Little Lake Industries

LITTLE LAKE INDUSTRIES Little Lake Industries, Inc. and North Coast Counties District Council of Carpenters, United Brother- hood of Carpenters and Joiners of America, AFL- CIO. Cases 20-CA-12098 and 20-CA-12333 December 9, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On August 1, 1977, Administrative Law Judge Russell L. Stevens issued the attached Decision in this proceeding. Thereafter, the Charging Party, the General Counsel, and the Respondent filed excep- tions and supporting briefs, and the 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 brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge, to modify his remedy so that interest is to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977), 3 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 as modified below and hereby orders that the Respon- dent, Little Lake Industries, Inc., Willits, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. The Charging Party and the Respondent have 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 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing his findings. We agree with the Administrative Law Judge's finding that Shumaker accepted the supervisory position, but disavow his assertion that there is a presumption that offers of promotion are accepted. 2 The General Counsel and the Charging Party have excepted to the Administrative Law Judge's failure to dispose of the objections in Case 20- RC-12333. We find no merit in this contention because, in our view, the Administrative Law Judge was justified in refusing to consider the representation proceeding when that proceeding had not been formally consolidated with the unfair labor practice case before him. We also consider it inappropriate for us to effectuate a consolidation of these proceedings for purposes of decision. Accordingly, we conclude that Case 20-RC-12333 is before the Regional Director for appropriate disposition. 3 See, generally, Isis Plumbing A Heating Co., 138 NLRB 716(1962). DECISION STATEMIEN r OF THE CASE RUSSELL L. STEVENS, Administrative Law Judge: This matter was heard at Ukiah, California, on June 2 and 3, 1977.1 An initial charge in Case 20-CA-12098 was filed by North Coast Counties District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Union), on November 2; a first amended charge in said case was filed by the Union on November 11; a second amended charge was filed in the same case by the Union on January 28, 1977. An initial charge in Case 20-CA-12333 was filed by the Union on January 5, 1977. On February 2, 1977, the Regional Director for Region 20 issued an order consolidating the aforesaid two cases, and issued a consolidated complaint alleging that Little Lake Industries, Inc. (Respondent), violated Section 8(aXl) and (3) of the National Labor Relations Act, as amended. On March 28, 1977, said Regional Director issued an amend- ment to the consolidated complaint, 2 to add alleged 8(aX)(1) violations, and the complaint further was amended at hearing, with leave of the Administrative Law Judge. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, Charging Party, and Respondent. Upon the entire record, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a California corporation with a place of business in Willits, California, is engaged in the manufac- ture of wood products. During the past year, in the course and conduct of its business, Respondent sold goods and products valued in excess of $50,000 directly to customers located outside the State of California. I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. All dates hereinafter are within 1976, unless stated to be otherwise. 2 Herein called the complaint. 233 NLRB No. 164 1049 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II1. THE LABOR ORGANIZATION INVOLVED North Coast Counties District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. II1. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent operates a small manufacturing plant with approximately 350 employees in Willits, California, where it makes wood products. One process in the manufacture of Respondent's products involves applying stain to the manufactured articles. Prior to November 1 the plant operated only during daylight hours and, at times, with a swing shift. On November I a graveyard shift was instituted, and on December I a stain line was established during the graveyard shift. During the summer of 1976 personnel changes were being considered by Respondent. Carl Simonson, then superintendent of the stain line,3 was being considered for a change of position, and he talked with Alvin Shumaker, the Charging Party herein, about Shumaker taking over as stain line foreman if Simonson changed jobs. Shumaker then was a "set-up man," involved with maintenance and adjustment of manufacturing equipment; he was not a supervisor. The proposed personnel changes were not made, and nothing more was said about job changes at that time. In the early fall of 1976 Respondent began considering the possibility of opening a graveyard shift, and including a stain line on that shift. Simonson asked Shumaker if he would be interested in becoming foreman of the stain line on the graveyard shift, and Shumaker was interested, but did not commit himself at that time. Thereafter, the two talked about the possibility on several occasions, and Shumaker talked with several rank-and-file employees about the possibility of working under his supervision on the graveyard shift. Simonson knew about, and approved, those talks Shumaker had with other employees. It is undisputed that the employees Shumaker talked with, and about whom Simonson had full knowledge, were Paul Boren, who said he talked with Shumaker about the job on several occasions during the autumn, or fall, of 1976; Sarah Long, who said she discussed the matter with Shumaker in the last part of October; Tanya Reese, who did not testify; Barbara Maglaya, who said she talked with Shumaker about the matter in October; Ruth Bickford, who said she overheard a conversation in late October, during which Shumaker asked Simonson for her transfer to Shumaker's new job; and Kim Madrigal, who said Shumaker asked her 3 Simonson presently is factory supervisor. 4 All these named employees hereinafter are referred to by their last names. s Shumaker testified that he talked with Lewis on one occasion in September or October, and that he stated to Lewis, "I would hate to see the Union come in here. Because it would probably close the place down, and we're just in the process of buying some stuff." Shumaker said his was a defensive statement, and that Lewis replied, "I don't believe the place would during the last week in October, to work under his supervision on the graveyard shift.4 The graveyard shift commenced November 1, and shortly thereafter James Powell, who then had worked for Respondent about 4 months, was assigned to the job of foreman of the graveyard shift stain line. The Union's organizing campaign at Respondent's plant commenced about the first of August. Shumaker was aware of the campaign shortly after it started, and signed a union authorization card on August 5. Thereafter, Shumaker attended union meetings, talked with other employees about the Union, served with nine other employees on the union campaign committee, generally was active in union affairs at the plant, and acted as a union observer at the election on November 24. Issues General Counsel contends that Shumaker was not given the job as foreman of the stain line on the graveyard shift, after having been promised the job, because of his union activities. Respondent contends that Shumaker was offered the job, but rejected the offer. Other issues involve alleged 8(a)(1) violations by Respon- dent during the election campaign. A. Alleged Interrogation by Simonson Paragraph VI(a) of the complaint originally alleged that, in August 1976, Roy Lewis, Respondent's manufacturing manager, threatened plant closure because of union activities. At the close of hearing, General Counsel moved to delete said paragraph, on the ground that the proof shows an illegal interrogation by Simonson in August, rather than a threat by Lewis. Ruling on said motion was deferred. 5 Shumaker testified that he talked with Simonson and Lewis I or 2 days after he signed the authorization card on August 5, and that Simonson asked him, "Had I been contacted yet," by the Union. "Had they been to my house yet." Shumaker said he replied, "No." Simonson and Lewis denied the conversation related by Shumaker. Discussion Shumaker was not a convincing witness. His demeanor on the stand presented something of an enigma. He appeared hesitant, and unsure of his testimony. Clearly he has strong feelings of animosity toward Respondent that predate the incidents involved in this controversy. Much of his testimony was confusing and self-contradictory. Shumaker's testimony implies that Simonson knew, by August 5 or 6, about the union campaign. Nothing in the close down if it did come in here .... However, we couldn't compete with places like Sierra Pine, and it would be . . . we would have to have a cutback." Lewis denied this conversation. It may well be, as argued by Respondent, that Lewis' statement, even if made, would not constitute an 8(aX 1) violation. However, that argument is not reached, since Lewis' denial is credited. This alleged conversation is given no credence, and is not the basis for any finding. 1050 LITTLE LAKE INDUSTRIES record supports Respondent's knowledge at such an early date. Simonson and Lewis appeared to be straightforward and candid. They are not credited entirely, as discussed infra, but their denials relative to this allegation are credited. General Counsel's burden of proof requires that there be some reasonable basis for alleged violations of the Act. In this instance, the preponderance of evidence clearly is on Respondent's side. This allegation was not proved. B. Alleged Threat by Jack Holden Paragraph VI(b) of the complaint alleges that, in August or September 1976, Holden threatened employees that Respondent's operations would cease if the employees chose to be represented by a union. Holden was a stain line foreman, and a supervisor, at times relevant herein. Shumaker testified that he talked with Holden the first, or middle part, of October, and that no one else was present. Shumaker testified: We were standing down in the warehouse by our machine. We got machines. And we were standing down by the leg machine and leaning up against a unit of lumber. And he told me that if the place went union, there would be no way that they could go on. It would have to shut down, because redwood furniture is not a necessity to life. He said if it was a meat packing place, or something like that, then he could see it maybe going union. But since it was a redwood patio furniture place, there wouldn't be no way they could operate if it went union. Q. Do you recall if you said anything? A. I probably agreed with him. Holden denied the statement attributed to him by Shumaker, and said he had heard employees make some such statement on several occasions. Holden said he was instructed at the beginning of the campaign "to say nothing one way or the other, unless I was asked a specific question." Discussion There is no support for either side of this testimony. Shumaker was not a persuasive witness, and clearly is antagonistic toward Respondent, as discussed supra. He believes, rightly or wrongly, that Respondent in the past has refused to give him raises when he deserved them. His bias is apparent. Holden was an objective, candid witness, and is credited. This allegation was not proved. 6 G.C. Exh. 6. 7 B. F Goodrich Footwear Conmpan), 201 NLRB 353 (1973). a Marathon LeTourneau Companv, Gulf Marine Division of Marathon Manufacturing Company) 208 NLRB 213 (1974). C. Alleged Threat by Marsh Paragraph VI(c) of the complaint alleges that, on or about November 17, Wendell Marsh, Respondent's execu- tive vice president and general manager, threatened employees with plant closure if they chose to be represent- ed by the Union. This allegation is based upon a letter6 dated November 17, 1976, signed by Marsh, and sent to all employees. It also was posted on the plant bulletin board. The letter includes the following statements, among others: In 1969, however, Boise Cascade Company took over the plant and in 1970 the Industrial Carpenters Local 2341 of the United Brotherhood of Carpenters and Joiners became the employees' collective bargain- ing representative. By the spring of 1971, things had gotten so bad here that Boise had to close up shop and go out of business! Thefurniture operation remained idle for more than a year! About that time, the same union that wants your support now made unreasonable demands on Cotati Cabinet Company in Santa Rosa. That firm was forced to close its doors and a large number of employees had no jobs. The same was more recently true at Suncraft-a producer of furniture similar to our product line. Like Boise, Suncraft was under a union contract and had to close its doors. I can't say we would necessarily be forced to close if the Carpenters Union got in here again, but it has happened before, both here and elsewhere, and you should be aware of it. One sure way to prevent this from happening here again is to vote "NO" on November 24. That's the best way to guarantee yourselves the greatest degree of job security. Discussion A prediction during campaigning that unionization may or will result in plant closure possibly is permissible, provided it is based upon objective and demonstrable facts of economic results of unionization.7 However, a statement of possible closure without a factual basis for the prediction, coupled with reference to other closings related to unionization, clearly constitutes a veiled threat.8 Even though the "questions and answers" attachment to Marsh's letter assured employees they could vote as they wanted, without discrimination, the letter is a clear threat that unionization would carry with it a strong possibility of plant closure. Such a threat violates Section 8(a)(1) of the Act.9 This allegation was proved. The cases cited and quoted by Respondent have been carefully considered. Those cases are not controlling, since the predictions in those cases were tied to strike results,'0 9 Mueller Brass Co., etc., 204 NLRB 617, 623 (1974); Rockingham Sleepwear, Inc., 188 NLRB 698 (1971). iO Field Packing Co., Inc., 220 NLRB 1188(1975). 1051 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or there was no indication that retaliation or a threat was involved." The language here involved is different. Here, the threat of closure is tied directly to the Union and its activities. A prediction of closure, based solely upon what happened in the past when the Union had a contract with Respondent's predecessor, plainly is a threat, followed by a pitch for "no" votes in order to prevent the same thing from happening again. That language is coercive. D. Alleged Interrogation by Glen Skiles Paragraph VI(d) of the complaint alleges that, on or about October 21, Skiles interrogated an employee about that employee's union activity. At the time relevant herein, Skiles was foreman of Respondent's trim line. The employee involved is Oneida Shumaker, Shumaker's wife. Mrs. Shumaker testified that she attended approxi- mately four union meetings, during the period September through November. She stated that one of the meetings was held during the evening of October 20. The following day she was in the breakroom, with Skiles and another rank-and-file employee, Leecie Enox. A conversation ensued: And Leecie asked me, said, "Is Alvin ready to go back to another religious-political union meeting tonight?" My boss said, "Was he there?" She said, "Yeah." And I said, "We was both there," because I figured I'd had it. Q. Okay. And did you say anything further after this? A. No. He said-- Q. Who's"he"? A. Glen Skiles. Q. Okay. What did he say? S * A. He said, "If you want to pay two hours of your wages a month to somebody that's too lazy to work, go ahead." Mrs. Shumaker said Skiles spoke loudly, appeared "mad," and had a red face when he spoke. Enox testified that she attended the union meeting the evening of October 20, and that more conversation was devoted to religion and politics than to union matters. She said: She was in the breakroom the following morning, and Mrs. Shumaker and Skiles also were there. Enox asked Mrs. Shumaker if Shumaker was "ready to go back to another religious meeting." She did not hear Skiles ask Mrs. Shumaker if her husband had been to the union meeting, and Skiles did not ask Mrs. Shumaker if she had been there. Skiles did not say, "If you want to pay $2 to someone who's too lazy to work, go ahead." During the conversation Skiles spoke in a normal tone of voice, and did not appear angry. Enox never heard Skiles talk with anyone about the Union. Enox said formerly she was a union member but presently she is not; she is opposed to the Union. "1 American Motor Inns, d/b/a Holiday Inn Downtown, 212 NLRB 704 (1974). Mary Potvin testified that she was present at the conversation related by Mrs. Shumaker, but that she does not remember what anyone said. She stated that all foremen, including Skiles, frequently go into the break- room; that, while there, they frequently talk with employ- ees; that Skiles has never questioned her, or talked with her, about the Union; and that Skiles was not angry, or shouting, during the conversation. Skiles said he was in the coffeeroom on October 20, but denied asking Mrs. Shumaker if her husband attended a union meeting, and he also denied saying, "If you want to pay $2 to someone who's too lazy to work, go right ahead and do it." He said there was but little conversation that morning and that, when he said anything, he spoke in a normal tone of voice and was not angry. Skiles said he never talked with employees about the Union, because he had been instructed not to, and that those instructions were given to him prior to October 21. He said he had been through an earlier campaign as a supervisor, when Respondent's plant was owned by Boise Cascade. Discussion Mrs. Shumaker's testimony was brief and her state- ments were ambiguous. She said the conversation was initiated by Enox; Enox corroborated Mrs. Shumaker relative to both the question and Enox's answer. Mrs. Shumaker said Skiles then asked, "Was he there?" but there is no indication of who "he" was. It can be speculated that, if the question in fact was asked, "he" referred to Shumaker, but there is nothing to support that speculation. According to Mrs. Shumaker, Skiles' question was put to Enox, rather than to Mrs. Shumaker, because Enox answered "yeah." Then, according to Mrs. Shumaker, she volunteered the statement, "We was both there." Skiles' demeanor on the stand did not appear to be consistent with Shumaker's description. He speaks softly and deliberately, and was calm and objective in his answers. While anyone is capable of anger and shouting, Skiles' observable demeanor was so far from Mrs. Shumak- er's description that the difference cannot be ignored. Enox and Potvin were credible witnesses. Mrs. Shumaker did not appear to be a witness without credit, but a violation must be proved. Her testimony was incomplete and uncertain, and Skiles' demeanor and testimony were impressive; further, Skiles was corrobo- rated by Enox and Potvin. Under such circumstances, it cannot be found that the General Counsel's burden of proof was met. The allegation was not proved. E. Alleged Threat by Oren Tann Paragraph VI(e) of the complaint alleges that, on or about November 24, Tann threatened to terminate employ- ees because of their union activities. This allegation involves Shumaker and Tann, who then was a foreman (supervisor) on the stain line. Shumaker testified relative to an incident he said occurred on the day of the election: 1052 LITTLE LAKE INDUSTRIES Q. Describe the signs. A. Oh. It was no - "Vote no union" signs. And they had them posted all over. And on that day, David Garcia, he had one on his back, pinned on his back. And he come down through the stain line talking to all the people and telling them to - they'd better vote no, and this stuff. And so I asked Oren Tann, I said, "Oren, I don't think it's fair. What would happen if I printed a 'Vote yes' sign and put it on my back and started carrying it around?" He said, "You'd probably lose your job." Q. Okay. And what did you say to that? A. I said, "I probably would." Tann testified: Q. Did Mr. Shumaker tell you that he might make a "vote yes" sign and wear it? A. Not to my recollection. Q. Did you tell Mr. Shumaker that if he did something like that, he'd be fired? A. Absolutely not. Q. How can you be so positive about that state- ment? A. Just simply because I wouldn't. Q. Did you ever discuss the Union with your employees? A. No. Q. Did you ever ask any of your employees whether they were union supporters? A. No. That's their business. Discussion By November 24 Respondent was well aware of Shumaker's union activities, as discussed infra, and it is clear from the record that those activities were common knowledge in the plant. Shumaker's "yes" vote was an accepted fact long before the election, and any wearing of a "yes" sign would be of no more concern to Respondent than what Shumaker had been doing since August. If Respondent would fire Shumaker for wearing such a sign, it would have fired him long before November 24. Thus, this alleged statement is too illogical for belief. Further, as discussed above, Shumaker admittedly is antagonistic toward Respondent and his bias is apparent. Tann was a credible witness. The record does not support this allegation. F. Alleged Threat by Willis Fales Paragraph VI(f) of the complaint alleges that, on or about November 24, Fales threatened an employee that Respondent's operations would cease if employees selected a union as a bargaining representative. At the time relevant herein, Fales was Respondent's factory foreman (supervisor). Mary Truax, the employee involved in this allegation, testified that she talked briefly on November 24 with Fales, when the latter handed her the paycheck then due. She testified: And he came over and handed out - was handing out paychecks. So he gave me my paycheck. And I said, "Thank you." And he started away and I very kiddingly said, "Did we get our raise on this paycheck," which I've done before. And he turned around and gave me a real dirty look, and he said - he said, "If you vote the way I think you're going to vote, two weeks from now, you won't have a paycheck or a job, either." Truax further testified that, during the lunch hour on November 24, she related the conversation with Fales to four fellow employees. Marilyn Robertson, who Truax said was present when Fales made the alleged remark, testified that she never heard Fales discuss the Union with any employee, and that "I never heard him mention anything like that," referring to the remark Truax attributed to Fales. Doris Lawrence, one of the four fellow employees referred to by Truax, testified that Truax told the four: And she said that when she asked him about the raise, why he looked at her and said, "If the Union gets in, you're going to be lucky to get one." Lawrence said Truax did not tell the four that Fales had threatened Truax with the loss of her job, nor that Fales said that, 2 weeks from the day of the election, Truax would not have a job. Mary Vincent, one of Respondent's employees, credibly testified that she heard Truax on several occasions say that she was going "to get even" with Fales, and referred to Fales with profanity. Vincent also said she heard Truax say that she wanted to "get even" with Respondent. Fales denied the remark attributed to him by Truax and testified that he had been instructed in early November not to talk about the Union with employees. Discussion Truax's testimony is not reliable, for several reasons: (a) Her demeanor on the stand did not instill confidence. Her testimony was self-contradictory and vague. (b) She has been involved in disagreements, and arguments, with Fales on many occasions, partially because of work assignments. She testified that frequently she was angry with Fales. Credited testimony shows her antagonism toward Fales and Respondent. Presently she is engaged in a lawsuit against Respondent. (c) She testified that her remark to Fales about a raise was in the nature of a joke, but the conversation she said she related to the four fellow employees was not of that nature. (d) Her statement about what she said to the four employees, and Lawrence's statement, are different in form and in substance. (e) Truax was not eligible for any raise at the time of the alleged conversation. Fales was an impressive witness and he is credited. His testimony is supported by that of Lawrence and Robert- son, who also are credited. Based upon demeanor of the witnesses, the uncertainty of what, if anything, was said by Fales, and the doubts concerning Truax's testimony, the record cannot be found 1053 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to support this allegation. General Counsel's burden of proof was not met. G. Alleged Interrogation by Jack Holden Paragraph VI(g) of the complaint alleges that, on or about an unknown date in November, Holden interrogated an employee about that employee's union activity. At the time relevant herein, Holden was Respondent's stain line foreman. This allegation involves Bill Warren, then a forklift operator. Warren testified that, as he was finishing his workday on an occasion in November, Holden came to where he was and said, "I hear you're a union lover." Warren said he "got mad and walked off." He further stated that he was mad at everything in general at the time, because he had a "rough week." On cross-examination Warren said he had known Holden since he first started to work for Respon- dent, and that they are friends. Warren later was called by Respondent as a witness, and testified that he thought Holden said he was a union lover, but that "I'm not really sure if that's what he said or not." Warren further testified that, at the time of the incident, he was just completing divorce procedures and Holden, as well as others, often kidded him. He said he was with two other employees about a week before the incident and, when another person walked up, employee Billy Cunning- ham said, "You might be talking to some union lovers here." Warren testified: Q. Did he say something like "union lover," or did he actually say "union lover"? A. I don't remember the incident that well to say any more, because it's been over a - almost a year. And I just can't - I've racked my brain ever since I started to think about that. Q. But your best recollection is that some comment was made regarding - A. Some comment was made. Q. - regarding the Union? A. It could have been or it could not. I don't know for sure. Later, Warren testified: Q. I'm still a little hazy on this, Mr. Warren. When the remark was made to you, did you resent it? A. Yes. Q. Did you resent it because of what the remark contained substantively, or did you just resent it because a remark had been made to you? A. Probably just because any remarks had been made to me, because I had just got chewed out, if I remember right. And I was - I was doing the best I could with the forklift I had. I think that was when we had the old ones. And they had a low gear, and that was it. Q. Well, were you under the impression at the time that Mr. Holden was degrading the Union or saying something bad about the Union? 12 Holden later, after the election, succeeded in getting Warren rehired over the objection of Tann. Clearly Holden and Warren were on close terms. A. I never heard him say anything bad about it. Finally, Warren said he thought it was the "lover" comment that made him mad, and that he may have mistaken what Holden said for "union lover." Holden said he remembered the incident. Holden testified: WITNESS: And so anyway, I walked by and I said, "How's Mr. Warren, the great lover, today?" And I walked on. I noticed he looked at me real hard, but I didn't know why. BY MR. HAYDEN: And what prompted you to make a comment like that to Mr. Warren? A. Well, like I say, he was having problems with his ex-wife and another girl there in town. Q. How were you aware of that? A. Well, he'd come to me and tell me about it. Discussion Warren's testimony on this subject is such a mixture of doubt, self-contradiction, and uncertainty that its use to find a violation would be an injustice. He said the incident occurred more than a year ago, he did not remember just what was said, he was very mad at the time about other matters, and he could have been mistaken in his recollec- tion of the conversation. That is not the proof required to support the allegation, nor is it adequate upon which to base an inference. Even assuming, arguendo, that the alleged remark was made, it could not be found actionable under the circumstances. Clearly whatever remark was made was a simple and isolated one made in passing, between friends.12 There is nothing upon which to base a conclusion that the remark would have been intended to be more than a jest, or received as more than an off-the-cuff comment. Finally, Holden was a credible witness and his version of the conversation is accepted. H. Alleged Refusal To Promote Shumaker Paragraph VII of the complaint alleges that, in or about December 1976, Respondent denied Shumaker a promo- tion and wage increase because of Shumaker's protected activities. Union Animus Respondent's union animus is shown by General Counsel's Exhibit 6, as well as elsewhere in the record, and is not controverted by Respondent. Knowledge of Union Activity at the Plant So far as knowledge of union activity at the plant is concerned, Lewis testified that he learned from Enox that union meetings with employees were being held in the "fall" of 1976. Enox testified that she talked with Lewis about the union meeting of October 20, and that that meeting was the second or third union meeting. On another 1054 LITTLE LAKE INDUSTRIES occasion Lewis testified that he knew about all of the union meetings, and that he learned of some of them, from Enox. Simonson said Shumaker 3 told him in the summer, prior to September, that he had been visited by union represen- tatives. Shumaker testified that he discussed the Union with Simonson on two or three occasions prior to the election, but he does not remember the dates. Shumaker said he told Simonson he had signed a union card, but he does not remember the date he told him. Simonson said he learned from Shumaker in September that the latter was a union supporter. Skiles testified that he was given instruc- tions relative to the union campaign a month or 6 weeks prior to the election, which would have been in October. Based upon the foregoing, and upon the record as a whole, it is apparent, and found, that Respondent knew from approximately August or September that the Union was attempting to organize the plant employees. Knowledge of Shumaker's Union Activity So far as Respondent's knowledge of Shumaker's union activity is concerned, Shumaker testified that the first time he talked with Simonson about the Union was in the latter part of October. He said he told Simonson that he had "signed with the Union," and that the Union had asked him the preceding night to be an election observer. 4 Simonson said he would be on the other side. Shumaker said he does not remember whether he told Simonson prior to the date Simonson offered him the job as foreman of the stain line, about Shumaker's union activity, but that the two or three discussions he and Simonson had about the Union were prior to the election. Simonson testified that Shumaker told him early in September, "I don't really care who you tell, if you tell anybody, but I'm pushing for this union." Lewis testified that he did not know that Shumaker was a leading union advocate; nor did he know who the other advocates were. It is clear from the foregoing that Simonson learned, prior to the election, that Shumaker had signed a union authorization card and was in favor of the Union. Shumaker was an active proponent of the Union, and a member of the organizing committee, from inception of the union campaign in August. Shumaker said he tried to keep secret the fact that he had signed a union authorization card, but Lewis said he knew about all union meetings with Respondent's employees, and it was common knowledge among employees that Shumaker was a strong union supporter. Shumaker said he was a friend of Simonson and, when asked if he was a good friend, Shumaker replied, "You bet." Further, Shumaker said he and Simonson talked about the Union on several occasions. Based upon these factors, and upon Simonson's testimony, it is found that Simonson knew about Shumaker's union activities from and after early September. 13 Both Shumaker and Simonson testified to their friendship. 14 This statement is contrary to the testimony of the Union's business agent, Joe Keefer, who testified that the Union's observers were not selected until November 24. Date of Foreman Job Offer A question is presented as to whether Respondent knew prior to offering the foreman job to Shumaker that the latter supported the Union. The testimony relative to this question is uncertain and conflicting. Shumaker testified: Simonson first talked with him about the possibility of becoming foreman, in June, "before July 4," when personnel changes were being considered. Nothing came of that offer because of reasons not related to this controver- sy. Thereafter, Shumaker heard rumors about a graveyard shift being considered by Respondent, and he asked Lewis, about 2 or 3 weeks after Simonson asked Shumaker about the foreman job, if Lewis had anyone in mind for foreman of the stain line on the proposed graveyard shift. Lewis said he did not have anyone in mind. About a week later (or approximately early August), Simonson told Shumaker that Lewis had given him permission to hire a foreman. Simonson asked Shumaker if he wanted the job, and Shumaker said he would have to talk with his wife about it. The following morning, after the suggestion by his wife and by Joe Keefer that he take the job, Shumaker told Simonson, "I want the job, Carl." Simonson then told Shumaker, "Okay. You start picking your key people." Shumaker then started selecting his key employees, as discussed supra At another point in his testimony, Shumaker stated: Now, moving to the late summer or early fall of 1976, when was the first time that you had conversations with Carl Simonson about the possibility of your becoming stain line graveyard foreman? A. Right after they started the graveyard shift in the factory. 5 At still another point in his testimony, Shumaker stated that he accepted the job, after Simonson's offer, the first part of October, approximately 3 weeks before Simonson went on vacation.16 Shumaker testified that, when he accepted the job, several employees were present, including Margaret Ford, Kim Madrigal, Barbara Maglaya, Rosalie Holland, and Ruth Bickford. Ford and Holland did not testify. Maglaya testified that Shumaker talked with her sometime in October about working under his supervision. Madrigal testified that Shumaker asked her the last week of October to work under his supervision on the graveyard shift. Bickford testified that she heard Simonson offer the foreman job to Shumaker during the last 2 weeks in October. Simonson testified that he offered the foreman job to Shumaker in early October. Lewis testified, "I know the time that I told Carl [Simonson] to offer the job to him [Shumaker] was in-it was probably in early October, a definite deal on that." It is found that Simonson offered the foreman job to Shumaker approximately during the first week of October. Based upon the foregoing, Simonson knew at the time he made the foreman job offer to Shumaker that the latter was 's The record shows that the graveyard shift was started November I. 16 Simonson credibly testified that he went on vacation the first week of November. 1055 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union advocate. However, it is possible that Lewis did not know that fact. Respondent's union animus is clear, as discussed supra, and it is unlikely that Lewis would have authorized Simonson to promote a known union advocate. That reluctance probably would not override the friendship between Simonson and Shumaker. Shumaker's Reaction to the Foreman Job Offer Shumaker was not made foreman on the graveyard shift stain line. The job was given to Powell. Shumaker testified: After Simonson offered the foreman job to him, he talked with his wife and Keefer, both of whom urged him to take the job, and he accepted during a conversation with Simonson the following morning. Imme- diately after the acceptance, he talked with potential employees to work under his supervision. He heard no more about the foreman job until he learned in November that it had been given to Powell. About Christmastime Powell told Shumaker that he, Powell, no longer had to do setup work and that, if Shumaker had "[gone] the other way," he would have the foreman job and Powell would have been the setup man. Bickford testified that she overheard Simonson offer the foreman job to Shumaker and, the following day, heard Shumaker accept the job.' 7 Keefer testified that he talked with Shumaker in September, and again in October, about the foreman job and on both occasions encouraged Shumaker to accept the job. Keefer said Shumaker advised him in late October or early November that he had accepted the job. Powell denied the statement attributed to him by Shumaker, relative to Shumaker going "the other way." Simonson said he selected Shumaker for the foreman job, subject to Lewis' approval, because Shumaker was the best employee for the job. He said he then was aware of Shumaker's union advocacy. Simonson stated that, the day after he offered the job to Shumaker in early October, Shumaker told him "that he had talked to his union advisors, and they had advised him not to take the foreman's job, because he would lose the protection that they could offer him." Simonson said he advised Lewis of Shumaker's refusal of the offer and that thereafter, Lewis handled the matter. Simonson went on vacation in early November and, when he returned to work, he went to another job rather than returning to the stain line. Simonson testified that he did not learn, until the day of the election, that Shumaker was a union observer. Lewis testified that Simonson told him, in early October, that Shumaker had declined the offer, and that Lewis then decided to give the job to Powell. He said he offered the job to Powell during the middle or latter part of November. Lewis stated that he first learned, on the day of the election, that Shumaker was a union observer. Powell testified that Lewis first told him that he would be made foreman on the stain line, during the first half of November. Maglaya testified that, a couple of days after she talked with Shumaker in October about the possibility of working 17 Bickford was a most unconvincing witness. Her testimony appeared contrived; she was nervous and uncertain while testifying. She was self- contradictory and much of her testimony clearly was contrary to facts well established in the record. Her testimony is discredited in its entirety for Shumaker on the graveyard shift, she had a conversa- tion with Shumaker: A. He told me that he didn't think that he'd be able to take it, the foreman job, because he said that the Union wouldn't back him up, or something.?' A. Okay. When I told him that he'd be passing up a good foreman job if the Union didn't get in, then he said that he was going around talking to people about the Union. So - I want to make sure I've got this right - that he was going around talking about the Union, that he was more or less for it, so that he couldn't more or less back out now. A. He said that the Union said that they wouldn't back him up if he was the foreman. Boren testified that, for a period of time after Shumaker talked with him about working on the graveyard shift, they often talked about the expected change. Boren said their conversations were held less often with the passage of time: A. Well, he said - our - first of all, our conversations sort of decreased there for a while. And then I asked him one day if we were still - if we were going - still going to go graveyard, because, like I say, the conversations had, you know, decreased. And he said that he didn't think he was going to get it. And I asked him why, and he said, "Well, they won't let me have it." Tann testified that, sometime in October, he recommend- ed to Lewis that Shumaker not be selected for the foreman job, because of"legal problems" Shumaker then had. 19 Discussion Shumaker contends that he wanted the foreman job, and that his wife and Keefer convinced him to accept the job. Mrs. Shumaker did not testify on this subject, but Keefer corroborated Shumaker. Boren's testimony includes some support for Shumaker's contention. Maglaya's testimony does not support Shumaker, but it relates to incidents in October and does not contradict Shumaker. Shumaker's testimony relative to his acceptance of the job was convincing, and it is credited. Respondent contends that Shumaker declined its offer of a foreman job, and principally relies upon Simonson's testimony for support. That testimony appeared contrived, and the record generally supports Shumaker rather than Simonson. (a) A promotion offer is not readily refused by an employee. Proof of refusal would have to be made in order to overcome the presumption that any employee would accept a promotion offer, and no proof was offered other than Simonson's testimony. (b) Shumaker was an experienced employee and his work was respected by 's Shumaker denied making this statement. "I The charges against Shumaker were dismissed. 1056 LITTLE LAKE INDUSTRIES Simonson. Powell was a relatively new employee who had to be trained. Clearly Shumaker was the first choice for the job. (c) When he was offered the job in October, Shumaker immediately set about to recruit his key employees, admittedly with Simonson's knowledge and consent. Such action would not be taken if Shumaker had declined the foreman job or was doubtful about taking it. (d) Respon- dent admittedly has union animus, and had knowledge of Shumaker's union advocacy prior to the time Powell was given the job. The fact that Simonson knew when he offered Shumaker the job, that Shumaker was a union advocate, is not controlling, since Shumaker and Simonson are good friends and there is no evidence that Simonson told Lewis at that time about Shumaker's union activities. Further, Lewis was the one who made the decision to put Powell in the foreman job. The only logical conclusion from the foregoing is that Simonson offered the job to Shumaker, who accepted it, and that thereafter Lewis learned of Shumaker's union advocacy and gave the job to Powell for that reason. This allegation is supported by the evidence. Shumaker's Alleged Disloyalty Respondent argues, partially upon the basis of Shumak- er's own testimony, that Shumaker was disloyal. There is no question but that Shumaker is antagonistic to Respon- dent, but the word "disloyal" is not the proper one in the context of events herein discussed. "Disloyal" is a term associated with the duties of a supervisor, and in that sense the cases cited by Respondent are instructive. However, Shumaker was a potential supervisor rather than a supervisor. Until he was a supervisor, he could continue his actions as a rank-and-file employee. He could not be held to the code of a supervisor prior to becoming one. It may well be, as Shumaker readily admitted, that he was doubledealing by giving the Union his full support simultaneously while preparing to become a supervisor, but the fact remains that he was not yet a supervisor, and he was deprived of the foreman job solely because of his union activities. There is no way to ascertain, prior to his being a supervisor, whether or not Shumaker would be loyal to Respondent after he became a supervisor. Hence, Respon- dent's argument based upon Shumaker's statements that he planned to be an election observer, and that he may even take a job with the Union, is anticipatory and speculative. It cannot be said, ahead of time, that Shumaker would be a disloyal supervisor.20 Objections to the Election The Regional Director's order consolidating cases, and the consolidated complaint, as well as the amended consolidated complaint, cover only Cases 20-CA-12098 and 20-CA-12333. No mention is made of objections to the election of November 24. 20 The timing of Respondent's offer to Shumaker does not create a possible 8(aXI) violation. It is apparent that Respondent had considered Shumaker as a possible foreman, and talked with him about it, since at least June. There is no indication that starting a graveyard shift. or offering a foreman job to Shumaker, was intended to interfere with union activities or the election. The Regional Director's supplemental decision in Case 20-RC-13720, issued March 31, concludes as follows: Objection Nos. 2, 6, 7, 11, 12, 17, 18, and 22, and the matters alleged in the aforesaid Consolidated Com- plaint, as amended, constitute a single overall contro- versy. Upon due consideration of the matter, it has been concluded that the purposes of the Act will be effectuated, and unnecessary cost or delay will be avoided by considering jointly the unfair labor practic- es alleged in the Complaint, as amended, in Case Nos. 20-CA-12098 and 20-CA-12333, and Objection Nos. 2, 6, 7, 11, 12, 17, 18, and 22. Accordingly, upon final disposition of the Objections 20 and 21, Case Nos. 20- CA-12098, 20-CA-12333, and 20-RC-13720 will be consolidated for purposes of a hearing before a duly designated Administrative Law Judge. No consolidation was effected, so far as the record shows, nor was the RC case referred to an Administrative Law Judge. Hence, I am without jurisdiction so far as the representation case is concerned. General Counsel's brief and its case caption are limited to the C cases. Further, some objections listed in the Regional Director's supplemental decision were not litigat- ed or mentioned in the pleadings or at the hearing. In view of the foregoing, only one finding is made herein relating to objections to the election. That finding is made because much time was devoted at the hearing to the issue. The Union objected to the election because Betty Smith served as Respondent's election observer, while she was a supervisor or an employee closely related to management. The evidence shows that Smith has no authority to hire, fire, discipline, reward, instruct, direct, control, or in any manner whatever, act as a supervisor of other employees. Further, the evidence shows that Smith is not a manager, corporate director, controller, or policy director of Respon- dent, or in any manner whatever acts in a managerial capacity. Finally, the evidence shows that Smith is a clerical employee whose duties are quite limited and who has no authority to act for, or bind, Respondent. There is no basis for excluding Smith as an election observer.2' The cases cited in Charging Party's brief have been carefully considered. Those cases clearly are distinguish- able on their facts, and are not applicable herein. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 21 St. Joseph Riverside Hospital, 224 NLRB 721 (1976); Delmar Gardens, Inc., 198 NLRB 309 (1972): Westinghouse Electric Corporation, 118 NLRB 1625 (1957); Northrop Aircraft, Inc., 106 NLRB 23 (1953). 1057 DECISIONS OF NATIONAL LABOR RELATIONS BOARD v. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(aX 1) and (3) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom, and from any like or related manner infringing upon its employees' Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. Respondent unlawfully having denied a promotion and a wage increase to Alvin Shumaker on December 1, 1976, I shall recommend that Shumaker be promoted to foreman, effective December 1, 1976, replacing if necessary any employee who may occupy the position to which Shumaker should have been promoted, and be made whole for any loss he may have suffered by reason of Respondent's failure to promote him on said date. Backpay shall be computed on a quarterly basis from December 1, 1976, to date of actual promotion, plus interest at 6 percent per annum. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Little Lake Industries, Inc., Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. North Coast Counties District Council of Carpen- ters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with plant closure if they chose to be represented by a union, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed to them by Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 4. By denying on December 1, 1976, to Alvin Shumaker a promotion and wage increase because of his membership in, and activities on behalf of, the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. Respondent did not, through alleged conduct, otherwise violate Section 8(a)(l) of the Act as alleged in the complaint. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER22 The Respondent, Little Lake Industries, Inc., Willits, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with plant closure if they choose to be represented by a union. (b) Refusing to promote and give a pay raise to employees because of their union or other protected activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Promote to foreman, effective December 1, 1976, and make whole Alvin Shumaker for any loss of pay he may have suffered by reason of its discrimination against him, as provided in the remedy. (b) Post at its Willits, California, facility copies of the attached notice marked "Appendix." 23 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed to the extent that it alleges violations of Section 8(a)(1) of the Act other than violations of Section 8(a)(1) found herein. 22 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in, or activities on behalf of, North Coast Counties District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by threatening our employees with plant closure if they choose to be represented by a union. WE WILL NOT refuse to promote and give a pay raise to our employees because of their union or other protected activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through represen- tatives of their own choosing, to engage in concerted 1058 LITTLE LAKE INDUSTRIES activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL promote to foreman effective December 1, 1976, and make whole Alvin Shumaker for any loss he may have suffered by reason of our discrimination against him. LITTLE LAKE INDUSTRIES, INC. 1059