them, but, according to his testimony, was secretly annoyed because Rutledge was not devoting full time and attention to the work on his bench. A short time thereafter, Katshen ordered Foreman Staudt to notify Rutledge that he had been seen chatting instead of working during company time and to admonish the latter to discontinue such conduct. Consequently, when Rutledge returned from his lunch break, he was accosted by the foreman who conveyed Katshen's message to him. During the ensuing colloquy, Rutledge told Staudt, inter alfa, "the cat is out of the bag," that Staudt should take a neutral posture because "they had enough on Bernie [Katshen]," and "they were going to get him." 5 Immediately following this episode, Stuadt returned to the office and reported Rutledge's remarks to Katshen. Staudt also told Katshen that employees Stahl and Chasco were involved. Katshen reacted by stating that he would not wait "for anybody to get him" but that he would "get such a person first." Thereupon, he instructed his secretary to prepare for Plant Manager Katshen, Assistant Manager L Poore, and Foreman G Staudt 5 Just prior to this encounter with Staudt, Rutledge had been warned by employee Salinas that he had heard that Katshen knew all about the union activities in the plant While we agree with the Administrative Law Judge that this hearsay evidence standing alone furnishes inadequate legal basis per se for a finding that Respondent was aware of Rutledge 's prounion efforts at the time of the discharge, it does serve to illuminate the meaning of Rutledge's phrase that "the cat is out of the bag." 202 NLRB No. 52 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checks for Rutledge's wages and his accrued vacation pays Katshen and Assistant Manager L. Poore then proceeded to Rutledge's work area where Katshen asked Rutledge, "What's this I hear that you are going to get me?" Rutledge denied making the statement and Foreman Staudt was summoned to repeat what he had previously reported to Katshen. Thereupon, the plant manager discharged Rutledge and gave him his two paychecks. Before Rutledge departed, Katshen searched through Rutledge's toolbox for company property and while doing so came across a quantity of blank union authorization cards whereupon he asked Rutledge "if he was trying to organize a union at the plant." 7 Our careful assessment of all of the evidence pertaining to Rutledge's comprehensive and vigorous union activity leads us to reject the Administrative Law Judge's finding that the Respondent was not cognizant of this discriminatee's leading role in the Union's organizational undertaking. Consequently, we find that the General Counsel has sustained his burden of adducing preponderating evidence in this regard so as to satisfy the requirements of the Act. It is well settled by the Board and the courts that proof of knowledge of union or concerted activity may be shown by circumstantial as well as by direct evidence.8 Hence, we infer that at the time Rutledge was terminated the Respondent possessed knowledge of his union activities. We are particularly persuaded as to the validity of this finding by the following evidence, inter alia: the small number of employees at the plant (11 during relevant times) and the very close day-to-day contact the managers and supervi- sors maintained with the employees in the pro- duction areas by virtue of their personal involvement in the fabrication of the plant's products; the timing of the discharge in its close relationship to Rutledge's authorization card distribution and his attendant discussions with the employees; the circumstance that even on the day of the discharge employees were discussing the "pros and cons" of union affiliation as shown by the conversations between Beardslee, Salinas, and- others; the peremptory nature of this personnel action whereby a valued employee who 6 We note that when Rutledge began to work for Respondent in April 1969 his pay was $3.25 per hour. Between that time and the date of his firing, Rutledge was given several wage raises so that he was receiving $4.95 per hour at the later date. r Although the evidence is conflicting, this version is a synthesis of the testimony relating to the exit interview and generally reflects the pertinent findings of the Administrative Law Judge. B See Long Island Airport Limousine Service Corp., 191 NLRB No. 16; Wiese Plow Welding Co., Inc., 123 NLRB 616, 618. 9 The Administrative Law Judge took note of this circumstance by observing, "Perhaps another person in Katshen's position would have asked Rutledge, before deciding to discharge him, by what means he intended to carry out the threat "to get" him and, depending upon the response, would have taken a more tolerant view of Rutledge 's rhetoric, but the course Katshen took was not so excessive as to point to an ulterior motive for the had been granted substantial pay raises during his 2- 1/2 year tenure at Respondent's plant was selected for firing by having his paychecks readied even before the plant manager would accord him any opportunity to explain his utterances to Foreman Staudt.9 Accordingly, we conclude that there is ample evidence upon which to predicate the infer- ence that the plant manager was aware of employee Rutledge's prounion efforts when he decided to discharge him. Nevertheless, there remains for our consideration the matter of Rutledge's remarks to Foreman Staudt when he was admonished against talking on the job. While we do not condone employee misconduct in general, we do not feel that the imprecise and ambiguous nature of Rutledge's statements in the circumstances of this case are tantamount to a threat against Katshen, nor need they, in reason, have been so understood by him.10 In any event, the plant manager obviously was not predisposed to grant Rutledge the benefit of any doubts which may have arisen in his mind about the meaning of Rutledge's rhetoric as it was reported to him. Instead, Katshen precipitately ordered his secretary to prepare Rut- ledge's paychecks purely on the strength of Staudt's report. However, we consider in this context a significant fact not mentioned by the Administrative Law Judge; namely, that Staudt reported that employees Stahl and Chasco were also involved in the affair. Yet, Katshen did not order the immediate preparation of their paychecks, nor did he even approach them about the incident until some time after Rutledge had been expelled from the plant.11 There is further evidence of disparate treatment being meted out to Rutledge in connection with the original "talking on the job" incident which triggered Katshen's admonition, via the foreman, to this employee. As mentioned, supra, Rutledge was ob- served by Katshen to have been engaged in this conversation with employee Aiello, but there is no evidence that Respondent even mentioned the impropriety of this conduct to Aiello, to say nothing of the fact that Respondent never gave him a disciplinary warning for being equally involved in dismissal." Manifestly, we disagree with the conclusion contained in this excerpt. tO In our view, Rutledge's remarks to Staudt that they had "enough" on Katshen and were going "to get" him occurred in the context of the Union's organizational effort and, providing the plant manager had been interested in learning their import, could have been understood to relate only to Rutledge's hope that the campaign would succeed and that Katshen would ultimately be forced to engage in collective bargaining . To us, this construction is much more reasonable than Katshen 's self-professed view that Rutledge had, in fact, threatened him with bodily harm. II When eventually asked by Katshen about the matter, both Stahl and Chasco denied their complicity with Rutledge and dissociated themselves from the incident. For all that appears, their denials were accepted and no reprisals were visited on them. FAMET, INC. this purported breach of company rules. As for the Respondent's antiunion motivation, we think it is sufficiently established during relevant times by: Katshen's remarks to Rutledge at the time he was discharged concerning the authorization cards he found in the latter's toolbox; the antiunion views enunciated by Katshen at a meeting of employees called by Respondent prior to the Board election held herein,12 and similar opinions subsequently expressed by Katshen to employees Salinas and Beardslee; and our adoption of the Administrative Law Judge's finding that the Respondent violated Section 8(a)(1) of the Act by Plant Manager Katshen's interrogation of employee Cordova and threat of curtailed production, should the plant be unionized, made to him not long after Rutledge was discharged. In view of the foregoing, and particularly considering Respondent's discriminatory treatment of employee Rutledge, we find that the essentially ambiguous statements made by him, which he was not given a fair opportunity to explain, were seized upon by the Respondent as a pretext to justify his discharge. Accordingly, we conclude that Rutledge was discharged in violation of Section 8(a)(3) and (1) of the Act.13 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Famet, Inc., Redwood City, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interrogating any of its employees concerning any activity of any employee in, with, or on behalf of any labor organization, or the choice of such organization as a bargaining representative, in a manner constituting interference, restraint, or coer- cion within the meaning of Section 8(a)(1) of the Act. (b) Discouraging membership in, or activities on behalf of, the above-named Union or any other labor organization by discharging employees or otherwise discriminating against them in any manner with 12 These remarks of the plant manager are not alleged in the complaint as violative of the Act. 13 See Great Lakes Carbon Corp, 175 NLRB 1050, 1055-56 Contrary to our dissenting colleague , we are not reversing or taking issue with those credibility resolutions of the Administrative Law Judge which underlay his recommendation with respect to the dismissal of the 8(a)(3) allegation pertaining to the discharge of Rutledge . As indicated above in In. 7, we have, in fact, adopted substantially all of the recited evidence, including the credibility resolutions, relied on by the Administrative Law Judge in his treatment of Rutledge 's discharge. Moreover, it should be noted that the Administrative Law Judge, himself, in In 12 and related text of his Recommended Decision, expressed serious reservations concerning Katshen's credibility Accordingly, unlike our colleague, we do not understand the Administrative Law Judge to have decided this matter essentially on the basis of his credibility resolutions, but rather upon his conclusion that the General Counsel failed to meet his burden of proof as to 411 regard to their hire and tenure of employment or any term or condition of employment because of their union activities. (c) Directly or indirectly or expressly or by implication threatening or in any other manner informing any such employee that he may or will be discharged, or otherwise denied work or employ- ment, because he has engaged, or if he engages, in any activity in, with, or on behalf of any labor organization, or has 'designated, or if he designates, any such organization as his bargaining representa- tive. (d) In any other like or related manner interfering with, restraining, or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which, I find, will effectuate the policies of the Act: (a) Offer Ronald Rutledge immediate and full reinstatement to his former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights previously enjoyed, and make him whole for any loss of pay due to the violation against him in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at the Company's place of business in Redwood City, California, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Company's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said Rutledge We, of course, for the reasons previously enunciated, disagree with this conclusion While it is true that our reversal of the Administrative Law Judge's recommended dismissal of the 8(aX3) violation with respect to Rutledge is in part grounded on circumstantial evidence, it must be realized that direct evidence of an intention to violate the Act is seldom obtainable by the Board and, consequently , it is incumbent upon the Board to have such reasonable recourse to circumstantial evidence as will necessaniy comport with a careful and prudent effort fairly and effectively to administer the Act, Medo Photo Supply Corporation, 43 NLRB 989, enfd. 135 F 2d 279 (C A. 2), affd. 321 U.S 678. 14 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. CHAIRMAN MILLER, dissenting: Contrary to the majority I would adopt the credibility resolutions of the Administrative Law Judge, and his conclusions therefrom, and dismiss the 8(a)(3) allegation based on the discharge of Rutledge. From the evidence before us, either as recited by the majority or by the Administrative Law Judge, I am unable to find and unwilling to infer, without evidentiary base, that Respondent was aware that Rutledge was engaged in union or concerted activity at the time of his discharge. Furthermore, on the issue of whether the discharge was discriminatory or for cause, I am persuaded, as was the Administrative Law Judge, that it was for cause. The dischargee admittedly engaged in miscon- duct immediately prior to the discharge. Thus, the facts show that when Rutledge was being admon- ished for talking instead of working, he threatened "to get" Respondent's manager and, in response to that threat, Respondent's manager replied that he would not wait, but would "get such a person first." The Administrative Law Judge credited testimony that Respondent discharged Rutledge because he made this threat. The majority finds that this was not the real reason for Respondent's action, relying instead on the assumption that Respondent acted because of its knowledge, of Rutledge's union activity. Thus the majority rejects the credited testimony and substitutes an inference of pretext which in turn rests on an unwarranted inference of knowledge of union activity. Because I would prefer not to reverse credibility resolutions on the basis of such pyramided and unsupported inferences, I dissent. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through represent- atives of their own choosing To engage in activities together for the purposes of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL offer Ronald Rutledge immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights, and make him whole for any loss of pay suffered by reason of the unlawful conduct against him. WE WILL NOT interrogate any of our employees concerning any activity of any employee in, with, or on behalf of any union, or any employee's choice of a union as his bargaining representative, in a manner constituting interference with, restraint, or coercion of any employee in the exercise of any of the foregoing rights. WE WILL NOT directly or indirectly or expressly or by implication threaten or in any manner inform any such employee that he may or will be discharged, or otherwise denied work or employ- ment because he has engaged, or if he engages, in any activity in, with, or on behalf of any union, or has chosen, or if he chooses, any union as his bargaining representative. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce any of our employees in the exercise of any of the rights set forth above. FAMET, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- vidual, if presently serving in the Armed Forces of the United States, of the 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. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. FAMET, INC. 413 DECISION II. THE LABOR ORGANIZATION INVOLVED STATEMENT OF THE CASE HERMAN MARx, Trial Examiner: The complaint, as amended, alleges that an employer, Famet, Inc. (herein the Company or Respondent), has violated Section 8(a)(1) and (3) of the National Labor Relations Act, Series 8, as amended' (herein the Act), by discharging an employee, Ronald Rutledge, because he engaged in union or other concerted activities protected by the Act; and, in violation of said Section 8(a)(1) has interrogated employees regard- ing union or other protected activities, and threatened employees with discharge and reductions in work because they engaged in such activities.2 The Respondent has filed an answer which, inter alia, denies the commission of the unfair labor practices imputed to it in the complaint. Pursuant to notice duly served by the Board's General Counsel upon all other parties, a hearing on the issues was held before me, as duly designated Trial Examiner, on March 29 and 30, 1972, at San Francisco, California. The General Counsel and Respondent appeared through respective counsel, and all parties were afforded a full opportunity to adduce evidence, examine and cross-exam- ine witnesses, and submit oral arguments and briefs.3 Upon the entire record, and my observation of the demeanor of the witnesses, and having read and consid- ered the briefs filed with me, I make the following: FINDINGS OF FACT 1. NATURE OF THE COMPANY'S BUSINESS AND JURISDICTION OF THE BOARD Famet, Inc., is a California corporation ; maintains its principal place of business , including a plant, in Redwood City, California, where it is engaged in the business of manufacturing marine equipment ; employes individuals in its operations; and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business during the 12 months immediately preceding the issuance of the com- plaint, the Company received goods and supplies valued in excess of $50,000 directly from suppliers located outside the State of California, and sold goods and products valued in excess of that sum directly to customers located outside the said State . By reason of such transactions, the Company is, and has been at all material times, engaged in interstate commerce , and in operations affecting such commerce, within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdiction of the subject matter of this proceeding. 1 29 U.S.C. § 158 (a)(1) and (3). 2 The complaint was issued on March 6, 1972, was amended at the hearing in this proceeding, and is based upon a charge filed with the National Labor Relations Board (herein the Board) on January 24, 1972. Copies of the charge and complaint have been duly served upon the Respondent. 3 The General Counsel has submitted with his brief a motion to amend the transcript, together with proof of service of the motion on all other International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge No. 1327, filed the charge upon which this proceeding is based, and is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company normally employs some 10 or 11 pro- duction and maintenance employees at its plant in Redwood City. These work under the supervision of a foreman, Gerd Staudt (also Gary and Stout in the record), who is subject, in turn, to direction by the plant manager, Bernie Katchen, who owns a majority of the Company's corporate shares and is its corporate vice president .4 The production force formerly included Ronald Rut- ledge, who entered the Company's employ on April 1, 1969, and worked for it, apparently as a machinist, until November 12, 1971, when he was discharged by Katchen under circumstances that will be described later. Rutledge received several wage increases during his employment, but the record does not establish whether these were based on individual merit or were part of general upward wage adjustments in the plant attributable to inflation. About the beginning of November 1971,5 Rugledge went to see a representative of the Union at its headquarters and asked him what steps should be taken to have the organization represent the Company's employees. The Union's agent replied that it would be necessary to have a specified percentage of the employees sign authorization cards designating the Union as the signatories' bargaining representative, and that the cards would then be used to secure a Board-conducted election; and gave Rutledge a quantity of such cards for execution. Shortly thereafter, Rutledge passed out cards to most of the employees at the plant before or after work or during lunch periods, soliciting their signatures. Some signed and returned the cards to Rutledge; others took the request under advise- ment. On or about November 15 the Union filed a charge (Case 20-CA-7124) with the Regional Office of Region 20, alleging that Rutledge's discharge several days earlier stemmed from his union activities; and on November 18 the Union filed a petition with the Regional Office, seeking certification as the representative of a bargaining unit consisting of the Company's production and maintenance employees (with some exclusions not material here). The petition led to a Board-conducted election, by agreement of the Union and Company, which was held on December 22. Of the 10 ballots cast, 5 were in favor of the Union, 4 against it, and 1, cast by Rutledge, which could, if parties. These have been given an opportunity to respond to the motion, but have submitted no opposition. The motion is hereby granted and the transcript is amended in the particulars requested. 4 Both Staudt and Katchen are, and have been at all material times, supervisors within the meaning of Section 2(11) of the Act. 5 Unless otherwise indicated, all dates mentioned below occurred in 1971. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD counted, possibly affect the election results, was challenged on the ground that he was no longer an employee. On January 3, 1972, by letter bearing that date, the Acting Regional Director for Region 20 notified the Union and Company that an investigation of the charge had failed to establish that Rutledge had been discharged because of union activities; and that she was therefore declining to issue a complaint. The Union took no appeal from this action to the General Counsel, as permitted by Section 101.6 of the Board's Statements of Procedure. On January 13, 1972, the Regional Director issued a report on the challenged ballot, stating that the charge had been "dismissed . . . after investigation failed to establish that Rutledge was terminated for union activities," concluding, therefore, that Rutledge had been ineligible to vote, and recommending that the challenge be sustained and that "an appropriate certification issue."6 Thereafter, on January 24, 1972, the Union filed another charge-the one on which this proceeding is based-con- taining substantially the same allegations as those of the charge previously dismissed. On February 1, 1972, the Board issued a decision on the Regional Director's report, noting the absence of any exceptions thereto, adopting his recommendation, and certifying the Union as the bargaining representative of the employees in the relevant unit. As reflected in its answer and brief, the Respondent takes the position that the first charge "[was] dismissed so that certification of the results of the election may be issued"; that to secure an adjudication of the allegations of misconduct, the Union's proper remedy upon dismissal of the first charge was to follow the appellate route prescribed by Section 101.6 of the Board's Statements of Procedure; and that because of the Union' s omission to follow that course, and of the purpose of the dismissal, with the resulting certification. the second charge, so the argument runs, constitutes "an abuse of the ... Board' s processes," and should be barred, with a consequent dismissal of the complaint. The road by which the Respondent would arrive at that result is far from clear. The thesis vaguely implies some procedural impropriety in the certification, but the point, if it is intended, is not demonstrated, and, in any case, the legality of the certification is not properly in issue here, although it may be noted, too, that the Respondent filed no exceptions to the Regional Director's recommendation that the certification issue. Nor does it appear in what respect the filing and processing of the second charge "abused" the Board's processes. A charge is merely the means for setting in motion the machinery of an inquiry, and "[w]hen a complaint issues, the question is only the truth of its accusations."7 Obviously, then, the disposition of the first charge was not an adjudication. The Respondent cites no authority for a requirement that would bar the Union from filing the second charge because it had failed to appeal 6 The report treats the Acting Regional Director's refusal to issue a complaint as a dismissal of the charge Actually, the Union withdrew the charge (the record does not specify the date) "without prejudice," and with the approval of the Regional Director, as he informed the Company in a letter dated January 17, 1972 The General Counsel and the Respondent appear, like the report, to treat the Acting Regional Director's action as from the Acting Regional Director's disposition of the first, nor is there any indication that the course followed has in any way prejudiced the opportunities of the Respondent to defend against the allegations of unfair labor practice. In short, I find no merit in the claim that there has been an "abuse" of the Board's processes, nor in the position that the failure to appeal from the disposition of the first charge forecloses the filing of the second and the issuance of a complaint thereon. B. The Legality of the Discharge As support for his claim that Rutledge was discharged because of his union activities, the General Counsel offered testimony by a former employee of the Company named Chasco to the effect that about the end of October or the beginning of November, while still in the Company's employ, he had occasion to be at a drinking fountain on the ground floor of the plant some 8 or 9 feet from Katchen's work bench; and that while thus situated, he heard Katchen tell an employee named Beardslee that "the way things were going in the shop" he "would have to let the leadman upstairs go because he didn't want no union in the shop." 8 Actually, Rutledge was not a "leadman," but he worked "upstairs" (on the second floor of the plant), was one of a group of employees who were called "leadmen" by the management (because, according to Katchen, they were regarded as "key employees"), and was the only such "leadman" who worked "upstairs." Thus, by inference, if Chasco's testimony may be credited, the reference to the "leadman upstairs" was to Rutledge. Both Katchen and Beardslee deny, in substance, that Katchen made the remarks imputed to him by Chasco, or ever told Beardslee that he intended to discharge either Rutledge or any other "leadman." The credibility issue presented will be resolved at a later point. Shortly before noon on November 12, which was a regular payday, Katchen, who distributed the paychecks to the employees that day, while approaching Rutledge's work area to give him his check, observed that Rutledge was talking to another employee, Vince Aiello, during working time, and, according to Katchen, who describes Rutledge as "waving his hands" while talking, it appeared to him that Rutledge was not working. Katchen gave Rutledge his check and said nothing regarding the talking to either Rutledge or Aiello, but during the noon lunch period, directed Foreman Staudt, in substance, to tell Rutledge that the latter had been observed wasting working time by talking, and to admonish him not to engage in such conduct. Shortly thereafter, according to Rutledge's testimony, as he was returning from lunch, he encountered another employee, Salinas, at the plant entrance, and Salinas advised him to have the "union people" attend a so-called dismissal of the charge. To avoid confusion, I shall similarly refer to her disposition of the charge as a dismissal thereof 7 N L R B v Indiana & Michigan Electric Co, 318 U S. 9, 18. S The excerpt from Chasco's testimony reflects the substitution of "leadman" for ` leadmen" accomplished by the amendment of the transcript previously noted FAMET, INC. "leadmen's meeting" scheduled by the management to be held later that day,9 because another employee, Beardslee, had quoted Katchen as telling Beardslee earlier that day that Katchen knew about the union activities and had said that "all hell was going to break loose" at the meeting.'° Proceeding toward his work station, Rutledge encoun- tered Staudt, and there is no dispute that Staudt told Rutledge that Katchen had seen him talking when he should have been working, and admonished Rutledge not to do so in the future. There is, however, substantial conflict as to other aspects of the conversation. According to Rutledge, following the admonition, he told Staudt that "we know that Bernie [Katchen] knows, and if he's going to get nasty like this right now, this could turn into a real battle"; and urged Staudt to be "neutral." Then, in Rutledge's version, the foreman said that he had heard that Rutledge was "going to sue Bernie," and Rutledge replied that he had no such intention, although he knew that Katchen had "broken a couple of laws," and that doing "anything" about that would cause much "trouble for everybody." According to Rutledge's account, after some added exchange (unnecessary to recite here) he proceeded to his work station. Denying that any reference was made to suing, Staudt gave testimony to the effect that following the admonition about talking, Rutledge told him that "the cat is out of the bag," and that Staudt should stay "neutral, because they had . . . enough on Bernie and they were going to get him"; and that following some additional remarks [unnec- essary to describe here], he proceeded to Katchen's office, and reported the conversation to Katchen, who then, remarking that he would not wait for anybody to "get him" but would "get" such a person first, instructed his secretary to prepare checks for Rutledge's accrued vacation pay and wages. Katchen describes Staudt's report in substantially the same vein as the latter, and pictures himself as then deciding to discharge Rutledge because of the reported threat "to get" him, and as instructing his secretary to prepare the checks. There is no reason to doubt that Staudt made a report of his conversation with Rutledge to Katchen, and that the secretary then prepared the terminal checks, for, as the testimony of both Katchen and Rutledge establishes, Katchen came to Rutledge's work area shortly after the lunch period on November 12; referred, in the ensuing discussion with Rutledge, to a report by Staudt regarding his earlier conversation with Rutledge; and discharged Rutledge, giving him two checks, one for vacation pay and the other for accrued wages. It is undisputed, too, that after the words of discharge were spoken, Katchen, with Rutledge's consent, opened the latter's toolbox to ascertain whether it contained any of the Company's tools; and that 9 The Company periodically holds such meetings of "key employees," most of whom are not, in fact, leadmen, although called such until recently by the management. 10 Beardslee denies that he told Salinas that Katchen was aware of the union activities, claiming that what he told Salinas was that if Katchen knew of the activities there would "probably" be trouble at the meeting. In any case, Rutledge's testimony and that of Salinas to much the same effect (both given without objection) purportedly quoting Salinas quoting Beardslee allegedly quoting Katchen as to the latter's awareness of union 415 in the course of the inspection, Katchen saw some blank union authorization cards in the box and had some discussion with Rutledge concerning them; but there is substantial conflict on the question whether Katchen alluded to Rutledge's union organization activity before discharging him, and over the content of the discussion of Staudt's report. According to Rutledge, Katchen opened the conversa- tion by saying, "Ron, I understand you are trying to organize this place," to which Rutledge replied that he would not "answer that." Then, Rutledge testified, Katch- en gave him the terminal paychecks, telling Rutledge that he was discharged, whereupon, according to Rutledge, he asked for the reason for his dismissal, and Katchen replied that the reason was Staudt's report that Rutledge had "threatened to sue" Katchen. Rutledge also gave testimony to the effect that Katchen summoned Staudt and told him to repeat his report (Rutledge does not say what response, if any Staudt made); that Katchen, having received permission to go through the toolbox, did so, and in the process lifted the union authorization cards out of the box and gave them to Rutledge, rejecting an offer by Rutledge that he (Katchen) keep them; that upon completion of the toolbox inspection, Katchen asked Rutledge what was "wrong" in the plant, and why "you people think you need a union"; and that Rutledge replied that Katchen was "happy" when business was good, but when it slackens he has work done at other shops and reduces hours of work, and that there was a rumor that Katchen intended to cut wages. The substance of Katchen's relevant testimony is that he was accompanied, at his request, to Rutledge's work area by the assistant plant manager, Larry Poore; that his opening remark to Rutledge was, "Ron, what's this I hear that you are going to get me"; that Rutledge denied making such a threat; that Katchen summoned Staudt, sending Poore to fetch the foreman, and, upon the latter's arrival several minutes later, asked him to repeat his report; that Staudt replied that Rutledge "had threatened to get" Katchen, and had said that "they had enough on [Katchen] . . . to get [him]"; that Katchen then dis- charged Rutledge, and then went through Rutledge's toolbox; that, while doing so, he noticed the authorization cards, and asked Rutledge whether he was trying to "organize a union here"; and that Rutledge said he had no comment on the question, and then offered the cards to Katchen who declined to accept them. In material respects, Poore gives much the same version of the episode as Katchen, and Staudt substantially corroborates Katchen's account of what took place after he appeared on the scene." For proof that Katchen was aware, prior to the discharge, that Rutledge was a union activist and dis- activities is hearsay thrice removed and, obviously, provides no basis for a finding that Katchen was aware of union activities prior to Rutledge's discharge. I have set out Rutledge's account of Salinas' remarks as background for evidence of two conversations Rutledge had shortly after his encounter with Salinas, the first with Staudt, and the second with Katchen when the latter discharged Rutledge. II According to Rutledge, Poore arrived in the area about a minute after Katchen, but Katchen plausibly explains his reason for asking Poore to accompany him, and I am satisfied that Poore arrived with Katchen. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged him for that reason, the General Counsel relies heavily on Chasco's testimony which amounts, in sub- stance, to a claim that about 2 weeks before the discharge he overheard Katchen tell Beardslee that he was going to discharge Rutledge to avoid unionization; and on Rut- ledge's version of his November 12 discussion with Katchen, depicting the latter as prefacing the language of dismissal with a reference to Rutledge's effort "to organize this place." The resolution of the material credibility issues presented is complicated by the fact that the reliability of the testimony on both sides is questionable. On the General Counsel's side, Rutledge is obviously an interested witness, with some shortcomings in plausibility, as will presently appear; and, as will shortly be demonstrated, there is much in Chasco's testimony that detracts from the weight of his claim. On the Respondent's side, Katchen, Poore, and Staudt are interested witnesses, and, moreover, there is good reason to question the reliability of Katchen's testimony on other subjects.12 Nor does Beardslee, who was called by the Respondent, appear to me to be a wholly disinterested witness. He has worked for the Company for more than 6 years, is still in its employ, regards Katchen as a friend, has visited the latter at his home for "personal reasons," and testified in a tentative and evasive vein at various points.13 But the burden of proof regarding the two episodes rests with the General Counsel, and the question is whether his relevant evidence is of preponderant weight, and not whether that of the Respondent is of questionable reliability. With that in mind, I find Chasco's testimony of insufficient qualitative weight to overcome the Katchen and Beardslee denials that the episode Chasco descnbes occurred. To begin with, Chasco's testimony demonstrably reflects some looseness of expression in describing events. Thus at one point, refemng to the end of his employment, he testified that he "quit"; later, that he "got fired or quit"; and still later, that he was "dismissed." For another matter, the possibility that the episode in question could have occurred in October is reduced by the fact that Katchen spent only a negligible amount of time in the plant that month, having left on a trip abroad in August, returning home on October 22, and, except for a brief visit to the plant on the following day, a Saturday, when it was not in operation, spending about 2 hours in the plant on Monday, October 25, in preparation for a trip out of town, which necessitated his absence until November 1. To be sure, Chasco gives the "start of November" as an alternative period for the alleged incident, but his claim nevertheless has an aura of unreliability. According to Chasco, he was at the water fountain for some 2 to 4 minutes while Katchen and Beardslee were talking, yet substantially all that he could relate of the alleged 12 For example, Katchen denies that there was a strike at the plant in the period between July 1971 and the hearing in this proceeding, although, in apparent conflict with this testimony, a "help wanted" advertisement he placed for the Company in a local newspaper in January 1972 noted that "strike conditions [were] prevailing " Also, for reasons that will appear later, I do not credit Katchen's version of a conversation he had with an employee, Manuel Cordova, regarding the consequences of unionization 13 For instance, testifying to an investigative interview by a representa- conversation, apart from a vague generalization that Katchen and Beardslee were "discussing shop matters," amounts to a claim that Katchen expressed an intention to discharge Rutledge to avoid unionization. Moreover, Chasco contradicted himself as to the extent of the conversation he claims he overheard, stating at one point that he heard all that was said while he was at the fountain, but, subsequently, that he did not hear all of the conversation while thus stationed. It is also worth noting that according to Chasco, he has said nothing to Rutledge about the episode, although they have known each other for about 2 years; and it was not until some point in February 1972, during the pendency of the second charge, that he gave an investigator on the staff of the General Counsel the information to which he testified. There is some indication in Chasco's testimony that he was aware in December, while the first charge was pending, that the investigator had some interest in Rutledge's discharge,14 and bearing in mind that Chasco was well acquainted with Rutledge and had no reason to fear for his job after December 18 or 19 when his employment by the Company ended, one would think that if the episode in question had occurred, Chasco would have said something about it to Rutledge at least during the pendency of the first charge. There may be a good explanation why Chasco did not supply the information to a representative of the General Counsel until after dismissal of that charge, but if there is the record,does not reflect it. I am unpersuaded, in sum, that Katchen made the remarks to Beardslee described by Chasco, and do not credit the latter's testimony in that regard. Rutledge's depiction of Katchen as prefacing the discharge with a reference to Rutledge's organizational effort would, if credited, point to an unlawful motive for the dismissal, but, as with Chasco's claim, it appears to me that Rutledge's testimony somewhat too patty meets the Union's need to establish that there was a connection between Rutledge's union activity and his discharge. Katchen has a history of substantial experience with unions, both as an employer and as a union representative (having been at one time a union shop steward), and I find it difficult to believe that with such a background, Katchen would so openly compromise himself as to preface the dismissal with a remark to the effect that he understood that Rutledge had been "trying to organize" the plant-a comment that in context comes close to an admission that the discharge was linked to Rutledge's organizational activity. There is no dispute that Katchen came upon the blank authorization cards in the course of inspecting the toolbox after the discharge, and I think it more plausible, in the context of circumstances, that, as Katchen, Poore and Staudt testified, Katchen asked Rutledge at that point whether he was trying to organize the plant; and that, as tive of the General Counsel, Beardslee stated at one point that "perhaps" the investigator had asked him questions about matters involved in this proceeding, and then that he "would say" that that had been done. 14 Chasco testified that he tried unsuccessfully to reach the investigator by telephone in December, but it is evident from Chasco himself that he did not call to supply the information, but, according to him, "to find out if [Rutledge ] had gotten unemployment [compensation] " FAMET, INC. Katchen claims, that was his first reference in the discussion to Rutledge's organizational activity. Moreover, Rutledge's testimony reflects other implausi- bilities. In his version of his discussion with Staudt, Rutledge quotes Staudt as saying that he had heard that Rutledge was going "to sue" Katchen, but there is nothing in the record to show that Rutledge had any intention of suing Katchen (or the Company), or that information of such an intention had reached Staudt, and the point of the matter is that Staudt's denial that he made any reference to a lawsuit in his discussion with Rutledge is given credible support by the fact that the record reflects no rational basis for such a comment. And as a corollary of that, I think it unlikely that in his report to Katchen, Staudt related any threat by Rutledge "to sue" Katchen, and see no reason why Katchen, as Rutledge claims, would tell Rutledge that the latter was being discharged because Staudt had reported that Rutledge had "threatened to sue" Katchen. There is no doubt, however, that following Staudt's admonition, Rutledge spoke in a threatening vein to Staudt. Both versions establish as much. Rutledge pictures himself as responding to Staudt's admonition with the remark that "we know that Bernie [Katchen ] knows," and that if Katchen is "going to get nasty like this [the admonition] . . . this could turn into a real battle"; and Staudt quotes Rutledge as saying after the admonition that "the cat is out of the bag, and there is no more secret," and that Staudt should maintain neutrality "because they had got enough on Bernie and they were going to get him." Rutledge had heard a rumor, through Salinas, only a few minutes earlier, that Katchen was aware of the union organizational campaign, and each version reflects a veiled reference by Rutledge ("we know that Bernie knows" and "the cat is out of the bag") to the information (although it would be something of a guess to say that Staudt got the meaning of the reference). And upon close examination, there is no large gulf, in the context of circumstances, between threatening Katchen with "a real battle" if he got "nasty" and warning him that employees had "enough" on him and were "going to get him." But put to a choice between the two versions, both given by interested witnesses , I see no reason to reject Staudt's account, whereas Rutledge's testimony is flawed by implausibilities that have been previously described. Moreover, in his account of what occurred after Katchen summoned Staudt to repeat for Rutledge his report of what Rutledge had said to Staudt, Rutledge appeared to me to slur over the matter, testifying in that regard merely that Katchen told Staudt "to repeat what he had told him [Katchen]," and not stating what response Staudt made. In contrast, Katchen, Poore, and Staudt describe Staudt as repeating for Rutledge his report to Katchen to the effect that Rutledge had threatened "to get" Katchen, and Katchen and Staudt testified, without dispute, that when thus confronted, Rutledge made no reply to Staudt's repetition of his report. For the reasons stated, I credit Staudt's account of his conversation with Rutledge, and find that he reported that 15 There is no issue here whether the inquiry violated the Act, and I do not pass on the matter. 16 As previously indicated, I accord no probative value to the hearsay testimony that upon Rutledge's return from lunch on November 12, Salinas told him that he had heard from Beardslee that Katchen had said that he 417 conversation substantially as it occurred to Katchen; that Katchen then had Rutledge's terminal paychecks prepared, proceeding with them to Rutledge's work area to discharge Rutledge; that the conversation between Katchen and Rutledge that followed took substantially the course described by Katchen; and that, in that discussion, Katchen made no reference to unionization until he came on the authorization cards in the course of inspecting Rutledge's toolbox following the discharge, the reference taking the form of an inquiry by Katchen whether Rutledge was endeavoring "to organize a union here." 15 In view of the credited evidence, an inference that Katchen was aware, prior to the discharge, of any organizational activity by Rutledge must rest, if at all, on the fact that the labor force was relatively small, and/or an assumption that Katchen, upon receiving Staudt's report, inferred that "the cat" that was "out of the bag," and the related threat "to get" him, referred to the effort to organize the plant. Katchen denies that he placed such an interpretation on Staudt's report, maintaining, too, that he was then unaware of any effort to organize the shop. While I have some doubt of Katchen's credibility in this area, bearing in mind the General Counsel's burden of proof, it appears to me that the size of the labor force and Staudt's report, whether in combination or separately, fall short of establishing that the management knew at any time prior to the discharge of any union activity by Rutledge.16 But even if one draws a contrary conclusion, the question remains whether Rutledge was discharged be- cause of his organizational activity, and, on that score, the evidence will not sustain a finding that such a motive underlay the dismissal. The record fairly yields an inference that when he saw Rutledge talking to Aiello and waving his hands, Katchen genuinely believed that Rutledge was wasting time. To be sure, Katchen did not reprimand Aiello; the record does not establish the reason for the omission; and it is possible that Katchen singled out Rutledge for admonition because of his union activity; but there is no evidence that Katchen had any knowledge of such activity at the time he directed Staudt to reprimand Rutledge, and to read an antiunion purpose into the admonition would be to substitute speculation for factfind- ing.17 And more to the point, it would be a venture in surmise to conclude that the discharge was rooted in an unlawful motivation. The fact is that Rutledge responded to Staudt's admonition with a threat against Katchen. Perhaps another person in Katchen's position would have asked Rutledge, before deciding to discharge him, by what means he intended to carry out the threat "to get" him, and, depending upon the response, would have taken a more tolerant view of Rutledge's rhetoric, but the course Katchen took was not so excessive as to point to an ulterior motive for the dismissal. Katchen told Rutledge that the threat was the reason for the discharge, and testified that that was the reason; and, in the face of the credible evidence as a whole, to accept the General Counsel's thesis was aware of union activities in the plant. 17 Rutledge makes no claim that his conversation with Aiello related to work. Whether or not Rutledge was working while talking , as he claims, I am satisfied from the credible evidence of events that followed that Katchen believed that Rutledge was wasting time by talking to Aiello. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the reason was a pretext to discharge Rutledge for union activity would be to exalt suspicion over the requirement that the General Counsel sustain his burden of proving his allegations by evidence of preponderant weight. The sum of the matter is that the General Counsel has not met that burden, and thus I shall recommend dismissal of the allegations of the complaint pertaining to Rutledge's discharge.18 C. The Alleged Interrogation and Threats The General Counsel's claim of unlawful interrogation and threat of discharge or work reduction rests on testimony of an employee, Manuel Cordova.19 The latter testified that on an occasion late in November when he was doing some personal work for Katchen at the latter's home, Katchen asked him if he had signed a union card; that he at first denied that he had done so, but then, asked by Katchen to tell "the truth," admitted signing a card; and that after some expression of criticism of "the union" as not "all that great" and as seeking only dues from the employees, Katchen said that the shop was his and he would run it as he chose, that "when the union comes in" he would not be able to pay "the high wages they want," and continue manufacturing "hydroshears" (hydraulic marine cable cutters), and that he was thinking of discontinuing the production of hydroshears in any event because he "wasn't making that much money on them." Katchen's version of the episode is, in substance, that he did ask Cordova whether he had signed a card for the Union; that Cordova at first denied doing so; that then Katchen, stating that Cordova did not have to answer, told Cordova that if he did so, he should tell "the truth" and not "lie," and Cordova admitted signing a card; that Katchen said that that was Cordova's prerogative, and made "no difference" to him; and that Katchen then told Cordova that if the plant were unionized and the Union reclassified Cordova "strictly" as a journeyman welder, there would not be enough work for him in that capacity to warrant his retention. 18 The General Counsel makes a point of testimony by Rutledge that as he was leaving the plant on his way to lunch on November 12, about a half hour before Staudt conveyed Katchen's admonition against wasting time talking on the job, Staudt said "Goodbye, Ron" to him and "waved his arm", and the thrust of the point appears to be that Katchen had already decided to discharge Rutledge, well before the admonition and any threat by Rutledge, and for an unlawful reason This, in my view, is a strained interpretation The ulterior meaning the Respondent would give the episode is diluted by shifting descriptions of Staudt's manner by Rutledge who initially testified that it "seemed . indifferent," then that it "seemed sarcastic," and then that he could not say "for sure that it was sarcastic or not" Rutledge waved back at Staudt, and, conceivably, the "Goodbye, Ron" and the hand-waving were no more than an exchange of amenities That view of the incident takes on added weight when it is borne in mind that there is no probative evidence that the management had any knowledge of Rutledge's organizational activity as of the time of the episode At most, the incident adds but another suspicious circumstance to the General Counsel's case, without tipping the evidentiary scale in his favor I also see no effective aid for his case in testimony by an employee, Percy Bass, to the effect that almost 4 years ago , Katchen, apparently believing that Bass was endeavoring "to start a union" in the plant, told Bass that there would be no unionization there and that if Bass disapproved of that, he could "get out the door now" Katchen, in substance, denies making statements to that effect, but I see no need to resolve the credibility issue, for the alleged episode is too remote in time to give effective weight to the General Upon examination, the two versions are not significantly far apart. Each reflects a prodding interrogation of Cordova by Katchen regarding the former's execution of a card, without prior assurance against reprisal; and, in substance, a prediction by Katchen that a loss of work or employment would result if the employees chose union representation. However, a choice between the two is appropriate, and, choosing, I find greater reason to credit Cordova than Katchen. For one thing, there is no indication that Cordova has any interest in the results in this proceeding, and he seemed an objective witness. In contrast, Katchen, whose interest is obvious, appeared to me to be putting a self-exonerating gloss on his interrogation of Cordova regarding the employee's execution of a union card, depicting himself as assuring Cordova that he did not have to answer, and as expressing indifference to the answer. Such professed neutrality sounds an implausible note in the light of Katchen's expressions of hostility toward unionization on other occasions, as at a meeting of employees held a few days before the election. For another matter, Katchen admittedly discussed the possible discontinuance of the hydroshear production with several employees (other than Cordova), telling them, so he testified, that if the plant were unionized "and the union raised the wages so high that we can't afford to continue operating this operation, I would' have to give it up." While this differs somewhat from the terms in which Cordova quotes Katchen on the subject of cessation of hydroshear production as a consequence of unionization, the fact that he discussed the topic with others, adds some weight to Cordova' s version. I credit his account. An employer's prediction to his employees that their choice of union representation will result in economic disadvantage for them, such as, for example, a curtailment of work, is privileged if the language used is, as the Supreme Court has put it, "carefully phrased on the basis of objective fact to convey [the] employer's belief as to Counsel's claim that an antiunion purpose underlay Rutledge's dismissal Nor is such a motive established by privileged expressions of antiunion views by Katchen after the discharge at a preelection meeting of management and employees, and in a subsequent conversation with Salinas and Beardslee; nor by evidence that about 2 weeks after the discharge, Katchen told an employee, Manuel Cordova, that in the event of unionization he would have to discontinue the manufacture of "hydroshears" because he would be unable to pay "high" union wages. Whether or not this remark violated Section 8(axl) -a matter to be determined later-it falls short of tipping the evidentiary balance in favor of the General Counsel on the issue of the motive for the discharge 19 At the hearing, the General Counsel expressed a position, based on testimony by Salinas, that at a meeting of employees held a few days before the election, and in a subsequent conversation with Salinas and Beardslee, Katchen "implicitly" threatened to discharge employees if they favored union representation The claim appears to have been abandoned, for in his brief the General Counsel states that the allegations of unlawful interroga- tion and threat rest on Cordova's description of a conversation between himself and Katchen in the latter part of November In any event, I find no threat of discharge, implied or otherwise , at the preelection meeting or in the later discussion Katchen had with Salinas and Beardslee. Katchen's remarks on both these occasions need not be detailed here, and it will suffice to say that they summed up to positions of opposition to, or dislike of, unions, and were privileged expressions of "views, argument, or opinion," protected by Section 8(c) of the Act FAMET, INC. demonstrable consequences [of unionization] beyond his control." 20 Applying that test, I find coercive meaning, rather than protected comment, in Katchen's statement to the effect that in the event of unionization, the Company would have to discontinue hydroshear production (with a consequent diminution of employment opportunities) since it would not be able to pay "the high wages" required by the Union. Katchen testified that the profit margin on hydroshears is "very close," and, also, that there "is actually no profit in it," but these vague, undocumented, and not wholly consistent, generalizations hardly amount to an objective demonstration that in the event the employees chose the Union as their bargaining representa- tive, the Company would have to abandon the manufac- ture of hydroshears as a matter of economic necessity.21 Conceivably, collective bargaining would not necessitate such a result, and, at least in the absence of hard evidence of such matters as the Union's wage requirements and the cost-and-profit margin of hydroshear production, Katch- en's prediction amounted, in my judgment, to an intimated threat of loss or reduction of work opportunities if the employees chose union representation. Thus I find that as a result of the statement, the Company interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. Particularly against the background of the threat, Katchen's effort, in the same conversation, to ascertain from Cordova whether he had signed a union authoriza- tion card similarly abridged Section 7 rights guaranteed employees, and thus I find that, as a result of the interrogation, the Company violated Section 8(a)(1) of the Act. Finally, I have given consideration to the question whether a cease and desist order is warranted in view of the fact that Katchen's coercive statement and interrogation involved a single episode and were addressed to but one employee,22 and I have decided to recommend such an order. The relatively small size of the bargaining unit enhances the likelihood that word of Katchen's conduct spread to a substantial portion of the unit, and, moreover, the almost even division in the election underscores the need to immunize the employees from management 20 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618. 21 I note, in passing, that the Company had not discontinued hydroshear production as of the time of the hearing in this proceeding, although the Union had been certified as the employees' bargaining representative more 419 interference with their Section 7 rights. In short, an appropriate cease and desist order will effectuate the policies of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unlawful activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing the free flow of commerce. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Famet, Inc., is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. The Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(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 evidence does not establish that the discharge of Ronald Rutledge violated the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend below that it cease and desist from such practices, and take certain affirmative actions designed to effectuate the policies of the Act. [Recommended Order omitted from publication.] than 2 months earlier. 22 Compare Morganton Full Fashioned Hosiery Company, 107 NLRB 1534; Western Table Company, 1 10 NLRB 17.