El Paso Natural Gas Co.

National Labor Relations Board - Board DecisionsSep 24, 1971

193 N.L.R.B. 333 (N.L.R.B. 1971)

EL PASO NATURAL GAS COMPANY El Paso Natural Gas Company and International Union of District 50, Allied and Technical Workers of the United States and Canada. Case 28-CA-2176 September 24, 1971 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY On June 17, 1971, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found, inter alia, that the Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily transferring Mike Isham, which transfer resulted in his constructive discharge. In making this finding the Trial Examiner relied on the Respondent's knowledge that Isham was a union adherent; the fact that the Respondent had interro- gated Isham concerning the complaints of the employees and their reasons for organizing; state- ments made by management regarding what would result from the union activities of the employees; and his conclusion that the Respondent had manipulated its seniority list in transferring employees at the time that it changed its method of gas testing. The Trial Examiner concluded that the Respondent's actions in transferring Isham were in retaliation for his union activities and were an attempt to isolate him from the other union adherents, and to thereby cut off further ' We adopt the Trial Examiner 's finding that Respondent violated Sec_ 8(axl) of the Act by refusing to grant time off to employee Mosley because he had expressed approval of the Union . This finding rests squarely on credibility resolutions Respondent excepts to these credibility resolutions However, it is the Board 's established policy not to overrule a Trial 193 NLRB No. 50 333 union activity among the employees. The Respondent contends that Isham's transfer was merely a result of its changing its method of gas testing, for which change it had legitimate and substantial business justification, and that therefore the transfer was not violative of the Act as it was not discriminatorily motivated. We find merit in Respondent's exceptions to the Trial Examiner's findings and conclusions. The Union first began its attempt to organize the Respondent's San Juan Division about September 1969. The division comprises about 1,140 employees. Isham worked in District C of the division measure- ment department, in a group of about 15 employees. He was a member of the union organizing committee and was appointed spokesman for the group. From the record it appears, contrary to the implication of the Trial Examiner, that only one union meeting has ever been held, and that was in September 1969. There is also no evidence in the record of union activity among the employees, including Isham, after Septem- ber 1969. However, about September 1969, and in January 1970, Isham was interrogated by two officials of the Respondent, regarding the employees' com- plaints. The Trial Examiner credited testimony by General Counsel's witnesses that about this same time in January an official of the Respondent threatened that transfers were going to be made to break up the lines of communication among the employees. There- after, there is no evidence of union activities, or of threats by the Respondent, until September 1970, at which time there was one violation of the Act, as noted above, in a refusal by a minor supervisor to grant an employee time off. In defending against these charges, Respondent introduced considerable evidence to show that the San Juan Division was going to change from a charcoal method of gas testing to a chromatagraph method of testing. The decision to change the testing methods was made in 1966, and thereafter the Respondent began ordering and installing the equip- ment necessary to make this change. One result of this change was that the position of gas tester would be abolished. There were eight employees in this classifi- cation who would henceforth be employed as meas- urement technicians, the same position held by Isham. Since both the gas testers and the measure- ment technicians were included in the division measurement department, the Respondent deter- mined that departmental seniority would be the basis for determining placement of the gas testers into the measurement technician group. The Respondent Examiner's resolutions with respect to credibility unless the clear preponderance of all of the evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F 2d 363 (C.A. 3). We have carefully examined the record and find no sufficient basis for reversing his findings. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore inquired of each employee of the measure- ment department in which district in the division he desired to work. As a result of more employees with greater seniority requesting to work in District C, Isham was forced to transfer to District B. Isham refused to accept this transfer. Contrary to the Trial Examiner, we find no discriminatory motivation in the actions of the Respondent noted above. In making his findings, the Trial Examiner relied upon the testimony of employee Lee, who testified that he was notified by his supervisor that he would be transferred from District B to District C on September 1, and that he believed he was required to accept this transfer. The Trial Examiner therefore found that Lee was forced to transfer from District B to District C in order to enable Respondent to transfer Isham to District B on the basis of seniority. We disagree with this finding. In crediting Lee's testimony, the Trial Examiner failed to note that Lee later testified, after being shown a copy of his affidavit, that his supervisor had "said some- thing about not having to go that next day if I didn't want to." The following exchange then took place. Q. . . . what do you recall now . . . that he said about not having to go? A. That I would not have to go. I would have to let him know the next day. Q. And you were then given the night to think it over as to whether you wanted to go? A. . . . Yes. Q. And the next day you told him you decided you did want to take the transfer? A. Yes. On the basis of this testimony we find that Lee was not forced to transfer to District C, but in fact was given his choice. Our interpretation of Lee's testimony is further supported by the testimony of employee Schnorr, who testified that Lee informed him on the company bus that he had been offered a transfer to District C and that he could not make up his mind whether he desired to take it. Schnorr further testified that the following morning on the company bus Lee informed him that he had decided to accept the transfer.2 Having found that Lee was not forced to transfer from District B to District C, we find no support in the record for the Trial Examiner's finding that the Respondent manipulated the seniority roster in order to force Isham to transfer from District C to District B. Rather, we find that the Respondent chose an equitable method of placing the gas testers, whose jobs had been abolished, in the group of measurement technicians, which work they would thereafter be doing. 2 Schnorr's testimony was corroborated by Lee 3 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and As noted above, the Trial Examiner also found that the Respondent transferred Isham in an attempt to isolate him from other union adherents. We find no evidence or support for such a finding in the record. Prior to his transfer, Isham worked in District C, located at Aztec, New Mexico. During this time he lived in Farmington, New Mexico, a distance of 15 miles from Aztec. Following his transfer to District B, Isham would have been required to work at Blanco, New Mexico, a distance of 24 miles from Farmington, New Mexico. If he had accepted the transfer to District B, Isham would have continued to live in Farmington and would have continued to work among employees of the San Juan Division, all of whom the Union was attempting to organize. On the basis of this evidence, we cannot find that by this transfer the Respondent intended to isolate Isham from other employees or union adherents. On the basis of the above, and having thoroughly considered the record, the Trial Examiner's Decision, and the exceptions and brief, we conclude that the evidence fails to raise more than a mere suspicion that Respondent was motivated by other than legitimate business considerations in transferring employee Isham, and that Isham acted at his peril in refusing to accept this transfer. Consequently, we shall dismiss the 8(a)(3) allegations in the complaint. As we have dismissed the 8(a)(3) allegations of the complaint, we find inappropriate the broad cease- and-desist order recommended by the Trial Examiner and shall issue only a narrow order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, El Paso Natural Gas Company, Farmington, New Mexico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to grant its employees time off from work because of their sympathies with, or interests in, a labor organization, or in any like or related manner interfering with, restraining, or coercing their employees in the exercise of their rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Post at its Farmington, Aztec, Blanco, and Lindreth, New Mexico, offices copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " EL PASO NATURAL GAS COMPANY 335 28, after being duly signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to grant time off from work to our employees because of their sympathies with, or interest in, a labor organization, or in any like or related manner interfere with, restrain, or coerce our employees in their exercise of the rights guaranteed to them in Section 7 of the Act. the discharged employee was terminated for his refusal to accept a transfer to another location. This proceeding, under Section 10(b) of the National Labor Relations Act, was heard in Farmington, New Mexico, on February 11, 12, and 18, 1971, pursuant to due notice. The complaint, which originally issued on Decem- ber 4, 1970, on a charge dated September 14,1 alleged that Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by refusing to grant time off to employees, and discriminatorily discharging an employee because of his union activities and sympathies. All witnesses, except the parties, were sequestered by agreement of counsel. Upon the entire record in the case and from observation of the witnesses, there are hereby made the following: FINDINGS OF FACT 1. JURISDICTION Respondent , a Delaware corporation , operating in 11 states and employing approximately 6,000 people , has its headquarters in El Paso, Texas , and a place of business in Farmington , New Mexico , where it employs 1,200 employ- ees in its San Juan Division . The Company is engaged in purchasing, selling , and transmitting natural gas. During 1970, it sold and distributed to extrastate points , products valued in excess of $50 ,000, and is , therefore, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. EL PASO NATURAL GAS COMPANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 7011 Federal Building & U.S. Courthouse, 500 Gold Avenue, SW., Albuquerque, New Mexico 87101, Telephone 505-843-2508. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Issue HENRY S. SAHM, Trial Examiner: Whether the Respon- dent Company coerced employees, and thereby, violated Section 8(a)(1) by allegedly refusing to grant them time off because they approved of the Union, and whether its discharge of an employee was motivated by his union activities, which is in violation of Section (a)(3), or whether II. THE LABOR ORGANIZATION INVOLVED The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Section 8(a)(3) 1. Introduction Mike Isham, the alleged discriminatee, was first em- ployed by the Company in 1953, and was discharged on September 7, 1970. Isham, who was the prime protagonist in the establishment of a union organizing committee in July 1969, had a meeting at his home which was attended by 16 of Respondent's employees. At this meeting, Isham was designated as spokesman for the employees attending this union organizational meeting. On September 1, the Company changed its method of testing its gas products, which resulted in a reorganization whereby a few of its employees were transferred to geographical locations other than where they had heretofore been stationed. Among those listed for transfer was Mike Isham, who refused to accept the transfer, whereupon the Company discharged him. The General Counsel's representative claims that the Company transferred Isham because of his union activities to a location unacceptable to him, whereupon he was terminated when he refused to accept the transfer. But for this illegal conduct on the part of the Company, he claims, I All dates are in 1970 unless otherwise stated 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there would have been no need for Isham to quit in protest of this alleged discriminatory transfer. Moreover, he argues, Isham was justified in believing that this transfer would only be the beginning , and later there would be other transfers and additional future harassment so that his working conditions would eventually become so intolerable to him that it would finally result in his being forced to quit his job. Thus, concludes the General Counsel, Isham did not quit voluntarily but was constructively discharged. Respondent denies that Isham's transfer was motivated by his participation in union activities, but resulted rather through the regular course of business and the normal process of reorganization of the division' s gas measurement department. The Respondent Company states that, due to the reorganization , each employee was allowed to request his work location on the basis of his departmental seniority subject to the Company's operational needs. Accordingly, contends the Company, when it was determined that Isham had the least seniority, he was notified that it would be necessary that he be transferred to a location other than the one to which he had been assigned for the past 8 years. Isham 's refusal to accept the transfer, concludes the Company's argument , left the Company with no alternative but to terminate his employment. 2. The testimony Mike Isham was first employed by El Paso Natural Gas Company in 1953, and had been working since 1963, as a technician in the gas measurement division for 8 years when he was discharged on September 7, 1970. A measurement technician , testified Isham, "repairs, main- tains and installs orifice flow meters, tape recorders, and related equipment in the field of the individual well location ." Each technician is assigned a certain number of gas wells to so service. He had been working out of the Aztec , New Mexico , office of the San Juan Division since February 1962 . He testified that since June 1969 he had been active on behalf of the Union and was elected by the union adherents as "spokesman " for the organizing committee . The first organizational meeting was held at Isham 's home and was attended by 16 of Respondent's employees who discussed the possibilities of having a union represent the employees . At a meeting held on August 3, 1969, at Isham 's home , the gathering was addressed by an International representative of the Charging Union. It was at this meeting that all 16 employees who were present signed union authorization cards for the eventual purpose of having the Union represent them in collective -bargaining negotiations with the Respondent Company. Later on, the original 16 union adherents increased in number to approximately 25 to 30 employees. These union proponents solicited their fellow employees to join the Union and beginning in August , and continuing into September , they distributed union leaflets to employ- ees which extolled the advantages of unionism. On September 16, 1969 , a meeting was held which was open to all employees of Respondent Company, to solicit their support for the Union. More open meetings were also later held, all of which were advertised in the Farmington, New Mexico , newspaper , and over the local radio station. During the latter part of September , or at the beginning of October 1969, about 3 months after union activity began, Isham was called into the office of Carroll Crawford, his immediate supervisor for the past 5 years, whose job title was, "Measurement Specialist Supervisor for District C." Isham's testimony reads as follows: [Crawford] discussed the fact that he didn't think we needed a third party, interloper, because the company had established an open-door policy, and the conversa- tion was about an hour and a half or two hours long in his office with the two of us. * * * * At that time I informed [Crawford] I was active, and I asked if what he was talking about was the union activity, and his reply was I had used the word union and he hadn't. I told him I was in favor of the union. I thought it was a good thing. I was active in it and intended to remain active in it, and he expressed some, no particular objection. * * * * * He told me that he had become involved in union activity and got out ahead of a crowd of people who were supposed to support him, had not done so, and he ended up being removed from the church . . . from the church, and he told me this wasn 't too good to get involved in something like that. On January 20, 1970, Isham was called into Crawford's office at which time Crawford' s immediate supervisor, R. L. Weir, division superintendent, was present. Isham testified as follows about a conversation that he had with Weir which lasted over 5 hours: Well, the heart of the matter was Mr. Weir asked me if I would contact the people involved in the union and see if they would be willing to submit in writing names and places, complaints, abuses , grievances, what their problem was, and I told him I couldn't do that. He wanted me to do it at that time. I told him I couldn't [do] that, that I didn't have permission to use anyone else's name . We discussed the problems, the employee problems the company was having at that time, and he told me at that time El Paso Natural Gas recognized it did have a problem with employees, and they were vitally interested in correcting it. He wanted me to submit in writing what he said because he said I was known as the leader of the union group, the dissident group. He offered me no retaliation where any employee submitted a problem, and I told him he didn't have the authority to offer me no retaliation. He went on then and told me he had been sent to see me by Mr. R. W. Harris [senior vice president]. * * * * * When he told me this, I knew Mr. Harris had no retaliation, and we discussed the fact of forwarding the complaint in writing and so on. I didn't think the group would be [agreeable to doing this] and told him so, but he brought up the subject, I believe he asked me if I would be willing to meet with Mr. Harris [senior vice president], Mr. Logan [vice president], Mr. Woody and EL PASO NATURAL GAS COMPANY 337 Mr. Schnorr [company officials], and talk to them as I had been talking to him, and I told him I would be willing to do that at any time he wanted. So he asked me to go talk to the group of people, the union group and see if they would go for this sort of proposition, and I told him I would bring it up to them, and I would bring him back word, yes or no, in a week, and I asked him how he wanted me to cover it, did he want for me to talk to Crawford or come direct to him. At that time he told me to tell [Crawford] whenever I was ready to give him an answer, and there was, as I said, over five hours of conversation, and that was the end of it right there. At that time, Mr. Weir [division superintendent] did say this union meeting had given the measurement division a black eye, and that was one of the reasons he had sent him to me. He didn't tell him to go to just one man but send him direct to me because to solve this we had to correct the problems, that Mr. Weir felt the measure- ment department would be back in good graces with Mr. Harris.2 Yes, he [Crawford] was present at this meeting, and it was just two or three days later, this was around the 23rd [January] in the morning in the parts shop, [Crawford] came out to the shop . . . and asked me what progress I was making on the grievance thing Mr. Weir and I had talked about. I told him at that time I was working on it. Part of my group was in favor of it and part of them weren't, I was working on it, and I would have an answer. He told me at that time that it had better work because if it didn't, he was going to have to transfer some people around and break up some of these dissident groups and I objected to that. I told him I didn't think that was smart because if he wanted any satisfaction, and then he told me he was responsible for getting the work done, and in his opinion, it wasn't being done. That was the first I had heard of that, and that if we couldn't get things straightened out at this meeting , this grievance thing, he was going to have to transfer people around to break up the complaining groups, the line of communication. Isham then testified as follows with respect to a short conversation with Crawford, and a meeting held at the Aztec office on January 27, of all the District C measurement technicians, which was called by their supervisor, Crawford: [Crawford] told us to stay in that morning, we would have a meeting. I asked him if he would call Mr. Weir and set up a meeting sometime so I could talk to Mr. Weir about the grievance thing and [Crawford] did. He told me I could see Mr. Weir that evening after work, and then he came on out of the office, and we had a meeting with the entire crew. He was discussing a raise. He started out talking about the raise we had received, and tried to explain to us how the wage rate adjustment would be applied and so on, and then he went on to tell the whole crew what he told me privately, the work had suffered, morale had fallen off, and if something wasn't done about it, there were going to be transfers, people were going to be transferred around, moved around. I didn't enter into the discussion too much. Some people there wanted to know how he figured the work wasn't getting done. He said he based it on the fact we weren't using any sick leave, there weren't as many office changes, and the fact we weren't driving as many miles as we had. That confused everybody, and we had quite a discussion about not driving as many miles. They [employees] had been subject to quite a bit of pressure to cut down on the miles for a number of years. There was quite a lengthy discussion about that. Then we asked him what period of time he was comparing. He had to compare one period of time against another, and he never would answer this. He would never tell us what period of time he was comparing, he just staunchly maintained that morale had suffered, the work was falling off, and he would transfer people around for that reason.3 On the evening of January 27, after work, Isham met with Division Superintendent Weir at his office in Farmington, New Mexico. Isham informed Weir that he had met with those of his "group" who had problems regarding working conditions and that they had agreed to meet with Company Officials Harris, Logan, and Woody and discuss their problems with them. Isham's testimony continues: I told him we did have something. We had it in writing and would submit in writing, and he said this was exactly what Mr. Harris wanted, and he was sure it would go forward. He wanted to know if I had any concrete suggestions, and I told him that we did, and I also told him that I had talked to nearly about 25 people who had agreed to it. He wanted the names of them, and I told him I wouldn't give the names because nothing definite had been said, and he agreed to this. He told me that he would be back as soon as possible. He wanted to know when we wanted to meet, and I told him we had no preference. We would let the company decide the time and place of the meeting. He suggested the conference room in the division office here in Farmington. The following Monday Mr. Crawford called me out on the porch in Aztec, and told me he had a message from Mr. Weir . The message was the top management of the company had taken this meeting under advisement and had decided against it because it might destroy the open-door policy that we had instituted. I tried to talk to [Crawford] about the open-door policy, that I was disappointed that the meeting didn't come off.4 He repeated this message again , and at that time told me, the following day, Mr . Purvis from El Paso [a company official] would be here in Farmington for the purpose of meeting with any measurement employee only to discuss any problem he might have . [Crawford] told me he knew I wouldn 't want to meet with him, and The measurement technicians performed their duties in company-8 Isham testified that during this conversation, the Charging Party, District 50, was referred to as the "Union" and not as the "third party" as it had been by Crawford See supra and infra 3 supplied automobiles. 4 See supra 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I told him I didn't especially want to meet with him. At that time I didn't think he could do me any good. Then [Crawford] said, "Well, I knew the other employees who did want to meet with Mr. Purvis, and I made arrangements for them to meet with him," and I told [Crawford] the employees were in the office waiting to quit. It was about ten minutes to four. He said he could step into the office and talk to them directly. I had no desire to set up meetings with Mr. Purvis. The following morning, January 28, Isham met with Purvis, who was superintendent of the El Paso Natural Gas Company's measurement department, in Division Superin- tendent Woody's office. Also present were Woody and Weir. Isham testified: Mr. Woody wanted to know what my problem was. I told them Mr. Woody wanted to discuss my problems, and I didn't, I wanted to discuss problems as a whole and we did so. I made a point there was a lot [sic, "loss."] of communication between the employees and top management of the company, that there had been abuses by supervisors. The company policy was definitely not set. There were changes at the whim of anybody. We discussed specific instances that employ- ees had been intimidated, and Mr. Woody said that he could not believe that something like that had taken place at that time. I told him I had talked directly to a man who was an eye witness to one of these encounters, and the man had given me permission to give his name to Mr. Woody or any other company official and had agreed to talk to Mr. Woody and tell him exactly what he told me about this particular incident. I told Mr. Woody he would have to ask for the man's name directly. I would not volunteer it. The man told me [if ] I was asked directly, I could give his name. Mr. Woody would not ask me for the man's name, and we continued to discuss various problems and incidents for approximately two hours, and then I excused myself, went back to the field, and went back to work. : s s t I told Mr. Woody I didn't see how the problem could be solved without employee organization and without the labor union as the cheapest and best way to go, and, of course, everybody in the room knew I had been active in the labor movement, and that I would continue to be active in it and would try to organize El Paso into it. While Isham was on vacation from August 24 to September 7, he was transferred from Aztec, District C, to another work location in District B, Blanco. On Tuesday, September 1, while still on his vacation, Isham was informed by Crawford that he had been transferred. Isham's version of this conversation reads as follows: I asked him why these transfers were taking place. We had discussed, he had told me just a few weeks before that, that the testers were definitely coming back to the field. We had known this for some time, and he just told me how my runs would be changed there in Aztec. I knew exactly what ones I would have when I came back to work. He had been telling me for in excess of 3-1/2 years there would be no transfers. There would be no changing around. We would stay as close to where we were as possible and had, in fact, either the last part of July or the first part of August, we knew exactly what ones we would have, how we would change things around. I asked him why the transfers had taken place, and he told me that he didn't know, that he had been gone for a couple of weeks and Just got back. He didn't know what was going on, and I told him I just, "Carroll [Crawford], I just believe that I'm being transferred strictly for union activities. I don't think that is right," and he said, "Well, I don't know." I told him, "Carroll [Crawford], I just believe I decline the transfer," and he asked me why I said that, and I said, "I decline the transfer, I don't want it. It's not right. It's strictly for union activities and I don't want to go along with it." Carroll said, "Well, you may be right, I don't know, but I'll have to get ahold of Mr. Harris and find out how he wants to handle it," and I asked him if he wanted me to call Mr. Harris or R.L. Weir, and he said, "No, I'll handle it and I'll call you back," which he did. Isham then testified about a telephone conversation that he had with Crawford the following Friday, September 4, at which time Crawford told him that his paycheck was in the District B office in Blanco, where he was now assigned, and he could pick it up there. Isham's testimony continues: I asked him [Crawford], "Well, what did Mr. Harris say," and he said, "Well, he said there is nothing we can do until you fail to show up for work Monday." Monday was a holiday, and I told Carroll I would be in Aztec over the weekend, and he said, "Are you sure you don't want to go over to Blanco, and I said . . . No .. . this transfer came about, I feel , strictly because of union activities." I asked him if he ever heard of the company switching people around in that manner before, and he said, "No, I've never heard of it before, but that doesn't mean they can't. s * a s s I asked him what should I do, should I go see Mr. Weir the following day, or should I go directly to see Bill Hill, and he told me to see Bill Hill . He told me he would give me his highest personal recommendation when I applied for a job somewhere, and I told him that was real good. I appreciated it and asked if the company would give a recommendation, and he said he didn't think I would have any trouble getting a job, that I was one of the best he had. I went on home. Isham concluded his direct examination by testifying that at no time did any company official or supervisor mention seniority to him or explain to him the method used in selecting him for transfer, nor the factors considered in making that determination as to his listing on the seniority roster. When Respondent's counsel asked him whether Craw- ford urged him to take the transfer, Isham answered: "Not particularly at that time over the phone. He didn't actually urge me to go." Later on, however , Isham testified on his cross-examination that on September 7, the day he was EL PASO NATURAL GAS COMPANY fired, Crawford urged him to accept the transfer from District C to District B. Isham continued, that he told Crawford that if he did transfer to District B, he would not be there longer than 6 months when the Company would again transfer him somewhere else and so, concluded Isham, "Let's be realistic about this, this is dust a first step down a long road. If the Company doesn't want me, why don't they be honest about it and just come out and fire me." Isham, during his cross-examination, agreed with Respondent's counsel that ". . . this was dust one of a number of transfers he [Isham] could foresee in the future," and he "would rather be laid off now than be transferred on down the Canyon." At another point in his cross-examina- tion, Isham agreed that he had told Company Officials Hill, who is in charge of employee relations, and Harris, a vice president, that he was "not going to District B because it was just the beginning of more transfers down the road." He also testified on cross-examination that division superintendent Weir had told him in January 1970, that he knew Isham was "the leader of the union group." On redirect examination, Isham testified that since his employment by the Company in 1953, he had been transferred from and to various work locations until 1963, when he transferred to the measurement division. Isham concluded his testimony by stating that since 1963, he had refused one transfer which the Company asked him to take, in 1966 or 1967, to Largo Canyon: "Mr. Weir asked me if I would transfer down there, and I told him no. He asked me my reasons, and I told him I had children in school, a home in Farmington, living down in the Canyon, living in a company house, and I have no desire to live in a company house, and he accepted that and someone else took the transfer." Ted Ealey has been employed by Respondent since 1936, and as a measurement technician since October 1957. He is presently assigned to District C, the Aztec field, and works under the supervision of Carroll Crawford. He described himself as one of the "original" proponents of a union, who believed "they needed the union or wanted one" when they began to organize in June 1969, with Mike Isham as their "spokesman." Union activities, he agreed, have continued from June 1969 to the date of the hearing. He testified that in January or February 1970, Crawford, his supervisor, called him into his office and told him, "We didn't need a third party in our affairs because we had an open-door policy."5 Ealey testified that on this same day, Crawford called each man in his measurement crew into his office "one at a time." He also testified that in the latter part of January 1970, Crawford held a meeting of his entire crew and told them: . [H]e told us we would give the measurement department a black eye with organizing activities. The work was suffering, and he was going to have to make some transfers to break up our lines of communications and our associations with each other. Donald C. Lee, who has worked for the Company for 10 years, testified he is presently employed as a meter technician, which is the same job as a measurement technician. Prior to the reorganization of September 1, 339 1970, when the Company changed over from the charcoal method of gas testing to chromatograph testing, Lee had been assigned to District B of the San Juan Division, working under the direct supervision of Wayne Hampton, whose office is in Blanco, New Mexico. Lee testified that 4 or 5 days before September 1, he "was called into the office" of his supervisor, Hampton, before his 4:30 p.m. quitting time and was told by Hampton that he would be transferred from Blanco (District B) to Aztec (District Q. His testimony reads as follows: Well, a few days before the 1st, I was called into the supervisor's office and . . . Mr. Wayne Hampton .. . said, "As of the 1st, your time will be sent to District C'; I asked him if I had to go, could I think it over and give him word the next day, and he said, well, something like I would have to think it over and let them know, meaning the people up here in El Paso, then I thought I would have to go . . . he said John Grace, another fellow employee, and I would be the ones to go . Well, of course, I went ahead, the next day I told him I would go, and I reported to Aztec the 1st. On cross-examination, company counsel asked the following question and received an answer from Lee which reads as follows: Q. How did you know that Mr. Hampton wanted to talk to you? Did he send for you or call for you? A. He motioned for me to come into his office, he wanted to talk to me. When Lee was asked by Company's counsel his reasons for deciding to accept the transfer from Blanco to Aztec, he answered: "One reason, I was given the impression that I had to go." The following morning, Lee's transfer to District C was effectuated. On redirect examination, Lee testified he had never indicated to his immediate supervi- sor, Hampton, or to any other supervisor, that he had wanted to transfer from Blanco to Aztec as he was satisfied working at Blanco. It was elicited also that Lee was aware he could have requested a transfer from Blanco to Aztec but he had never approached Hampton to request such a transfer. A stipulation was agreed to with respect to departmental seniority dates of the following employees: Don Lee, January 9, 1961; John E. Grace, January 11, 1961; Mike Isham, February 27, 1962; and C. F. Brock, February 13, 1964. This concluded counsel for General Counsel's presentation of his case with respect to the allegations in the complaint that Section 8(a)(3) of the Act was violated when the Company transferred Isham because of his union activities. The following witnesses, whose testimony is detailed in pertinent part immediately below, were called by Respon- dent to refute the General Counsel's contention that Isham's transfer was discriminatorily motivated. Glen D. Rogers, a brother of a company official, William Rogers, chief dispatcher, is a measurement techrician who worked in Lindreth, District A, until August 7, 1970, when he transferred to District B in the same field job. He overheard Hampton ask Lee if he would like to transfer to District C, and Lee told Hampton he would let him know the next morning. Rogers testified that he happened to be 5 See fn 2, supra 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD again present in Hampton's office the next morning when he overheard Lee tell Hampton he would transfer to District C. Elmer Wayne Hampton was a measurement specialist supervisor of District B in Blanco, New Mexico, when the transfer of Lee from District B to District C occurred in September. On October 1, 1970, Hampton was placed in charge of District A and was transferred to Lindreth, New Mexico. Hampton testified that on August 24, company officials notified him to check the employees under his supervision and to " . . . see if any of them wanted to transfer, by seniority . . . [The same day] I checked with my men to see if any of them wanted to transfer . . . I asked [Lee] if he wished to transfer to District C . . . He told me that he was undecided and that he would like to think it over . . . I made an agreement with him to wait until the next morning for him to give me a decision .. . [The next morning] he came in and told me that he wanted to go to Aztec . . . I told him that he should report on September 1." On cross-examination, Hampton testified that seven meter testers indicated a preference for Aztec, and one for Blanco, and that all these testers had more seniority than Lee. He also testified that if Glen Rogers had chosen to transfer to Aztec, he would have "bumped" one of the seven who chose to go to Aztec as he had more departmental seniority. Carroll E. Crawford was employed as a measurement specialist supervisor of District C, Aztec Field, at all times pertinent herein. He testified that during the first or second week of January 1970, he held a meeting in his office of all the measurement technicians under his supervision. His testimony reads in pertinent part as follows: I told them that my job as a supervisor was to get things done and I felt that lately our morale had been down, we hadn't actually produced as much as I thought we were capable of producing . . . . We discussed trying to get things done promptly. . . . We discussed the fact it looked as if when the chromato- graph testing came about that three employees were going to be coming into District C and five would be going to District B, the way we had budgeted it and it looked at that time as though there would be no transfers. The people had been asking me about this. They were curious as to where they were going to be and during this discussion it was asked, mentioned, that some of the testers had been in the field and they had been talking. They had told some of our employees they were going to get their best friends- [Interruption] Q. Excuse me. What is a tester? This is the paper run on the charcoal cans, and we call it the gas testing crew. My people were concerned about what was going to happen to them and I informed them it was my prerogative as a supervisor to assign those runs. We were also discussing getting our efficiency up. I informed them it was my prerogative as a supervisor to reorganize, reassign people to runs to obtain a more efficient crew. That what I wanted to do was to prepare them when the tester[s] came back, whenever it was, that they were going to be treated just like we would like to be treated if it was each one of us going somewhere and that we would divide the runs but the final decision as to where they went would be mine and I would try to make it as fair as possible. Those that were going out and those that came in. Crawford, under questioning by Company's counsel, denied that he ever warned the members of his crew at this meeting that if "work and morale did not pick up" that they would be transferred and people would be moved around. He also denied telling them that union organizing activities had given the measurement department a "black eye" in the eyes of company officials. Crawford denied also that at a crew meeting on January 30, he neither told the men that if the work and morale did not pick up that he would make some transfers, nor that people would be moved around "to break it up." When he was asked by Company' s counsel whether he had warned the men that he "would break up dissent groups," Crawford cryptically answered: "We talked about the group, effect on morale of different groups 11 Crawford next testified about being present in his office when Weir, division superintendent, spoke to Isham about having those employees who had complaints about working conditions, enumerating them in writing for referral to Weir. A few days later, Crawford called Isham into his office and inquired how he was progressing on Weir's request for written complaints. Isham informed him he had had no success with regard to getting any of the men to write down their complaints, which Crawford testified he reported to Weir. Crawford denied he ever told any of the men under his supervision that if the "grievance committee didn't work things out, straighten things out," that he would transfer people "to clear this up." Crawford testified as follows about a conversation he had with Isham in his office on February 2: I had gotten a call from Mr. Weir. That in one of the requests in the January 20, meeting was discussed between Mr. Isham and Mr. Weir, a meeting with top level management would be set up and Mr. Logan had felt, the way had been discussed, this would violate company policy and he related word back that he didn't feel like he could attend such a meeting like that. I related this information to Mr. Isham. Crawford testified about meetings of company officials held in Weir's office in Farmington during June and August 1970, with respect to how the San Juan Division (which includes Districts A, B, and C) would be reorgan- ized when the Company was scheduled to convert its gas testing method from charcoal to chromatography on September 1, 1970, and the consequent necessity of transferring men from one district to another as a result of the changeover in testing techniques.° It was decided, continued Crawford, that all transfers of measurement department personnel would be determined on the basis of departmental seniority. However, Crawford testified, he did advise Weir that all District C personnel wanted to remain there and not be subject to transfer. 6 James Wells, measurement supervisor of District A, headquartered at reveals that District A personnel all had less seniority than the tester Lindreth , New Mexico , was among those present at this meeting technicians who were merged with the measurement technicians after the Noteworthy is the fact that Resp Exh. 1, "Departmental Seniority List," reorganization of September 1, 1970 EL PASO NATURAL GAS COMPANY 341 Crawford was on vacation from August 12 to September I, when he reported back to work. At 8:30 a.m. on the same day, he testified he had a telephone conversation with Isham as follows: Mr. Isham called me on the phone and told me that he had been in town a couple of days but he had been busy and hadn't had a chance to call me. I told him I had dust gotten back myself, went ahead and related to Mr. Isham that we had gone on chromatic that day, districts had been reorganized. I explained to him that during this reorganization the change was from District B to District C. Mr. Lee and Mr. Grace had chosen to come to District C and therefore Mr. Brock and himself would have to be transferred to District B. He informed me that he wasn't interested in a transfer to District B. Mr. Isham indicated to me he wasn't interested in the transfer to District B. He told me he felt this was just a step of moves to move him on farther out in the country. I told him the move had been decided on the basis of department seniority and this was what was accounting for the moves. I also told him, if it would make him feel any better, the supervisors were also going to be transferred soon. I told him who was going to be in each district, upon the transfer. Also, he still wasn't interested in a transfer and I told him to think about it, I would get back with him, and that ended that conversation, sir. Crawford denied under questioning by Company's counsel that Isham had ever told him that the Company had decided to get rid of him because of his umon activities and that he had agreed directly, indirectly, tacitly or otherwise with Isham that that was so. Crawford continued that he again spoke to Isham in his office on September 7, the day he was terminated, and that Isham again accused the Company of transferring him as a means to get rid of him because of his union activities, which Crawford denied. Crawford testified that Isham told him again that he wanted to remain in District C: "He said he still wasn't interested in transferring. He didn't want to get involved with a bunch of moves." Crawford testified also that when he asked Isham if he would accept the transfer to District B, the following colloquy ensued: I asked him if he planned on resigning, and he told me no, he wasn't planning on resigning. He felt that this transfer was due to his union activities and that the company could either let him off or fire him, but that he wasn't moving. Crawford concluded his direct testimony by declaring that it was necessary to transfer Isham from District C to District B because: There was no more manpower complement in District C. It had already been filled with more department seniority than he had and the only place there was a complement left was in District B measurement. On cross-examination, Crawford testified that before the reorganization, II field technicians were assigned to District C's Aztec office. On September 1, 1970, when the r The San Juan Division is comprised of I I field districts, I of which is the Ballard Field District reorganization plan of the measurement departments comprising the San Juan Division went into effect, 7 testers, whose jobs were combined with that of the measurement technicians after the reorganization, and who were formerly stationed in Farmington, were assigned to District C so that its complement was increased to 18 men after the reorganization. B. The Alleged Violation of Section 8(a)(1) The complaint also alleges that on September 18, 1970, Respondent's statutory supervisor, Marvin Miller, while on company premises and during working hours, refused to grant time off to employee Walter L. Mosley because he had expressed approval of the Union. The evidence reveals that, Mosley, who is employed as a well attendant at El Paso Natural Gas Company' Ballard Field Station, works under the immediate supervision of Marvin Miller, who is district foreman.? Mosley has been a member of the Union's organizing committee since its establishment in the summer of 1969, when he signed a union authorization card. On September 10, 1970, 3 days after Isham's discharge, Mosley, who is coach of a little league football team in the Farmington area, a civic enterprise, asked his supervisor, Marvin Miller, if he could take off about 3 hours the next day to attend a luncheon in Farmington which was honoring the boys who played on the teams composing the little leagues.8 When Mosley showed Miller his invitation to this luncheon, which he had received the day before, Miller, according to Mosley, said: Before the Communists tried to come in here and organize the company, all I would have said then was take the pickup [automobile] or I would have you run in myself, and then he said, now, I can't do it. Mosley and Miller, who have known each other for about 10 years, testified that "on many occasions" they had discussed "unions" and "unionism" generally over the years, but Miller stated that it was not until September 1969 that he learned about union organizing activity in the San Juan Division. Mosley was "highly in favor" of umons, whereas Miller expressed the view that "El Paso Natural Gas did not need a union." Miller testified that whenever Mosley complained about working conditions, he would state that he "felt the union would help such a situation." Miller denied he had ever called Mosley a communist, nor had he ever said anything to Mosley similar to what Mosley had testified. His denial was expressed as follows: If he came in one day and wanted off the next day for a little league football game or a luncheon, I couldn't-I wouldn't have felt that would have been an emergency, and he wouldn't have had the time off or I couldn't have granted him time off or to anyone. None of his union activities would have had a thing to do with it. Miller denied "saying anything like that about not letting them off because of communist party take-over, to Mosley, Hamlett or Rankin or anyone else." On cross-examination, Miller testified that he was authorized to grant time off in the case of "emergencies" 8 Farmington, New Mexico, is approximately 50 miles from the Ballard Field, a drive of about 1 hour by automobile. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only and then he had to first check with his superior. When asked to specify some occasions when he sought such approval, Miller stated that he could not recall any. Wayne R. Hamlett has been employed by Respondent Company for 8 years as a well attendant. His supervisor is Marvin Miller. Hamlett testified he was present outside Miller's office door when Mosley asked Miller, on September 10, for time off to attend the little league luncheon. Hamlett's testimony reads as follows: Well, Mosley handed Marvin Miller a letter calling all little league football coaches to come to a banquet up here at the Elks Lodge. Marvin Miller said no, "Before this Communist party came in there and tried to take over, all I would have had to do was to take the pick-up or I would take you in myself," but he said, "Now I can't do it." On cross-examination, Respondent's counsel read from an affidavit which Hamlett had given to a Board investigator . This affidavit, which Hamlett stated was true, reads as follows: On or about September 10, 1970, around 8:10 a.m., Walter Mosley asked our supervisor if we, Walter and myself, could be off the next day to attend a luncheon relative to the San Juan Little League Football, asking if such was a civic duty. Hamlett went on to explain that Mosley invited him to attend the luncheon with him, as Hamlett was assistant coach, to which Hamlett continued that he asked Mosley if, when he requested time off from Miller to attend the luncheon, would he also ask Miller at the same time if he (Hamlett) could accompany Mosley. Hamlett, on redirect examination , testified that whether employees were granted time off depended on whether or not they were active in the Union. Delbert Rankin has been a well attendant for 14 years with the El Paso Natural Gas Company. He testified that he was present and heard the conversation regarding time off between Miller and Mosley. Rankin's testimony reads as follows: I was passing by [and] I heard Mr. Miller directly talk to Walter Mosley . . . and this is strictly the best I can remember of that day, before the communist organiza- tion got started, I could have told you to go ahead and take off. That is exactly what I heard. On cross-examination, Rankin testified that he was one of the original union organizers and has been active from that time to the present. 1. Credibility discussion The Respondent Company is alleged to have discharged Isham because of his concerted, protected activities and to have refused time off to Mosley because he had expressed approval of the Union. The witnesses of the General Counsel and those of Respondent are diametrically opposed in their respective versions as to what occurred with respect to these alleged 8(a)(1) and (3) violations. The General Counsel' s witnesses are contradicted on all the B N L R B v Universal Camera Corp, 179 F 2d 749, 754 (C A 2), reversed on other grounds 340 U S 474 10 1 A M. v. Labor Board, 311 U S 72, 79 11 Hadley Manufacturing Corp, 108 NLRB 1641, 1643, Roxboro Cotton salient issues by the witnesses for the Respondent. Their stones are mutually exclusive. This requires an analysis of their conflicting testimony, the resolution of pure questions of fact, as well as the resolution of their credibility. It might be well, therefore, in view of the General Counsel's and Respondent' s witnesses ' versions being directly adverse to one another, to consider first this matter of credibility in some detail. After observing the witnesses, analyzing the record and inferences to be drawn therefrom, and reconciling where possible, the conflicting evidence, the Trial Examiner has made certain credibility findings, where necessary, with respect to the substantive testimony of the witnesses. In doing so, recourse has been made to the consistency or inconsistency of certain undisputed and demonstrable facts in this case, the details of which are discussed in later sections of this decision. Conclusions have been reached also which are based on observation of the witnesses with respect to the accuracy of their memories, their comprehension, and their general demeanor on the stand in answering the questions put to them. However, it is not meant to imply that the trier of these facts accepts as credible everything that was said by these various witnesses. It suffices to say, in the words of that eminent wrist, Learned Hand, that "it is no reason for refusing to accept everything that a witness says, because you do not believe all of it; nothing is more common in all kinds of judicial decisions than to believe some and not all." 9 In crediting some witnesses and discrediting others, given weight to certain evidence as against other evidence, drawn inferences from circumstantial and conflicting evidence, and come to certain conclusions, the Trial Examiner has necessarily had to detect and appraise various "potent imponderables permeating the entire record." 10 One of these "potent imponderables" is the demeanor of witnesses in testifying, particularly where the trier of the facts' findings rests on the evaluation of the credibility of oral testimony. The Board has recognized that the "demeanor of witnesses is a factor of consequence in resolving issues of credibility, and as the Trial Examiner, but not the Board, has had the advantage of observing the witnesses while they testified, it is our policy to attach great weight to a Trial Examiner's credibility findings insofar as they are based on demeanor."' 1 Credibility findings rest in varying degrees upon the evaluation placed by the trier of the facts upon the demeanor of witnesses. This type of evidence, which does not appear in the record, and which is comprised of elusive intangibles and "potent imponderables" which are difficult to capture and to describe by written words, often make it difficult for the trier of facts to convey or describe the impression which a particular witness makes upon him. This difficulty is inherent in making credibility findings where the trier of the facts must choose between discordant versions of witnesses whom he has seen because the record does not reveal that part of the evidence which may have determined his choice. See article on Demeanor Evidence, 47 American Bar Association Journal 480 (1961). Mills, 97 NLRB 1359, 1368, where the Board said. " the Trial Examiner made no reference to the demeanor of either witness-as to which it is our policy to attach great weight " EL PASO NATURAL GAS COMPANY 343 Judge Learned Hand describes it as "[findings] based on that part of the evidence which the printed words do not preserve. Often that is the most telling part, for on the issue of veracity, the bearing and delivery of a witness will usually be the dominating factors, when the words alone leave any rational choice . . . Nothing is more difficult than to disentangle the motives of another's conduct motives frequently unknown even to the actor himself. But for that reason, those parts of the evidence which are lost in print become especially pregnant." 12 "Credibility findings may rest entirely upon evidence through observation which words do not, and could not, either preserve or describe." 13 "[Demeanor evidence] may satisfy the tribunal, not only that the witness' testimony is not true, but that the truth is the opposite of his story; for the denial of one who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance, or defiance, as to give assurance that he is fabricating, and that if he is, there is no alternative but to assume the truth of what he denies." 14 Judge Medina discussed the indicia involved in judging credibility when he commented as follows: 15 "By what yardstick and in accordance with what rules of law are you to judge the credibility of the witnesses? . . . The judging of testimony is very like what goes on in real life ... You ask yourself if they know what they are talking about. You watch them on the stand as they testify and note their demeanor . You decide how their testimony strikes you." In N. L. R. B. v. Dixie Gas, Inc., 323 F.2d 433, 435, 437, the court stated: "The Board accepted the Examiner's credibility findings. The Supreme Court has recently reiterated the point that the Trial Examiner `sees the witnesses and hears them testify while the Board and the reviewing court looks only at cold records.' "16 "Credibility resolutions are peculiarly within the province of the Trial Examiner." 17 Thus, in N.L.R.B. v. Pittsburgh S.S. Co., 337 U.S. 656, the Supreme Court upheld the Board against the contention that it showed bias to credit all of the general counsel 's witnesses and to discredit all of the respondent's witnesses , but the Court excepted from the general rule of deference to credibility findings credited testimony which "carries its own death wound" and discredited testimony which "carries its own irrefutable truth." All evidence on disputed points is not described so as not to burden unnecessarily this decision. However, all has been considered, and, where required, resolved. In determining credibility in this proceeding, the following has been considered inter alia: the demeanor and conduct of witnesses ; their candor or lack thereof; their apparent fairness , bias or prejudice; their interest or lack thereof; their ability to know, comprehend, and understand the matters about which they have testified; whether they have been contradicted or otherwise impeached; the interrela- tionship of the testimony of witnesses and the written 12 N L R.B v Universal Camera Corp, 190 F 2d 429-431 (C A 2) 13 Roadway Express, Inc, 108 NLRB 874-875 14 Dyer v McDougall, 201 F 2d 265, 269 (C.A 2) This was quoted in N L R.B v Howell Chevrolet Co, 204 F 2d 79, 86 (C A 9) affd 346 U S 482. Cf. N L R B v Dimon Coil Co., 201 F 2d 484, 487 (C A 2) 25 U.S. v. Foster, 9 F.R.D. 367, 388-390 (S.D.N.Y.) 16 N L R B v Walton Manufacturing Co, 369 U S 404,408 17 N.L R B v Local 776, JATSE, 303 F.2d 513, 518 (C A 9),cert. denied evidence presented; and the consistency and inherent probability and plausibility of the testimony and the probative dimunition of answers elicited by leading questions asked of witnesses by counsel. Then too, human qualities such as motive can only be shown circumstantially where the possessor has not previously revealed them directly, but the circumstances may outweigh in credibility a direct statement testified to at the hearing so that uncontradicted testimony need not necessarily be accepted as true.18 Of course, in the type of issues disputed in this proceeding, where the witnesses of the General Counsel and Respondent are in sharp conflict and diametrically opposed in their respective versions as to what actually occurred, the process of hearing can produce only a belief concerning what the facts are, rather than a disclosure of the facts themselves. Although there is nothing so powerful as the truth, the trier of the facts must, perforce, be content to have a belief concerning the facts, rather than knowledge of what are the true facts. In crediting or discrediting a witness' testimony, there are gaps to be filled , ambiguities to be resolved, inconsistencies to be considered which cannot, in many instances, be determined exclusively upon the basis of the cold record. The trier of the facts is often acutely aware that a witness he is crediting may, in testifying, have been vague, hazy, inconsistent and lacking in the attributes of the classic fictional witness whose demeanor is impeccable and testimony perfect in all regards. Unfortunately, the realities of litigation are otherwise as impartiality is a rare attribute. Witnesses are on occasions fouled by the air of partisanship, overzealous- ness, revenge, and other emotions to which the human flesh is subject. Witnesses do not emerge from antiseptic surroundings nor do they testify in a vacuum which protects them from the failings to which the human mind and spirit are subject. Moreover, unconscious and uninten- tional inconsistencies, mistakes , and confusion understand- ably creep into a record when it is considered that witnesses testify from memory as to events and conversations that may have taken place under emotional circumstances and long before the hearing was held and their testimony given. If, in order for the trier of the facts to credit a witness, his testimony must be found to be lucid, unambiguous, and consistent in all details, there would be few, if any, instances where witnesses could meet such exacting and unrealistic requisites. This would result in an inability to "make specific credibility findings as to testimonial evidence necessary to support material findings of fact"; one of the most vital functions of a Trial Examiner.19 Therefore, to point out inconsistencies in the testimony of a witness credited by the trier of the facts adds nothing and may amount to petty carping when it is kept in mind that "it is no reason for refusing to accept everything a witness says, because you do not believe all of it; nothing is more 371 U S. 826. N. L.R B v Stanislaus Hardware Co, 226 F.2d 377, 381 (C.A 9),RJ Lison Co v NLRB,379F.2d8I4,817(CA.9). 18 Wigmore on Evidence, Section 25 . Cf. N L.R B v Howell Chevrolet Co, 204 F 2d 79, 86 (C A. 9), affil 346 U S 482, quoting Judge Learned Hand in Dyer v. McDougall, 201 F.2d 265, 269 (C.A. 2). See also N L R B. v Dimon Coil Co, 201 F.2d 484, 487 (C A. 2). 19 Cf Casa Grande Cotton Oil Mill, 110 NLRB 1834, 1836. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD common in all kinds of judicial decisions than to believe some and not all." 20 Accordingly, the one who hears and sees the witnesses testify must, where the conflicting versions are diametrical- ly opposed, often necessarily depend upon subtle interpre- tations, delicate nuances, and indefinable impressions derived from observing the witnesses testifying which the cold record does not convey. To this must be added one cogent caveat: If, after analyzing the record and evaluating the witnesses' demeanor, the evidence is in equipoise, in such a situation, the ultimate finding must be adverse to the party who has the burden of proof. This is not an abstract proposition as a situation can anse where upon a study of the entire record, including consideration of the witnesses' credibility, the trier of the facts concludes that the evidence on both sides creates an equipoise. It would appear that in such a situation, the complaint must be dismissed since the General Counsel has not proved the allegations of his complaint by a preponderance of the evidence. Such a probability is not an academic proposition as evidenced by the frequency with which juries in courts of law are unable to arrive at a verdict "the test is not satisfied by evidence ... which gives equal support to inconsistent inferences."21 Of course, the record may reveal, exclusive of demeanor testimony, where the truth lies. It is only where, at the end of the trier of facts' deliberations and analysis of the entire record, that his resolutions of credibility still remain balanced in doubt that recourse must be had to the witnesses' demeanor. It is often quite difficult, if not virtually impossible, in some instances , to describe by the written word, the impression derived from observing a witness testify. As Judge Prettyman states it: "Of course the mental processes by which one set of human minds, looking at facts, reaches one conclusion, while another mind, looking at the same facts, reaches the opposite conclusion, are frequently very unclear. And usually, in such a situation, neither conclusion is `explainable' to a third mind. So it is here. I would not know how to `explain' how or why these basic facts look to me as they do."22 Not only would it not serve any useful purpose but it would prolong unduly and add little to a decision to describe a witness as having a furtive look, a nervous twitch, becoming flushed in the face, or perspiring freely. Those indicia are better left unsaid in the hope that judgment as to such matters should confidently be left to the sense and experience of the one who observed the witnesses, guided, of course, by standards laid down by the Board and the Courts. Then, too, in evaluating a witness' testimony as credible or incredible, which is based exclusively on demeanor evidence, the trier of the facts must necessarily adopt an empirical approach as he is not dealing with absolutes or generic matters. Therefore, human factors, emotions, and the "intangible imponderables" present at every hearing militate against the substitution of another 's judgment as to where the truth lies , as, here again, different concepts, indicia and standards , not only legal but also ethical may be applied , depending on what the individual trier of the facts conceives and defines these factors to be and how he relates them to the peculiar circumstances present in any given case in which a credibility finding is made based on demeanor testimony. By this discussion of the evaluation placed upon the demeanor of a witness in testifying , it is not intended to convey the impression that consideration was given exclusively to this type of evidence in this proceeding in determining credibility . As stated before , this was only one factor . Concomitant consideration has been given equally to the surrounding circumstances , and the consistency or inconsistency of individual witnesses ' testimony with uncontroverted evidence and demonstrable facts in deter- mining which version should be credited . Moreover, in crediting one version as against another , the trier of the facts frequently derives considerable aid in comparing the witnesses' testimony on direct examination with what he testified to on his cross-examination or stated in his affidavits . "A would-be deceiver weaves a tangled web, and cross-examination is usually an effective device to enmesh the perpetrator of the embellished lie." 23 Then too, it must be remembered that two witnesses may give different accounts of the same factual situation without committing perjury, because differences may reasonably be expected when truthful witnesses give their versions of events in which they are emotionally involved.24 Reference has been made to the question of burden of proof and its being inextricably interwoven with resolutions of fact and credibility; a fact which often is overlooked by those who cast a jaundiced eye and take a cynical and critical attitude toward demeanor evidence .25 It might be well, therefore , in arriving at the ultimate conclusions in this case to consider not only the burden and quantum of proof necessary to make a finding of an unfair labor practice but also the fact that necessary recourse must be made to demeanor evidence when the testimony is in equipoise.26 The Supreme Court held27, before the enactment of the Labor Management Relations Act of 1947 (67 Stat. 136), that the evidence necessary to make a finding of an unfair labor practice must be "substantial ." Substantial evidence is such evidence as affords a substantial basis of fact from which the fact in issue can be reasonably inferred.28 Substantial evidence must be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . Substantial evidence must have rational probative force ; it must carry conviction ; it must be more than a scintilla , and must do more than create a suspicion of the existence of the fact to be established .29 And the test 20 N L R B v Universal Camera Corp, 179 F 2d 749, 754 (C A 2), reversed on other grounds 340 U S 474 21 Eastern Coal Corp v NLRB, 176 F 2d 121, 135-136 (C A 4) 22 Local 400, Retail Store Employees Union v N L R B 360 F 2d 494, 496-497 (C A D C) 23 Santa Clara Lemon Association, 121 NLRB 93, 104 24 Fotochrome, Inc, 146 NLRB 1010, 1 25 See Gem of St Paul, 152 NLRB 1639, 1643, In 12, Liberty Scrap Materials, Inc, 152 NLRB 480, 484. 26 See supra 27 Consolidated Edison Company of New York, Inc v N. L R. B, 305 U S. 197, 299. 28 N L R B v Columbian Enameling & Stamping Company, Inc, 306 U S 292, 299 29 Universal Camera Corp v. N.LR. B, 340 U.S 474, 477. EL PASO NATURAL GAS COMPANY 345 is not satisfied by evidence which gives equal support to inconsistent inferences.30 Furthermore, the burden is upon the General Counsel to prove affirmately and by substan- tial evidence that the acts alleged in the complaint were illegally motivated.31 2. Resolutions of credibility Accordingly, after observing the witnesses, analyzing the record and inferences to be drawn therefrom and reconciling, where possible, the conflicting evidence, the Trial Examiner concludes that the testimony of the General Counsel's witnesses is reliable because it is consistent with certain undisputed and demonstrable facts in this case. The General Counsel's witnesses appeared to be sincere, forthright, and truthful witnesses who told straightforward stories and gave the impression of being scrupulously objective and honest in their testimony. The impression that they were testifying truthfully became a conviction when their stories were found, in the main, to be consistent with the attendant circumstances in this case and not substantially shaken by able counsel for the Respondent who vigorously, searchingly and thoroughly cross-exam- ined them. Another practical consideration which cannot be over- looked in resolving the credibility issues in this case is the fact that four of the General Counsel's witnesses were still in the employ of the Respondent Company at the time they testified; namely, Ealey, Mosley, Hamlett, and Rankin. As such, they depended on their jobs for their livelihood and they understood that after testifying they must continue in the employ of the Respondent. Moreover, the trier of these facts is not unmindful of the predicament of an employee who testified adversely to his employer's interests being apprehensive and fearful, with some measure of justifica- tion as to the future possibility of retaliatory action. These practical considerations, coupled with the normal workings of human nature, have led the Trial Examiner to place considerable credence upon the testimony of Ealey, Mosley, Hamlett, and Rankin as it is believed they were impelled to tell the truth regardless of what consequences might eventuate. The testimony of Isham and Mosley have been quoted in haec verba copiously because the General Counsel's representative bases almost his entire case on the testimony of these two witnesses. The same consideration applies to Respondent's counsels' almost exclusive reliance for their defense on the testimony of Crawford, Hampton, and Miller. In the interests of accuracy, all those witnesses' testimony has been quoted in extenso to avoid the ambiguities and impreciseness sometimes created by paraphrasing. In fact, the flavor and nuances of some of these witnesses' colorful and unique manner of testifying are incapable frequently of literal ti anslation or interlineal rewording so that even a metaphrase might be considered too loose. Significant also is the fact that Crawford's and Miller's testimony, on direct examination, was given, in consider- able measure, in reply to leading and suggestive questions which also militates against the weight to be given their testimony. Little probative value has been given to their testimony so elicited as the vice in counsel asking these two witness leading questions is that they suggest the desired answers which the witnesses will often merely adopt, so that it may seem futile to object once such a question has been asked and the desired answer suggested.32 Nor is Glen Roger's testimony credited with respect to what he overheard when he was in Hampton's office and Hampton and Lee were discussing the latter's transfer to District C. Sce supra. The testimony of Isham, Ealey, Mosley, Hamlett, Rankin, and Lee, which prove the allegations in the complaint with respect to the discharge of Isham because of his union activities, and the Respondent's discriminatory refusal to grant time off to Mosley are credited. The denials of Crawford, Hampton, and Miller, with respect to the salient aspects of Isham's discharge and the Respondent's refusal to grant time off to Mosley, are not credited. Moreover, Crawford's denials that he had ever threatened his men with transfers and that union organizing had given the measurement department "a black eye," was given in response to leading questions by Respondent's counsel, which detracts from its probative value. C. Discussion and Conclusions 1. Isham's termination It is apparent, from the facts outlined above, that the issue with respect to Isham's termination is, whether Isham was transferred from District C to District B due to his leadership in the Union's organizational activities, and Respondent's desire to remove him from the proxirn.ty to employees interested in the Union and to Respondent's desire to break up the Union; or whether the transfer was motivated by Respondent's alleged valid economic reorg- anization of its field operation in the San Juan Division. Respondent, although it admits knowledge of Isham's continued union activity, contends that it did not transfer Isham because of his union membership or activities, but that Isham voluntarily quit his employment when he refused to accept a transfer. In this proceeding, the bare recital of the facts is sufficient to resolve this issue against Respondent as the credited testimony shows discriminatory motivation within the meaning of both Section 8(a)(1) and 8(a)(3) of the Act. This accounts for the detailed discussion which has been made of the facts in this case at the risk of being burdensome. Against this fact pattern, Respondent's efforts to exonerate itself from a finding of unfair labor practices are singularly unimpressive. In arriving at this conclusion, such resolution was not resolved in a vacuum, nor considered separately and apart from evidence which occurred during the period of time alleged in the complaint, but recourse was had, and reliance necessarily placed upon 30 Eastern Coal Corporation v N L.R B, 176 F 2d 131, 135-136 (C A 4). 31 See Martell Mills Corp v NLRB, 114 F 2d 624 (C A 4), N L R B v Entwistle Mfg. Co, 120 F 2d 532 (C.A. 4) 32 Liberty Coach Company, Inc, 128 NLRB 160 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accompanying circumstances as direct evidence of an intent to violate the Act is rarely obtainable33 Each of Respondent's activities vis-a-vis the Union and its employ- ees has not been treated individually and in isolation, but consideration has been given to all the attendant circum- stances in the context of the overall perspective which is presented here.34 These circumstances have been consid- ered compositely and inferences have been drawn which are reasonably justified by their cumulative probative effects. "Evidence obscure, ambiguous or even meaningless when viewed in isolation may, like the component parts of an equation, become clear, definitive and informative when considered in relation to other action. Conduct, like language, takes its meaning from the circumstances in which it occurs." 35 Moreover, the record in this case reveals union animus on the part of Respondent. Assuming, arguendo, there was no union animus, the Supreme Court has held, nevertheless, that no evidence of antiunion motivation need be presented to establish a violation of the Act in those cases in which the employer's conduct is inherently destructive of important employee rights, and this regardless of any showing of economic justification which might be made by the employer.36 Isham credibly testified that Weir, the division superin- tendent, told him that if the "problems" in the measure- ment department could be corrected, the department "would be back in the good graces" of Harris, vice president of El Paso Natural Gas Company. Isham's testimony continues that Weir stated: If "we couldn't get things straightened out . . . he was going to have to transfer people around to break up the complaining groups, the line of communication." Significant also is the fact that when Weir met with Isham on January 27, to establish a procedure whereby men who had complaints about working conditions would be able to bring this to the attention of company officials, Weir asked for their names, whereupon Isham refused to give him their names until such time as a definite arrangement for the presentation of grievances had been agreed upon by the union group and the Company. This incident is revealing in that it indicates more than casual interest in knowing the identity of these "dissidents," which was the euphemism used by company officials to describe the union sympathizers. It is not too unreasonable to infer that the Company's desire to know who these union adherents were would give it the necessary information to take action against them similar to what was meted out to Isham. Isham, in fact, cited to Woody, a company official, specific instances where employees had been "intimidated." See supra. Crawford advised Isham that if he did not report to his new assignment , he would be discharged. When Isham asked Crawford if he had ever known of the Company transferring employees in this manner before , Crawford answered that he had never heard of it before, but "that doesn't mean they can't." Crawford reassured Isham that when he looked for another job, he would be willing to give him his "highest personal recommendation." Isham concluded his testimony by recalling that he had refused a transfer in 1966 or 1967, whereupon the Company had arranged for another employee to take the transfer. It was in this one instance, in 1966 or 1967, when he did not wish to transfer, that the Company had not insisted upon his doing so and allowed him to remain where he was stationed. Therefore, the invidious attitude and treatment by the Company of Isham when he demurred against his being transferred to District B is more consistent with a finding of discriminatory motivation, in view of the cogent fact that he was a valuable employee as evidenced by Crawford gratuitously offering to give him his "highest personal recommendation." And the fact that the Company's explanation for Isham's transfer fails "to stand under scrutiny" confirms the inference drawn herein that his transfer and consequent termination were motivated by proscribed considerations 37 Turning to the question whether Isham's known interest in the Union, and his leadership of organizational activities, was the reason for the transfer, it is clear from the evidence set out above that, coincidental with the beginning of union activity, various company officials, including Weir and Crawford, spoke of impending transfers that might result because of this union activity. Corroborative of this conclusion, that Isham's transfer was discriminatorily motivated, is the Company causing Lee to be transferred to District C upon its own initiative, thereby resulting in Isham being transferred rather than Lee, who had a higher rank on the seniority roster than Isham, but who did not seek the transfer as he believed the Company was ordering him to transfer to District C, as hereinafter explicated infra. It is found, therefore, that Isham would not have been transferred to District B but for Respondent's preconceived stratagem to isolate him and thereby prevent him from effectively engaging in union activities. Moreover, as a matter of law, there was no duty upon Isham to accept such a deceptive transfer. The Respondent sought to make the transfer in violation of the Act and Isham was therefore not obliged "to acquiesce in such discriminatory transfer." 38 Therefore, his subsequent refusal to accept this discrimina- tory transfer, under the circumstances here revealed was, in the eyes of the law, a constructive discharge. Furthermore, the fact that Isham rejected the transfer, makes his status no less than it would have been had he not done so.39 Accordingly, the Respondent's defense of economic motivation is not accepted, as no support is found for it from any credited testimony. Also, the Company did have motivation for doing what it did; namely, frustrating the efforts of Isham to organize a union. Finally, the Board has held that the transfer of an employee to anotherjob may be an act of discrimination even though the job was not only better, but represented a promotion.40 Then, too, the termination of Isham, who had been employed by the Company for 18 years and whose work record was exemplary, as indicated by Crawford's offer to give him his "highest personal recommendation" in securing a new job, is inconsistent with the Company's action in this case in terminating Isham under the circumstances herein revealed. Commonsense would 33 Hartsell Mills Company v N L R B, I 1 I F 2d 291, 293 (C A 4) 38 Electra-Mechanical Products Co, 126 N LRB 637, 649 34 N L R B v Poped Brothers, 216 F.2d 66, 68 (C A 7) 39 J W Mays, inc, 147 NLRB 942, 943, and 962 35 Stafford Trucking Co, 154 NLRB 1309-10 40 Continental Oil Co v N L. R B, 113 F 2d 473 (C.A. 10); Southeastern 36 N L R B v Great Dane Trailers, 388 U S 26 Pipe Line Co, 103 NLRB 341 37 N L R B v Griggs Equipment, Inc, 307 F 2d 275, 278 (C A 5) EL PASO NATURAL GAS COMPANY indicate that such action, with respect to Isham, is not natural as it would be to the Company's benefit to make every effort to retain the services of such an experienced and well-regarded employee. If Respondent had really been disturbed by the nominal reasons it ascribed for his discharge, and had no other circumstance in mind, some effort to accommodate such an excellent employee would, it seems, have been inevitable. Its failure to do so buttresses the conclusion that his termination was discriminatorily motivated and was not really a result of economic considerations, but was for a more compelling reason; namely , its aversion to his union activities. It is also reasonable to infer that, having already decided to reorganize its operations, the Company devised a scheme whereby it could expedite its discriminatory design to remove Isham from immediate contact with his prounion colleagues through concurrent action that transferred Lee to District C, thereby creating a vacancy in District B which would, in turn, force Isham's transfer to fill Lee's vacancy. Under these circumstances, it is difficult to believe the Company's assertion that Lee initiated the transfer, in view of the credited facts testified to by Lee, which show that such is not the case. Supportive of this conclusion is Respondent 's manipulation of the seniority roster whereby Lee was caused to transfer to District C. This triggered a sequence of events, beginning with Respondent's bringing its considerable economic influence to bear upon Lee, which caused him to accept the transfer to District C. Thus, Isham was made vulnerable by being given no choice, or, to state it in the alternative, he was given a "Hobson's choice," that of either accepting the transfer to District B, or resigning . This, it is believed and found, is what Respon- dent intended, and this intent, in turn, was motivated by a desire to abort and ultimately eliminate unionism in its San Juan Division by removing the leading union proponent. These facts, viewed in conjunction with the violation of Section 8(a)(l) found and discussed below, are prima facie evidence that the transfer and discharge of Isham was in reprisal for his leadership in the union movement in the San Juan Division. At this point, it devolved upon Respondent Company to come forward with "legitimate and substantial business justifications" for the challenged conduct. This, the record reveals, it has failed to do.41 It is found, therefore, upon the basis of the entire record, that a preponderance of the evidence supports the allegations of the complaint, that in transferring Isham to District B Respondent's intent was motivated by its desire to delay, impede, and completely abort the union's organizational campaign, and thus violated Section 8(a)(3) of the Act. Supporting this conclusion is the fact that Donald Lee, who is presently employed by Respondent as a measure- ment technician, credibly testified that Wayne Hampton, supervisor for District B, called him into his office on or about August 27, and notified him that he would be transferred from District B to District C on September 1. Inasmuch as Lee had not requested the transfer, he testified that he believed he was required to accept the transfer. See supra. The following morning, Lee told Hampton he was ready to go to District C. 347 The Company asserts that the transfer of Isham was carried out in accordance with a plan of reorganization which had been drafted and adopted prior to any union activity. The record does not support this contention. Lee, who had never anticipated nor entertained any intention of transferring from District B to District C, was notified a few days before the reorganization became effective that he was being transferred to District C. It is not unreasonable to infer that Lee, being entirely dependent upon this job for his livelihood, and living in an area of New Mexico where jobs with private industry are not in abundant supply, accepted the transfer as he had little other choice. Lee, therefore, was the key to effectuating Respondent's scheme to abort union activity by transferring Lee to District C and Isham to District B, and thus isolating Isham who was the spokesman and leader of the union movement which was centered in District C. As a result, Isham bore the full brunt of Respondent 's ostensible economic "reorganization." That this result was effected by design and had not occurred through mere coincidence is shown by the pressure brought to bear upon Lee to transfer. It appears that its plan to reorganize the Company's operations, which resulted in Isham's transfer, with the consequent refusal by Isham to accept the transfer, was a contrived measure adopted by the Company to insure the destruction of the Union's influence among its employees by first eliminating Isham, who was not only one of the original initiators of the Union movement, but who later took over the leadership of the Union's organizational campaign. Furthermore, the evidence reveals that the eight gas testers (who are not to be confused with the measurement technicians and who had operated out of Farmington before the reorganization) would no longer be employed after the reorganization solely in that capacity because their jobs were combined with that of the measurement technicians. After the reorganization, the testers were to be assigned to Districts A, B, and C with the job title of "Measurement Technicians." Seven of these "testers" requested assignment to District C, and one requested assignment to District B. It appears that each employee's rank on the seniority roster was based on "departmental" seniority when determining priority of preference as to the district to which both testers and measurement technicians wished to be assigned, rather than their rank in occupation- al seniority. If occupational seniority had been used to determine seniority rank, then an employee's position on the seniority roster would have been based on the length of time he was a measurement technician or meter tester, as the case might be. However, when the Company, after the reorganization, combined these two occupational groups together for purposes of determining "departmental" seniority, the record is neither clear nor does it explain the distinction, if any, between -"departmental" and "division" seniority. Then, too, R.L. Weir, maintenance superintend- ent of the San Juan Division, testified that the Company decided on August 24 that District C would need seven additional "technicians" because additional wells were added to the number of wells that had been located in District C prior to the September I reorganization. 41 N L R B. v. Great Dane Trailer Co, 388 U S 26, 33-34; N L R B v Fleetwood Trailer Co, 389 U S 375, 378 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ted Ealey, who is presently employed by the Company, testified that in January or February 1970, Crawford called him into his office and told him: "We don't need a third party in our affairs because we had an open-door policy."42 "Third party" is a euphemism the company officials used for describing the Union. Ealey corroborated Isham's version detailed above, of what occurred, testifying that in the latter part of January, Crawford addressed all the men under his supervision and told them that, "We would give the measurement dt partment a black eye with organizing activities. The work was suffering and he was going to have to make some transfers to break up our lines of communication and our associations with each other." It is well established that a company may reorganize its operations so long as its changeover is not effected for reasons related to an employee's union activities, or motivated by proscribed intentions to violate the Act.43 Assuming that Respondent's changing of its system of testing gas was originally economically motivated, such circumstance could not be legally used to effectuate a companion motive to rid the Company of Isham, the Union's leading protagonist. Under the circumstances peculiar to this proceeding, it is not enough for Respon- dent's purposes to insist that its actions were taken for valid economic reasons. Over and above that, it is incumbent upon it to show that the reorganization program was not illegally employed as a device to effectuate a concomitant additional discriminatory purpose; namely, transferring Isham so as to isolate him and thus neutralize and nullify his protected union activities. This, it is found, Respondent has failed to do. On the contrary, the record reveals that on the date the reorganization became effective, it was implemented by a simultaneously concurrent discriminato- ry purpose. Couched though it may have been in the language of economic necessity, the real cause was Isham's leadership of the Union's organizational campaign. It is found, therefore, based on the credited testimony and the inferences reasonably to be made from that testimony, that Respondent, pursuant to this preconceived plan to transfer Isham because of his union activities, seized this opportuni- ty, afforded by its reorganization, tojustify Isham's transfer and thus concurrently and discriminatorily shifted him to District B in order to isolate him from those union adherents who looked to him for leadership.44 When he refused the transfer and was terminated, this was a constructive discharge. Accordingly, it is found that, by constructively discharging Isham, by causing him to quit because of this discriminatory transfer, Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thus discriminated in regard to the hire or tenure of employment of Mike Isham in order to discourage membership in a labor organization. It is also found that Isham's quitting his job was caused by a situation created by the Respondent's contrived seniority roster with the preconceived purpose to provide itself with apparently valid grounds for terminating him or causing him to quit and that Respondent's real reason for wishing to transfer 42 Ealey testified each man in Crawford's crew was called into his office singly on this same day 43 Macke Laundry Service Co, 190 NLRB No I (TXD) Isham was not due to the reorganization but his active leadership role in the union campaign . It follows , therefore, and it is found , that Respondent thereby violated Section 8(a)(3) and (1) of the Act. 2. Concluding findings with respect to alleged 8(a)(1) violation The facts regarding this allegation in the complaint are detailed above in this Decision. The testimony of Mosley, Hamlett, and Rankin that Miller told Mosley time off would not be granted to him because he had expressed approval of the Union is credited, contrary to Miller's denial that this ever occurred. See supra. This incident obviously was an attempt to intimidate Mosley and to interfere with the other employees' rights to self-organization by threatening them with similar reprisals if they should support the Union. This conduct by Respondent' supervisor, Marvin Miller, is found to be an unfair labor practice and is a violation of Section 8(a)(1). The excellent brief of the Respondent discussing the alleged 8(a)(1) and (3) violations, and the authorities cited therein, have been fully considered. However, the Trial Examiner finds no occasion for lengthening this decision by citing, distinguishing, or discussing them as it is believed that the controlling reasons for this decision have been sufficiently discussed. Moreover, Respondent counsels' contentions are based on an interpretation of the facts which are not shared by the trier of these facts. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. By causing Mike Isham to quit because he engaged in union activity, as set forth above, Respondent discriminat- ed against him in regard to his tenure of employment, and the terms and conditions thereof, to discourage member- ship in the Union and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. Respondent, on September 18, 1970, discriminated against Walter L. Mosley by refusing to grant him time off because he had expressed approval of the Union, thereby violating Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent was at least partially motivated in its discriminatory treatment of Isham by his activities on behalf of the Union45 and thereby engaged in unfair labor practices as above set forth, it will be recommended that it cease and desist therefrom and take affirmative action, set forth below, found necessary and designed to effectuate the policies of the Act. Having found that Respondent interfered with, coerced, and restrained its employees in the exercise of rights 44 N L.R.B v West Side Carpet Cleaning Co., 329 F.2d 758, 761 (C.A. 6) 45 N L.R B v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7). EL PASO NATURAL GAS COMPANY 349 guaranteed by Section 7 of the Act, which the basic purpose of the Act was designed to achieve, it shall be recommend- ed that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act.46 Having found that Respondent discriminatorily termi- nated and discharged Mike Isham, it will be recommended that it offer to him immediate, full, and unconditional reinstatement to his former, or substantially equivalent, position, without prejudice to his seniority or other rights, privileges, or working conditions, dismissing, if necessary, anyone hired in such job on and after September 7, 1970, and make him whole for any loss of earnings suffered by reason of the discrimination against him by paying to him a sum of money equal to the amount he would have earned from the date of the discrimination against him until such discrimination has been fully eradicated, less his net earnings during the period of such discrimination. Backpay with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, 291-293, and Isis Plumbing & Heating Co., 138 NLRB 716. The remedial purposes of the Act are quite clear. It is aimed, as the Act says [Section 11, at encouraging the practice and procedures of collective bargaining and at protecting the exercise by workers of full freedom of association, of self-organization and of negotiating the terms and conditions of their employment or other mutual aid or protection through their freely chosen representative.47 Inasmuch as the discharge of employees for reasons of union affiliation or concerted activity has been regarded by the Board as one of the most effective methods of defeating the exercise by employees of their rights to self-organiza- tion, the Trial Examiner is of the belief that there is danger that the commission of unfair labor practices generally is to be anticipated from Respondent's unlawful conduct in this proceeding. It will be recommended, therefore, that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 48 [Recommended Order omitted from publication.] 4fi N L R B v Entwistle Mfg Co, 120 F 2d 532 (C A 4), California 4T Republic Steel Corp v N L R B, 311 U.S. 7, 10. 48 Lingerie, Inc, 129 NLRB 912 N L R B v. Entwistle Mfg Co, supra, 536