Hicks Oils & Hicksgas, Inc

84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hicks Oils & Hicksgas, Inc and Teamsters Local Union No 347, a/w with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO Case 14- CA-17715 March 7, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND HIGGINS On June 28, 1985, Administrative Law Judge Richard J Linton issued the attached decision The Respondent and the General Counsel filed excep- tions and supporting briefs, and the Respondent filed an answering brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings, I and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified 2 1 The judge found that the General Counsel failed to establish a prima facie case in support of the 8(a)(3) allegation that Kinsel was discharged for union activities He based the finding on an ab- sence of proof that the Respondent knew of Kin- ' The Respondent and General Counsel have excepted to some of the judge s credibility findings The Board s established policy is not to over rule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in correct Standard Dry Wall Products 91 NLRB 544 (1959) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We agree with the judge for the reasons set out by him that the evi dence is insufficient to establish agency status for Edward Johnson and that therefore the allegations that he violated Sec 8 (a)(1) should be dis missed See JD infra at 92 The cases relied on by our dissenting col league are distinguishable Johnson s authority to act as a conduit of in formation between management and other employees is not shown as ex tending beyond his day to day leadman duties so as to place him in such a distinct position that other employees would reasonably believe that he was allied with management Member Johansen would reverse the judge and find that Edward John son was acting as the Respondents agent during the alleged encounters with maintenance employee Gary Kinsel in September and October 1984 and that Johnson s conduct toward Kinsel violated Sec 8(a)(1) as alleged In Member Johansen s view the record clearly shows that notwithstand ing his lack of supervisory status Johnson was and could reasonably have been viewed by the maintenance employees as a company repre tentative clothed with implied authority to act for management Qua! ity Drywall Co 254 NLRB 617 620 (1981) See also Jules V Lane DDS PC 262 NLRB 118 119 (1982) Bohemia Inc 266 NLRB 761 763-764 (1982) 2 In accordance with New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out to the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued poor to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621 ) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) sel's support for the Union He further found that the evidence established a lawful motive for the discharge, i e, the Respondent's inability to meet Kinsel's wage demands, and that the allegation should, therefore, be dismissed We disagree with the judge's analysis on both points As more fully described by the judge, Kinsel was the leader of the incipient union organizing effort Beginning about the third week of August 1984,3 Kinsel began raising the subject of union representation with other employees On October 11 Kinsel contacted the Union and arranged for a union meeting on the evening of October 17 A few days prior to October 11, Kinsel initiated a conversation with John Flessner, the Respondent's vice president, about the "possibility of the [plant] going union " According to Kinsel's credited testimony, Flessner told him that he wished that the plant not be unionized and that if it was, the Respondent would be "in a bind " Flessner further stated that if the union effort succeeded, the situation would be ,out of his hands " These comments by Flessner clearly imply that he was responding, in an ex- change begun by Kinsel, to expressions of support for unionization of the plant Thus, we find that the Respondent, through its second highest manage- ment official, knew of Kinsel's union sympathies 4 In linking the Respondent's knowledge of Kin- sel's support for unionization, albeit not necessarily of his leadership role, with an unlawful motive for then discharging him within approximately 1 week, we stress the extent of the Respondent's ongoing pattern of unfair labor practices manifested in inter- rogations threats of discharge, promise of benefits for refraining from union activities, creation of the impression of surveillance, and two subsequent dis criminatory discharges On the basis of the above, we find that the ele ment of knowledge that the judge found lacking has been amply proven In the presence of exten sive union animus, as described above, as well as the precipitous timing of Kinsel's discharge ap- proximately 1 week after he contacted the Union, we further find that the General Counsel has met her burden of establishing that Kinsel's union ac tivities were a motivating factor in his discharge We therefore find, unlike the judge, that the Gen- ' Unless otherwise indicated all dates are in 1984 4 Kinsel s testimony that he did not tell Flessner that he was going to contact the Union elicited in response to a question on cross examination about whether he volunteered to Mr Flessner about unions does not undercut this finding We find it unnecessary to reach the issue concerning whether knowl edge of Kinsel s arranging the union meeting can be attributed to the Re spondent through statements of Supervisor Fiantaco 293 NLRB No 10 HICKS OILS & HICKSGAS eral Counsel has established a prima facie case of a discriminatory discharge Having found that Kinsel's union activity was a motivating factor in his discharge, we now turn to the Respondent's asserted lawful reason for that action and find, in agreement with the General Counsel, that the Respondent has not met its burden under Wright Line, 251 NLRB 1083 (1980), of showing by a preponderance of the evidence that the discharge would have taken place even absent Kinsel's openly expressed support for the Union Before Kinsel contacted the Union on October 11, he had spoken with General Manager Williams and Vice President Flessner in attempting to obtain a wage increase for himself He asked for an imme- diate $1-an-hour increase and another $1-an-hour increase at the first of the year Kinsel and Hicks then held a conversation on this matter on October 11 According to the credited testimony, Hicks of fered an immediate increase of 50 cents an hour, Kinsel replied that he could live with that, and Hicks then held out hope for more money later Kinsel did receive his promised increase, effective October 1, thus raising his wages to $6 50 an hour Williams later told Hicks that he had heard a few days after October 11 that Kinsel had told an em- ployee that he would not operate the crane to which he had been assigned during the week of October 15 unless he was paid $10 an hour Hicks and Williams then decided that they could no longer afford Kinsel and were "getting tired of lis- tening to him " Hicks conceded that he did not check the validity and accuracy of the "$10 an hour" statement with Kinsel himself On October 16 Hicks and Williams agreed to dis charge Kinsel On October 17 Williams asked Kinsel to resign When Kinsel refused, Williams told him he would be fired That day Hicks pre pared the termination letter that read, in pertinent part, "I have concluded that I cannot meet your wage demands You are being paid an extra week to find something that is to your liking' The letter was delivered to Kinsel by Flessner on October 18 Flessner explained to Kinsel that the reason for his discharge was not his work, but rather it was the inability of the Respondent to meet his wage de- mands and the fact that Hicks did not want him there if he was "unhappy " Under Wright Line, an employer cannot carry its burden of persuasion by merely showing that it had a legitimate reason for imposing discipline against an employee, but must show by a preponderance of the evidence that the action would have taken place even without the protected conduct A judge's personal belief that the employer's legiti- 85 mate reason was sufficient to warrant the action taken is not a substitute for evidence that the em ployer would have relied on this reason alone 5 If an employer fails to satisfy its burden of persua Sion, the General Counsels prima facie case stands unrebutted and a violation of the Act may be found We find that the Respondent has not shown that it relied solely on the report that Kinsel had stated to an individual who was not a member of the Re- spondent's management that he would not continue working unless he received $10 an hour Several days prior to receiving this information Hicks had personally negot.ated a private agreement with Kinsel compromising his stated wage demands Kinsel expressed directly to Hicks his satisfaction with the immediate 50-cent an-hour increase even though he had asked for a total of $2 an hour more than he had been receiving Even granting the Re- spondent's contention that it could not afford to in- crease Kinsel's pay by $3 50 an hour more than had been agreed on October 11, we are struck by Hicks' admitted willingness immediately to dis- charge Kinsel without first directly contacting him to insure that the 110 an hour" statement had in fact been made as reported, and, if so, ascertaining Kinsel's reason for breaking their bargain so quick- ly Surely, a concern about the accuracy of the third party's assertion reflecting Kinsel's attitude would prompt some substantiation before discharg mg Kinsel, particularly given Kinsel's acceptance only a few days before of an hourly wage increase a dollar and a half below that which he originally had requested Further, the Respondent has not shown that its normal practice is to discharge em ployees who are "unhappy" with their wage rates, nor has it presented any evidence that Kinsel re fused to carry out his crane assignment because of the pay rate or that he was otherwise insubordinate in any way Based on the foregoing, the Respondent has failed to carry its burden under Wright Line of per- suading, by a preponderance of the evidence, that it would have decided to discharge Kinsel on Oc tober 16 in the absence of its knowledge that he had spoken to a high management official about unionization of the plant Accordingly, we find that the discharge violated Section 8(a)(3) and (1) of the Act 6 5 Delta Gas Inc 282 NLRB 1315 (1987) 6 Member Johansen would find that the discharge was unlawful (at least in the context of an organizing campaign) even was he to accept the Respondents explanation See his dissent in Adelphi Institute 287 NLRB 1073 (1988) 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 The General Counsel has excepted to the judge's failure to find that in a conversation on Oc- tober 20 between the Respondent's admitted agent Fiantaco and employee Kelly Miller, Fiantaco-as alleged in the complaint-threatened Miller with discharge in the event he decided to support the Union The judge had analyzed the conversation as not including such a threat, and he found, instead, an unalleged promise of benefit in this conversa- tion 7 The Respondent complains that it had no notice of any such promise of benefit allegation As we explain below, we believe that the contents of the credited conversation, including as it does both the alleged threat and a promise of benefit, are so closely intertwined with the threat as to provide proper notice of the substance of the allegation It is significant, in the first instance, that the Miller Fiantaco conversation followed on the heels of the discriminatory discharge of union activist Kmsel and an incident in which Fiantaco unlawful- ly gave Miller and other employees the impression that Hicks was going through the plant checking out employees against a list of union sympathizers As further background to the October 20 conversa- tion, Fiantaco had told another employee that Kinsel had been fired for union activities and that that employee would also be fired if the Respond- ent found out he wanted a union 8 On October 20 Fiantaco told Miller that Miller was "up for" Kinsel's then vacant job, which would have meant a promotion for Miller Fian- taco said Kinsel had "messed all that s- up" and would "never see Hicks Oil again " Fiantaco wanted to know first, though, how Miller "felt about the whole situation " After some further probing, through which Fiantaco identified Miller's father as a union man, Miller sensed that Fiantaco was asking how Miller felt about the Union and implying that his employment situation with the Respondent depended on it Miller refused to accede to this pressure and told Fiantaco he would 7 The complaint had also alleged that the Respondent through Fore man Fiantaco had interrogated Miller and created the impression of sur veillance during this conversation The judge found that the unlawful in terrogation took place and he dismissed the impression of surveillance al legation We find no merit in the Respondents exception concerning the interrogation finding and we note that no exception was taken to the judge s dismissal of the impression of surveillance allegation based on this conversation 8 The testimony credited by the judge in this connection is somewhat ambiguous Foster the recipient of this threat testified that Fiantaco said Kinsel was fired from a job before because of trying to get a union in there The Respondent argues that this statement refers to the conduct not of the Respondent but of a former employer of Kinsel The quoted statement standing alone might reasonably be interpreted that way However it was followed by the direct threat to Foster [Fiantaco] said I d be let go too if I was found out you know about wanting a union in Viewing the conversation as a whole we cannot say the judge erred in attributing to Fiantaco the expressed opinion (rather than knowledge) that the Respondent discharged Kinsel for union reasons either vote for the Union or not according to what he thought was right for him Six days later the Respondent terminated Miller, as the judge found, because he appeared to be prounion We do not view the judge's characterization of the October 20 conversation as either a threat or a promise of benefit In the context in which Fianta- co's remarks occurred they constituted both a threat of discharge and a corresponding promise of benefit that is sufficiently related to the alleged threat to withstand the claim of lack of notice The key to the dual nature of Fiantaco's inquiries re garding Miller's union sympathies is in his continu- ing use of Kinsel as an example of how a Hicks employee could lose his job Fiantaco clearly linked Kinsel's fate to Miller's prospects The plain implication was that Miller would have Kinsel's job (a promotion) if he did not support the Union, and he might have no job at all if he did The fact that the second contingency occurred only a few days later reinforces the threat aspect of Fiantaco's conduct REMEDY We agree with the judge that a remedial bargain mg order is appropriate Concerning the composi tion of the appropriate unit, we shall first include Kinsel in the unit because we have found, contrary to the judge, that his discharge was discriminatory Second, the Respondent disputes the judge's find- ing that employees Miller and Bowlin, who signed valid authorization cards, were permanent employ ees who were eligible to be part of the unit The judge included them because he determined that both would have become permanent employees but for their unlawful terminations We need not specu- late here on the correctness of that prediction about what would actually have occurred if the two had not been discharged Those matters, as we note below, may be litigated in the compliance stage We do find, however, based on credited record testimony, that before his discharge Miller was a regular employee with an indefinite tern' of em- ployment and a reasonable prospect of continuing employment He was hired to do welding as part of the Respondent's regular maintenance crew, "till the job was done," and was continually told that management was considering whether to keep him on permanently The Respondent's vice president asked Miller whether he planned to stay perma- nently and raised with him an issue being discussed among the employees regarding whether they pre ferred to be paid every week rather than every 2 weeks Further, Miller plainly shared a sufficient community of interest with unit employees to be HICKS OILS & HICKSGAS included in the unit His employment status was analogous to that of an includable probationary em- ployee See Johnson 's Auto Spring Service, 221 NLRB 809 (1975) Moreover, its indefinite duration distinguished him from a temporary employee for purposes of unit eligibility J P Sand & Gravel Co, 222 NLRB 83, 84 fn 2 ( 1976) For reasons that will appear below, we need not pass on Bow fm's inclusion In agreement with the judge, we find that a suffi- cient number of valid authorization cards were pre- sented to show that the Union represented a major- ity of the unit employees All the signers of the seven contested cards , except Jeffrey Scronce, read them before signing, and the judge implicitly cred- ited solicitor John Scholebo 's testimony that he told each of them not to sign unless he was going to "stick with" the Union Scholebo did not, except possibly in one case-that of Andy J Queen-tell any of the prospective signers that the only pur pose of the card was to get an election Queen's card is unnecessary to the Union 's majority and we shall not pass on its validity This moots the Re spondent's challenge to Queen's status as a unit em ployee The other nine cards counted by the judge in establishing the Union's majority, plus that of Kinsel, are valid See Horizon Air Services, 272 NLRB 243, 257-258 (1984), enfd 761 F 2d 22, 29- 30 (1st Cir 1985) They give the Union a unit ma jority of 10 out of 17 if Bowlin is included or 9 out of 16 if he is excluded Given the Union's majority status, the circum stances clearly warrant a remedial bargaining order The violations were numerous and their seri- ousness, underscored by their linkage to the Re spondent's owner, warrants the judge's conclusion that they were "devastating" within a unit of only 16 or 17 employees In this regard , we note that many statements attributed to the owner an intense antiunion animus, that threats to discharge union sympathizers came directly from the owner, and that these threats were made more potent by the fact that they were carried out in three instances We do not, however, rely on the judge's specula- tions concerning Owner Hicks ' financial reasons for wanting to keep any union out The violations themselves make it highly unlikely that a free and fair election could be held Moreover, no mitigat- ing factors have been adduced by the Respondent to show that an election would be more feasible now than when the unlawful conduct ceased To the contrary, Hick's antiunion animus remained un abated after the unfair labor practices were com- mitted as evidenced by his conduct in January 1985 (the incident not alleged as an independent viola- tion), when he interrogated an employee and, 87 pounding his fist on his desk , said, `I don't want no god damned union in here " With respect to the unlawful terminations of em ployees Miller and Bowlin , the judge resolved pre- maturely the questions of what jobs these employ- ees would have occupied later but for their termi- nations and when they would have occupied those jobs Those matters shall be reserved for the com- pliance stage There, the Respondent will have notice of the General Counsel's contentions regard mg backpay and the positions to which discrimina- tees Miller and Bowlin, as well as Kinsel , should be reinstated ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re spondent, Hicks Oils & Hicksgas, Inc, Du Quoin, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as paragraph 2(a) "(a) Offer Everett L Bowlin , Kelly G Miller, and Gary Kinsel immediate and full reinstatement to the jobs they would have held had they not been terminated or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights or privileges pre viously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge 's deci- sion " 2 Insert the following as paragraph 2(b) "(b) Remove from its files any reference to the unlawful discharges and notify Bowlin, Miller, and Kinsel in writing that this has been done and that it will not use the discharges against them in any way" 3 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge you or otherwise disci- pline you because you join or support Teamsters Local Union No 347 , a/w International Brother 88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO WE WILL NOT expressly or impliedly threaten you with discharge if you join or support Team- sters Local 347, or any other labor organization WE WILL NOT tell you that you were discharged because you joined or supported Teamsters Local 347, or any other labor organization WE WILL NOT create an impression among you that your union activities are under surveillance WE WILL NOT coercively question you about your union support or activities WE WILL NOT impliedly promise you promotions with higher pay if you refrain from supporting a union WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Everett L Bowlin, Kelly G Miller, and Gary Kinsel immediate and full rein statement to the jobs they would have held had we not discharged them in October 1984, or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make each of them whole for any loss of earnings and other benefits resulting from his dis charge, less any net interim earnings, plus interest WE WILL notify each of them in writing that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way WE WILL, on request, bargain with the Team- sters Local No 347 and put in writing and sign any agreement reached on terms and conditions of em- ployment for our employees in the following bar gaining unit All production and maintenance employees employed by Hicks Oils and Hicksgas, Inc, at its Du Quoin, Illinois facility, including truck- drivers, but excluding office clerical employ- ees, professional employees, guards, and super- visors as defined in the Act HICKS OILS AND HICKSGAS, INC Kellner W Locke Esq for the General Counsel Mark L Juster Esq and Gary A Wincek Esq (Dorfman Cohen Laner and Muchin), of Chicago Illinois for the Respondent DECISION STATEMENT OF THE CASE RICHARD J LINTON, Administrative Law Judge Be cause I find that Hicks Oils committed serious unfair labor practices beginning in June 1984, and because such conduct renders it unlikely that the atmosphere would allow for a free and fair election among the Respond ent s employees at its Du Quoin Illinois plant I shall order Hicks Oils, among other remedial provisions, to recognize and bargain with Teamsters Local 347 effec tive as of 18 October 1984, the date Local 347 attained majority status based on signed authorization cards This case was tried before me in St Louis Missouri, on 5-7 March 1985 pursuant to the 6 December 1984 complaint issued by the General Counsel of the National Labor Relations Board through the Regional Director for Region 14 of the Board The complaint is based on a charge, subsequently amended filed on 1 November 1984 by Teamstes Local Union No 347, a/w Internation al Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America (Union or Local 347) against Hicks Oils & Hicksgas, Inc (Respondent or Hicks Oils) i In the complaint the General Counsel alleges that Re spondent violated Section 8(a)(1) of the Act by threaten ing employees, interrogating them, and by creating the impression that their union activities were under surveil lance, and Section 8(a)(3) of the Act by discharging four employees in October 1984 (Gary Kinsel, Richard Foster Kelly Miller and Everett Bowlin) because of their activities on behalf of Teamsters Local 347 and other concerted activities The General Counsel alleges that Respondents unfair labor practices are so serious that a fair election cannot be conducted and that Re spondent should be ordered to bargain with the Union By its answer Respondent admits certain factual mat ters but denies violating the Act On the entire record including my observations of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel2 and the Re spondent I make the following FINDINGS OF FACT I JURISDICTION A corporation with its principal office in Roberts, Ills nois Respondent maintains a place of business in Du Quoin, Illinois where it stores processes and blends oil and other petroleum products During the 12 month period ending 30 November 1984 Respondent purchased and received at its Du Quoin facility goods products and materials valued in excess of $50 000 directly from points outside the State of Illinois Respondent admits and I find, that it is an employer within the meaning of Section 2(2) (6), and (7) of the Act i All dates are for 1984 unless otherwise indicated Respondents name appears as amended at the hearing (1 107-108) References to the three volume transcript of testimony are by volume and page 2 Counsel for the General Counsel (CGC) also filed a motion dated 27 March 1985 to correct the transcript in numerous reports on noncontro versial matters There being no opposition the motion to correct is grant ed (A reference to 317 should read 347 ) HICKS OILS & HICKSGAS 89 II LABOR ORGANIZATION INVOLVED Respondent admits and I find that Teamsters Local 347 is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Overview Charles W Hicks owns and operates a group of com panies employing about 560 employees in diverse oper ations ranging from restaurants to blending of petroleum products (3 405 444) Hicks owns Respondent (3 408), is the president, and has his principal office at Roberts, Illi nois (3 406) Two of Hicks Illinois plants (at Canton and Pekin) have been covered by collective bargaining agree ments with locals of the Teamsters Union for about 15 years (3 405) The plant involved in this proceeding is lo cated at Du Quoin, Illinois some 225 miles south of Roberts (3 406) The Du Quoin plant is an oil and grease blending facil ity (3 406) In the summer of 1984 after a year and a half or more of effort (3 432) Hicks landed a contract with Texaco to blend 1 million gallons a month of motor oils, transmission oils, and grease (2 307, 3 407) Accommodat ing the Texaco contract required a major expansion of the Du Quoin facility (2 307, 3 407) Previously only six to eight workers were employed at the plant, but the Texaco contract tripled the number of employees at Du Quoin over the summer and fall of 1984 (2 307-308) This does not include the construction workers hired to build the expansion of the physical plant under the super vision of Foreman Pete C Fiantaco (3 466-476) A re tired contractor, Fiantaco does extra work including layout of the Du Quoin expansion for Hicks (3 447-448) Vice President John Flessner works at the company headquarters in Roberts Apparently, at least for the ex pansion period Flessner visited Du Quoin every week, and he sometimes was there a week at a time (3 492 514) Hicks testified that in October he also visited Du Quoin every week, primarily to check on the progress of the construction (3 422-423) Hicks personally approves every pay increase any of his 560 employees receives (3 430 500) As Flessner described there is no rigid chain of command separating Hicks from his managers and supervisors (3 503-504) As the record reflects in the testimony of several witnesses Hicks is known and re ferred to as CW and he prefers to so identify himself (3 404 429) Hicks certainly does not avoid communicat ing with his hourly employees and occasionally they may telephone Hicks, as in the case of blender John R Scholebo (3 426) Notwithstanding that he is 79 years of age,3 Hicks is a hands on owner manager and he re mains a man of energy as well as achievement Hicks ex pects (indeed, demands[) loyalty from his employees Thus, Hicks testified on cross examination that he con siders loyalty to be the most important quality in a 9 As his birthday falls on 2 February (3 405) Hicks was 78 during the 1984 events of this case human, and that he does not tolerate an employees being disloyal (3 434) In June Hicks transferred John M Williams from a propane plant to be the general manager at the Du Quoin facility (2 306) 4 Hicks introduced Williams to the employees (3 422, 492) 5 The introduction took place at a luncheon meeting Tables were assembled from saw horses and plywood in the middle of the plant floor for the luncheon meeting (1 86 2 248 263) When Hicks in troduced Moe Williams as the general manager of the facility 8 he also informed the employees of the Texaco contract (3 492-493) There is a sharp dispute whether Hicks mentioned the subject of a union in his remarks I shall cover this meeting in more detail later On the evening of 17 October, employee Gary W Kinsel and two other employees met with Melvin Allen, an organizer for Teamsters Joint Council 65 at the union hall of Local 347 and obtained authorization cards to dis tribute to other employees (1 33, 88, 120) The following day, 18 October, Kinsel was fired In just over a week three other employees who had signed union cards were terminated Everett Bowlin was laid off on 25 October Kelly Miller was terminated or laid off on 26 October and Richard A Foster was fired on 29 October The complaint alleges that Respondent, through Hicks and others, made illegal threats or engaged in other coercive conduct during the months of June, September, October, and November Based on her view of the record the General Counsel, by her trial attorney, contends that in addition to the usual remedial provisions for backpay, reinstatement, and a notice, an order should issue requiring Respondent to recognize and bargain with Teamsters Local 347 For its part Respondent asserts that it had no knowl edge of any union activities' contends that a majority of the appropriate unit did not sign cards and argues that even if a majority did sign cards the cards were tainted by statements that they would be used only to get an election B Hicks Introduces Williams 21 June 1984 There is no dispute that in June Hicks introduced Moe Williams to assembled employees as the new gen eral manager 8 Complaint paragraph 5A describes the 4 Williams testified that he has the nickname of Moe (2 353) 5 Vice President John Flessner testified that there were six to eight em ployees in attendance (3 492) Blender John R Scholebo described the number present as 13 to 16 people ( 1 86) Similarly unloader Michael W Ratajczyk placed the number of people at about 12 (2 248) e The titles are somewhat puzzling for Jim Walker has the title of plant manager (2 308 392) Yet Walker has supervision only over the blending and lab functions (2 392) and Hicks testified that Williams has no jurisdiction over Walker s personnel (3 407) By October Walker had a total of three employees in his operation which he testified was ex panding (2 398) 7 Regarding significant allegations the General Counsel would show knowledge in substantial part through Edward Butch Johnson The General Counsel alleges that Johnson is a supervisor but Respondent contends that he properly is counted as nothing more than a nonsupervi sory leadman 6 It is unclear whether Williams had a predecessor and it is quite pos sible that Williams in view of the startup of the expansion was the initial general manager at the plant 90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD event as occurring on or about June 1 1984, but be cause of certain evidence introduced the General Colin sel moves to amend the complaint allegation to read on or about June 21, 1984 (Br at 3 fn 3) Maintenance employee Richard A Foster testified that he switched from part time to full time on William s first day (2 281), and the pay increase record for him dated 6/21/84 re fleets that Foster was promoted to full time and given a 75 cent pay increase effective 6/25/84 (G C Exh 21 ) Because the precise date is neither a material nor disput ed issue I grant the motion to amend The General Counsel called four employees who testi feed concerning Hicks remarks at the meeting John R Scholebo, Michael W Ratajczyk Williard Lee Wininger, and Richard A Foster As already reported, Hicks intro duced Williams and informed the employees of the Texaco contract He told them that the contract would mean pretty good business and that the employees would probably get some raises (2 249, Ratajczyk) In slightly different language, all four testified that Hicks said that any employee talking union would be gone, out the door, or all of them let go and replaced by a new crew All but Foster testified that in delivering his threats of discharge, Hicks made a hand gesture ac companied by a Pssstl sound The hand gesture was similar to that of an umpire thumbing out a ball player Only Scholebo testified that Hicks remarks included a threat to close the plant in the event the employees wanted a union (1 87) Hicks denied the testimony (3 422), Flessner called it a lie (3 493),9 and neither General Manager Moe Wil hams nor Plant Manager Walker was asked about the subject during his testimony Respondent argues that because Hicks has had a 15 year relationship with the Teamsters at two other plants it is obvious he harbors no union animus As the record reflects Pete Fiantaco hired by Hicks to oversee the initial construction, hired workers who are union members Moreover, there is no evidence that employees had been discussing unions during the May-June time frame On the other hand, Hicks had invested $200 000 to bid on the Texaco contract (3 432) It is entirely logical that Hicks would prefer to have Du Quoin remain free of any restrictions or burdens of a union contract for at least until his expanded plant had the opportunity to produce and make money under the Texaco contract In any event with the exception of Scholebo s reference to plant closure, the Government s witnesses testified in a highly believable fashion Hicks not only admitted on cross examination that he utilizes hand gestures but he gestured during his testimony (3 444) I do not credit Hicks or Flessner in their denials of the testimony Accordingly, I find that Respondent violated Section 8(a)(1) of the Act on or about 21 June 1984 when Presi dent Hicks threatened to discharge any employee who discussed unionizing the Du Quoin plant I shall dismiss 9 At another point Flessner testified that Hicks at an unspecified date before October had promised the employees a wage increase when Re spondent began delivering oil under the contract (3 499 512) Respondent gave wage increases to nearly all Du Quoin employees in October as a list n evidence reflects (R Fxh 8) the portion of complaint paragraph 5A that alleges a plant closing tnreat C The Status of Edward Butch Johnson Edward Butch Johnson has worked for different companies of Hicks about 30 years (2 382) During the events in question here, he was on the payroll of Rocket Supply Corporation a subsidiary of Respondent (2 373, 3 408) However, Hicks had assigned Johnson through Johnson s superior at Rocket Supply, to work at Du Quoin on construction principally the piping (2 383 3408) 10 Although General Manager Williams testified hat he is Johnson s supervisor (2 309) Hicks testified that while Johnson cooperates with the Du Quoin management, he does not report to anyone in Du Quoin (3 409) Williams described Johnson as being an overall maintenance man whose work consisted of attaching pipi-lg and meters to a lot of tanks Respondent had at its Du Quoin plant (3 309) Initially Johnson worked with one helper, Richard A Foster As the work force expanded, Johnson s mainte nance crew grew in size Johnson testified that there were some maintenance employees helping him from other plants of Hicks (2 385) The number of these em ployees is not specified, nor is it clear when they arrived Presumably they arrived no later than the summer John son testified that around mid October there were four or five employees, perhaps more, working with him (2 383) Gary W Kinsel, one of the alleged discriminatees, was hired shortly before mid August (1 20 R Exh 8) Al though Kinsel was given the title Head of Mainte nance (1 18 204) the parties stipulated that Kinsel was not a statutory supervisor during the relevant period (1 18) In footnote 29 at 43 of its brief, Respondent moves [T]hat the record be corrected to reflect that Kinsle s status as a member of the unit is in dispute Respondent stated to the General Counsel that Kinsel would be included based on his job title but specifically stated that because of his termination his status was in dispute The record fails to reflect this understanding The record indeed fails to reflect any such understand ing However a motion to correct the record on a matter of substance such as this should be by separate document rather than placed in a footnote in a lengthy brief reflecting that a copy has been served on opposing counsel Presumably Respondent desires to modify the record at 1 204-207, where the parties stipulated on 12 employees, including Kinsel, who should be counted in the appropriate unit I received that stipulation in evi dence (1 207) Respondent s motion is denied As a practical matter, Respondent has no need for its motion CGC does not seek a sneaky finding that Respondent by entering into the stipulation that Kinsel is part of the unit has waived 10 Johnson was already at Du Quoin when Hicks introduced Moe Wd Hams in June (2 388) HICKS OILS & HICKSGAS 91 its entire defense as to Kinsel Nor would I make such a finding It is clear that Kinsel s status is in dispute be cause of his termination, and that, but for his termination Kinsel would be part of the unit It is undisputed that Johnson attended daily meetings with the Du Quoin management According to Respond ent s witnesses these meetings were simply meetings concerning production General Manager Williams testi feed that the purpose of the meetings was to line up work for the next day, and that the attendees did not discuss company policy or personnel matters (2 312) Johnson testified similarly (2 375-376) Williams testified that he is Johnson's supervisor, gives him his instructions, and that we" decide what has to be done and "Butch sees that it gets done' (2 311) It seems likely that the we means that Johnson, based on his 30 years of experience with Hicks companies, including 10 years as a supervisor, participated in the meetings and offered input at them rather than being present merely as a nonparticipating at tendee The attendees at the daily production meetings were Williams, PLant Manager Walker, and Art Sim mons (a technical advisor from Texaco), bookkeeper Betty Roberts, and Johnson (2 311, 317, 375) Williams testified that to a certain degree Johnson directs employees in their work (2 311) Johnson testified that he received his production instructions for the next day from the daily meetings, that in the mornings he then informed his crew of the work priorities, and the direction to go, and that the instructions he gave the men came from the daily meetings (2 375) In short, Johnson according to Williams and Johnson, served as little more than a conduct relaying instructions from a daily management meeting Under that view of things, Johnson certainly would be only a nonsupervisory lead man, as Respondent argues in its brief at 20 Kinsel testified that only Johnson told him what to do and when to work overtime and that only Johnson in spected his work (1 19, 22) 11 On occasion when Kinsel needed to leave early, Johnson said it was fine with him but to let Moe Williams know (1 20) or to okay it with Williams' (1 67) On cross examination Kinsel testa fled that Johnson's work consisted of keeping his crew supplied with materials and making sure that we put ev erything where he wanted it' (1 64) Although Johnson is on an hourly rate and is paid overtime, he does not punch a timeclock as the others do but fills out his own timesheet which he presents to Rocket Supply (2 376) On occasion Johnson has initialed Richard Foster s timecard when Foster forgot to clock in or out, but that action by Johnson appears to have been before Williams arrived Following Williams arrival, Foster's timecards, when initialed, reflect Moe rather than Johnson s aria tials In early September Kelly G Miller was hired for maintenance work (1 131) There is a dispute concerning whether Miller's status was ever intended to be anything other than a temporary employee Later, apparently during September, Jeffery W Scronce was hired (1 131, 11 Johnson testified that if work he inspected needed correcting that he personally made the corrections (2 377) R Exh 8) Scronce worked as a maintenance helper or laborer Contract welders also were hired for maintenance work One of these was Russ McRae (2 354, 3 439) McRae began work in October about a week before welder Kelly Miller was terminated on 29 October (1 148, 172-173) Scronce testified that he helped McRae, and that Johnson would tell McRae what needed to be done (1 173) There is no evidence that Respondent ever announced that Johnson was a supervisor On the other hand, John son clearly occupies a special position He previously was a supervisor of maintenance and purchasing for 10 years at Rocket Supply (2 383-384), President Hicks per sonally was responsible for Johnson s assignment to the Du Quoin plant (3 408), and Johnson, as Williams de scribed, has frequent contact with Hicks on Fridays when Johnson returns to Roberts (2 354) 12 There is no evidence that Johnson recommends, effec tively or otherwise, personnel or disciplinary actions Of course, the supervisory indicia in Section 2(11) of the Act are listed in the disjunctive Based on this record, the only test of Section 2(11) ap placable here is whether Johnson exercises independent judgment in responsibly directing the work of his main tenance crew The evidence is rather sketchy regarding the duties not only of Johnson but also of Williams 13 As to Johnson, the most favorable evidence to the General Counsel is that Johnson attends production meetings where the work priorities are set for the next day, that Johnson is the only person who directs the maintenance employees and that in so doing he supplies the materials and makes sure the maintenance employees comply with his directions During September and October 1984 did Johnson, on his own assign or reassign employees from one mainte nance job to another? Did Johnson, on his own or by of fective recommendation change the work priorities set at the daily production meeting the previous afternoon These and related questions are not sufficiently addressed in the record Therefore the record does not establish as the General Counsel contends (Br at 7) that Johnson exercises independent judgment while assigning work to employees or in directing them even assuming that he responsibly directs them A worker is presumed to be a statutory employee, and the burden of proving that a worker is a supervisor within the meaning of Section 2(11) of the Act falls on the party who would remove the worker from the class of workers protected by the Act Purolator Products, 270 NLRB 694 (1984), Athrens Aircraft, 259 NLRB 839, 842 (1981) enfd 703 F 2d 23 (1st Car 1983), Hydro Conduit Corp, 254 NLRB 433, 441 (1981) I find that the General Counsel has failed to carry her burden on this point, and 12 As Williams explained Johnson lives near Roberts a drive of sever ul hours from Du Quoin and returns home for weekends (2 353-354 367) 11 Williams testified that his duties consisted of supervising the people in the plant including the blenders when they were not blending under Plant Manager Walker and that his job does not entail paperwork re garding sales and purchases of oil (2 307 359-360) 92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the evidence fails to establish that Edward Butch Johnson is a statutory supervisor Hydro Conduit Corp 254 NLRB 433 (1981) However even if Johnson is not a supervisor, Re spondent can be held responsible for Johnson s knowl edge and conduct if Johnson is found to be its agent Helena Laboratories Corp v NLRB, 557 F 2d 1183 (5th Cir 1977) It is significant that employees were aware that Johnson attended daily production meetings with management but that factor alone is insufficient to clothe Johnson with apparent authority to speak for management Unlike the employees knowledge of Johnson s attend ance at the production meetings, there is no evidence that the employees were aware that President Hicks was personally responsible for assigning Johnson to Du Quoin or that Johnson had known Hicks for over 30 years On the other hand, the employees could see that Johnson left every Fnday for Roberts Kinsel testified that in mid September Johnson re turned to Du Quoin and told Kinsel that Hicks had asked him over the weekend in Roberts if Johnson had heard anything about union activities and that Johnson had answered yes, that such was the scuttlebutt around the plant (1 25 27) 14 The out of court statement by the alleged agent cannot be quoted by witness Kinsel to establish that Johnson was agent for principal Hicks It would be otherwise if Johnson himself had so testified Medline Industries, 233 NLRB 627, 632 fn 22 (1977) Stated differently, John son s out of court statement is hearsay for the purpose of proving agency by showing through Johnson himself, that Johnson had conferred with Hicks in Roberts the previous Fnday If the record independently reflected that employees were aware that when Johnson returned on Fridays to Roberts he frequently conferred with Hicks then that awareness plus the knowledge that Johnson participated in daily production meetings with management coupled with the fact that it was Johnson who gave the maintenance crew its orders, might well support a finding that employees could reasonably con clude that when Johnson spoke he spoke as Respondent s agent I cannot find agency here however because there is an insufficient combination of factors to indicate that the employees could reasonably conclude that Johnson spoke for management Having found that Johnson was neither a supervisor nor an agent of Respondent during the fall of 1984 I shall dismiss the three paragraphs of the complaint alleg mg independent violations of Section 8(a)(1) of the Act based on Johnson s statements 15 14 Because of the conclusion I reach on the agency issue I need not summarize this entire conversation which is made the subject of com plaint paragraph 5B To the extent relevant I would credit Kinsel who testified specifically and more believably over Johnson s denials (2 378) 15 Complaint pars 5B E and F In view of this I shall not summarize the evidence on these paragraphs As with that supporting pars 5B how ever I would credit Kinsel over Johnson D The Discharge and Related Events 1 Gary Kinsel fired 18 October 1984 a Facts As previoulsly mentioned, Gary W Kinsel was hired shortly before mid August Kinsel testified that around the first week of October he spoke to Johnson about get ting a pay increase Although Kinsel was not certain, he recalled that Johnson said he would see what he could do When Johnson returned he told Kinsel that Kinsel would have to speak with Williams (1 29, 53 68-69) Kinsel (1 53 69) and Williams (2 321) agree that Wil liams, when Kinsel made his wage increase pitch, em phatically turned him down On 10 October Kinsel went to Vice President Flessner, who Kinsel testified, talked like we could work something out (1 29, 53) The evi dence is rather disjointed on this topic, and it appears that around this same time Kinsel again went to Williams and specified that he wanted an immediate increase of $1 an hour plus another $1 per hour at the first of the year or he was going to resign Williams again said no and re ported the matter to Hicks (2 323) Hicks testified that Williams telephonically reported to him concerning Kin sel s wage request (3 410) The following day, 11 October, Hicks visited Du Quoin and he and Williams had a discussion with Kinsel concerning Kinsel s wage increase request Kinsel (1 53- 54 72, 81) and Hicks (3 411) agree that Hicks offered an immediate increase of 50 cents and that Kinsel said that he could live with that, or be satisfied with it 16 They agree that Hicks said he could not afford to have an un happy employee on his payroll, and if Kinsel could not be satisfied that Respondent would pay to move Kinsel back to his home in Cuba Illinois 17 I credit Kinsel s version that Hicks held out hope for more money later As the record reflects Respondent granted pay in creases around 17 October retroactive to 1 October to most of its Du Quoin employees (R Exh 8 3 511) Kin sel s increase of 50 cents raised him to $6 50 an hour Several of the increases for other employees were for similar amounts The evening of 11 October Kinsel contacted a Team sters official who advised Kinsel to contact organizer Melvin Allen (1 28, 72) Kinsel contacted Allen and they scheduled a meeting for the evening of Wednesday 17 October, at the union hall in West Frankfort Illinois (1 29, 72) According to Kinsel who testified unpersuasi vely on this point he contacted the Union from desire for protection and representation rather than based on a motivation for higher wages (172-73) I find that the desire for higher wages weighed at least as much as other factors in prompting Kinsel to call the Union As earlier noted Kinsel was fired on Thursday 18 Oc tober Kinsel testified that during his last week he operat 16 Williams testimony on this subject is substantially different (2 328) I find his testimony that he personally informed Kinsel of the 50 cent in crease on the shop floor with just the two of them present and that Kinsel said it was unacceptable to be unreliable i9 Kinsel had moved from Cuba Illinois in taking the job with Re spondent at Du Quoin HICKS OILS & HICKSGAS 93 ed a crane with the erection crew headed by Andy Long (1 61-62) At trial Kinsel testified that a fellow employee had informed him that Pete Fiantaco, foreman of the construction crew, was spreading a rumor that Kinsel had informed Andy Long that Kinsel had said he would not operate the crane unless he was paid $10 an hour (1 62, 78) Fiantaco was not asked about that subject dunng his own testimony Kinsel testified that he did not make that statement on 16 October or at any time, nor did he make any complaint to the Company about money after 11 October although he could not recall whether he had complained about money to employees (1 56, 62, 73) General Manager Williams testified that a few days after 11 October it was reported to him that Kinsel was saying he would not operate the crane unless he was paid $10 an hour (2 329) Williams reported this to Hicks and they decided they could no longer afford Kinsel and were getting tired of listening to him' (2 329) Hicks confirms that Williams did report the statement attnb uted to Kinsel by Andy Long (3 412, 440-442) Long did not testify I's Hicks concedes that he did not check the report with Kinsel (3 442) Kinsel s denial that he ever stated he would not operate the crane unless he was paid $10 an hour is contradicted by another witness of the General Counsel, alleged discriminatee Richard A Foster On cross examination, Foster testified that during Kinsel s last week of employment Kinsel complained to employ ees that his wages were not high enough, and conceded that Kinsel made a statement similar to the reported one of not operating the crane for less than $10 an hour (2 297) 1 credit this testimony of Foster Apparently it was late on 16 October that Williams telephoned Hicks and they decided to terminate Kinsel, for Kinsel (130) and Williams (2 331) agree that on 17 October Williams asked Kinsel to resign Kinsel declined Williams made his request early on 17 October When Kinsel refused, Williams said he would have to fire him Kinsel said he wanted the reason in writing Williams de clined to state a reason and said that the people up north (meaning at the headquarters in Roberts Illinois) would come down and talk to him personally (1 31) That same day 17 October Hicks prepared a termina tion letter for Kinsel and gave it to Vice President Flessner to deliver (3 412) Flessner confirms that he took the letter because he was going to Du Quoin anyway on 18 October (3 494) During his redirect examination Kinsel briefly testified that at some point on 17 October he confided to Butch Johnson that he had talked to a union representative and that a meeting was scheduled for that evening (1 78) I do not credit Johnson's denial of this conversation (2 379) 19 18 The record contains very little evidence regarding Longs status Hicks testified that Long was involved with the steel work in the con struction area (3 441) Thus Long possibly was an ironworker foreman for a subcontractor He was not part of Respondent s supervision 19 Some of the questions propounded by Respondent to its witnesses were in the form of Do you recall rather than a more direct form asking whether in fact a conversation statement or event occurred In some of these instances the context makes clear that the witness does of Kinsel testified that at some unspecified time on 17 Oc tober following his conversation with Williams he had a conversation with Plant Manager Walker in front of Walker s office Respondent admits that Walker is a stat utory supervisor According to Kinsel, he asked for Walker's opinion as to the reason for Kinsel s prob lem "20 Kinsel expressed an inability to understand the basis of the problem, saying that a wage agreement (the wage increase agreement with Hicks) had been worked out earlier (132) Walker allegedly replied Just be tween me and you, it's union activity According to Kinsel, Walker added that he probably would lose his job if they" found out about it, but he would stand behind" the employees (1 33) 21 Walker testified that he did not recall the conversation with Kinsel (2 393, 397) Walker admits that earlier Hicks had told Walker he was not going to meet Kinsel s wage demands (2 394), but it is unclear whether Hicks, as re ported by Walker, was referring to Kinsel s 10 October request for an immediate $1 an hour increase plus an other $1 in January, or whether Hicks was referring to the reported statement of Kinsel about $10 an hour to operate the crane As already mentioned, the evening of 17 October em ployees Kinsel, Scholebo, and Wininger met with union organizer Melvin Allen at Local 347 s hall in West Frankfort, Illinois West Frankfort appears to be about 25 miles or so from Du Quoin The three signed authori zation cards at this meeting and obtained cards to distrib ute to the other employees At a later point I shall dis cuss this meeting in more detail Although Walker was less than persuasive I am not required to accept Kinsel s assertion that he had the con versation he described with Walker The chief problem is that it does not seem to fit very well into the space of events This is so even though there appears to have been some talk about union at the plant well before the one and only union meeting of 17 October Thus Kinsel testified that about the third week of August he raised the subject of union representation with employee Wil hard Lee Wininger who told him which employees could be trusted (1 22, 24) 22 Although Kinsel, as he tes tified, raised the subject with some other employees (pre sumably those who Wininger said could be trusted) the others were afraid to discuss it because of the threat Hicks had made in June (1 71, 75) Alleged discriminatee Richard Foster testified that there were rumors of union talk even before October As already noted in mid Sep tember Johnson told Kinsel that Hicks had asked about firmatively deny that the event ever occurred Thus some of the no answers to Do you recall questions can be misleading and indeed unfair to the witness for it leaves the testimony open to characterization as being weak and uncertain (regarding credibility) An affirmative or otherwise strong denial of course is worthy of more weight in the credi bility process than a weak I don t recall But when the question is Do you recall a negative answer is not automatically the equivalent of I don t recall 20 Kinsel presumably explained to Walker that Williams earlier had given Kinsel the option of resigning or being fired 21 Complaint par 5D alleges that on or about this date Walker told an employee that Respondent had requested the employees resignation because Respondent was aware the employee was talking union 22 Wininger was not asked about this during his testimony 94 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union activities at the plant. I mention the Johnson refer- ence because it reflects that Kinsel was talking with Johnson and others about unions even before October. Johnson's remark is not binding on Respondent because, as earlier found, Johnson is neither a supervisor nor an agent. Kinsel even had a discussion with Vice President Flessner about unions at one point, apparently in early October. Kinsel testified, on cross-examination, that on that occasion he and Flessner discussed the possibility of the Du Quoin facility going union, and that Flessner said it was a matter of economics, that he wished it would not, that it would put the Company in a bind, but that if it did, it would be out of his hands (1:70, 71). Flessner was not asked specifically about this during his own tes- timony, but he denied being aware of any union activity as of 18 October, when Kinsel was fired (3:495). To the extent that is an implied denial of Kinsel's description of his conversation with Flessner about a union at the plant, I reject it. Kinsel testified in a believable fashion on this point and I credit him. Before returning to a conclusion on the alleged con- versation of Kinsel-Walker on 17 October, there is one other conversation allegedly occurring before Kinsel's discharge. Complaint paragraph 5C alleges that in early October Construction Crew Foreman Peter Fiantaco23 "expressed to an employee the futility of electing to be represented by a union, and impliedly threatened to dis- charge an employee for engaging in union activities." In support of paragraph 5C, welder Kelly Miller testi- fied that about 7 to 10 days before he signed his union card he had a conversation with Fiantaco regarding the union (1:136). Miller signed his card on 18 October (1:132; G.C. Exh. 9). This places the conversation from around 8 October to about 10 or 11 October. Miller testi- fied that on this occasion Fiantaco walked up to him and said he had just left Williams' office, where he had asked Williams what he thought about the Union and Kinsel. To this Williams reportedly replied that he did not care what Kinsel did, "this union stuff isn't going to get him shit." Fiantaco concluded by telling Miller that he, Fian- taco, had been a union member for years, but that the employees should wait and see what Texaco has in mind (1:137). In answer to questions whether he could recall ever having such a conversation with Miller, Fiantaco answered no (3:461-464). The General Counsel makes no attempt to explain just how this evidence fits into the sequence of events. Even though it is quite possible that the conversation occurred about the time Kinsel was making his wage request- demand of $1 an hour now and $1 in January, that still does not explain the tie-in with the union concept. Union talk, so far as the record shows, was sporadic. And there is nothing to indicate that, in his conversation with Flessner, Kinsel had expressed himself as personally in favor of the employees bringing in a union. None of Flessner's comments on that occasion reflecting animus. Moreover, Kinsel did not even contact the Union until the evening of Thursday, 11 October, and the union meeting was not held until the evening of Wednesday, 17 23 Fiantaco is an admitted supervisor (1:6). October. There is very little evidence that during the days around 10 October Kinsel was talking union. There is evidence that Kinsel's 11 October call to the Union was somehow reported to management. And even if "Butch" Johnson's conduct was binding on Respondent, Kinsel's notice to Johnson of the union meeting was the day of the meeting, or 17 October, well after the date specified by Miller. The statement attributed to Williams through Fiantaco would seem to relate to talking about needing a union rather than to information that Kinsel had contacted a union and arranged a union meeting. Respondent argues that the statement, even if made, does not constitute an unlawful threat (Br. at 22). In the limited context attributed to Williams here, Respondent's position has persuasion. Even if the allegations were dis- missed on the basis that it is nothing more than lawful opinion, I still would have to consider it for its value in relation to the questions of knowledge and animus as to Kinsel's union activities. Weighing the evidence on this matter, I find Miller's testimony unreliable regarding Fiantaco's alleged quota- tion of Williams. Accordingly, I shall dismiss complaint paragraph 5C without reaching the question whether the statement, if made, would be unlawful. Returning now to consider the alleged Kinsel-Walker conversation of 17 October, we need to refer again to the earlier conversation Kinsel had with Flessner about a union. Flessner said it was simply a matter of economics. On that point a suspicion could arise. Did Respondent decide that it could not yet afford the economic burden of a union contract at Du Quoin and decide to eliminate Kinsel who, it knew through Flessner, had raised the subject of a union at the plant? Did Respondent, by Hicks or Flessner or Williams convey this attitude to Walker so as to provide the factual basis for the remarks Kinsel attributes to Walker? The evidence is so tenuous and conjectural that it undermines Kinsel's credibility re- garding his alleged conversation with Walker. Moreover, Kinsel's testimony on his conversation with Walker sounds unnatural. There is no evidence that he and Walker were on particularly good terms or had ever previously conversed on any subject. Why would Walker feel inclined to oppose top management so as to jeopardize his own job? Finally, the phrase "union activi- ty," attributed to Walker by Kinsel, sounded stilted and unnatural. Under all the circumstances, I find Kinsel's testimony on this point unreliable, and I shall dismiss complaint paragraph 5D concerning Plant Manager Walker. That brings us to the events on 18 October. Over coffee before 7 a.m. on Thursday, 18 October, "Butch" Johnson asked Kinsel whether he had signed with the Union. Kinsel replied that they had taken care of every- thing (1:44, 46). Kinsel testified that Kelly Miller and Jeffery Scronce were seated at the other end of the table about 6 feet or so away, but that Johnson and Kinsel were speaking in a confidential tone (1:45).24 Johnson 24 When Miller and Scronce testified, neither was asked whether he had overheard this exchange between Johnson and Kinsel. Respondent argues, in effect, that their failure to corroborate Kinsel warrants an ad- verse inference (Br. at 24). 1 draw none because the evidence is more suggestive that they did not hear than that they did. HICKS OILS & HICKSGAS denies the conversation (2 379) Kinsel testified in a more persuasive manner, and I credit him over Johnson How ever, as Johnson has not been shown to be either a su pervisor or an agent of Respondent, I shall dismiss com plaint paragraph 5E which is based on this conversation About 3 hours later that same morning or around 10 55 am, General Manager Williams called Kinsel into the office Present in the office were Williams Vice President Flessner, and Kinsel (1 46-47, 2 330 3 494) Flessner handed Kinsel the termination letter from Hicks and explained that it was not Kinsel s work but the fact that Respondent could not meet his wage demands and keep him happy and Hicks did not want him there if he was unhappy (1 49 2 330, 3 495) Flessner added that Re spondent might (in the future, apparently) need a good man at Respondents Canton plant 25 Kinsel replied, John, don't give me that I know better than that (1 49) The text of the discharge letter from Hicks reads (G C Exh 6) Dear Gary I have concluded that I cannot meet your wage requirements You are being paid an extra week to find something that is to your liking If you wish a letter of recommendation I will be happy to waste to anyone regarding your ability Respectfully yours, HICKS OIL & HICKSGAS, INC /s/ C W Hicks C W Hicks President When Kinsel left the office and returned to the shop area he encountered Johnson Richard Foster was at the shop table 8 to 10 feet or so away from them and, with the noise in the shop, Kinsel aces not think Foster could hear the conversation (1 51) 26 Kinsel testified that he told Johnson he had been terminated, that he thought ev erything had been worked out, and he asked Johnson for his opinion According to Kinsel, Johnson replied that there was another reason and Kinsel knew what it was Union said Kinsel Without speaking, Johnson smiled, raised his eyebrows, and nodded in the affirmative (1 52) Johnson concedes that a conversation occurred in which Kinsel came and shook Johnson s hand and that was about it The balance of his testimony on this topic is (2 379-380) Q Did he [Kinsel] say any thing to you at that time? A No Q Did you say anything to him? A No He did have a letter he showed me Q What was that letter-what did the letter say? A I don t recall Q Did you at any time indicate that union activi ty was the reason he was terminated? A No 25 Flessner described Kinsel as being a real craftsman (3 494) 26 Foster was not asked about the conversation during his own tests mony as a witness for the General Counsel 95 Q At any time do you recall discussing with Mr Hicks the possible union activities of Gary Kinsel9 A No Q Do you recall discussing with Mr Hicks the union activities of any employee? A No With a further question on direct examination, and a series of direct (rather than Do you recall? ) questions on cross examination, Johnson affirmatively stated that he had never discussed union activity with Hicks, Flessner, or Walker although he had discussed the sub ject with Williams after Kinsel's termination (2 380-381) He admits, however that after Kinsel s termination there was a rumble around the shop on union activity (2 380) Kinsel testified on this conversation with more open ness and gave more specifics than did Johnson Because Kinsel was more persuasive than Johnson I credit Kinsel However because the evidence does not establish that Johnson is either a supervisor or an agent of Re spondent, I shall dismiss complaint paragraph 5F Alleged discriminatee Richard A Foster testified that following Kinsel's discharge, and around 18 or 19 Octo ber, Construction Crew Foreman Pete Fiantaco called him aside, told Foster that he, Fiantaco, was for the Union, and cautioned Foster that if he signed with the union, to do it secretly Kinsel had been fired, Fiantaco continued, because he had teed to bring in a union Foster also would be terminated if Respondent learned that he favored bringing in a union, Fiantaco warned Fiantaco concluded by urging Foster to bring a union in at that time because Hicks was not making any money dust then and he did not want a union brought in until later Fiantaco expressed the opinion that a union cam paign at that time could drive Hicks to his grave (2 283) Fiantaco denied this testimony only in part, saying that he never told an employee that he was not against unions or that the employees should wait before bringing in a union, or that the union talk would drive Hicks to his grave (3 464 479) Foster testified in a straightforward manner, freely ad mitting unfavorable facts both regarding himself and Kinsel By contrast Fiantaco testified in an unpersuasive manner I credit Foster Accordingly as alleged in complaint paragraph 5G2, I find that on or about 18 October Fiantaco threatened an employee that he would be discharged if Respondent learned that he was engaging in union activities Para graph 5G1 alleges an interrogation during, apparently the same conversation, and as no evidence was presented concerning an interrogation I shall dismiss paragraph 5G1 b Conclusion regarding Kinsel Although Construction Crew Foreman Fiantaco s statements to Foster raise a suspicion that Respondent learned that Kinsel had arranged a union meeting and fired him for it, I find that the evidence falls short of es tablishing a prima facie violation First, Fiantaco was not in Kinsel s chain of supervision and he was not involved 96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in Kinsel s discharge Because of Fiantaco s indirect rela tionship I assign less weight to the remarks than I would had Flessner or Williams, for example made the state ments Thus, Fiantaco s comments could well have been his personal interpretation of bits of information he had received rather than a reflection of a position he heard Hicks Flessner, or Williams express behind closed doors As already noted any statements by Johnson are not at tributable to Respondent because the evidence falls short of establishing that Johnson was either a supervisor or an agent of Respondent during the relevant period More importantly, there is solid evidence that the event(s) triggering Respondents decision to discharge Kinsel was his reported statement that he would not op erate the crane for less than $10 an hour Despite Kin sel s denial of this statement the testimony of alleged dis criminatee Richard A Foster established that Kinsel did make the statement Accordingly, I shall dismiss complaint paragraphs 6A and F, which allege hat Respondent unlawfully dis charged Kinsel 2 Kelly Miller laid off 26 October 1984 a Facts On 4 September, the day after Labor Day, Respondent hired Kelly G Miller as a welder for the maintenance crew (1 131) There is a question whether he was hired as a regular or temporary employee Respondent laid Miller off on either 26 or 27 October Before summarizing the details of Miller s employ ment I first shall address some allegations that bring the sequence of events forward from Kinsel s termination Miller testified that around 17 or 18 October Construc tion Crew Foreman Fiantaco came by where Miller was working inside the plant Miller inquired how Fiantaco was doing and they engaged in some small talk Fian taco eventually raised the subject of the Union and stated that Hicks had a list of names that he was going through Although Miller testified in a somewhat dis jointed fashion on this topic, the implication of his tes tionmy is that the names on the list were those of union sympathizers 27 Miller also testified that later that day or the next he observed Hicks and Fiantaco walking through the plant looking at a list of names and then looking at different employees (1 138 139) Employee Richard Foster testified that about this same time around 18 or 19 October he observed Hicks and Wil Hams walking around the plant looking at a piece of paper and pointing into the crowd of people (2 284) Foster did not see what was on the paper, but could see that it did not look like an order (2 300) 28 Miller further testified that about this same time he and employee Jeffrey Scronce were in the shop area cut ting or threading pipe Miller observed Fiantaco talking 27 Complaint par 5J alleges that Respondent through Fiantaco there by created the impression that employees union activities were under surveillance by advising an employee that Respondent had a list of union sympathizers 28 Complaint par 5H alleges that Respondent through Hicks while walking through the plant created the impression among employee that employees union activities were under surveillance with separate groups of employees and then conferring with Hicks as they looked at a list Moments later Fian taco came over and told Miller and Scronce that the union talk was driving the old man meaning Hicks so crazy that he was about to have a heart attack Fiantaco added, He s old You guys ought to wait until he starts producing some oil You ought to get at least 20 or 30 men in here before you all start talking union stuff Concluding Fiantaco said that he Fiantaco, had been a union man for many years that he knew what he would do, but you do what you want to do (1 140-141) 29 Miller testified that as Fiantaco walked outside he fol lowed him and observed Fiantaco sitting in a Lincoln automobile talking with Hicks (1 141) Scronce who was still employed with Respondent at the time of the hearing also testified concerning the 19 October incident when Fiantaco came to where they were in the shop area According to Scronce, Fiantaco spoke to Miller while Scronce threaded pipe on a noisy machine some 6 or 7 feet away Because of the noise, his working, and the distance between them, Scronce testa feed that he heard only one remark by Fiantaco which is that right now is not the time to bring in a union (1 173- 174, 175-176) There is no dispute that it is not at all unusual for Hicks to walk through the plant carrying papers includ ing sketches Fiantaco would make for him and checking on the progress of the construction Hicks testified that the only time he ever carried a list of employees names on a tour was when he was checking the work the em ployees on the list were doing that day (3 426) Hicks denies ever discussing the Union on these tours with Fiantaco or others (3 426) Fiantaco denies (1) ever car rying a list of names (2) knowledge of any union sympa thizers and (3) ever telling Miller or others that the union talk was driving Hicks crazy or to his grave (3 460 464) Williams did not address the subject of the tours with Hicks There is no dispute that it is not unusu al for Hicks and Fiantaco to sit together in Hicks auto mobile as a place to confer away from the dust and the noise during inclement weather (3 428 465, 466) Both Hicks (3 429) and Fiantaco deny that they ever discussed unions or union activity of employees (3 466) I credit Miller who testified with apparent sincerity concerning these allegations I do not believe the denials of Hicks or Fiantaco for they did not testify in a persua sive manner Although Scronce s version of the one inci dent involving Fiantaco corroborates Miller in part only, that part is significant There is some question whether these incidents oc curred on 18 or 19 October or possibly a few days later Even though Miller (1 135 G C 9) and Scronce (1 167, G C Exh 11) signed their union cards on 18 October, the day Kinsel was fired it appears that Hicks was not at the plant on 18 October On 17 October Hicks gave Flessner the termination letter to deliver to Kinsel at Du Quoin the next day This does not mean that Hicks was not present on 19 October, of course and these incidents 29 Complaint par 51 alleges that on or about 18 October Fiantaco ere ated the impression among employees that their union activities were under surveillance HICKS OILS & HICKSGAS could well have occurred on that date a Friday It also is possible that they did not occur until sometime the fol lowing week So far as these allegations are concerned, the difference of a few days is immaterial Thus, I find that around 19 October 1984, Respondent, through the conduct of President Hicks and Construction Crew Foreman Fiantaco unlawfully created the impression among its employees that their union activities were under surveillance The key to the unlawfulness is that Fiantaco told Miller about the list of union sympathizers and that Hicks was checking it Miller and the other em ployees were in no position to separate Respondents le gitimate tours from its illegal one It was Respondent who tainted its own routine inspection tours, and there fore it was Respondents burden to remove the taint before undertaking another tour This, of course, it failed to do By Respondents creation of the impression of sur veillance, it violated Section 8(a)(1) of the Act, as al leged When Miller was hired he was working at Willi Oil, a popular service station in Du Quoin, and he continued working (presumably part time) there during his employ ment with Respondent (1129, 142) Both Williams (2 314) and Ffantaco (3 461) buy their gasoline there On previous occasions Miller unsuccessfully had inquired of Williams if Respondent was hiring (1 129) Apparently he did the same with Fiantaco until on one occasion shortly before Labor Day Miller asked if Respondent needed a welder In surprise Fiantaco asked if Miller was a welder Miller replied that he had completed welding school, where he had earned all As and a certificate, but he needed welding experience (1 130) Fiantaco re ported this to Williams who, testifying that he needed a welder (3 315), contacted Miller Thereafter, Miller went to the plant to see the work, expressed confidence to Williams that he could do the work, and was hired by Williams (1 130-131, 152) As for the term of employment Williams referred to the available welding to be done (1 153, 2 315) Several times after going to work for Respondent Miller asked Williams if his job was permanent, and Williams always answered Were still looking into that Miller con cedes he never was told he was hired on a permanent basis (1 153) However, around mid October or a bit later, Flessner discussed with Miller the prospect of Mil ler s continuing to work after the construction was com pleted (1 149-150) Flessner even inquired of Miller whether he thought it would be better for the employees to be paid every week rather than every 2 weeks Flessner did not address this conversation during his own testimony Miller testified on Saturday 20 October, he worked his other job at the service station About 6 p in Fian taco pulled in and told Miller he had to talk to him (1142) Fiantaco said the Old Man" had called the night before and again that morning30 and wanted Fian 30 As earlier discussed Hicks could have been in Du Quoin on Friday 19 October He also could have returned to Roberts the same day and called Fiantaco from Roberts that evening and again the morning of 20 October 97 taco to talk to Miller and his dad Miller, Fiantaco said, was up for Gary s job 31 that Miller could be making $250 to $300 a week and maybe more if Texaco allowed a raise for everyone in January (1 143) When Miller asked why he was being considered for Kinsel s position, Fiantaco answered that it was because Hicks had been watching Miller and that Hicks had asked how good a boy Miller was, and that Hicks had said that Miller was doing good work, which Fiantaco confirmed to Hicks (1143) Miller inquired why he wanted to speak to Miller s father, but at that point the conversation was interrupted while Miller serviced some customers On resuming their conversation, Fiantaco said that Hicks had given that boy a job, a place to stay, money to move to Du Quoin, and all he had done was (using profanity the witness declined to repeat) messed it up (1 143) 32 Fiantaco added that he' (a reference to `that boy, meaning Kinsel) would never come back to work at Hicks Oil After Miller serviced more customers, Fiantaco said that Hicks wanted him to find out how Miller felt 3 a Miller asked about what He just wanted to know how you felt about the whole situation, Fiantaco replied Miller kept listening and Fiantaco repeated that Miller was up for Gary s job and that He s going to talk to you about everything next week What about,' Miller inquired He [Hicks] wants to see how you feel, Fian taco replied Miller again asked what about Coming closer to his point Fiantaco remarked that he had been a union man for many years, that Millers dad is a union man and that Fiantaco knew how the elder Miller con ducted himself but that the younger Miller should do as he wished Miller finally forced the issue by asking Fiantaco whether he was asking how Miller would vote on the Union Miller merged this into a question asking that if he told Fiantaco he would not vote for the union when it all comes up, how would Respondent know because anyone could say he would not and then vote yes Miller concluded his part by saying that he would do what he felt was right what was best for job security and what would earn him money because he was simply trying to get experience welding (1 144-145) Fiantaco ended the conversation with the statement `You just do what you want but I know what I'd do You just do what you want Six days later Miller was terminated Fiantaco testified that he recalled no such conversa tion and he denied ever telling Miller that Kinsel would never return to Hicks Oil (3 461-462, 464) According to Fiantaco, all Miller ever said to him at the station was to ask when he was going to be put on steady, to which Fiantaco replied that he knew nothing about it (3 461) Hicks denied knowledge of any union activity by Miller 91 An obvious reference to Gary Kinsel s former position 32 The phrase that boy used in conjunction with the moving expense and the earlier reference to Gary is a clear reference to Gary W Kinsel as Miller had signed a union card on 18 October for employee John R Scholebo but no one else saw him and Miller never engaged in any other activities or told anyone that he had signed (1 34-135 157) 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and denied discussing such with Flessner, Williams, or Walker Oddly, Fiantaco was not included in the list enumerated by Hicks, nor did Hicks specifically address the substance of Miller s testimony about his conversa tion with Fiantaco other than as his denial of knowledge about union activities by Miller operates as a denial of everything (3 419-420) Before reaching the issue of Millers termination and the question whether he sealed his doom by not cor rectly answering Fiantaco s questions as CGC argues (Br at 28), we need to consider the foregoing conversa tion in conjunction with complaint paragraph 5K That paragraph alleges that on or about 20 October Fiantaco, at Du Quoin gas station (1) told an employee that his union activities were under surveillance, (2) threatened him with discharge for his union activities, and (3) inter rogated him concerning his support for the Union On the latter issue there can be no doubt that if Miller is credited, Fiantaco blatantly (with an initial weak at tempt at being ambiguous) interrogated Miller expressly on behalf of President Hicks and that such conduct was unlawful I closely observed the witnesses as they testified I credit Miller because he testified with apparent sincerity and in specific detail, including the interruptions by cus tomers at the service station By contrast the testimonial demeanor of Hicks and of Fiantaco was flat and unper suasive, and I do not believe them I therefore find that Respondent violated Section 8(a)(1) of the Act by Fian taco s interrogation as alleged Do Fiantaco's remarks constitute even by implication, telling Miller that his union activities were under surveil lance') Do they constitute a threat of discharge because of his union activities? I do not find an implied statement of surveillance of union activities, nor do I find a threat of discharge Aside from the interrogation the essence of Fiantaco s remarks was a promise of promotion if he re frained from supporting the Union The promise would be all the more clear if the evidence showed that Kinsel had been fired for his union activities, and I recognize that on this record the messing up as to Kinsel s case prinicipally means his $10 an hour wage demand to oper ate a crane However, the rest of Fiantaco s references fashion an image of concern about the employees bring ing in a union , and Miller s response to Fiantaco at the service station that 20 October demonstrates that is ex actly the way he understood Fiantaco s message, and Fiantaco s parting response served only to confirm Mil ler s understanding Accordingly, I shall dismiss complaint paragraphs 5K1 (surveillance) and 5K2 (threat of discharge) for lack of supporting evidence On the other hand, after the con versation was elicited'34 Respondent did not object that it was immaterial nor move to strike the testimony as un supported by any pleading Moreover Respondent did not move that (CGC) state on the record that the Gener al Counsel would not seek a finding of unlawful promise 94 Following CGC s announcement on the record that he was about to cover complaint paragraph 5K (1 142) since it was not alleged 35 Had such a motion been made, CGC might well have moved to amend the com plaint Finally although Respondent did not cross exami nation Miller concerning the service station conversation on 20 October with Fiantaco it did fully litigate the matter by eliciting rebuttal testimony on the subject from Hicks and Fiantaco I therefore find that Respondent violated Section 8(a)(1) of the Act by impliedly promis ing an employee a promotion with higher pay if he re frained from supporting the Union Before we reach Miller s termination, there is another incident of 20 October to cover Blender John R Scho lebo testified that on Saturday 20 October, Construction Crew Foreman Fiantaco gave him a ride home from work During the trip Fiantaco said that Hicks36 was all upset about the union and thinks the employees should wait a couple of years before getting a union be cause now is not the time (1 103) 37 Fiantaco denies ever saying that union talk was driving Hicks crazy or that employees should wait a few years to organize (3 464) I note that he does not deny giving Scholebo a ride on or about 20 October I credit Scholebo who testified in a persuasive fashion and with specificity I should note that Pete C Fiantaco s rather modest title of construction crew foreman is rather misleading Fiantaco is a retired general contractor who came out of retirement 18 months ago to supervise construction addi tions for Hicks at Du Quoin Fiantaco s first work for Hicks was in 1976 when, as a general contractor, Fian taco constructed one of the plant buildings at Du Quoin (3 447-448, 458 483-484) When Hicks came to Du Quoin in October he frequently would confer with Fian taco regarding the construction Hicks has invested heav ily in the Du Quoin expansion and he looks forward to earning a profit from the Texaco contract Because of the nature of Fiantaco's current work, and because of his past relationship as a general contractor for Hicks it is clear that Fiantaco enjoys a much closer relationship to Hicks than the modest title of foreman suggests We now turn to Miller s termination Williams testified that he hired Miller on a temporary basis to weld heating coils in certain oil tanks (2 314 315) 38 The oil would be heated by steam in the coils (1 155) The tanks rise 15 to 20 feet off the ground (1 155) Some of the welding was at such an angle that the welder could not see the spot to be welded (1 155) The welding would be pressure tested for leaks (2 316), for leaks (of water) into the oil would ruin the 15,000 gallons of oil in the tank (1 156 2 317) Williams testified that some of Millers welds would leak and that Miller had to reweld them (2 316) ss Where both the General Counsel and the ALJ agree that certain facts or theories are not in issue in the case it is error for an AJL to find a violation or rely on those facts or theones in reaching a decision in the case Herman Bros 264 NLRB 439 440 fn 3 (1982) 36 Fiantaco actually said CW The record is clear that Hicks is known by his initials 34 This incident was not alleged in the complaint and the General Counsel relies on it only for purposes of animus (1 103) se Hicks testified that he gave Williams approval to hire Miller on a part time basis (3 418) Hicks classified it as part time because Miller also continued to work at his service station job (3 418) The record does not reflect the hours Miller worked at either job HICKS OILS & HICKSGAS Miller concedes this, but explains that the leaks were of the pinhole type, which are normal in welding (1 156- 157) Williams testified that Art Simmons a technical advi sor from Texaco, suggested that perhaps Respondent should get a more experienced welder to do the job, and that he, Williams, conveyed this message to Hicks (2 317) 39 It appears that Hicks set about to find a con tract welder and, according to Williams, on Friday, 26 October, Hicks called and informed Williams that he had found a contract welder to send to Du Quoin and that Williams should lay Miller off (2 317-318, 3 417) Wil liams testified that the contractor Hicks mentioned was not hired and that, instead, Plant Manager Walker hired a local welding contractor named Jess Kennedy (2 318) In his testimony Hicks mentioned Kennedy, but not the other contractor he supposedly had hired In fact an other local welding contractor named Russ McRae had been hired and had begun work on Monday 22 October (148-49, 172-173) Williams testified that Respondent had plenty of welding work (2 354) Miller testified that about 9 30 a in on Friday, 26 Oc tober, Williams informed Miller that he had some bad news They walked to the office where Flessner told him that he had Miller s last check, that he was trying to cut down on the overhead Miller asked if he had done any thing wrong because he did not want to give Respondent as a reference and then behind Miller s back they say he was not very good Flessner responded that the quality of Miller s work had been splendid Williams interjected a reminder that he had not bothered Miller and that in itself showed that Miller was doing all right Flessner re stated that it simply was a matter of cutting down on the overhead, and that Respondent had hired a contract welder and that he was going to concentrate on a differ ent aspect of the job (1 146-147) Flessner testified that before going to Du Quoin he had studied Respondents financial records and discov ered that the budget was a long way out of line and in terrible shape really He testified that the decision was made to reduce overhead He recalls that it was Williams who, in his presence notified Miller of his ter mination Flessner admits that Miller asked him whether it was because of his work and that he said, No, Kelly, it isn t because of your work We re trying to reduce overhead (3 496) Flessner denied knowledge of any union activities at the plant (3 496) Flessner also testified that the recordkeeping at Du Quoin was bad then be cause there was only one employee handling it but Re spondent finally got its inventory records computerized (3 498) According to Williams, in the office he notified Miller that he was laid off, and he apologized for not being able to give him a week's notice (2 319) Williams did not tes tify whether he offered any explanation for the layoff A discharge slip in evidence as General Counsels Exhib it 18, and bearing the date of 10-27-84,' records that Miller was `Laid Off because Temporary help welding-job completed 39 Simmons did not testify 99 The form is signed by Williams The record does not re flect whether a copy of the form was tendered to Miller or whether it simply is an internal record of Respondent Williams testified that the form is for Respondents bene fit to check a date and that some of them do not show a reason (2 363) Although in different words all three agree that Miller asked whether the termination had anything to do with the Union, or union rumors, to which Williams and Flessner replied in the negative and/or asked What union' (1 47, 2 319, 3 496) As does Flessner, Williams denies knowledge of any union activities by Miller (2 319) In a dramatic difference with Flessner, Williams testa feed that the true reason Miller was terminated was be cause his welding was unsatisfactory (2 354) He con cedes that he did not tell Miller this at the termination interview (2 354) Williams vacillated during cross exams nation whether the reason on the discharge slip would be the true one, at first saying not necessarily and then testifying, It would be a true reason (2 355) When handed the form for Miller, Williams identified his own signature and then denied that the reason shown on the form was the true reason (2 355) He disingenuously ex plained that the stated reason says job completed, and that His job was completed but our welding jobs weren t (2 355) He then reiterated that the true reason was unsatisfactory work, and that his testimony moments earlier that the form contains the true reason was not an accurate statement (2 356) b Conclusions as to Miller Miller testified with apparent sincerity, in a straightfor ward manner, and with a persuasive demeanor In con trast Williams and Flessner were far from credible This is particularly true regarding Williams who demonstrat ed a strong tendency to testify in a deceptive manner and, indeed, in a self contradictory fashion For that matter, Respondents defense as to Miller suffers because Flessner essentially confirms much of Miller s version of the discharge interview, yet Williams testified that the real reason was (in effect) not that given by Flessner Miller (a need to reduce overhead but Miller s welding quality was good), but a new one-poor quality welding by Miller Although Respondent was not required to call Tex aco s Art Simmons as a witness, I am without the benefit of his testimony Similarly, while Respondent has no legal burden to produce any of the records showing that it has overspent its budget at Du Quoin (or more accu rately that it suddenly discovered that its budget was in terrible shape) such records could have helped in the credibility resolution process I note that Flessner made no attempt to explain how the budget would be helped by hiring Russ McRae on Monday while terminating Miller and hiring Jess Kennedy 4 days later-particularly if Miller was only temporary, as Respondent contends Although Hicks testified that Kennedy carried his own insurance, he did not say whether this was medical, li ability or both (3 419) As to medical insurance, Re spondent did not explain how much extra Miller, on a 100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD group policy, would cost But at his hire in rate of $5 an hour (2 315), one would assume that Respondent would have some monetary leeway before reaching the cost factor for a welding contractor Liability insurance (to cover the loss of a tank of oil) would be an economics factor I note however, that Hicks did not testify that Respondent does not carry its own insurance covering such a loss Regardless of these factors however, the principal fact remains that I credit Miller In disbelieving Hicks Flessner, Williams, and Fiantaco I find that Fiantaco, on or shortly after 20 October, reported back to Hicks that to retain Miller on the payroll would mean that it was retaining an employee who would vote union Thus, even though Respondent may not have known of Mil ler s union sympathies before Fiantaco's testing of him on 20 October by Fiantaco's interrogation Respondent satisfied itself of where Miller stood As found earlier, in June Hicks blatantly threatened employees with discharge if they sought to bring in a union Hicks concedes that he quickly gets rid of disloyal employees Regardless whether Hicks equates union sympathy in an employee to disloyalty to Hicks, as the General Counsel argues, I find that Hicks gave the order to terminate Miller because Miller appeared to be proun ion I further find that Respondent's reason (1) to reduce overhead and (2) because of poor quality work are con trived pretexts Indeed, the second reason borders on being an abuse of the Board s processes Although Flessner did not expressly disavow the reason of unsatis factory work, he certainly did not embrace it as a sup plement to his own budgetary reason, and he freely ad mitted that he affirmatively reassured Miller on 26 Octo ber that the cause of the termination was not Miller s work (3 496) At the hearing Flessner did not assert that he had lied to Miller on 26 October regarding the quality of Miller s welding Under all the circumstances I find that Respondent has not shown that it would have terminated Miller re gardless of any union activities by him Moreover, other temporary employees have been converted to regular or full time ' Richard A Foster was so converted to full time in June 1984 (G C Exh 21) It also will be re called that around mid October Vice President Flessner personally asked Miller whether he planned to stay on after the construction phase and Miller answered yes Citing cases that employees hired for an indefinite period are included in the appropriate unit CGC argues that Miller s employment was for an indefinite period rather than a temporary one and that he should be in cluded in the unit (Br at 41) I see no need to address that issue for the evidence is clear that had Miller re sponded on 20 October to Fiantaco in an antiunion manner Miller would have been promoted the following week to the position Kinsel had just been fired from I therefore find that on or no later than 26 October Re spondent would have promoted Miller to that full time position and in keeping with its past practice given him a wage increase Although the exact amount of the in crease can be determined in the compliance stage I note that at his conversion Foster was raised from $5 an hour to $5 75 (G C Exh 21) Accordingly the remedial order will require that Respondent not only offer Miller rein statement, but that it offer to reinstate him on a promo tion to a full time position effective on or no later than 26 October and with backpay, plus interest, starting with a pay rate to be determined at the compliance stage 3 Everett L Bowlin terminated 25 October 1984 a Facts Although Construction Crew Foreman Pete C Fian taco and Everett L Bowlin had been friends for 32 years it had been 20 years since they had last seen each other when they met at a Du Quoin supermarket about August 1984 (3 448, 452, 457) During the ensuing con versation, Bowlin, a carpenter, inquired whether there was a chance Fiantaco could get him a job Fiantaco said he would check with Hicks when it came time to build the forms for the anchor bolt piers On a Saturday a week or so later Bowlin, accompanied by Fiantaco, car tied his application, which Fiantaco in the meantime had given him, to Williams at the plant (2 213-214 3 449) Bowlin was hired and began work the following Monday (2 214) This was in August (2 235) Fiantaco testified that Bowlin was hired on a tempo rary basis for the construction work on the plant expan sion (3 449) 40 Williams (2 343) and Fiantaco (2 454) each testified that he never promised Bowlin a permanent job on the inside Bowlin testified that Fiantaco told him at the hiring that Bowlin would work as a carpenter for him, and that when it rained Bowlin would work inside (2 214) Thereafter, Bowlin testified, on the days rained he worked inside the filing oil drums, unlike the contract employees (2 215-216) Bowlin concedes that no one told him he definitely would have a job on the inside after the construction was completed (2 235) However, it is undisputed that before the hiring Bowlin told Fiantaco that he was in dire need of funds because his wife was suffering from cancer (2 232, 3 449) At the hiring Bowlin also informed Fiantaco that his wife could not get insurance coverage because of the cancer Fiantaco responded that if Bowlin could get on permanent that Respondent had good insurance, which Bowlin could get (2 232) 4 i Bowlin insists that on that occasion Fiantaco said he thought that after the con struction job was completed he possibly could get Bowlin a job inside the plant (2 233, 235) He further tes tified that on an unspecified date before Bowlin s termi nation Williams asked him what he was going to do when the job was finished and Bowlin replied he hoped to work inside the plant Williams responded that he thought that could be arranged (2 232 236) Fiantaco concedes that he told Bowlin he would put in a good word for him when the construction was com pleted if Respondent then needed anyone inside but he insists that is all the discussion he had on the topic with Bowlin and he denies ever talking to Williams about 40 Respondent also employed various skilled craft employees on the construction work on a contract basis and the parties stipulated that these contract employees are not part of the unit (3 471-476) 41 At points during his testimony Bowlin checked a paper his wife had prepared listing dates of events (2 230-234) HICKS OILS & HICKSGAS 101 Bowlin moving to an inside job (3 456-457) Fiantaco states that he did tell Williams of the medical condition of Bowlin s wife and that he asked Williams, as a favor to Fiantaco, to work Bowlin inside when the outside work had a short day and that on a few such occasions Bowfin did work inside (3 457) Williams confirms that he did permit Bowlin to work inside a few times when it was raining as a favor to Fian taco (2 342-343, 344, 345) However, Williams disputes Fiantaco s statement that he never asked Williams to put Bowlin on permanently Thus, Williams testified that Fiantaco did asked him to consider Bowlin for employ ment on the inside, but that he told Fiantaco he would not hire Bowlin because most of the time when he ob served him on the outside Bowlin was leaning on a shovel talking (2 343-344) On Thursday, 25 October, Bowlin was laid off He tes tified that in the office on that date, Fiantaco gave him a written notice and told him that he was laid off Bowlin asked why, had he made someone mad Fiantaco replied no, that it was from higher up (2 228) The text of the `Discharge Slip checks the Laid Off' box (rather than either the quit or fired boxes) and gives as the reason (G C Exh 20) Due to inclement weather conditions and reduction in working force, Everett Bowlin temporary con struction worker, is layed off as of October 25, 1984 Respondents name is typed in the space for a manager s signature On leaving the plant, Bowlin asked Williams why he had been laid off, but Williams said he knew nothing about it (2 228-229) Bowlin asked if it had anything to do with the Union, and Williams answered that he did not think so (2 244-245) Williams denies that the subject of union ever came up in a conversation between him and Bowlin, and he denies knowledge of any union ac tivities by Bowfin (2 344) Fiantaco testified that they were rained out that Thursday42 and as Hicks earlier had asked him to hold the construction costs down, and because Bowlin only had a few hours work left on the job he, Fiantaco decid ed to lay Bowlin off then even though the work of the laborers would last a little longer (2 451) Fiantaco testi fled that he told Bowlin it hurt to lay him off because he knew that Bow lin s wife was ill and they had been good friends for 32 years (2 452) Bowlin testified that on a Saturday he telephoned Hicks and asked why he was laid off 43 Hicks responded 42 Bowlin worked inside that morning after first being told by Fiantaco that there would be no work that day and that he should not report to work Saying he would check into the matter Williams allowed Bowlin to work inside (2 227) 43 The Saturday following his termination was 27 October Bowlin tes tified that the Saturday he called Hicks was 3 November (2 229-230) Al though there appears to be an unaccounted for week in Bowlin s hearing testimony causing one to wonder whether the actual date was Saturday 27 October in his pretrial affidavit of 16 November Bowlin does account in part for the week (R Exh 2 at 2) As discussed later Bowlin s pre trial affidavit was received for the limited purpose of a signature compar ison I rely on the timeframe described in the pretrial affidavit simply as an aid in understanding the evidence adduced at the hearing that he had done it,44 that he had nothing against Bowlin, and that if there was any work he would talk to Fiantaco and Bowlin would be called back (2 229) Bowlin has not been recalled Williams testified that Bowlin was terminated because his part of the job was complete (2 358) Hicks initially testified that the construction work had not stopped even as of the date of his testimony, and that an even bigger project was about to begin (2 433) Moments later, how ever, he qualified this to say that the construction had continued only spasmodically and that we except to do some construction this year " (2 438) Flessner testified that in the fall of 1984 (1) the bills and invoices reflected that Respondent was spending too much money on the construction (2) the overtime was excessive, (3) the budget was a shambles and (4) the rec ordkeeping at Du Quoin, because of a shortage of help and the system not being computerized, was antiquated (3 497-498) Respondent offered no records to support this testimony, nor did Respondent call the one book keeper it then had, Betty Roberts, to corroborate Flessner s testimony Although Respondent had no legal burden to produce supporting documents or testimony such would be of assistance in resolving credibility I note that Flessner testified during the construction phase he was at Du Quoin frequently sometimes a week at a time (3 505, 514, 516) In addition to Flessner s frequent presence at Du Quoin, Owner Hicks testified that he vis ited the plant every week in October (3 421 422) Indeed, Hicks testified that he constantly discussed con struction costs with Fiantaco during the fall (3 421) Flessner testified with an unpersuasive demeanor and I do not believe him It was clear that Flessner measured his testimony to conform to the strict loyalty standard expected of him and of every employee, by Hicks And given the frequency and duration of his visits to Du Quoin, and the weekly visits by Hicks the owner and president, I find it incredible in the extreme that the con struction budget would suddenly have gotten out of hand This is not to say that Hicks never asked Fiantaco to keep construction costs down I find, however, that Flessner and Hicks kept a constant eye on expenses and that at no point did Respondents construction budget stray in any relevant degree from that which Respondent had programed Hicks denied knowledge of any union activities in gen eral or by Bowlin in particular (3 413 418, 421) Fian taco testified similarly (3 453) Williams denied knowl edge of any union activity by Bowlin (2 344) Flessner testified that the first suggestion he heard about activities was when Kelly Miller asked about it at his termination interview on Friday, 26 October (3 496, 497) Plant Man ager Walker testified that there were a lot of rumors about union cards, that in a small plant it is difficult not to hear the scuttlebutt that he heard some 8 or 10 men had signed, and that it seemed he heard these rumors sometime after Kinsel had been terminated (2 394-396) 44 Hicks testified that he authorized the termination for the reason stated on the notice (3 436) 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In October only two employees worked for Walker, but Walker testified that he gets around and talks to every one in the plant (2 398) Walker testified that there had never been any man agement meeting held to discuss the Union, and he had not received any instructions such as do s and don'ts in a union campaign (2 396-397) For that matter, on cross examination, Hicks testified that as of the moment of his testimony he had never seen the petition, which the Union had filed on 1 November in Case 14-RC-9907 (3 430) More than that, he asserts that no one in his or ganization had told him about the filing, but in the same breath he concedes that he is not too bad a supervisor (3 430) Hicks' phrase is more than an understatement-it is litotes It is clear that Hicks strives to keep close tabs on everything of significance that is happening in his plants This is particularly true regarding the Du Quoin plant in the fall of 1984 The Union's petition seeks a unit of production and maintenance employees, including truckdnvers,45 and shows the name of Moe Williams" as the employer's representative to contact (G C Exh 2) By letter dated December 4, 1984, the Regional Di rector for Region 14 notified the Union's attorney that the petition was dismissed Copies of the dismissal letter are shown to (among others) the two attorneys repre senting Respondent in the instant hearing plus a copy to the Du Quoin plant The relevant text of the dismissal letter reads (G C Exh 3) The petition herein was filed on November 1, 1984 An unfair labor practice charge was filed in Case 14-CA-17715, involving the Employer in which it is alleged, inter alia, that the Employer has inter fered with, restrained, and coerced its employees in the exercise of their rights and has discriminated in regard to hire tenure and other conditions of em ployment against several of its employees The charge involving the Employer was carefully inves tigated and considered and, as it appears the Em ployer has engaged in conduct in violation of Sec tion 8(a)(1) and (3) of the Act so as to preclude the conducting of a free and fair election a question concerning representation cannot appropriately be raised at this time I am therefore dismissing the petition in this matter, subject to reinstatement if appropriate upon the Petitioners application after disposition of the unfair labor practice proceedings Respondent makes no contention that the Du Quoin plant never received a copy of the petition in the usual course of mailing by Region 14 I find that it did receive copies of the petition and the dismissal letter in the usual course of the mail And notwithstanding Hicks testimo ny that he had never been told of the petition I find that he was promptly informed of it, probably by Williams in early November But I have gotten ahead of events Bowlin testified that 18 October he signed one of the Union s authonza 41 As will be discussed later the General Counsel would exclude truckdrivers tion cards at the request of blender John R Scholebo (2 217-218, 239) A question was raised during the voir dire examination concerning whether the signature on the card is that of Bowlin, and Bowlin s pretrial affidavit was received in evidence for the purpose of a signature comparison (2 224-225, R Exh 2) The signatures are similar on the two documents Bowlin concedes that no one from management was in the vicinity when he signed the card and returned it to Scholebo, that he never told anyone he had signed, and that he never solicited anyone else to sign and that he never attended any union meetings (2 240-241) 46 When one employee inquired whether he had signed Bowlin replied that it was no one s business (2 245) Neverthe less, Bowlin testified that some of the employees knew he had signed (2 245) The General Counsel points to testimony by Bowlin that when he was hired he was told by Fiantaco not to sit around talking to the other employees in the plant, and that Fiantaco added he definitely should not talk union (2 215) Although this event falls well within the statutory limitation period, there is no complaint allega tion based on it, and the General Counsel did not seek to amend the complaint to cover it Fiantaco denies telling Bowlin not to talk union (3 453, 464) This bit of testimo ny leads us to Sunday, 4 November, when Bowlin tele phoned Fiantaco The latter agrees that Bowlin tele phoned him at home around that date (3 463) Complaint paragraph 5L alleges that on or about 4 November Fiantaco in a telephone conversation told an employee that the employee had been discharged due to the employees union activities In support of this alle gation, Bowlin testified that when he telephoned Fian taco on 4 November he related to him what Hicks had said in their conversation of the previous day (2 231) Thus Bowlin told him that Hicks had said when there was any work (construction presumably) he would talk to Fiantaco and Bowlin would be recalled To this Fian taco, Bowlin testified stated that he would talk to Hicks and Fiantaco added (2 231), I told you not to talk to the guys in the plant According to Fiantaco Bowlin simply asked (again) whether Fiantaco was mad at him and why was he laid off Fiantaco replied that he had nothing against Bowlin and that Bowlin was laid off simply as a matter of eco nomics to keep the costs down And that s the only words that was discussed on the telephone (3 463) Fiantaco denies that he told Bowlin that he had been dis charged for his union activities (3 463) As earlier noted, Fiantaco also denies ever telling Bowlin not to talk union (3 453 464) I find that in August Fiantaco did tell Bowlin not to sit around talking with the employees inside the plant but I also find that Bowlin embellished this with the part about not talking union Having referred to Bowlin s pre trial affidavit, I shall note that in making the foregoing finding I do not rely on the fact that Bowlin s pretrial account of the August conversation does not include the 46 During the relevant period the only union meeting was the one con ducted by Melvin Allen at the union hall on 17 October attended by em ployees Kinsel Scholebo and Wininger HICKS OILS & HICKSGAS clause about not talking umon,47 for the affidavit was not received generally Citing certain cases, CGC requests that I consider as substantive evidence paragraph 6 of Bowlin s pretrial of fidavit (Br at 30) In paragraph 6 Bowlin asserts that on Friday evening, 2 November he telephoned Fiantaco to tell him he was going to call Hicks, and Fiantaco told him that he had work and would put him to work if Hicks gave the approval I decline to consider this pre trial statement not only because the affidavit was not re ceived generally, but also because Bowlin did not testify at the hearing about such a 2 November conversation and Fiantaco was not given a fair opportunity to address the issue At one point Respondents counsel asked Fian taco whether he had ever told Bowlin that there was work to do at the plant and that he would talk to Hicks about it (3 463-464) Fiantaco denied it and answered further that he ahd nothing to do with the plant (that is, work inside the plant) The matter was not addressed further and, as mentioned, Bowlin did not address a con versation with Fiantaco on 2 November Accordingly, I reject CGC's request that I consider as substantive evi dente Bowlin s pretrial account of a 2 November con versation There are a couple of other matters that bear on credi bility One has to do with testimony about Bowlin s work initiative and carpenter skills and the second re lates to a visit to the Du Quoin plant by Donald Moore, the secretary treasurer and business agent of Laborers Local 644 Earlier I noted that Williams testified that he told Fiantaco he would not hire Bowlin on a permanent basis because when he observed Bowlin he would be leaning on a shovel talking (2 344) 1 find that Fiantaco, as Wil liams testified, did ask Williams to consider Bowlin for permanent work on the inside I further find contrary to Williams testimony that he did not reply in the negative fashion that he described Indeed, in line with Bowlin s credited testimony that Williams apparently a few weeks before Bowlin was terminated told Bowlin that he thought a permanent job could be arranged for Bowlin following the end of the construction work I find that Williams raised the subject with Bowlin (asking as earls er described what Bowlin was going to do after the con struction work was over) after Fiantaco approached Wil liams on behalf of Bowlin, Fiantaco s friend of 32 years But aside from the foregoing logical connection of the credited evidence, the length to which Williams and Hicks sought at the hearing to slander Bowlin s work mi tiative and carpenter skills convinces me, in light of their wholly unfavorable demeanor, that Williams and Hicks are witnesses generally unworthy of belief On cross examination Williams concedes that he knew nothing about the standards of Bowlin's construction work and that he did not know what Bowlin was sup posed to be doing on that job (2 361) Williams also con cedes that he did not base his opinion on Bowlin s work inside the plant on the few occasions he worked there (2 369) Williams based his opinion on his asserted obser 4' The pretrial affidavit actually states that in August Fiantaco gave no reason for telling Bowling not to talk to the men (R Exh 2 at 3) 103 vation that he generally saw him (outside) leaning on a shovel handle talking (2 370) Testifying that Bowlin was classified as a carpenter, Hicks volunteered that he thought he did it quite well as did Bowfin (3 420) On cross examination he flatly stated that Bowlin is not qualified to be a carpenter (3 433) He then admitted that he had never personally observed Bowfin s work and that his opinion was based on Fianta Co s giving him the low down (3433)48 Whatever may be said about Fiantaco s denial of con versations about the union, or his denials of knowledge of any union activity, I find that he testified truthfully when he denied the slurs against his friend s working skills and initiative Thus, Fiantaco described Bowlin as a fair carpenter who, while not a polished" one, worked hard and whose overall work he related satisfactory (3 484-485) Moreover, Fiantaco testified that he never complained to management about Bowfin s work quality, quantity, or anything (3 485) In crediting Fiantaco, I expressly discredit the testimo ny of Williams and Hicks in which they untruthfully characterize Bowlm s work initiative and carpenter skills In addition to the Fiantaco ground, another reason I reject the testimony of Hicks and Williams on this point is that I do not believe them as witnesses generally I accept only portions of their testimony, which are in accord with other credited evidence I find Hicks and Williams to be witnesses who attempted to deceive me Their demeanor while testifying was wholly unsatisfac tory and it recalls to mind the words St Jerome penned nearly 1600 years ago49 The face is the mirror of the mind and eyes with out speaking confess the secrets of the heart The second credibility matter to be addressed at this point relates to the visit of Donald Moore to the plant Fiantaco, on cross examination, testified that in about October a man came to the jobsite and, identifying him self as the business agent for the Laborers Union, asked Fiantaco to walk through the plant with him (3 480-481) Testifying that although he did not know why Moore would so request, Fiantaco nevertheless agreed and they did so After the tour Moore then got in his station wagon and left Fiantaco denies that they conversed about the Laborers organizing the Du Quoin facility that the employees were considering forming a union, and saying that he would prefer the Laborers over the Teamsters (3 480 481-482) Called as a rebuttal witness for the General Counsel, Moore testified that his visit occurred when he, wearing his Laborers hat, stopped to speak to a cement finisher he knew A man in a suit and hat approached them and 48 Hicks actually said he received the low down from Bowlin s su pervisor Earlier Hicks identified that supervisor as being Fiantaco (3 421) Williams concedes that Fiantaco not he was Bowlin s supervisor (2 359) 49 St Jerome Letter 54 par 13 (394 A D) Fremantle The Principal Works of St Jerome 6 The Nicene and Post Nicene Fathers 2d Series (1979) as slightly modified in Bartlett s Familiar Quotations 128 8 (15th ed 1980) 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the cement finisher introduced the two (3:519-520). The man in the suit was introduced as Pete Fiantaco (3:520). As the construction workers resumed their tasks, Fian- taco and Moore stepped back and began conversing. During their conversation Fiantaco said he had worked with the Laborers before,50 that there currently was or- ganizing going on involving the Teamsters, and that he would prefer the Laborers (3:520). Moore gave him his card and wrote the name of an International vice presi- dent who would have to be contacted since the plant was about 2 miles outside Moore's jurisidiction. Fiantaco said, "We got two weeks." (3:523-524) Fiantaco said he was Respondent's public relations man, had worked years for Hicks Oil,51 offered to and did take Moore on a tour of the plant, and even introduced Moore in the office (3:522). After leaving, Moore contacted his superiors, and after about 3 weeks he received approval to organize the plant, but when he contacted some of the employees he learned that the Teamsters was engaged in organizing so he just "backed off." (3:524). I credit Moore's version of the visit over the different testimony of Fiantaco. Fiantaco's version of Moore drop- ping out of the blue to ask for a tour is enough of a credibility strain, but if a business agent did such, and Fiantaco consented, then surely the subject of organizing was mentioned. Why else would a union representative stop at a jobsite or a plant? The only other plausible reason is that given by Moore-he stopped to speak with someone he knew. From here, I find, events developed as described by Moore. I do not overlook a logical wrinkle in Moore's version. Thus, if he "backed off" 3 weeks later on ascertaining from employees that the Teamsters were organizing, why did he not withdraw when Fiantaco told him the same thing on the initial visit? As we know, Teamsters Local 347 filed the petition in Case 14-RC-9907 on 1 November. It is quite likely that Moore's second visit oc- curred sometime in November, and that Moore, on learning that the Teamsters' campaign already resulted in a petition being filed, decided to back away. Although Moore placed the date of his visit around 1 October (3:519), he testified on cross-examination that he based this timeframe on an estimate from employees (3:527), and there is evidence adduced during Respond- ent's rejoinder by Flessner, regarding timecards, detract- ing from the reliability of the employees' estimate. Moore's second visit probably occurred before the dis- missal letter of 1 December. Thus, the initial visit, I find occurred before Respondent received, in early Novem- ber, its copy of the petition, and the second visit took place 3 weeks later, but at some point after 1 November. This means that the second visit could have been as late as 18 or 20 November or so, and that the initial visit could have been as late as late October. Thus, I find that Moore's testimony, standing alone, fails to establish that 50 Fiantaco concedes that in the past he has been a member of the La- borers as well as the Carpenters and United Mine Workers (3:447). 51 Fiantaco , then a general contractor , erected a building in 1976 for Hicks, and on occasion Fiantaco, who takes pride in his work, goes in the plant to inspect the structural steel to see how it has held up since 1976 and to see how it looks after 8 years (3:447, 458, 484). Fiantaco and Respondent knew of the Teamsters' orga- nizing as of the date of any of the discharges. On the other hand, the credited testimony of Moore does further detract from Fiantaco's credibility. Aside from Fiantaco's version simply being rejected, Moore's credited version shows that Fiantaco, contrary to his tes- timony that he never knew about any organizing, in fact did know about it no later than late October. Although Fiantaco's knowledge is imputed to Respondent, it is clear from my other findings regarding the close control maintained by Hicks and Flessner, that Hicks and Flessner, and therefore Williams, possessed the same knowledge as Fiantaco no later than late October. Indeed, it is more likely than not that Fiantaco received much of his knowledge from Hicks rather than knowl- edge flowing from Fiantaco to Hicks. b. Conclusions as to Bowlin Did Fiantaco's 4 November statement to Bowlin, "I told you not to talk to the guys in the plant," equate to telling Bowlin, as alleged in complaint paragraph 5L, that he had been fired because of his union activities? I find the answer to be yes. First, the reason given for Bowlin's layoff-to reduce costs because budget exceeded-is based on the testimo- ny of Hicks and Flessner, and neither is worthy of belief. Moreover, in their zeal to impugn the carpenter skills of Bowlin and to paint him in the image of a goofoff, the credibility of Hicks and Williams assumes the function of an algebraic negative. It is well settled that when the reason advanced is false, it may be infered that the real motive is a different and unlawful one where, as here, it may reasonably be concluded that the motive sought to be concealed by the false reason is unlawful. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). The falsity of the reason, along with the "I told you not to talk to the guys in the plant," plus my disbelief of the denials by Hicks, Flessner, Williams, and Fiantaco of knowledge of union activities, all combine to establish af- firmatively that it had been reported to Respondent that Bowlin was a known, or suspected, card signer. As the statements of Fiantaco to Kelly Miller reflect Hicks' per- sonal desires, as Hicks wanted time for the Du Quoin plant to make some money under the Texaco contract, I find that Hicks viewed union activities at the Du Quoin plant as personal disloyalty to him. Hicks was explicit in his testimony that he will not tolerate a disloyal employ- ee. In light of the foregoing, and all the record, I find that Respondent violated Section 8(a)(1) of the Act by Fian- taco's statement to Bowlin on 4 November, and that Re- spondent, with knowledge, or suspicion, that Bowlin had signed an authorization card for the Union, fired Bowlin on 25 October because of that knowledge or suspicion, thereby violating Section 8(a)(1) of the Act, as alleged. I further find that when Fiantaco laid off the remain- der of his construction crew about Friday, 30 November (3:451), that Respondent would have transferred Bowlin to work inside the plant starting about Monday, 3 De- cember. Bowlin was earning $6 an hour, and I shall HICKS OILS & HICKSGAS 105 leave to the compliance stage the determination of what pay increase he would have received for promotion to a permanent employee 4 Richard A Foster discharged 29 October 1984 a Facts Richard A Foster was hired in July 1983 by Con struction Foreman Fiantaco as a part time employee (2 280, 290) He was promoted to full time in late June 1984, the same day Hicks introduced Moe Williams to the Du Quoin employees and was given a pay increase from $5 to $5 75 an hour (2 281, G C Exh 21) It ap pears that around the time of his conversion to full time, Foster began working on the maintenance crew for Butch' Johnson and Williams (2 274) Foster was terms nated 29 October Appearing to be in his mid twenties, Foster has had a dunking problem for some time He concedes that Fian taco who knows Foster s father, told the son, at the time Fiantaco hired him, to stay out of trouble for he was giving Foster a chance by hiring him (2 291) For about a year Foster appears to have avoided any significant dif ficulty Beginning in July, however, Foster began having attendance problems Timecards reflect that he missed work on 19 and 30 July, 20 August, 4, 6, and 25 Septem ber 8 October, and, finally 23-26 October In addition to missing these days, Foster was tardy five times between 29 August and 22 October There is no showing that other employees had similar attendance problems Foster admits that at one point, apparently the 25 Sep tember absences, he called in sick even though he really was hung over Williams, who learned the truth from family sources told Foster that he was tired of Fosters missing all these days of not calling in, that he did not want it to happen again, and that if it did he would fire Foster (2 293-294 301 337) Around this general timeframe Foster was convicted of driving while intoxicated (2 288) He had to pay a fine and serve time in jail However, the authorities permitted Foster to serve his jail time on weekends, and the last three weekends Foster was employed by Respondent he spent in jail (2 288 289) Foster credibly testified and Williams does not deny that he showed Williams the court papers describing the DWI conviction the fine, and the service of jail time on weekends Williams who had taken the papers returned them to Foster later the same day without comment (2 292-293) Both Foster (2 292) and Jeffery Scronce (1 177) testified that Foster s drinking problems DWI conviction and weekend jail time were facts of common knowledge at the plant On Tuesday 22 October Foster called in sick and he did not work the rest of the week (2 284) Although Foster did not specify in his testimony it appears that he did not call in that Wednesday, Thursday or Friday Foster visited a doctor during this absence and secured a statement from the doctor stating that Foster had visited him on that date, 26 October and that Foster was unable to work (2 285, G C Exh 17) When Foster reported to work on Monday, 29 Octo ber Williams called him into the office and informed Foster that he was terminated At that point Foster at tempted to hand Williams the doctor s slip, but Williams refused to take it, saying that the matter was out of his hands and was from people higher up (2 285-286) Williams testified that he telephoned Hicks and report ed to him concerning Foster s problems with attendance and concerning his weekend jail time According to Wil Hams, Hicks said he did not want a jailbird on his payroll (2 338) Williams did not specify when this conversation occurred He further testified that at, apparently, a later point, and during the final days of absence by Foster, Hicks telephoned and instructed Williams to terminate Foster (2 339-340) Hicks confirms that he so instructed Williams (3 417) Both deny knowledge of any union ac tivity by Foster (2 340-342, 3 418) At his termination Foster told Williams that he wanted to talk with Hicks (2 286) The evidence is skimpy on the this point, but Foster also testified that at some point he did talk with Hicks and that Hicks told him he drank too much and that he did not want Foster working up high (2 299) The working at heights is a reference to the un disputed fact that a "few weeks before he was terminat ed, Foster dropped a pipe wrench from a scaffold be cause of oil on his hands (2 294) Foster credibly testified that all employees drop things on occasion (2 294) Hicks testified that although the insurance carrier did not cancel the policy because of Foster s situation, Hicks could not take any more chances on this safety factor (3 416-417) Although Foster signed a union card on 18 October in a restroom at the request of John R Scholebo (2 275- 276, G C Exh 16) he admits that he never solicited anyone to sign a union card that he never attended any union meetings and that he never told anyone in man agement that he had signed a card (2 297-298) There is no direct evidence that Respondent was aware or be lieved that Foster had signed a union card The chief evidence even approaching a showing of animus toward Foster is his testimony previously discussed and cred ited, that following Kinsel s 18 October discharge, Fian taco told Foster that he would be terminated if Respond ent ascertained he supported a union b Conclusions as to Foster Fashioning a theory of unlawful discharge from sever al circumstances, the General Counsel argues that Re spondent really fired Foster because of his union support Included in this argument is the fact that Foster as did many but not all employees, received a pay increase (the raises vaned in amounts) on 17 October retroactive to 1 October 52 The General Counsel contends that Respond ent relies on grounds previously known or tolerated, and that the timing of Foster s termination following so close to his union activity and to Fiantaco s warning, add up to a finding that but for the union campaign, Re spondent would not have discharged Mr Foster I previously have found Hicks and Williams to be wit nesses unworthy of belief except when corroborated by credited evidence Neither testified in a straightforward 52I specifically do not believe Vice President Flessner who testified that Foster s October wage increase was not based on ment (3 500) 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fashion regarding the shortcomings of Foster and this is particularly true regarding the timing and content of the decision conversation (or conversations) Some of the grounds advanced ring exceedingly hollow Foster dropped a wrench once, and that occurred a few weeks before his termination before Fiantaco s warning to him, and before the October decision to grant him a pay increase Others also drop tools Fosters attendance was bad, but he had been missing days since July More over Williams was aware of the DWI conviction and the weekend jail time for several weeks before the termi nation In view of Hicks tight control over his company and his weekly visits to Du Quoin I find that Williams promptly advised Hicks of Foster s problems with the law and took no action until after the union activity began and Kinsel was fired Nevertheless, Foster s own testimony reflects that Wil hams warned him, about 25 September, that he would fire him if he repeated his attendance problems Al though Foster did miss another day, 8 October, without being fired' 53 it is reasonable to assume tnat when Foster missed 4 days in succession, and called in on the first day only that Williams had endured all he could stand This, I find is the reason Respondent discharged Foster The other reasons advanced are nothing but embellishments added as makeweights Frequently makeweight reasons mask an illegitimate motive In this case, I find, they really obscure the actual, and lawful, motive According ly I shall dismiss the complaint to the extent it alleges that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Richard A Foster E Postdischarge Conduct by Hicks Two incidents involving President Hicks, postdating the discharges have a matenal bearing on the issues, and I have considered them in making my findings As the second incident is not alleged in the complaint, CGC relies on it only to show animus and motivation Blender John R Scholebo who was still employed as of the hearing, testified that at some point in November Hicks telephoned him at home and asked if Scholebo still wanted a union at Du Quoin When Scholebo replied no that he had never wanted one, Hicks expressed the opin ion that the Du Quoin employees did not need a union Hicks then asserted that no one was going to come in and tell him how much to pay his employees He further asserted that he knew Scholebo was one of those who had signed a union card Scholebo, saying he would not lie, admitted that he had signed Hicks stated that Scho lebo was one of Respondent's best men but now you re out there hanging in left field (199-1()0)54 53 It is possible that Williams warning came after the 8 October ab sence rather than following the absence of 25 September 54 Complaint par 5M alleges that on or about 18 November 1984 Hicks by telephone (1) interrogated an employee concerning his union activities and (2) created the impression that his union activities were under surveillance The allegation does not include a threat of discharge although it could be argues that Scholebo s testimony establishes one in Hicks words that Scholebo was now hanging in left field Those words convey the message that Scholebo has jeopardized his job by his union activities and that his good work was insufficient to save his job According to Hicks Scholebo called him at home around 18 November and expressed doubt that his job was secure Hicks assured Scholebo that he had nothing to worry about, to continue his work, and to forget about everyone else When Scholebo seemed relieved to hear this Hicks added that Scholebo was earning a pretty good wage Hicks denied saying anything about a union or even knowing anything about union activities even at this late date (3 426-428) 55 I credit Scholebo who testified with far greater believ ability than did Hicks I therefore find that on or about 18 November Respondent violated Section 8(a)(1) of the Act when President Hicks interrogated Scholebo con cerning his union sympathies and when Hicks asked Scholebo if he still wanted a union, thereby creating (or tending to create) the impression of surveillance Scholebo also testified that around late January 1985 Hicks, during one of the presidents visits to Du Quoin called him into the office asked why Scholebo wanted a union in the plant, and told him that no union was going to come in and tell him what to pay his employees (1 104-105) Scholebo responded by saying that the La borer's representative 56 reported that Pete Fiantaco had told him that the Company does not want the Teamsters Union and prefers the Laborers This statement by Scho lebo had an incendiary effect on Hicks, who exploded in an ominous display of antiunion animus by pounding his fist on the desk while profanely exclaiming (1 105) I don t want no goddamned union in here Although Hicks denies any 1985 conversation with Scholebo in which the Union was mentioned he does not address whether there was an incident in which he pounded his fist on the desk while talking with Scholebo (3 428) I credit Scholebo No complaint allegation covers the foregoing incident CGC relies on it only to show that Respondent s animus is a longstanding condition that still persists and that the incident graphically demonstrates the need for a bargain ing order because it would be impossible to conduct a fair representation election (1 104 Br at 20) F The Requested Bargaining Order 1 Introduction The General Counsel seeks a bargaining order To de termine whether a bargaining order is an appropriate re medial order in this case I must resolve certain issues First, what is the appropriate unit? Second did the Union obtain card signatures from a majority of the em ployees in the appropriate unit? Third, even if a majority signed cards, was the majority reduced to a number less than half by reason of taint? Fourth, if Respondents taint arguments fail, do the violations found fall in that cate 15 Unlike Vice President Flessner who at least concedes that his first inkling of any union came from a statement Kelly G Miller made when Flessner terminated Miller on 26 October (3 496) Hicks would have me believe that his own ignorance of any union activities is absolute 55 An apparent reference to Donald Moore the witness called by the General Counsel during the rebuttal stage HICKS OILS & '-IICKSGAS 107 gory of serious unfair labor practices that indicates a bar gaining order is an appropriate remedial order? 2 The appropriate unit Although they differ on some inclusions and exclu sions the parties agree to the same 18 employees as being the pool of possible inclusions in the appropriate unit as of 18 October At the hearing the parties stipulat ed that 12 of the 18 should be included (1 201-207) These 12 are David Brocaille Michael W Dalman Richard A Foster Edward F Goeke Michael E Hampton Gary W Kinsel Ricky Nippe Michael W Ratajczyk Jeffery Roberts John R Scholebo Jeffery W Scronce W Lee Wininger Kinsel was not discharged until the morning of 18 Oc tober As most of the cards were signed after Kinsel was fired, and as I have found that Kinsel was not unlawfully discharged, it is clear that Kinsel may not be counted in totaling the number in the unit Accordingly, Kinsel s card may not be counted in ascertaining majority status The parties also agree, and the evidence supports them, that blender Jerry Aaron, who began work on 9 October, should be included in the unit By subcontract ing Kinsel and adding Aaron, the agreed inclusions still number 12 The General Counsel also would include Everett L Bowlin, Kelly G Miller and Andy J Queen Respond ent would exclude Bowlin and Miller as temporary em ployees and Queen as a student Previously I have dis cussed the status of Bowlin and Miller and found that each would have been made a permanent employee but for his unlawful discharge I therefore shall count them as part of the appropriate unit At the time of the hearing Andy J Queen was a senior in high school who was working for Respondent as part of a vocational educational program Williams grades Queen on his work and the school in turn gives Queen school credits ( 1 185- 186) Queen first worked for Re spondent during the summer of 1983 During the summer of 1984 he again worked for Respondent on the con struction crew In the summer of 1984 Queen received a pay increase to $5 an hour (1 188) However, he does not receive the fringe benefits other regular employees do (1 188) In September 1984 Williams transferred Queen to work inside the plant, where Queen has continued to work On the inside Queen works from 1 to about 7 p in and sometimes later, for a total of about 30 to 35 hours a week (1 181,188) The regular employees work from 8 a m to 4 30 p in and Queen is the only employee who works the shift he has (1 188-189) From 1 p in to 4 30 p in Queen works on whatever jobs Williams assigns him to and after 4 30 p in he performs janitorial work (1 180) Although he understands that his job will not continue after his graduation from high school, he hopes to obtain a permanent job from Respondent after he graduates (1 186-187) Relying on cases such as Hearst Corp, 221 NLRB 324 (1975) the General Counsel argues for inclusion on the basis that Queen works nearly as many hours as the reg ular employees has a pay rate as high as at least one of them (Dalman), performs unit work some of the time cleans up the work area the balance of his time, and shares a community of interest with the regular employ ees Citing Taft Broadcasting Co, 226 NLRB 540 (1976), and similar cases, Respondent contends that Queen should be excluded because he has no reasonable expec tation of continuing employment and no sufficient com munity of interest with unit employees The issue is close because Queen did not share fringe benefits or have any firm prospect that he would be em ployed after graduation Nevertheless, because of the great number of hours Queen was working during the relevant period, that he was earning pay in the same range as acknowledged unit employees, that he worked alongside unit employees for several hours each day and then cleaned up the work areas, and in the absence of any evidence that the school exercised any substantial degree of control over Queens employment, I shall count Queen as being a member of the Union as of 18 October on the basis that Queen s status with Respond ent at the relevant time was more employment related than it was educational Inclusion of Bowlin Miller and Queen brings the unit count to 15 With Kinsel excluded because of his dis charge, two employees of the original pool of 18 remain in dispute The two are maintenance man Edward D Butch Johnson and truckdriver William D Rice I previously have found the evidence insufficient to estab lish that Johnson is a statutory supervisor The General Counsel contends that neither Johnson nor Rice shares a sufficient community of interest with the unit employees As to Johnson, CGC points to the fact that Johnson falls in a special category in that he is not on the Du Quoin payroll, but in fact is on the payroll of one of Hicks other firms that Johnson keeps his own time and that Hicks testified that Johnson does not report to anyone at Du Quoin and that Johnson s orders come from Rob erts Illinois (3 409) Although Johnson testified that he reports to Williams (2 374) he later conceded that his boss is Cotton Fritchley at Rocket Supply Corporation (2 383) It is clear that Johnson is a loaned employee of Rocket Supply Corporation a subsidiary of Respondent and that Hicks assigned Johnson to Du Quoin on a tempo rary (although indefinite) basis to provide the technical expertise in the area of piping and maintenance Even though Johnson functions as a leadman at Du Quoin, co operates with the local management there and works closely with unit employees, his essential and permanent ties are to the subsidiary whose payroll he is on and from whom he receives his orders If Johnson is a member of any unit it would be a unit at Rocket Supply I therefore shall not count him as part of the Du Quoin unit In arguing that Rice should be excluded from the unit, CGC points to the admission of Williams who super vises Rice that Rice spends at least 95 percent of his time performing his over the road truckdnving duties 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the other 5 percent working at whatever job he is assigned inside the plant (2 347) Construction Crew Foreman Fiantaco testified that the only work he ever observes Rice performing other than driving is washing or maintaining his vehicle (3 482) Fiantaco adds, howev er that he does not know whether Rice ever works inside the plant (3 483) Vice President Flessner testified that Rice works inside the plant on production work up to 50 percent of his time (3 512-515) 57 Rice punches a timeclock, is paid hourly and works generally the same hours as the other employees Truckdriver Rice spends an average of about 5 per cent, or a little more, of his time performing production work, he is paid hourly, punches a timeclock as other unit employees, shares the same benefits, and is super vised by Williams who also is over most of the produc tion workers I find that he shares a sufficient community of interest with the other employees to be included in the unit Accordingly, I find the appropriate unit to be de scribed as All production and maintenance employees em ployed by Hicks Oils & Hicksgas Inc, at its Du Quoin, Illinois facility, including truckdnvers but EXCLUDING office clerical employees profes sional employees, guards and supervisors as defined in the Act The addition of Rice brings the final tally for the unit inclusions to 16, with 2 exclusions (Kinsel and Johnson) Thus, I find that as of the signing of the last authonza tion card on 18 October, the appropriate unit included Terry Aaron Everett L Bowltn* David Brocaille Michael W Dalman* Richard A Foster* Edward F Goeke Michael E Hampton* Kelly G Miller* Ricky Nippe Andy J Queen* Michael W Ratajczyk* William D Rice Jeffrey Roberts John R. Scholebo* Jeffrey W Scronce* W Lee Wmmger* The 10 whose names are marked with an asterisk, with Kinsel making 11 are the ones who signed union author ization cards during the 2 day period of 17-18 October Respondent argues that the cards of Bowlin and Scronce should not be counted because someone else dated the cards 18 October However Scronce testified in a posi tive fashion that he knew the date of his signing was 18 October (1 170) I find that Scronce signed his card on 18 October Bowlin testified that someone else, he presumes it was Scholebo dated his card, which he signed and (the same day) returned to Scholebo (2 221-223 239) During his own testimony, Scolebo failed to include Bowlin s name in the list of those he gave cards on 18 October (1 93- 94) However W Lee Wininger testified that he re ceived the signed cards from Scholebo and Michael Ra tajczyk on 18 October to pass on to Union Representa 67 The 50-percent figure relates to a single week and I find that Wil hams ratio of 95 to 5 is the more credible and the more accurate figure tive Allen (2 262, 265) Indeed, on that occasion Win inger on his own initiative corrected the date on Andy s Queen s card from 26 October to 18 October (2 262 265- 266 G C Exh 12) Although there is no express statement by any witness that Bowlin s card was correctly dated as 18 October, it is established that Scholebo distributed the cards on 18 October and that Bowlin received his card and gave it back the same day to Scholebo Where as here the sur rounding facts establish the timely signing (the actual date, here) of an authorization card, the fact that some one else dates the card does not render it invalid Sans Souci Restaurant, 235 NLRB 604, 608 fn 8 (1978) Ac cordingly, I find these and all the cards, valid As the 10 signers constitute a majority of the 16 member unit, the next question raised by the evidence is whether a sufficient number of the cards were tainted so as to destroy the majority 3 The issue of tainted cards a Facts As mentioned earlier, Gary W Kinsel John R Scho lebo, and W Lee Wininger signed cards at the Team sters hall the evening of 17 October Union Representa tive Melvin Allen testified he told the three that the cards could be used to petition the Board for an election or to request recogniton on the basis of a card check if a majority of the employees signed (1 121) Allen further testified the he never told them the sole purpose of the cards was to have an election (1 122) In answer to a question during voir dire examination whether Allen told them that the only purpose of the cards was to petition for an election Kinsel answered yes (1 41) 58 Kinsel also testified that Allen said the cards were to petition for an election that the cards would afford a measure of protection, and that Allen never told them to disregard the language on the face of the cards (1 41 43) Kinsel testified that he read the card before he signed it (1 35) Scholebo testified that Allen told them if 50 percent of the employees signed then it would come to an election and he would talk to company officials and either turn over the cards or tell them that a majority had voted for the Union (1 89-90) He further testified that the card could help provide security from discrimination on the job (1 89) In answer to the question whether Allen ever said that the only purpose of the cards was to conduct an election Scholebo responded, Yes I believe he did (1 90) When reasked that question Scholebo saying he was getting confused, asserted that Allen said the cards were for him to represent the employees as a Local Union 58 I erroneously suggested that counsel cover both authentication and validity of the cards during voir dire ( 1 38) One practical problem with this is that a respondent cannot obtain any pretrial affidavit until the cross-examintion stage (1 90) Thus a certain duplication of effort can de velop The proper and better practice described in Montgomery Ward & Co 253 NLRB 196 196-197 ( 1980) is to limit the voir dire examination to authentication and to reserve validity questions for cross-examination HICKS OILS & HICKSGAS 109 On voir dire examination by Respondent, counsel in quired whether Scholebo had just testified that Allen said the purpose of the card was only for an election Scholebo answered yes (1 91) As Scholebo had indeed so testified, he accurately described his own testimony The issue however is what Allen said Following the voir dire examination, Scholebo denied that Allen said that the purpose of the card was only to have an election (1 91) Scholebo testified that he read the card before he signed it (1 92) Scholebo's card, as the others, has lines for the date, the name, address, and telephone number of the employ ee (G C Exh 13) The name of Teamsters 347 in West Frankfort Illinois, is printed on the card, and at the top is printed AUTHORIZATION FOR REPRESENTA TION AND UNION SHOP 'At the bottom of the card are lines for the name of the employer and its address, the job title of the employee, and a signature line for the employee The text of the cards provides I hereby request and accept membership in the above named union, and of my own free will au thonze it their agents or representatives to act for me as a collective bargaining agency in all matters pertaining to pay rates, wages, hours of employ ment and other conditions of employment I agree to be bound by and comply with the Constitution, rules and regulations of the Teamsters Union, Local 347, Affiliated with I B T C W & H of America Wininger testified that he read his card when he signed it (2 256) He further testified Allen said the main purpose of the card was to have someone represent the employees but that a second purpose was possibly to get a vote (2 257) On voir dire examination Wininger an swered yes to the question whether Allen said the pur pose of getting employees to sign the cards he gave the three for distribution was to get a vote (2 258) Follow ing Respondent's voir dire examination, Wininger testi fled that the three had explained to Allen that Respond ent was about to fire Kinsel and that they wanted some one to represent them (2 259) 59 Citing Serv U Stores60 and Cumberland Shoe Corp ,61 Respondent contends that the cards of all three, Kmsel, Scholebo and Wininger are invalid because the employees were told that the pur pose of the cards was to get an election Countering Respondents contention, CGC relies on NLRB v Gissel Packing Co, 395 U S 575 (1969), and Keystone Pretzel Bakery 242 NLRB 492 (1979) enfd 696 F 2d 257 (1982) in which the Board quotes from Gissel Thus, in Keystone Pretzel, the Board, 242 NLRB at 493, wrote as follows In NLRB v Gissel Packing Co Inc 393 U S 575 (1969), the Supreme Court approved Board law on determining the validity or invalidity of authoriza 59 Recall Kinsel s testimony that the morning of 17 October Williams asked him to resign and stated that he would have to fire Kinsel if he failed to resign (1 30-31) 80 234 NLRB 1143 1145 (1970) 81 144 NLRB 1268 (1963) tion cards, as set forth in Cumberland Shoe Corpora tion, 144 NLRB 1268 (1963), enfd 351 F 2d 917 (6th Cir 1975) and reaffirmed in Levi Strauss & Co, 172 NLRB 732 (1968) The Court described Board law in the following terms (395 U S at 584) Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i e, states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of ob taining an election With respect to employees who sign cards upon al leged misrepresentation as to their purpose, the Court said, [E]mployees should be bound by the clear language of what they sign unless that lang guage is deliberately and clearly cancelled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature' (395 US at 606) The Court cau tioned the Board not to apply the Cumberland Shoe rule mechanically, and quoted with approval the Board s language in Levi Strauss, supra, that it is not the use or nonuse of certain key or magic words that is controlling, but whether or not the to tality of circumstances surrounding the card solici tation is such as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election " (395 U S at fn 27) There is more evidence to consider on this point After Kinsel and the others left the Teamsters hall the evening of 17 October they stopped at a cafe where they met fellow employee Michael E Hampton Kinsel credi bly testified that he informed Hampton about the meet ing with Allen, gave Hampton a card and asked him to read it and sign it (1 37) As Kinsel watched, Hampton read the card, signed it, and returned it to Kinsel (1 37- 38) On voir dire examination Kinsel testified he also told Hampton that the card was for protection for authoriza tion for representation and to petition for an election to get a union (1 39-40) Kinsel thereafter testified that he did not tell Hampton to disregard the language on the face of the card (143) Hampton did not testify Re spondent s objected to Hampton s card on the ground it was tainted by statements to the effect that the card was for the sole purpose of obtaining an election (1 41-42) The following morning Kinsel was fired Before he left the plant, Kinsel transferred the batch of unsigned authorization cards to Scholebo (1 57, 93) It was Scho lebo who, during the course of 18 October persuaded seven other employees to sign cards Michael Ratajczyk testified that Scholebo told him the card was to get a union that there would be a vote on it, but not to sign if he did not want a union (2 252-253) Scholebo testified that Ratajczyk looked at the card before filling it out and signing it that he told Ratajczyk not to sign if he was not going to stick with those want 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing a union, that he never told Ratajczyk to disregard the language on the face of the card (1 95, 97) On voir dire examination by Respondent, Scholebo testified (1 96) Q Mr Scholebo, isn t it true that you told Mr Ratajczyk that the purpose of the card was to get a vote9 A Yes, I did Q And you told him you wanted to see if a ma jority could get the-would sign so you could get a vote, isn t that correct9 A That's right Q And you didn't tell him it was for any other purpose, did you? A No I don t believe I did Q No, you told him it was only to get a vote, isn t that correct A Right Everett L Bowlin testified that at Scholebo s request, he signed his card in the plant on 18 October, although he did not enter the date on the card and assumes that Scholebo dated it as 18 October (2 217-218, 222-224, 238-239) One question about the card is whether the sig nature is actually Bowlin s and Bowlin s pretrial affidavit (R Exh 2) was introduced for the purpose of comparing signatures (2 225) I have compared the signatures Al though there are some differences, there are significant similarities I find that Bowfin did sign the card bearing his name (G C Exh 13) Respondent also contends that Bowfin s card is tainted because of what Scholebo told Bowlin Scholebo did not address the point but Bowlin testified tht Scholebo told him the card was to organize a union (2 218) He then was asked (2 218) Q Did he ever tell you it was only to get an election A No, he didn t After denying that Scholebo threatened him with loss of his job if he failed to sign, Bowlin testified (2 218-219) Q Did he ever tell you that it was only for pur pose of getting an election A Yes That was the way I Q Did he-for only-for that purpose A Yes Q For getting an election A For to get a union in the plant This was followed by voir dire examination during which Bowlm testified (2 219-220) Q Mr Bowlin, did Mr Scholebo mention an election at all to you? A No he didn t He said he was going to try- that they was going to try to organize a union And he asked me if I would sign the card and I said yes Q You initially testified though under Mr Locke [CGC] that Mr Scholebo said the purpose of the card was only for an election Isn t that correct A Yes I did Q Now you re saying he didn t mentioned an election at all? A He asked me if I would sign a union card to organize a union in the plant It is clear that when the witnesses testified in their own words, the story of what Scholebo told them is rather different from the version posed by counsel in a question calling for a yes or no answer The confusion in the minds of some of the witnesses no doubt derives from the explanation and instructions Union Respresenta tive Allen gave Kinsel, Scholebo, and Wininger on 17 October Although I credit Allen s testimony that he ex plained he would make a recognition demand based on a card majority, and on rejection the cards would be used to petition for an election, it is clear that he failed to stress the differences in these two procedures to the three on 17 October, and it is plain that they failed to grasp the distinction As a result Scholebo mentioned elements of both procedures to some of the employees In this connection, Kelly G Miller testified that Scho lebo told him the card would provide job protection and that if enough employees signed they could get a vote, but not to sign if he was not going all the way with the Union (1 133-134) Respondent contends that the card is invalid because Scholebo advised Miller the only pur pose of the card was to petition for an election Andy J Queen testified that he read his card before signing it and returning it to Scholebo (1 183) Queen tes titled on voir dire as follows (1 183-184) Q Isn t it true Mr Scholebo told you that the card was only to get a vote to see if the majority of the people would want a union A That and that if I was to be fired or get fired for any reason that it would be a first step in saving my job Q Okay, but he told you this was getting a union-geting an election A For getting a vote Q For getting a vote A Yes Respondent objected that this card was invalid because Queen in addition to being a student, was told that the purpose of the card was to get an election (1 184) Richard A Foster testified that he read his card before signing it and returning it to Scholebo (2 277-279) Before Scholebo gave him the card Kinsel earlier that week had told Foster that if he was for a union to sign a card, and that Scholebo told him the same when he gave him the card (2 276-278) On voir dire Foster testified (2 278) Q What did Mr Scholebo tell you when he gave you the card? A Just to sign it you know if I was for the union to sign the card Q Did he tell you it was for an election? A I believe HICKS OILS & HICKSGAS 111 Respondent objected to the card on the basis that Scho lebo testified he told employees the purpose of the card was for an election (2 280) Jeffery W Scronce testified that he did not read the card Scholebo gave him before he signed it, and that al though someone else dated the card, he knows the date he signed was 18 October (1 167-170) Although Scronce was unable to recall what Scholebo told him he testified, in answer to a leading question, that Scholebo told him it was a union card (1 168, 170, 171) When asked on voir dire whether Scholebo told him the purpose of the card was to get an election, he replied, No, he didn't" (1171) Respondent objects to the card on several grounds, including the admitted fact that Scronce did not read the card before signing it The 11th and final card is that of Michael W Dalman Hired at the beginning of October, Dalman was a new employee at Du Quoin (1 159) After identifying a card as the one he had dated, signed, and returned to Scho lebo (1 160), Dalman testified that on giving him the card, Scholebo told him that everyone had signed, that if he did not sign he perhaps could lose his job, that the purpose of the card was to get an election, and perhaps the employees would get more money (1 161, 162, 164) Dalman denies that Scholebo said the only purpose of the card was to get an election (1 162) Scholebo did not explain, Dalman testified, what he meant by the job loss remark or who would cause it or how it would occur (1 163) Recalled to the stand Scholebo testified that on giving the card to Dalman he reminded Dalman of Kinsel's dis charge that morning and that he told Dalman the card would protect his job and not to sign the card if he was going to stick with them (1 198-199) Scholebo denied making reference to anyone being fired or that Dalman would lose his job through any action by Scholebo or the Union (1 199-200) Although denying he told Dalman that everyone had signed, he admitted that he said most everyone had signed (1 200-201) Respecting the disputed aspects of Dalman s card, I credit Scholebo Thus I find that Scholebo simply re minded Dalman of Kinsel s discharge and stated that the card would protect his job Dalman I find at some point began to interpret Scholebo s protection comment as a threat of job loss I further find that Dalman either did not hear or subsequently forgot the qualifying most which Scholebo used in truthfully telling Dalman that most employees already had signed I further find that Scholebo also told Dalman that the card was to get an election b Conclusions on validity of the cards I find the four cards signed on 17 October (those Kinsel, Scholebo, Wininger, and Hampton) to be valid Of the seven cards signed on 18 October I initially find valid those of Bowlin and Scronce It is clear, and I find, that Scholebo told Bowlin the employees were trying to organize a union, and he asked if Bowlin would sign to organize a union in the plant Bowlin signed Scronce did not recall what Scholebo said other than that Scholebo did not tell him the purpose of the card was to get an election Although Scronce did not read his card, his card is valid because he signed it As to the remaining five cards (Dalman, Foster, Miller Queen and Ratajczyk), a question concerning va lidity exists because with each of them Scholebo said there would be a vote (Ratajczyk, Miller, Queen) or that the card was to get an election (Foster, Dalman) Foster included the aspect of an election only by a hesitant answer to a leading question from Respondent, and although it was not improper to state the answer ex pected on cross examination, I must consider that in the factfinding process In that process, I place more reliance on Foster s testimony, in his own words, that Scholebo told him the card was for a union and asked him to sign Even if Scholebo also told him the card was to get an election, the addition of the second procedural option did not cancel the card I find Foster s card to be valid The difference between Foster's card and the other four is that Foster was presented with the dual proce dure (assuming Scholebo did mention an election) As to the other four, Scholebo linked getting a union with the process of having a vote (Ratajczyk) or linked job pro tection with having an election (Miller, Queen, Dalman) Of these four, the words expressed by Scholebo to Ra tajczyk at least spoke of getting a union (although a vote was mentioned) With Miller, Queen, and Dalman, refer ence was made to the second procedural option (an elec tion) but not to the first (voluntary recognition by a card check based on a card majority or, in the shorthand version getting a union based on the card) Reference to job protection is ambiguous, for that can mean after an election as well as, by implication, voluntary recognition based on a card majority Thus, I conclude that as to these three, Miller, Queen, and Dalman the only proce dural option clearly mentioned was an election As the court recognized in NLRB v Keystone Pretzel Bakery, 696 F 2d 257 (1982), authorization cards always have a dual purpose, for if an employer refuses to recog nize based on a card majority, the cards may be used to support a petition for a representation election The court in Keystone Pretzel went on to hold that language (such as that in this case) on the face on an authorization card is not canceled by a solicitor telling the signer that the card will be used to get an election Thus although the issue may be close as to the cards of Miller Queen and Dalman I find their cards as well as the others, to be valid As of the close of business on 18 October, I find that the Union held valid authoriza tion cards signed by 10 (62 5 percent) of the 16 employ ees in the appropriate unit 4 Seriousness of the violations precludes a free election We now must consider whether Respondents unfair labor practices justify the imposition of a bargaining order because they are so outrageous and pervasive' as to preclude the holding of a free election 62 or be 82 Commonly referred to as category 1 situations NLRB Y Gissel Packing Co 395 U S 575 613 (1969) 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause they although less pervasive than the first catego ry nonetheless are so serious that they still have a tend ency to undermine majority strength and impede the election process 63 Respondent contends that even if the findings have reached this stage that a bargaining order is not justified (Br at 50) By contrast, CGC contends that a bargaining order is justified and that it should be made retroactive to 18 October (Br at 47-48) Regardless of whether the violations here may be clas sified as falling in category 1, surely come under catego ry 2 Accordingly, I shall order Respondent to bargain with the Union as of 18 October 1984 In classifying Respondents violations as being so sera ous as to impede the election process, and in finding that the possibility of erasing the effects of Respondent s unfair labor practices and of ensuring a fair election by the use of traditional remedies is slight, I note the follow ing First, and most significant , it is Respondents presi dent C W Hicks, who set the example he expected of everyone on his Du Quoin payroll to follow-managers supervisors, and unit employees He did this in late June when he graphically explained to them that anyone talk ing union would be fired' As the owner of Respondent (and its subsidiaries), Hicks has a personal stake in keeping a union out of Du Quoin This is so because Hicks had made a big financial investment in securing the Texaco contract, and Hicks needed some time, possibly 2 years, of income from the Texaco contract in order that his investment could pay the dividends he desires Thus it is immaterial that Hicks has contracts with the Teamsters at two of his other lo cations The issue is his need and desires for Du Quoin Although the record suggests that Hicks prefers the La borers over the Teamsters, the evidence shows that Hicks does not want any union at Du Quoin and in late January 1985 Hicks forcefully made tht point by beating his fist on a desk while proclaiming to blender Scholebo that he did not want any union telling him what wage rates he had to pay Whether Hicks harbors a personal deep and lasting animus against unions generally may be debatable But we need not resolve that issue It is sufficient for this case to know that Hicks in his view has a very good reason for opposing the entry of any union at Du Quoin It may be that after he reaps a profit from the Texaco contract for a couple of years that Hicks will relent and tolerate his employees exercise of their statutory right to bring in a union to represent them at Du Quoin Unfortu nately such future compliance with the law comes a bit late In the meantime the employees and the statute have suffered As Hicks made clear in his testimony he does not tol erate disloyalty I find that, at least as to Du Quoin, Hicks equates union activity by employees as an act of disloyalty It is reasonable to find and I do, that Re spondent s managers and supervisors taking their cue from the source of their own livelihood acted accord ingly 63 The Gissel opinion s category 2 cases Second, in addition to the overriding aspect that Hicks personally set the tone, the violations themselves are sera ous (including some of hallmark character) and they are extensive (in a unit of only 16 employees the violations directly touched all employees working in June and a minimum of four employees or 25 percent of the unit in October-November) Moreover, given the animus Hicks displayed in late January 1985 when he beat his fist on a desk before blender Scholebo it is clear that the tradi tional remedies of a Board order and notice requirement are inadequate to dissipate the effects of the violations committed and unlikely to restrain future violations As to the nature of the violations, I note they include (1) threats of discharge by Hicks himself in June and about 18 October by Pete Fiantaco, Hicks longtime as sociate, (2) the 18-19 October creation of the impression of surveillance by Hicks and Fiantaco and again about 18 November by Hicks (3) unlawful interrogation of em ployees by Fiantaco on 20 October and by Hicks about 18 November, and (4) the 26 October discharge of two employees, Everett L Bowlin and Kelly G Miller, be cause of their union activities The discharges of Bowlin and Miller are all the more serious since it is clear that these decisions emanated from owner Hicks personally Respondent poured salt in Bowlin s wound on 4 Novem ber when Fiantaco, in effect informed Bowlin that he had been fired because of is union sympathies The cumulative effect of all these violations on a small unit of 16 employees would be devastating enough if they had resulted from the actions of supervisors who, misinterpreting managerial instructions to oppose the union effect by lawful means, had overstepped lawful bounds That is not what we have Here we have the owner who has personally engaged in several of the vio lations and who is personally responsible for all of them Moreover the employees see at every weekly visit by Hicks that the owner spry despite his 79 years keeps a watchful eye on everything Indeed pay raises of any amount must have Hicks approval and his initials are found on virtually every exhibit in the record that per tains to personnel action In light of the foregoing and on the entire record I shall order Respondent to bargain with the Union retro active to 18 October 1984 CONCLUSIONS OF LAW 1 Respondent Hicks Oil & Hicksgas, Inc, is an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act 2 Teamsters Local 347 is a labor organization within the meaning of Section 2(5) of the Act 3 Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge if they engaged in union activities by creating the impression among em ployees that Respondent was surveilling their union ac tivities by interrogating employees concerning their union activities and sympathies, by impliedly promising an employee a promotion with higher pay if he refrained from supporting a union any by informing an employee that Respondent had fired him because of his union ac tivities HICKS OILS & HICKSGAS 4 Respondent violated Section 8(a)(3) and (1) of the Act by discharging Everett L Bowlin on 25 October 1984 and Kelly G Miller on 26 October 1984 because they had engaged in union activities 5 These are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 6 The following unit of Respondents employees is ap propriate for the purposes of collective bargaining All production and maintenance employees em ployed by Hicks Oils & Hicksgas, Inc, at its Du Quoin Illinois facility , including truckdrivers, but EXCLUDING office clerical employees, profes sional employees, guards, and supervisors as defined in the Act 7 As of 18 October 1984, the Union represented a ma jority of the employees in the above unit 8 The unfair labor practices are so serious and perva sive that they disrupt an impede the election process, rendering the value of traditional remedies as either non existent or only slight, and therefore an order to bargain is warranted and appropriate THE REMEDY Having found that Respondent has engaged in these unfair labor practices I shall order it to cease and desist and to take certain affirmative action designed to effectu ate the policies of the Act Respondent must offer Everett L Bowlin and Kelly G Miller immediate reinstatement to the positions they would have held had they not been unlawfully dis charged or, if those positions no longer exist, to substan tially equivalent positions, without prejudice to their se nionty and any other rights and privileges previously en joyed Respondent must make them whole with interest for any loss of earnings they may have suffered as a result of discriminatorily discharging them in October 1984 Backpay shall be computed in the manner estab lished in F W Woolworth Co , 90 NLRB 289 (1950) with interest calculated as prescribed in Florida Steel Corp, 231 NLRB 651 (1977) See generally Isis Plumbing Co, 138 NLRB 716 (1962) Moreover Respondent must remove from its files any reference to its unlawful discharges of Everett L Bowlin and Kelly G Miller, and it shall notify each in writing that this has been done and that evidence of the dis charges will not be used as a basis for future personnel action against them Sterling Sugars 261 NLRB 472 (1982) As a free election cannot be assured because of the violations found, and in light of President Hicks continu ing antiunion animus I shall order Respondent to recog nize and bargain with Teamsters Local 347, retroactive to 18 October 1984, as the exclusive bargaining repre sentative of the employees in the unit found appropriate Finally in view of the overpowering influence on events by C W Hicks Respondents persident, and his personal commission of hallmark violations I shall order that he personally sign the notice to employees 113 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed64 ORDER The Respondent, Hicks Oils & Hicksgas Inc, Du Quoin, Illinois, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against employees for supporting Teamsters Local Union No 347 affiliated with International Brotherhood of Team sters, Chauffeurs, Warehousemen and Helpers of Amer ica AFL-CIO or any other labor organization (b) Expressly or impliedly threatening employees with discharge if they engage in union activities, creating the impression among employees that Respondent is surveill ing them in their union activities, interrogating employ ees concerning their union activities and sympathies, im pliedly promising employees promotions with higher pay if they refrain from supporting a union, and informing employees that Respondent had fired them because of their union activities (c) In any like or related manner interfering with, re straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Everett L Bowlin and Kelly G Miller im mediate and full reinstatement to their former jobs or, if those jobs no longer exist to substantially equivalent po sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (c) Preserve and on request make available to the Board or its agents for examination and copying all pay roll records social security payment records timecards, personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) On request, bargain with the Union as the exclu sive representative of the employees in the following ap propriate unit concerning terms and conditions of em ployment and if an understanding is reached embody the understanding in a signed agreement All production and maintenance employees em ployed by Hicks Oils & Hicksgas, Inc, at its Du Quoin Illinois facility, including truckdrivers but EXCLUDING office clerical employees profes 84 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sional employees guards and supervisors as defined in the Act (e) Post at its Du Quoin, Illinois facility copies of the attached notice marked Appendix 65 Copies of the notice, on forms provided by the Regional Director for Region 14, after being signed by the Respondents au 65 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al 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 thorized representative, shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places ncluding all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found