Harvey Engineering and Manufacturing Co.

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harvey Engineering and Manufacturing Co. and United Steelworkers of America, AFL-CIO. Case 26-CA-4652 March 19, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On August 17, 1973, Administrative Law Judge Bernard J. Seff issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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.' 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 Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MEMBER FANNING, dissenting: Contrary to my colleagues, I would reverse the Administrative Law Judge's dismissal of the 8(a)(3) allegation as to Woodrow Graves and would find that he was discriminatorily discharged on February 23, 1973, because of his leading role in organizing Respondent's employees. 1 The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. The record herein furnishes no basis for Member Fanning's reversal of the crucial credibility finding of the Adnunistrative Law Judge with respect to Harvey's version of the second encounter with Graves at 6 p in. on February 21, 1973. The observation of the Administrative Law Judge that he was favorably impressed by Graves does not compel the trier of fact to credit Graves' testimony in its entirety . In our view, the general comments of an Administrative Law Judge that particular individuals made good or bad impressions as witnesses do not vitiate his specific resolution of conflicting testimony We do not suggest that credibility resolutions by Adnumstrative Law Judges are sacrosanct , but we should not lightly repudiate the conclusions of the Administrative Law Judge "who has observed the witnesses and lived with the case." Universal Camera Corp. v NLRB, 340 U.S 474 (1951) Graves, a witness who "made a good impression" on the Administrative Law Judge, testified as follows: 2 Graves was hired in August 1972 as a welder at an hourly rate of $2.82, received a 27-cent raise within a month, and in December of that year was promoted to the position of fitter on one of Respondent's work crews at $3.52 an hour.3 In late December 1972, Graves spoke on two separate occasions to General Foreman Don Scrog- gins and Foreman Dub Clenny4 concerning the advantages of having a union represent the employ- ees. Thus, Graves told Scroggins that he had been a member of the Teamsters for 3 years prior to coming to work for Respondent and that he would like to see a union "come in" Respondent's plant. Graves told Clenny that any union "would probably straighten things out in the plant, would help get better insurance and better wages." Early in January 1973,5 during two lunch hours, Graves talked to a group of employees in the plant concerning the desirability of a unions On January 9, Graves went among the employees before working hours to notify them that a meeting would be held on Respondent's parking lot during the lunch hour. While that meeting was in progress,7 Harbour and John Fletcher, another vice president, came within 70 yards and glanced at the assembled employees as they walked to Harbour's cans On January 16, Graves again went through the plant before working hours for the purpose of asking the employees to be at the parking lot during lunchtime. At that meeting, Graves urged the employees to congregate at a local motel on January 27 for the purpose of having the organizer of the Steelworkers distribute authorization cards and explain what the Union might be able to do to help the employees.9 Graves spoke at the January 26 meeting iO and at another in the same motel on February 2. Graves 2 Except where indicated below , Graves' testimony was uncontradicted l Both Respondent President and General Manager Ed Harvey and Vice President Wesley Harbour testified that Graves was a good employee who "worked harder than anybody else in the plant" and had a good attitude and attendance record. 4 The parties stipulated to the status of Scroggins and Clenny as supervisors 5 All dates below refer to 1973 except where otherwise specified. 6 The Administrative Law Judge found that Respondent had about 41 production and maintenance employees 7 The 27 employees who attended adopted Graves' suggestion that he get in touch with the Steelworkers 8 The testimony of Harbour and Fletcher contains no denial that they observed this meeting 9 Harbour testified that he did not observe this meeting but conceded that he was aware of it and was informed by Scroggins that it was a union meeting. Although Harbour mistakenly gave the date thereof as February 16, it appears that he was referring to January 16 as there is no evidence that such a meeting took place in February. 10 Paul Hamilton . Graves' crew supervisor. attended this meeting and 209 NLRB No. 95 HARVEY ENGINEERING & MFG. CO. 767 secured a total of 39 signed cards at the meetings and the plant itself. On one occasion, Scroggins, who was standing 10 feet away, looked in the direction of Graves and an employee who was signing a card at Graves' request.11 On February 21,12 Harvey called Graves into his office about 4:40 p.m. and informed him in the presence of Harbour and Fletcher that he was being appointed crew supervisor.13 Graves replied that he had never been a supervisor and was not "capable" to fill that position. Graves then suggested that another employee, Albert Ellis, could handle the job more capably.14 Graves also declared that Harvey knew that he (Graves) "had been talking union in the plant" and that Graves "didn't want to be set up and fired like Hamilton had been."15 When Harvey replied, "if you want to continue working here you are going to have to accept this job" as supervisor, Graves said, "I guess I will have to accept this." Upon reflection, Graves returned an hour later to the plant where Harvey consented to give Graves "a minute" although he had some people in the office. Graves thereupon informed Harvey that he did not want the job of crew supervisor and could not accept it. Harvey responded, "this is the only way you can continue to work for this company." Graves then said, "I will come back to work in the morning, but I won't be doing a supervisor job." Harvey's reply was, "OK . . . We'll see you in the morning." 16 The next morning, Scroggins asked what Graves was going to have his "men" do, and Graves replied that he was not a supervisor and had told Harvey so. Scroggins stated that he had not heard anything to that effect and advised Graves to take the job as supervisor. Scroggins repeated this advice in the afternoon and warned that Harvey had already made up his mind to fire Graves if he did not accept the job.17 On the following morning, Scroggins directed Graves to order two of the men on the crew to tear down a scaffold. Graves refused to do so on the ground that he was not a supervisor. Later that morning,, Graves was called to the office where Harbour discharged Graves for his refusal to obey Scroggins' directive.'s Harvey, who made "a poor impression" on the Administrative Law Judge, was found to be unrelia- ble as a witness : "Harvey seemed to be evasive, uncertain and he demonstrated great difficulty in remembering the dates of the events which he described. He seemed to have a faulty memory." As stated above, Graves made a good impression on the Administrative Law Judge while Harvey made a poor impression because he was evasive, uncertain, and seemed to have a faulty memory. Despite this appraisal, the Administrative Law Judge erroneously accepted Harvey's version of their second encounter at 6 p.m. on February 21. In crediting Harvey's testimony that he did not hear Graves refuse the job of supervisor at that time, the Administrative Law Judge merely mentioned the General Counsel's contention that there were discre- pancies between Harvey's affidavit and his testimo- ny. However, the Administrative Law Judge failed to set forth and evaluate any of these discrepancies. Thus, he did not specifically refer to the direct conflict between Harvey's testimony that he in- formed Graves that he was too busy to grant Graves an audience and the affidavit wherein Harvey acknowledged that Graves returned to the plant and repeated his earlier assertion that he did not want to be a supervisor and was not qualified therefor. It is well established that such an admission against interest by an affiant may be utilized for impeach- ment purposes.19 Viewed in the light of the Adminis- trative Law Judge's damaging assessment of Har- vey's evasive and uncertain performance as a witness and Harvey's careful review of the affidavit before signing it, the admission must be deemed as impeaching Harvey's testimony and accepted as probative evidence in support of the General Counsel's case.20 signed a card. Harvey testified that Hamilton on February 6 informed Harvey that he had been present at the union meeting. Harvey in a statement to the Board agent asserted that on this date he heard from Hamilton that there had been union meetings. 11 Scroggms' testimony contains no denial of this statement 12 On February 5, the Union sent a letter informing Respondent of its majority status and requesting recognition . Two days later, the Union filed a representation petition and on April 23 lost a stipulated election. is Hamilton was discharged earlier that afternoon. According to Harvey's statement to the Board agent, Harvey told Hamilton who had been supervisor since August 31, 1971, that he was being terminated for "the best interests of the Company." 14 Ellis testified without contradiction that, during Hamilton's 2-week vacation in November 1972, he took the latter's place as crew supervisor. Respondent's records also show that Ellis was promoted to that position on February 25 following the discharge of Graves. 15 Harvey, Harbour, and Fletcher denied that Graves made this particular statement 16 As indicated below. Harvey's statement to the Board agent is in accord with Graves' description of this conversation. However, the former's testimony differs in some respects from that of Graves. 17 Scroggins testified that he did not make this particular statement iii According to Harbour, Graves remarked, "I know why this is being done I am backing the union all the way." 19 Skouras Theatres Corporation, et a!., 155 NLRB 157, 162, Grove Shepherd Wilson & Kruge, Inc, 109 NLRB 209.213-215 20 My colleagues invoke but totally fail to adhere to the principles of Standard Dry Wall Products, supra, and Universal Camera, supra, which hold that an Administrative Law Judge's assessment of a witness should be accorded great weight because he has the opportunity to observe and evaluate the demeanor of the witness . Thus, they contravene this fundamental rule of evidence by depreciating the Administrative Law Judge's favorable estimate of Graves and completely ignoring his character- ization of Harvey as an evasive and unreliable witness. They compound this error by also failing to take cognizance of Harvey's affidavit which contains an admission against interest that reinforces the Administrative Law Judge's (Continued) 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also significant that Harvey put Graves under of the Act and would require the reinstatement of inordinate pressure by telling him during both Graves with backpay. , February 21 interviews that Graves had no choice in the matter. Harvey's unswerving insistence that Graves become a supervisor against his wishes shows a strange and unusual sense of urgency on Harvey's part. That Harvey was willing to sacrifice an outstandingly satisfactory employee and run the risk of not replacing him21 cannot be plausibly explained by Harvey's statement that he was altruistically motivated by a desire to reward "the best man" for the job. That Harvey had a reasonable alternative is clearly shown by the availability of Ellis, an experienced member of the same crew, who had already been judged worthy of filling in for 2 weeks as a substitute for Hamilton and was ultimately promoted to the position of supervisor when Graves was terminated. The Administrative Law Judge also erred in holding that Graves' revelation of his union sympa- thies in December 1972 was too remote in time to show Respondent had no knowledge thereof in early January 1973. Respondent's supervisors, Scroggins and Clenny, were fully aware of Graves' desire to bring a union into the plant when he soon thereafter assumed leadership on behalf of the Union by arranging for and holding two parking lot meetings and two union meetings, and by securing union authorization cards at the plant itself. Aside from the fact that Graves' union activities would, in any event, come to the attention of the supervisors in a plant with a relatively small number of employees,22 it is clear from Graves' uncontradicted testimony that Harbour and Fletcher observed the first parking lot meeting and that Scroggins was nearby when Graves secured an authorization card from an employee. In addition, Harbour testified that he learned about the nature of the second parking lot meeting from Scroggins who informed him that it was a "union meeting." 23 Finally, Harvey, who displayed his "faulty memory" in testifying that he did not recall when he became aware of Graves' union activities, admitted in his affidavit that he learned about the union meetings from Hamilton in early February. In view of the foregoing, I would hold that the Administrative Law Judge erred in crediting Harvey and in finding that Respondent did not have knowledge of Graves' leadership as a protagonist of the Union. I would also reject Respondent's com- pletely implausible explanation for forcing Graves to become a supervisor. I would therefore conclude that Respondent's reasons for promoting and then dis- charging Graves were spurious and a pretext to conceal its discriminatory motivation. Accordingly, I would hold that Respondent violated Section 8(a)(3) unfavorable appraisal of Harvey's performance as a witness To credit Harvey's testimonial account of his second February 21 conversation with Graves in the face of the foregoing considerations, which demonstrate so inescapably the unreliability of Harvey's testimony, is to drain all meaning from the basic tenets of the Board and the Supreme Court in this important area of law. 21 Graves' position as a fitter was still vacant at the time of the hearing. 22 Famet, Inc., 202 NLRB 409. 23 Although the Administrative Law Judge credits Harbour's testimony that he did not know about Graves' union activities until after the discharge, Respondent through its supervisors Scroggins and Clenny already possessed this knowledge prior to the discharge. DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Administrative Law Judge : The charge herein was filed on February 28, 1973 ,1 the complaint issued on April 20, and the hearing took place in Hot Springs, Arkansas, on June 5 and 6. The charge alleges that Respondent, by employing a devious technique , promoted employee Paul Hamilton to the position of supervisor and then discharged him in order to have Hamilton's position as supervisor open so that the Company could then promote employee Woodrow Graves to the job of supervisor and then similarly discharge Graves. The General Counsel contends that both Hamilton and Graves were the chief union instigators in the plant and both men were first promoted as supervisors and then discharged because of their activities on behalf of the United Steelworkers of America, AFL-CIO, hereinafter referred to as the Union. By such action it is alleged that Respondent violated Section 8(a)(1) and (3) of the Act. Respondent denies the commission of the unfair labor practices alleged but admits allegations of the complaint sufficient to support the assertion of jurisdiction under current standards of the Board (outflow of over $50,000 in the past calendar year). The answer further admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. The complaint named both Hamilton and Graves as 8(a)(3)'s but at the hearing the General Counsel moved to have the allegations concerning Hamilton deleted from the complaint. This motion was granted. On July 11 the General Counsel also moved to correct the transcript. This motion was unopposed and it is hereby granted. Upon the record made before me and my observation of the demeanor of the witnesses and after careful considera- tion of the briefs, I make the following: FINDINGS OF FACTS 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is a corporation engaged in the manufacture of lumber handling equipment such as lumber conveyors, trimmers, stackers, and sorters. The Union filed a petition for an election in Case i The dates of all events took place in 1973 unless otherwise indicated. HARVEY ENGINEERING & MFG. CO. 26-RC-4400. The election took place on April 13 with the following results : 26 votes against the Union and 10 for the petitioner. There were five challenged ballots . No objec- tions were filed by the Union. The Union filed a demand letter on the Company on February 6 and the petition referred to supra on February 7. B. The Union's Organizing Campaign The Union's organizing campaign commenced on January 9 at which time Graves went among the employees to notify them that a meeting would be held on the Company's parking lot during the lunch hour. Graves testified that he spoke to no supervisors or office personnel about the meeting. While the initial meeting was in progress Supervisors Wesley Harbour and John Fletcher came within approximately 70 yards of the meeting and allegedly glanced toward the group. They did not stop or stare at the employees. Graves contacted Union Organizer Jesse Trussell and told him that the employees were interested in joining the Union. Trussell in turn told Graves to get in touch with Frank Russell, another union organizer, who, together with Graves, arranged for the first union meeting to take place at the Avenelle Motel in Hot Springs on January 26. Graves, on January 16, again - went through the plant before working hours and set up a second meeting of Respondent's employees to take place during lunchtime on the Company's parking lot. The employees were told by Graves about the union meeting scheduled to occur on January 26. He urged the men to attend and invited them to meet Russell and to sign union application cards. Graves got about six cards signed the evening of the meeting of the 26th. Between January 26 and February 2 Graves secured 17 additional signed cards which he turned over to Russell at the second meeting on February 2. Thus Graves was instrumental in causing the employees to attend the two union meetings and he also spoke at these meetings. All told Graves secured signed union cards from approximately 39 employees which were turned over to Russell. On direct examination Graves testified that while he was passing out cards at the plant, on one occasion he was observed by Don Scroggins, Respondent's general fore- man, while an employee was signing the card. According to Graves, Scroggins was standing approximately 10 feet away while the employee was signing the card. Scroggins at first looked in their direction and then turned his head away and looked the other way. Graves further stated that he did not believe that Scroggins could read what was written on the cards but he felt certain that Scroggins could see him. Graves went on to say that during the course of the meetings he held on the parking lot he "spoke up and told them (the employees) I felt that the union was the best thing we could tiave for any plant. If the union would represent us we would get better working conditions, better benefits, and that I was strictly union." Graves continued his testimony by stating that he has been a member of the Teamsters Union in a previous place of employment and that he had held two conversations 769 with company supervisors on this subject. He claims he spoke to Don Scroggins and Dub Clenny, who was a cutup foreman for Respondent, sometime around Christmas 1972. Scroggins allegedly said he would like to see the Company go union. Graves testified that Scroggins said the Union would help the Company. During this conversation Graves said he told Scroggins he had been a member of the Teamsters for the past 3 years prior to his employment with Respondent. In recounting his talk with Clenny, which also took place sometime before Christmas 1972, Clenny said he had been a member of the Boilermakers Union. Graves told Clenny any union that came in would probably straighten things out in the plant. That was the extent of the exchange between Clenny and Graves. There is information about Hamilton in the General Counsel's brief wherein it is stated: About February 6, 1973, President of Harvey Engineer- ing, Ed Harvey, had a conversation with Paul Hamilton and two company attorneys, Lincoln and Lyons. During this conversation, Hamilton told Harvey that he had been to a union meeting. Harvey testified that after being told by Hamilton that he attended a union meeting, he told Hamilton that he wanted him and needed him as a supervisor regardless of what had gone on and if he wanted to work there and do his job they needed him, regardless of any union activity on Hamilton's part. However, Harvey later admitted that during the same conversation, Respondent's attorney, Lincoln, told Hamilton that Hamilton had to be 100 percent for the Company or he couldn't work there. Apart from the above the record is silent on matters relating to Graves' union activities both past and present. It should be remarked at this juncture that the complaint does not contain any allegations of independent 8(a)(1) activities except for the material concerning Paul Hamilton all of which is not before me because the General Counsel amended the complaint at the hearing in which he deleted references to Hamilton. C. Graves' Version of the Facts Surrounding His Discharge Hamilton was discharged on February 21. Later the same day, about 4:30 p.m., Graves was summoned to the office of President Harvey. Present at this meeting were Graves, Harvey, Wesley Harbour, Respondent's vice president, and John Fletcher, the Company's vice president in charge of the engineering department. - Graves testified that Harvey told him the Company was appointing him as a supervisor to replace Hamilton. Allegedly Graves said he felt he was not qualified to be a supervisor. Graves also said he had never held a position like that before and he further commented that Respon- dent had a man, Albert Ellis, who was working in the same bay with him and had more experience than Graves. In point of fact Ellis had acted as a supervisor handling the same crew once before for a 2-week period while Hamilton was out of the plant on his vacation. The General Counsel's brief states: 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... Graves went on to tell Harvey that he did not want to be set up and fired like Paul Hamilton had been, because Harvey knew that he (Graves) had been talking union in the plant and had been trying to get the people organized and get the union in . Graves felt that under these conditions, that Harvey was just trying to set him up to fire him. Harvey's reply to Graves was, that if he wanted to continue working , he was going to have to accept this job. At this point Graves told Harvey that it was his decision to appoint him as a supervisor and Graves to refuse to accept but that he guessed he would have to accept. According to the testimony of Graves, Harvey told him the Company would post a notice on the bulletin board in the morning explaining that he was a supervisor . Fletcher congratulated Graves and this was the end of the meeting in Harvey's office. There is also testimony in the record that when Graves expressed doubt of his ability to discharge the responsibilities of a supervisor due to lack of experience he was assured by Harvey that the Company would be glad to assist him to learn his new job. At the conclusion of the meeting in Harvey's office, which occurred at normal quitting time, about 5 p.m., Graves went home. He turned over in his mind what had transpired and decided to call the union business agent, Russell, to discuss the matter with him. Russell told him that if he wanted the job he should take it but if he did not want it he should tell Harvey his decision the first thing in the morning. Graves saw that by this time it was about 5:30 p.m. and he decided he would return to the plant at once, which is located not far from his home, and try to catch Harvey and tell him he did not want the job. Graves found Harvey and allegedly told him that under the circumstances in the plant he just could not accept it. Graves claims that Harvey then asked him if he was quitting. Graves replied that he was not quitting. Graves then stated that when he came to work in the morning he would be working just like the rest of the fitters doing exactly what he was told to do in his line of work. Harvey again told Graves that this was the only way he could continue to work for the Company. Graves said he would be back at work in the morning but he would not be performing supervisory work . This ended the conversation. Next morning, February 22, Graves punched in for work and reported to his usual work station . Scroggins asked him what he was going to have his men do . Graves replied that he was not a supervisor and that he had made it clear to Harvey the night before that he rejected the promotion to be a supervisor. Scroggins said he had not been informed of Graves' decision to decline the supervisory job. Scroggins called Graves aside and advised him to take the job. Graves reiterated his determination not to become a supervisor. On two additional occasions that day Scroggins suggest- ed that Graves take the job as supervisor otherwise Harvey had made up his mind to fire Graves if he did not accept the job. Graves was adamant and said his decision not to take the promotion was made clear to Harvey the previous night. On February 23 Graves reported to work and began to check a gas line for leaks which assignment he had begun on the previous day. Scroggins approached Graves about 8 a.m. and instructed him to order two of his men to tear down a scaffold and take two sections to a local contractor who was engaged in putting up a building outside of the main building. Graves told Scroggins that he could not order . any of the men to tear down a scaffold or to do anything else because he was not a supervisor . Graves informed Scroggins that he (Graves) had never refused a job given to him by any supervisor and he had always performed whatever tasks had been assigned to him to the best of his ability . According to Graves, Scroggins agreed that he had followed orders but that Graves left him no alternative. The men were then ordered to take down the scaffold by Scroggins but Graves was not given this job. Later that morning, about 11:45 a.m., Scroggins told Graves to report to Harbour in the latter's office. When he got there Graves found Harbour was in the office together with Fletcher. Graves testified that Harbour told him the Company was going to have to let him go because he refused to give a direct order when he was told to do so by Scroggins. Harbour handed him a check for 27 hours at $3.62 an hour and 13- 1/2 hours at $4.12 per hour. Graves told Harbour there was an error , that he was not entitled to $4.12 an hour since that was pay for supervisors and he only performed the job of a fitter whose correct rate was $3.62 per hour . Graves further testified that at no time had he performed any supervisory functions and he was therefore not entitled to the pay of a supervisor. The General Counsel calls attention in his brief to the fact that there is no indication that the Respondent advised the employees of Graves' promotion. However, the record does show that some of the men in the crew said they knew about the promotion and one witness testified that Graves himself had stated that he had been promoted. D. Respondent's Version of the Facts Surrounding Graves' Discharge On the day when Hamilton was discharged , February 21, the Company promoted Woodrow Graves to the position vacated by Hamilton . Respondent in its brief characterized Graves "as being at the top of his pay grade, a good worker, dependable, and (he) had exhibited a desire to advance (in his job with the Company)." The brief continues: Credible evidence from three of the four persons attending the meeting (Harvey, Graves, Harbour and Fletcher) establishes that at first Graves stated that he did not desire the promotion because he did not think that he was qualified . However, the Company ex- plained that they would help him in any way . Graves admitted that at this meeting he at first accepted the job as supervisor to replace Paul Hamilton. Thus far the evidence in the record coincides with both versions of the events as described by Graves and Respondent's witnesses. However, there is a sharp conflict between the witnesses as to the later meeting which was held by Graves with Harvey at approximately 6 p.m. on the same day. Harvey testified that no detailed meeting was held but that Graves came to him and said that he wanted f HARVEY ENGINEERING & MFG. CO. 771 to talk to him. Harvey then went on to say that he had some customers in his office who were waiting for him and consequently he could not talk to Graves. Harvey stated that he continued walking to his office and Graves continued talking but Harvey claims he did not hear what Graves said. Graves did testify that Harvey said he had some customers to take care of in his office but Harvey denied that Graves said he would not accept the promotion to supervisor. If Harvey is to be believed Graves at no time reversed his prior acceptance of the job and then later, in his alleged conversation with Harvey at 6 p.m., he did not change his mind and refuse the job. Harvey denied he heard Graves say he would not take the job. Under Respondent's version of the facts when 2 days later Graves refused to order men in his crew to take down the scaffold after being ordered by Scroggins to issue such an order he was guilty of refusing to follow the express instructions of Foreman Scroggins. This would constitute insubordination and provide ample justification for Graves' discharge. It should be pointed out that Harvey, Harbour, and Fletcher gave mutually corroborative testimony in support of Respondent's position. Since Graves' recital of his conversation with Harvey is in direct conflict with the testimony of the Respondent's witnesses it becomes necessary to evaluate the credibility of Graves and Harvey. E. Credibility of the Witnesses It should be stated at the outset that Graves made a good impression during his testimony. On the other hand Harvey seemed to be evasive, uncertain, and be demon- strated great difficulty in remembering the dates of the events which he described. He seemed to have a faulty memory. The General Counsel sought to make much of the discrepancies between an affidavit which was executed by Harvey on March 26 and his testimony at the hearing. The statement signed by him consists of 19 pages of handwrit- ten material and, while it is not always easy to read, it is comprehensible. Respondent's counsel made a motion to strike this affidavit on the dual grounds that it is illegible and no typed copy of the statement was sent to Respon- dent at the time General Counsel agreed to do so. Neither ground advanced by Respondent has merit and I deny the motion. In any event, as stated supra, the copy in the possession of Respondent is sufficiently legible for me to have had no difficulty in deciphering it. Unfortunately, in determining credibility issues, a trier of fact does not have the benefit of any test that may be applied with absolute certainty that the result reached will be correct. Under our judicial system, all that a trier of the facts can do is to give due consideration to, among other factors, the demeanor of the witnesses, their apparent candor and frankness, their bias or interest, or the lack thereof, the probability of the truth of their testimony, and upon considerations of all relevant factors, give credit where credit appears to be due. After careful consideration of the testimony, and without imputing any improper motive to Graves, I have concluded that I must credit the testimony of Harvey that he did not hear Graves say that he could not and would not accept the job of supervisor. I base this conclusion upon the totality of the following considerations: 1. While I have commented on the rather poor impression Harvey made as a witness as against the good impression I took from the testimony of Graves it should be noted that demeanor is only one of the factors that must be taken into consideration when one is attempting to resolve questions of credibility. 2. The conflict in testimony concerns the second conversation between Graves and Harvey. Graves admit- ted that Harvey did tell him he had only a few moments to talk to him because he had some customers waiting for him in his office. It is plausible that he did not tarry too long in getting to his office and Harvey was clearly in a hurry to terminate the conversation with Graves. It may well be that Harvey did not hear all of the remarks made by Graves. Also there was no corroboration of this conversa- tion. Furthermore the initial talk between Harvey and Graves was heard by Harbour and Fletcher both of whom testified and impressed me with the candor of their corroborative testimony. It was not denied that Harvey did say in this conversation that unless Graves accepted the job of supervisor he could no longer work for Respondent. Added to this undisputed fact Scroggins took Graves aside and suggested to him that he better assume the responsibil- ities of supervision because otherwise Harvey had made it plain that his mind was made up: either Graves would act in a supervisory role or he could not continue to work for the Company. Scroggins made a separate and second attempt to urge Graves to order two men to take down a scaffold. Graves again refused to issue the order to the men as he was instructed to do by Scroggins. Scroggins credibly testified that he had received no word from the front office that Graves had told Harvey he refused the job the night before. Under these circumstances for Graves to have disobeyed a direct order was insubordination warranting his discharge. 3. Scroggins also testified with candor and forthright- ness that while he saw the men gathered on the parking lot there is no proof that from 75 yards away he was able to or made any effort to identify the principal speaker at this meeting. The General Counsel apparently expects me to draw an inference that a union meeting was in progress and that the Company knew Graves was a leader in the union movement. I am unable to draw such an inference. 4. While it was not denied that Graves did in fact have two conversations with company supervisors in which he made his union sympathies and past membership in the Teamsters clear it is also true that the conversations took place in December 1972 and active proselytizing efforts were not commenced by Graves until sometime in late January and early February 1973. The causal relationship between the conversations and Graves' efforts to unionize the plant is too remote in time to infer that Respondent knew that Graves had to be the Union's main supporter. I draw no such inference from the record. 5. Harbour testified that the first time he ever heard that efforts at unionization were being made and led by Graves was on February 23 when Graves was told he was being discharged. Graves' reaction caused him to say that he was being set up as a supervisor, like Hamilton before 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him, so that Respondent could then fire him because of his union activities. Harbour's testimony in the record on this point is as follows: Harbour was being interrogated on direct examination: Q. Now after that time had Woodrow Graves ever mentioned union to you or in your presence? A. No, sir. Q. You heard him testify this morning and you heard him account as to how he was almost a one man organizing committee. When is the first time you became aware that that was a fact? A. In February 23rd . . . when he told you that. Q. Did you know about his activities before February 23? A. I did not. I credit this testimony of Harbour. 6. In some particulars the testimony of Graves, Harb- our, Scroggins, and Harvey runs along parallel lines. Where the witnesses differ, on the question as to whether Graves asserted he told Harvey in his second meeting that he would not accept the job of supervisor, the plausibility of Respondent's version, as supported by the overall internal evidence presented by the Respondent, is persua- sive. I credit it. I am reluctant to make findings in the instant case based solely on inferences and the demeanor of the witnesses as requested by the General Counsel. Here, I believe, the greatest weight must be given to the issue of plausibility between the respective theories of the parties. F. Conclusions Company knowledge of Graves' leadership in and activities on behalf of the Union is an important element in the determination of this case . Among other things the General Counsel relies in part on the so-called "small plant doctrine." At the time of the union campaign Respondent employed approximately 41 production and maintenance employees . According to the General Counsel the wide- spread union organizing efforts among so few employees must have been known to the Company. It is true that the Board has found in certain cases that the small size of a Respondent's plant affords a basis for inferring the Respondent's knowledge of the union activities of its employees. The issue in this case is not whether Respondent had knowledge of union activities in its plant-as indeed it may have had-the issue is whether it knew about Graves' involvement in such efforts. Much more important the General Counsel had the burden of proving by a preponderance of probative evidence whether Graves had in fact first been promoted to the job of supervisor and then discharged on the pretextual ground of refusing to act as a supervisor when the actual motive of the Company was to discharge him because of his union activities at a time when he was a supervisor and presumably beyond the protection of the Act. The General Counsel's basic theory of the instant matter is that the Company engaged in a devious conspiracy to get rid of a union agitator by first promoting him to a job of supervisor and then firing him when he refused to act in that capacity. Such instances have occurred elsewhere in the past in certain factual circumstances where the evidence points in this direction. It must be emphasized that there is no evidence, direct or indirect, to support such a theory in the case at bar. Furthermore and significantly there is no credible evidence on this record to show that the Company had animus against the Union or was motivated in its action by antiunion considerations. I so find. There is not even an allegation in the complaint which was amended at the hearing of any independent 8(a)(1) incidents. [Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 The General Counsel has not sustained his burden of proof. I therefore recommend the dismissal of the case in its entirety. [2 In the event no exceptions are filed as provided by Sec. 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and all objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes.]