Koch Engineering Co., Inc.

National Labor Relations Board - Board DecisionsDec 2, 1965

155 N.L.R.B. 1272 (N.L.R.B. 1965)

1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Koch Engineering Company, Inc. and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case No. 17-C,4-2.-5-93. December 2. 1965 DECISION AND ORDER On August 3, 1965, Trial Examiner James A. Shaw issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in any unfair labor practices and recommending that the complaint. be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Decision with a supporting brief. Respondent filed a brief in support of the Trial Examiner's Decision. 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 case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's finding ,1 conclusions, and recommenda- tions, except as modified below. 1. The Trial Examiner found, and we agree, that employee Dodge was not discriminatorily discharged on September 11, 1964, in violation of Section 8 (a) (3) and (1) of the Act. 2. The Trial Examiner also found that Respondent's interrogation of employees during late August and early September 1964, concerning union activities, was not violative of Section 8 (a) (1) of the Act. We find merit in the General Counsel's exceptions to this finding. A summary of the facts, more fully detailed in the Trial Examiner's Decision, follows : The Union's organizing campaign at Respondent's Ninth Street plant in Wichita, Kansas,2 began on August 17, and ended on September 1, 1964, when the Union wrote the Company demanding recognition. During this period, Respondent's plant superintendent, Wright, approached a number of employees at their work stations a 'In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's dis- missal of the Section 8(a) (3) and ( 1) allegations concerning the discharges of Atkins and Lockhart. 2 According to the tally of ballots at the election held July 1, 1965, there were 40 to 50 eligible voters in the designated unit at the Ninth Street plant. 8 The record shows that at least six employees were so questioned , and another was interrogated while he was in Wright ' s office in the routine performance of his job . Accord- ing to employee Dodge , who was not questioneed by Wright , there was a widespread belief among the employees that Wright had questioned every man in the plant on the subject. 155 NLRB No. 123. KOCI3 ENGINEERING COMPANY, INC. 1273 and inquired whether union men had contacted 10-111em recently.4 Of those who testified, only one, Brown, indicated that he had answered of&rmatively. Brown was again approached by Wright several days later and asked about his knowledge of other employees whom the Union had contacted. Respondent's vice president and general[ manager, Huggins, inter- rogated Brower, a college. student who was completing his third summer of employment with Respondent, on September 8, while Brower was delivering something to the manager's office. Huggins told Brower that since he - as leaving the following day, he could reveal what was going on in the shop. Brower refused, indicating his dis- like. of people who tattled on others, and his partiality for unions. The Trial Examiner refused to find an 8(a) (1) violation because the questions were not "couched ... in the sort of language that off- times accompanies such interrogation by supervisory employees ..."; there were no threats or promises made; there was no evidence that Respondent objected to its employees' participation in union activities, or engaged in other antiunion conduct; and the employees who testified showed no signs that they had been intimidated, threatened, or coerced by the questioning. However, we believe that systematic interrogation of employees about union activities during the. sensitive initial stages of an orga- nizing campaign and for no justifiable purpose, such as was con- ducted by Wright in this case, is a type of activity which serves to impress upon employees their employer's hostility to union organiza- tion, and thus tends to restrain them in the exercise of the rights guaranteed by Section 7 of the Act .5 This is true despite the absence of accompanying overt threats or coercive statements. Further, Huggins' inquiry of Brower as to what was going on in the shop, which Brower immediately understood as referring to union activities, is also unlawful since it was calculated to lead Brower into revealing not only his attitude toward the Union, as in fact it did, but also, that of other employees. Accordingly, we find that Respondent's inter- rogation of its employees, by Supervisors Wright and Huggins, inter- fered with, restrained, and coerced employees in the exercise of their rights guaranteed by Section 7, and therefore violated Section 8(a) (1) of the Act. THE EFFECT OF THE UNFAIR LABOR PIt&cTIcrs UPON Co3I11IERCE The activities of the Respondent set forth above, occurring in con- nection with its operation described in section I of the Trial Examiner's Decision, have a close, int:hnate, and substantial relation to trade, Most were asked if they had been visited at home. S. S. Logan Packing Company, 152 NLRB 421; Charlotte Union Bus Station, Inc., et ab., 135 NLRB 228. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD traffic, and conme -rce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in unlawful inter- rogation in violation of Section 8 (a) (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act.. ADDITIONAL Co icLrsloNs OF LAW Upon the foregoing findings of fact and the entire record in this case, we hereby delete the Trial Examiner's conclusion of laic No. 4, and adopt a new conclusion as follows : 4. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act in the manner above found, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a.) (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereb;, orders that the Respondent, Koch Engineering Company, Inc., Wichita, Kansas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Interrogating employees concerning their union activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the r ght. to self or anization, to form labor organizations, to loin or assist the Oil, Chen-.'cal and Atomic Workers International Union, FL-CIO. or any other 'labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Post at its Ninth Street plant in Wichita, Kansas, copies of the attached notice marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being duly signed by the Company's representative, be posted by the.-Com- 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 Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." KOCH ENGINEERING COMPANY , INC. 12' 5 pang 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 17% in writing , within 10 days from the date of this Order , what steps have been taken to comply herewith. APPENDIX NovicE To ALL EI"IPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their activi- ties on behalf of Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) of the Act. IVE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the aforementioned or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. KoCH ENGINEERING COMPANY, Ir C., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) 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. Employees may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Baltimore 1-7000, if they have. any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge duly filed on September 3, 1964, by Oil, Chemical and Atomic Workers International Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel' and the Board, through the Regional Director for Region 17 (Kansas City, Missouri), issued a complaint dated October 29, 1964, against Koch Engineering Company, Inc., herein called the Respondent, alleging that Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended from time to time, 61 Stat. 136, herein called the Act. Copies of the charge, complaint, and notice of hearing were duly served upon Respondent and copies of the complaint and notice of hearing were duly served upon the Union. Specifically, the complaint alleges that the Respondent, by and through Vice Presi- dent and General Manager Clifford A. Huggins and Plant Superintendent Herman L. Wright during the latter part of August and early September 1964, interrogated its employees concerning their union membership, activities, and desires and those of other employees, and promised them benefits if they refrained from joining or other- wise assisting the Union; that on or about the dates shown below, the Respondent discharged the following employees because of their membership in, adherence to, and activity on behalf of the Union: George B. Dodge, Jr., September 1, and Ray H. Atkins and Wayne R. Lockhart, September 2, 1964; and that by the acts and conduct referred to and described above engaged in conduct violative of Section 8(a)( I) and (3) of the Act. The Respondent filed its answer to the complaint on November 5, 1964, in which it denied the commission of any of the unfair labor practices alleged in the complaint, and admitted certain allegations, such as to commerce, the status of the supervisory employees, Huggins and Wright, and that it had been served with the charge filed by the Union on September 2, 1964. In addition it, in essence, denied that the Union herein was a labor organization within the meaning of the Act. At the time it filed its answer it also filed a motion to make the complaint more definite and certain by setting forth the names of the persons (i.e. employees) allegedly interrogated by Huggins and Wright. In due course the Regional Director for Region 17 referred said motion to a Trial Examiner for disposition pursuant to Section 102.25 of the Board's Rules and Regulations, Series 8, as amended. At the same time the General Counsel filed a "motion in opposition" to the motion. In due course said motion was denied by Trial Examiner Charles W. Schneider on November 13, 1964. Pursuant to notice, a hearing was held before Trial Examiner James A. Shaw on December 16 and 17, 1964, in Wichita, Kansas. All parties were present, were repre- sented either by counsel or authorized representatives, and were afforded full oppor- tunity to be heard, to rresent oral argument, and to file briefs in support of their respective positions. Briefs were received from the General Counsel and the Respondent on or about January 21, 1965. At the close of the General Counsel's case-in-chief, counsel for the Respondent moved to dismiss the complaint in its entirety. After due consideration I denied the Respondent's motion in part and granted it as to certain allegations in the complaint for reasons set forth below in the following excerpt from the record herein: TRIAL EXAMINER: On the Record. At this time I will rule on your motion. I will deny it in its totality, that is, I will deny it as you placed it before me to dismiss the whole complaint. I will not dismiss it as to 8(a)(1) violations. I will grant your motion as to the 8(a)(3) alieegations as to Atkins and Lock- hart, for the reason there is no evidence in this record of any knowledge the Company had of their membership or activities on behalf of the Union. For examip! . the witness Atkins testified that he signed a card and was absent from the plant on his vacation when the activity of the Union was at its peak. As to the witness Lockhart, there is no connection or no showing the Com- pany had knowledge that he had signed a union card. As to the other discrimination Dodge, I will deny your motion as to Dodge. That is my ruling. After the General Counsel had stated his exceptions to my ruling upon the Respond- ent's motion to dismiss the complaint, Respondent's counsel stated to the record, " . The Respondent does not desire to place any evidence in the record. Your Honor ... other than what has already been shown." In other words the Respond- ent rested its case. The General Counsel then stated to the record that he had no further evidence to offer in support of his case-in-chief. Shortly thereafter I closed the hearing. I This term specifically includes counsel for the General Counsel appearing at the hearing. KOCH ENGINEERING COMPANY, INC. 1277 The General Counsel took exception to my ruling at the onset of the hearing the next day, December 18, 1964. Further comment in this regard follows below in my ultimate disposal of the issues confronted with herein. Suffice it to say at this point that I will recommend that the complaint herein be dismissed in its entirety on tee grounds that the General Counsel failed to support his position by a preponderance Section 10(c) of the Act.' Upon consideration of the entire record, including the briefs of the parties, and upon my observation of the witnesses that appeared and testified at the hearing herein, particularly as to their demeanor, I make the following: 3 FINDINGS OF FACT AND CONCLUSIONS OF LAW I. THE BUSINESS OF THE RESPONDENT The complaint alleges, and the Respondent admits in its answer, that it " . . is a Kansas corporation with its principal place of business (herein called the plant) at Wichita, Kansas, where it is engaged in the design, manufacture, and sa le of process- ing equipment in the oil, gas, and chemical industry. On an annual basis, the Respondent has gross sales in excess of $500,000; its sales directl to customers located outside the State of Kansas exceed 550,000; and, its purchases from outside the State of Kansas exceed $50,000." In the circumstances set forth and described above, I find that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED In view of the Respondent's position as to the status of the Charging Union in its answer, which, as indicated above, was to the effect that it was not a labor organiza- tion within the meaning of the Act, I hereby take official notice of the Board's findings in this regard in other cases where the Union hereni was a necessary party, and find as did the Board, in cases too numerous to cite ad infinitum, that it is a labor organization wit3t.in the meaning of Section 2(5) of the Act at all tulles mate- rial herein See Cu, Chemical and Atomic Workers International -r,oo, AFL.-CIO, and its Local 8-718 (United Nuclear Corporation, Fuel Division), 148 NLRB 629. III. ME UNFAIR LABOR PRACTICES A. Prelude Before we get into the issues that we are concerned with herein, I feel that it would be beneficial to all concerned to insert at this point my interpretation of t^re record regaiding the physical "setup," so to speak, of the Respondent's business at Wichita. Kansas. hay observations are predicated upon the record herein, which quite frank,' is most meager in this respect. As will be shown below in more detail the Union's activities among the Respond- ent's employees were confined to its plant at 853 Fast Ninth Street, 3ichita, Kansas. On a charge, and in an R petition which it filed on September 2. 1564, it stated that there were 30 employees in the unit -which it contended was appropriate for the purposes of collective bargaining. However , at the hearing herein it was -disclosed that the principal offices of the Company and its engineering department were located on West Douglas Street, which was several block- from the plant. According to the uncontradicted and undenied testimony in the record, there were about 20 employees in the engineering department , who for the most part were classified as draftsmen . The engineering department was under the supervision of Irwin Hall, the Respondent 's chief engineer Though there was no evidence of any union activ- ity among the employees at the Respondent's West Douglas location, there was evidence adduced by the General Counsel , as to the Respondent's relations with them regarding certain matters concerning their tenure of employment at times material herein, that has some bearing on my intimate disposal of the issues herein. B. The evidence At this point I desire to point out that my findings herein are predicated upon the uncontradicted and undenied testimony of the witnesses called by the General Counsel in support of his case-in-chief. 2 See infra for further comment in this regard. 3 The delay in issuing the Decision herein has been partially due to my illness and the disposal of cases I had heard prior to the instant case. 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the record, the Union started its organizational campaign among the Respondent's employees at the Ninth Street plant on or about August 17, 1964.4 The record also shows that Union International Representative Newell R. Todd was in active charge of its organizational campaign among the Respondent's employees. He was assisted in his efforts in this regard by one Wayne King, an employee of the AFL-CIO, who was assigned to assist the Union herein in its organizational efforts among the employees we are concerned with herein. The upshot of the Union's ,efforts among the employees of the Respondent was the filing of a petition for certification of representatives on September 2; 1964, Case No. 17-RC-1964, with Region 17 in Kansas City. Missouri. In its petition the Union stated that it repre- sented "30% or more" of the 30 employees in the unit set forth below, which it contended was appropriate for the purposes of collective bargaining with the respond- ent herein: All production and maintenance employees of the Employer's plant at 853 East Ninth St. EXCLUDED all office clerical, draftsmen, professional employees and guards as defined in the Act. On September 1, 1964, the day before the Union filed its petition for certification of representatives, International Representative Newell R. Todd notified the Respond- ent of its intention in this regard in the following letter: September 1, 1964 Mr. C. A. Huggins, Vice-President Koch Engineering Company, Inc. 853 East Ninth Street Wichita, Kansas; The Oil, Chemical and Atomic Workers International Union now represents a substantial majority of the production and maintenance employees at the Company's plant at 853 East 9th St., Wichita, Kansas, exclusive of office clerical, draftsmen. professional, supervisory employees and Guards as defined in the Act. It is requested that you recognize this organization as the exclusive bargaining agent for the employees in the unit described above. May we ask that you set a date for a meeting consisting of yourself, or your representatives, myself, or my representatives and a Committee chosen by the workers in the unit for the purpose of negotiating a contract between the Union and the Company with respect to wages, hours and other conditions of employment in that unit. For your information, we are at this time filing a petition with the National Labor Relations Board requesting that there be a representation election con- ducted among the employees at this plant. I respectfully request that at the proper time we get together and enter into a consent election agreement in order to expedite the time in bringing the question of representation to a vote in this plant. Very truly yours, OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION (S) Newell R. Todd N. R. TODD International Representative 249 N. Market Street Wichita, Kansas cc N.L.R.B. Wm. Rentfro , General Counsel R. M. Bickel, Director The primary purpose for quoting the above letter is to point out that this was the first time that any union representative contacted the Respondent by letter or other- wise of its organizational efforts among the employees at the Ninth Street plant, and, as will be obvious hereinafter , explanatory of the activities of Superintendent Wright and Vice President and General Manager C . A. Huggins in their interrogation of certain employees in this regard. 4 The General Counsel in his opening statement at the outset of the hearing herein stated to the record that ". . . On or about August_ 17, 1964, union activity began with the signing of authorization cards which continued from August 17 up through Sep- tember 1 . .. . KOCH ENGENEERING COMPANY, INC. 1279 In support of his case-in-chief the General Counsel offered the testimony of 10 employees who worked at the Ninth Street plant at times material herein. A sum- mation of their testimony follows below. One of the first witnesses called by the General Counsel was Bryant E. Batman. According to Batman's credible and uncontradicted and undenied testimony, he had been in the employment of the Respondent for about 9 years, and at the time of the hearing was employed in the shipping department. In the course of his duties he is required to go in and out of Lloyd Wright's office several times a day. Some- time around August 17, 1964, when he was in the office, Wright asked him "... if a union representative had been out to my house." He told him ". . . no, and it was dropped then." This was the only time that Batman was queried by either Wright or any other representative of the Respondent. Batman also testified as to an "evaluation sheet" that the Respondent distributed among its employees in the latter part of August 1964. Since its action in this regard is one of the major issues involved in the 8(a)(3) aspect of the case-at-hand, I will refrain from further comment in this regard at this stage of my Decision, and will discuss and dispose of it hereinafter. According to William C. Brown, an employee in the machine shop, two repre- sentatives of the Union called upon him at his home sometime in August 1964. Shortly thereafter Lloyd -Wright, his supervisor, asked him if he had been contacted by the Union, and he told him "... yes twice." o Brown further testified that -Wright came to him- on another occasion and asked him if he knew anything about anybody else being approached by the Union, and that he "... told him not to my knowledge, I didn't know." 6 Since Brown's testimony regarding his interrogation by Wright is typical of that of other witnesses called by the General Counsel, who had also been queried by Wright about their relations with the Union, I feel that the following excerpts from his testimony should be inserted herein: Q. And what was it he had to say then? A. He asked me if I knew anything about anybody else being approached, and I think Dodge was mentioned. I told him not to my knowledge, I didn't know. Q. Are you and George Dodge good friends? A. I consider so. Q. How did Lloyd Wright phrase his question? A. Just in a casual manner. Q. What were his exact words? A. I can't remember his exact words. TRIAL ExA11TVER: Your best recollection as to what he said? The WITNESS: Well, the first time he came up he just kind of grinned and ,asked me if I had been approached or something like that. Q. (By Mr. BOYER.) What happened this next time? A. He seemed to be in a cheerful mood then and asked me if I knew any- thing about it. Q. What else did you say then? A. I don't- Q. (Interrupting) How did you answer him when he asked you that question' A. I just told him no, not to my knowledge. Q. Did you make any comment then' A. No, he turned around and left. Brown also testified about the "evaluation tests" conducted by the Respondent among its employees at the Ninth Street plant in the latter part of August 1964- His testimony in this regard will be considered hereinafter for the same reasons noted above in my assayance of Batman's testimony. Thomas F. Endicott, an employee of the Respondent for "around eight years," was also called as a witness by the General Counsel in support of his case-in-chief, particularly as to the alleged violations of Section 8(a)(1) of the Act by Plant Superintendent Wright. The gist of his testimony was to the effect that he too had been queried by Wright regarding the organizational activities of the Union among the employees at the Ninth Street plant. At the time he was queried by Wright he was at his working place ". . . shearing some rolls for high bars for a job.-' At the time in question, another employee, Ronny Crites, was working with him on the 6 Quotes from Brown's credible testimony. 6 Quotes from Brown's credible testimony. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same job, "two or three steps away" " on the other side of the shear. Since Endicott's testimony is likewise typical of Wright's approach to the employees at the time he interrogated them about the activities of the union organizers among the employees in the plant, I feel that it would be helpful to let the witness himself relate what transpired at the time in question. Consequently the following excerpt from Endi- cott's testimony follows below: Q. Do you recall an incident last summer when you were talked to by Lloyd Wright? A. Yes. He came up to me and he said-I was sheering some rolls for high bars for a job-he walked in through there and he said, "Have you been con- tacted?" I turned around and I said, "What do you mean `been contacted?' " He said a union man will be out to contact you if they haven't. They were trying to get the plastic factory, this place and Rock island Oil Refinery. Q. Where is this plastic factorylocated? A. Across the corner from Koch down there on 935 East Mosley. Q. What was the other company you named? A. Rock Island Oil. Q. How far is it from Koch? A. It is down in the south part of town. I couldn't tell you where it was at. Q. What did you say when he asked that question? A. I told him that I didn't know, I hadn't been contacted. Q. And who was with you at that time besides Mr. Lloyd Wright? A. Ronny Crites was just around the shear about two to three steps. Q. What is his job? A. Well, he is on the notcher right now. He has worked this place and that place, whatever place they need him. Q. Was he working with you at the time? A. He was working with me. Q. What did Mr. Wright do when he left you? A. He walked right around where Crites was picking up the bars and asked him the same thing. Q. What did Crites say? A. He said, "No I haven't been contacted at home." Endicott was also queried regarding the "Evaluation tests." His testimony in this regard will be disposed of hereinafter for the same reasons stated above in my assignment of the testimony of witnesses Batman and Brown. Cecil Poore, an employee of the Respondent in the Ninth Street plant at all times material herein, testified that Wright interrogated him on or about August 24, 1964, as to the "union activity" in the plant. His testimony in this regard was as follows: Well, I cane to work on Monday morning, approximately the 24th of August, and Mr. Lloyd Wright walked up to me and asked me if the union man had contacted me yet. I said no, I hadn't heard anything about a union. Q. Did Mr. Wright say anything else at the time? A. No. he had talked to the other fellows before he came to me, one other fellow in the department. Poore, like the witnesses referred to hereinabove also testified about the "evaluation tests" given the employees at the Ninth Street plant in August 1964. For reasons stated above his testimony in this regard will likewise be considered hereinafter in that portion of my Decision devoted to the issues raised by the 8(a)(3) allegations in the complaint. At this point I desire to point out that from the record herein, the interrogation of employees by Wright occurred sometime between August 17 and September 2, 1964. From my observation of the witnesses who testified at the hearing in this regard, I am convinced that Wright's activities in this regard had no adverse effect upon the employees in the plant insofar as their rights under the Act are concerned. My reasoning is predicated upon the testimony of those whom I queried at the hearing. A careful review of their testimony clearly shows that he made no threats of reprisal or promises of benefits or couched his interrogation in the sort of language that 7 Quotes from Endicott 's testimony. KOCH ENGINEERING COMPANY, INC. 1281 ol`ttimes accompanies such interrogation by supervisory employees in cases of this nature. Moreover, there is no evidence in the record that the Respondent had ever engaged in either antiunion conduct among its employees or that it was opposed to their engaging in activities protected by the Act. As a matter of fact the record is most barren in this regard. In other words there is no evidence in this record upon which an inference in this regard could be made for the simple reason that an irrer- ence must be predicated upon a fact, and not upon an inference ad infinitum. Conse- quently, h the absence of substantial evidence to support the General Counsel's contentions, I have no alternative but to reject his contention in this regard. The foregoing observations have been predicated upon the testimony of the wit- nesses referred to hereinabove. Since there is other testimony in this regard to be considered and appraised by me, particularly that of the discriminatees named in the complaint, I will make no findings as to the alleged independent violations of Section 8 (a) (l) of the Act at this stage of my demeanor for reasons that will be apparent hereinafter. As indicated above, Wright's interrogation of the employees as to whether or not they had been "contacted" by a representative of the Union was concluded in the same language in most instances. Though my observation in this regard has been amply illustrated above, I insert below an excerpt from the testimony of Richard L. Scofield, an employee of the Respondent for at least 31/2 years. Q. What did Mr. Wright say to you? A. He asked me if I had been approached by union men. Q. What did you say? A. I said no, at that particular time I hadn't. Q. Did he ask anything further about this union man? A. No, sir. Q. Did he mention any of the other men in the plant? A. As I recall, no. He could have mentioned about going around, but I don't recall. Q. Did he state anything about what this union man had been doing? A. No, not that I can recollect. Q. What time of day did this conversation take place? A. To be particular, I would say in the morning time, before lunch. The only witness that testified at the hearing herein as to the alleged independent violations of Section 8(a) (1) of the Act by Vice President and General Manager Clifford A. Huggins was Gary R. Brower. Brower was a student at Kansas State University, at times material herein, and he along with two other college students had been given temporary employment by the Respondent at its Ninth Street plant during their summer vacation period. According-ording to Brower, he worked for the Respondent during the summer of 1963, and from the "... last of July until about the first week in September, until 9th of September" 1964.8 On September 8, 1964, Brower went to see Huggins in his office for the purpcse of delivering and collecting for a leather belt he had made for him. While he was in the office Huggins asked him what was going on in the "shop." Since Brower's testimony, when considered in its entirety, is a bit "hazy," so to speak, I am con- vinced that it would be helpful to insert the following excerpt therefrom: Q. Will you describe the circumstances of that conversation? A. Yes, sir. I made a leather belt for Mr. Huggins, and I went to deliver it and receive payment for the belt. Q. Where was that? - A. In his office at the plant. Q. What did Mr. Huggins say to yon? A. Well, he was speaking on the phone, and he said, "Well, since you are quitting"-he asked me first when I was quitting, and I said, "Tomorrow." And he said, "Well, since tomorrow will be your last day you can tell me what is going on in the shop." And I told him that I couldn't do that. And he said, "Well, why cant you tell me?" I told him I didn't know what he wanted. He told me then I was giving him double talk, that first I said I wouldn't tell him and then I couldn't. 8 Quotes from Brower's testimony. 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you mention a Mr. Batman? A. Yes, sir. Q. What was that? A. This had to do with more or less the brown nosing or snitching in the plant. I said I felt the same as Batman, if a man came in the office telling on another, whether he is a seven-day man or seven-year man he ought to be discharged. Q. What else did you say? Did you mention your parents? A. Yes, sir. They are both union members of the AFL-CIO, at Cessna and Southwestern Bell, and they are both union members. If it weren't for them I wouldn't be attending college. TRIni. EXAMINER: Where do you go to college? The WiTNEss: Kansas State University. Q. (By Mr. BOYER.) Did anybody else come in the office? A. Mr. Lloyd Wright, the foreman of the plant. Q. What did he say? A. He came in and said, "What is he doing, crying on your shoulder?" And Cliff said, "No. First he sells me a belt and then he tells me he doesn't like me." I said I hadn't said that; I just said I didn't agree with him. After some trivial conversation about leather products Lloyd went back to the shop. Brower further testified that after Wright left the office, Huggins continued the conversation as to conditions in the plant and related the many things he had done for the employees in the past, such as 2 weeks' vacation with pay and "paid sick leave." In addition he told Brower ". . . he had met with three representatives of a union to see what they could do, as he termed it, for his men. And he said that only one of them admitted that he could do nothing for them, and he said a person is a truthful and frank person is a rare type." 9 Later on, according to Brower near the end of their conversation Huggins advised him to ". . . get a little wider between the ears and kind of look on both sides of the fence, and gave me a book, 'a Choice, not an Echo,' to read to help get a little wider between the ears." At that point in their conversation, Brower excused himself and told Huggins that he had forgotten to punch holes in the belt he sold him, and left the office to do so. On cross- examination Brower admitted that Huggins did not use the word "union" in the course of their conversation. At this point it is also to be noted that Huggins neither used the word "union" in the course of his conversation with Brower, nor made any threats of reprisal toward the employees in the plant who were interested in the Union, nor promised benefits of any kind to them if they would abandon their interests in it. For the same reasons that I have set forth hereinabove concerning independent violations of Section 8(a)(1) of the Act by Wright, I find that Huggins' remarks to Brower on the date in question, September 8, 1964, were of a like nature, in that they contained neither threats of reprisal toward either Brower or other employees in the plant nor promises of benefits of any kind to either him personally or to other employees as a consequence of the Union's recent activities among the Respondent's employees at the Ninth Street plant 1° We now come to the disposal of the issue herein regarding allegations in the com- plaint that the Respondent violated Section 8(a)(3) and (1) of the Act by dis- charging the following employees because of their membership in, adherence to, and activity on behalf of the Union: George B. Dodge, Jr., September 1; and Roy M. Atkins and Wayne R. Lockhart, September 2, 1964. The issue herein as to the foregoing has, to say the least, caused me grave concern, primarily because of the plain language of Section 10(c) of the Act, when con- sidered not only in the light of the testimony adduced at the hearing by the General Counsel in support of his case-in-chief, but his position as to the role of a Respond- ent, in the litigation of the issues raised by the pleadings in a formal hearing before a Trial Examiner conducted in accordance with the Board's Rules. I have reference to the fact that at the hearing Respondent's counsel chose to rest his case after the 0 Quoted portion from Brower's testimony. 10 See N.L .R.B. v. Council Manufacturing Corp ., 334 F. 2d 161 , 163 (C.A. 8). KOCH ENGINEERING COMPANY, INC. 1283 General Counsel had closed his case-in-chief, and stated to the record, "... the Respondent does not desire to place any evidence in the record ... other than what has already been shown." The General Counsel, in his brief, conceded that "while no Respondent is obligated to produce evidence in its own defense, its fail-are to do so must be considered. In this case, that failure indicates it had no defense." 11 Even so, the General Counsel, under Section 10(c) of the Act, must prove his case by a preponderance of the evidence adduced at the hearing. In the circumstances, I am faced with a difficult task in disposing of the issues herein, when considered in the light -of the record as a whole which in my opinion is most vague regarding the issues I am confronted with, and which should be obvious to all who may have occasion to peruse it.12 As indicated above the complaint alleges that the Respondent discharged Dodge, Atkins, and Lockhart on September 1 and 2, 1964, ". . . because of their membership in, adherence to, and activity on behalf of the Union... In such circumstances the General Counsel must sustain his position in this regard by a preponderance of the evidence in accordance with the provisions of Section 10(c) of the Act.13 `;1 4th that in mind I will first dispose of the case of Roy H. Atkins, who was discharged by the Respondent on September 2, 1964; under circumstances that will be discussed below. According to the credible testimony of Atkins, he was employed by the Respond- ent in May 1961 and worked continuously thereafter on various jobs until he was discharged on September 2, 1964. He first worked on the assembly line and on various other jobs thereafter such as "putting parts together," making setups, and as a welder's helper. On August 13, 4964, Atkins went on vacation and was away from the plant until August 27, 1964. The same day he returned to work he signed a union card. Insofar as the- record is concerned this was the only union activity that he engaged in at times material herein. In the course of his testimony he testified that the only person he talked to about the Union was one "Mr. Conkright," an inspector, who "... asked me has Lloyd been around asking me did I know anything about the Union, and I told him no." 14 Who Conkright was and what his status with the Respondent was, was not litigated at the hearing herein. Consequently, the only testimony in this regard is that of Atkins who referred to him as an "inspector." 15 In such circum- stances I am convinced and find that the individual referred to by Atkins in his testimony as "Conkright" was not a supervisory employee within the meaning of the Act. At this point I desire to point out that the foregoing constitutes a resume of Atkins' testimony regarding his "... membership in, adherence to, and activity on behalf of the Union." Moreover, there is no evidence in the record that the Respondent had any knowledge of the fact that Atkins had signed a "union card" or who gave it to him at the time in question . In such circumstances I have no alternative but to find that the Respondent was without knowledge of any union activity by Atkins at all times material herein.16 Shortly after Atkins returned to work on August 27, 1964, he, along with the other employees at the Ninth Street plant, was given an "evaluation," which, as will be shown below, was the predicate for not only his discharge, but of Lockhart and Dodge as well. For reasons which will be obvious, I will discuss and dispose of this issue below. The General Counsel 's case as to Wayne R. Lockhart, insofar as his activities for and on behalf of the Union herein, is in many respects similar to that of Atkins, in I Quotes from the General Counsel's brief, page 5. For a most cogent comment in this regard see the dissenting opinion of Prettyman, Senior C . J, Retail Store Employees Union, Local 400, Retail Clerks International Associ- ation AIL-CIO T. N.L.R.B . (Amalgamated Clothing Workers of America & Atlantic Mills Servicing Corporation of Wisconsin ), 59 LRRbi 2763 (C.A.D.C.), and cases cited therein, particularly N.L.R.B. v. Council Manufacturing Corp., 334 F . 2d 161 , 163 (C.A. 8). 18 See supra in this regard. 14 Lloyd Wright. is Quotes from Atkins' testimony. 11 See infra in re the "evaluation" program. 212-809-66-vol. 155-82 1284 DECISIONS OF NATIONAL LABOR RELATI ONS BOARD that it is most barren in this regard. As a matter of fact it is well summed up in the following excerpt from Lockhart's testimony on direct examination: Q. Have you been an employee of Koch Engineering Company? A. Yes, sir. Q. Did union activity start there any time this summer? A. Yes, sir. Q. Can you state what it was? A. Well, I don't know anything about-maybe I had better back up here a minute. Q. Did you sign a union card? A. Yes, sir. I signed a card. Q. When was that? A. I believe around the middle of August. Q. Who was your foreman? A. Lloyd Wright. Q. And did he talk to you about that time? A. Well, I think-I don't know exactly the date, but like the other boys he come up to the tool crib window where I was at and asked me if I was approached last night. I told him, "Yes, I was approached last night by a lot of people. What are you talking about?" He said, "The union representative." I told him, ' NNo", which I wasn't. Q. What other remarks did you make, if any? A. He stood there and so I figured I'd say something, so I said, "If it was a right union, it would be O.K., but it was a wrong union . I wouldn't want nothing to do with it." He said, "Well, in some cases some places a union would get you fellows more money but in here it wouldn't be to any advantage for you", he said, "everybody in here is drawing about what they should be drawing." [Emphasis supplied.; The foregoing constitues the only testimony offered by the General Counsel in support of his position as to Lockhart's activities for and on behalf of the Union. There is no evidence in the record that the Respondent had any information regard- ing Lockhart's activities , or upon which an inference might possibly be drawn that he had ever engaged in either activities on behalf of the Charging Union or in con- certed activities of any kind during his tenure of employment with the Respondent. In such circumstances I have no alternative but to find the same as to Lockhart as I did above in the case as to Atkins. At this point in my Decision I -find that-the Respondent was without knowledge of any activity by Lockhart on behalf of the Union, or that he had in the past or at any other time during his tenure of employ- -ment with it engaged in concerted activities of any kind.'-, There will be more anon as to the "evaluation" test given Lockhart and other employees in the plant-on August 27, 1964.18 There yet remains for consideration and disposition the promulgation of "evalua- tion tests" by the Respondent to assay its employees in its Ninth Street plant as to their overall qualifications and ability to perform the jobs they were assigned to at the time the tests were made, which the record indicates was on or about August 27, 1964. The charts or forms were given to each employee in the plant on that date by Huggins, who at the time informed them as to the mode and manner they were to pursue in preparing them. The record also shows that the Respondent had subjected its employees at its other plant in Wichita to similar tests in May 1964. The tests were made in the circumstances described below: Each employee was given a form to fill out which in the final analysis was his evaluation of himself as to his qualifica- tions for and the "quality" of his work on the job to which he was assigned at the time the tests were made. After the employee had completed his "self-evaluation" on his chart or form it was given to Huggins. Thereafter, he and Wright proceeded to make their evaluations of each employee. After they had completed their evaluations, the "ratings" were computed in accordance with the figures that appear on General Counsel's Exhibits Nos..5-A, B, C, 6-A, B, C. and 7-A, B, C, to which reference is hereby made. Further enlightment in this regard will be found below in a stipulation of the parties. Since the oral testimony in the record is somewhat hazy, so to speak, as 14 See infra for further comment in re Atkins and the evidence in the record offered by the General Counsel in support of his position as to violations of Section 8(a) (1) and (3). ' See supra in this regard in the case as to Atkins. KOCH ENGINEERING COMPANY, INC. 1285 to what was on the "form" or chart that the employees were to fill out, I feel that it -would be helpful to set forth below a rough draft of the form that Atkins filled out {General Counsel's Exhibit No. 7-A). ["Rating Chart'] a-Excellent -5 b-Better than average-4 c-Average -3 d-Less than average -2 e-Poor -1 Name-Melvin B. Atkins 19 Job Job rating X percent of time a b c d e Quality j 5 4 3 2 1 Layout-__ 5 Ability to supervise_ -- -- -- -- -- Inspector------------------ 5 Ability toworkwithout supervisicn_i 3 -- Operator 1_______ 5 Skili in principal job----------------- 3 Operator 2----------------I 4 Skill in other jobs__ -----------_____i -- -- -- -- -- Operator 3---------------- 3 Production ------------- -- -- 3 -- --------------- Welder ------------------ 3 5 Initiative---------------------------I - 4 -' Crane ope.ratot-driver_____ 3 5 5Dependability__----------- _________ Shipping clerk------------ 3 - I Attitude--------------------------- - - -- - 3 -- Assembler---------------- 2 i Welder------------------ - - (Note) 1.00 Helper ----i Apprentice--------------- I Operator 1-Can set up all or most machines. (Notes) 24,17=3 3 Operator 2-Can set up one machine 2 Operator 3-No set up. 33 2 65 [Above penciled notes on General Counsel's Exhibit No. 7A.] Comments I could set up most all machines in a short time. Note Multiply job rating number X fraction of time spent in that job rating for each type of work done and total products. At the hearing counsel for the parties stipulated as to certain pertinent aspects of the "evaluation" tests, which I am convinced should likewise be inserted herem for -the convenience of all concerned. TF_rnl. EXAMINER: State the stipulation, please. Mr. MARTIN: It is stipulated between the parties the evaluations were made of the employees Lockhart, Dodge, Atkins, between August the 27th and August the 31st, 1964, and that evaluations were made of employees Hulse and Bertelsen on or about May 15 to May 17, 1964, that employees Hulse and Bertelsen received evaluations below the acceptable limit prescribed by the company and were terminated on May 20, 1964, and that the instruments which werelisted as Exhibit 5-A, B, and C relate to the employee Lockhart in the following order: Exhibit 5-A is an evaluation sheet filled out by Mr. Lockhart between August, 27th and August 31st, 1964. Exhibit 5-B is an evaluation of Mr_ Lockhart by Mr. Clifford Huggins, vice president and general manager in charge of production, on or about August 27, 1964. y - Exhibit 5-C is an evaluation of Mr. Lockhart by Mr. Lloyd Wright, plant foreman, on•or about August 27, 1964. 19 The record refers to a "machine" that computed the "evaluations", what it was, who •operated it, and other pertinent information in this regard is none too clear in the record. 'Consequently, I will refrain from further comment in this regard. 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Exhibit 6-A through 6-C are the same information made at the same dates as those listed for 5-A, B, and C, except they pertain to the employee George Dodge, and Exhibit 7-A through C is the same information as 5 and 6 and made out at the same dates as 5 and 6 except it relates to the employee Atkins. Mr. BoYER: So stipulated. On the morning of September 2, 1964, Huggins requested Atkins and Lockhart to come to his office under the following circumstances . Since what transpired at the time in question is of considerable importance , I feel that it is best told in the follow- ing excerpt from Atkins ' testimony m this regard: Q. You said you were terminated on September 2. Tell us what happened on that day. A. O.K., sir. Around 7.45 on the morning of September 2 I went back and started to work at 7:30 and Mr. Huggins came down toward where I was at. He done like that , (indicating ), and he said , "Roy, come here ." I walked up to him and he said , "I want to see you in the office right away ." He spoke to Mr. Lock- hart and he said, "You, too, Wayne , come go with us. " We walked into his office and he said, "Shut the door ." Wayne or I didn't shut the door and he came around behind me and shut the door. He said, "Boys, I have something for you I didn't like to do, but 1 have got to do it." He handed me two checks , a payroll check and an insurance check. Q. What did the payroll check have on it? A. Terminated . I looked at it. I said, "Mr. Huggins, can you give me a reason why I was discharged?" He said, "Weil , Roy, you have made out a grade sheet and I and Mr. Wright had made out one on each employee and your grade sheet didn't come up to par on the machine that graded it." Q. On the what? A. The machine that graded the paper. Q. Did he explain that? A. He didn't say anything what kind of machine or what it was. He said it was a machine. Q. Did he say how he had graded you on it? A. He didn't say. He said he graded each employee. Q. And he just said that it was graded by a machine? A. Yes, sir. Q. And that you did not pass? A. I did not pass the grade. Lockhart 's testimony concerning what transpired while they were in Huggins ' office is practically the same as Atkins'. After they had been discharged they asked Huggins for permission to go Koch 's office and discuss with him the reason for their discharge. Huggins told them it was agreeable to him for them to do so . Shortly thereafter Lockhart, Atkins, and Dodge went over to the Respondent's main office on West Douglas Street and met with Koch . What transpired during the course of their meet- ing with Koch will be discussed herein below: What transpired in Koch's office is likewise best told in the language of Atkins who, as pointed out above, was not only present but an active participant in the colloquy that occurred at the time. Moreover, others who were likewise present, such as Lockhart , testified to the effect that his version of what was said and transpired at the time was an accurate account thereof. For these reasons I insert below the following excerpt from his testimony in this regard. Q. What did you do_? A. About 11 : 30 myself, Mr. Lockhart and Mr. Dodge , all three, went to Mr. Koch's office on West Douglas and talked to him and Mr. Huggins was there. Q. What did you say? A. I said, "Mr. Koch, I would like to have a reason to-to know the reason why I was discharged." Q. What did he say? A. Mr. Koch said , he said, "Well, your grade sheet didn't come up to par." That's the words he said. Q. Did you ask him anything else? A. I asked him, I said, "Well, I can't understand . I have been doing the same work for over two years as a welder's helper and my jobs, the jobs that I had put out wasn't never turned down or the company would never have to send nobody out on them, as far as my part of the work." - Q. Did you ask if your work had been satisfactory? A. I said, "Has my work been satisfactory?" KOCH ENGINEERING COMPANY, INC. 1287 Q. What did he say? A. He said, "Yes, your work has been satisfactory." Q. What did you say about the material? A. I told him, "I tried my best to take care of your material and property." Q. What did Huggins have to say? A. He said, "Yes, Roy, you worked hard and made a thorough employee." Q. Did he say anything else? A. He said he would give me a recommendation for a job anywhere that he could contact them. I said, "Well, I would like to have a recommendation." I asked him three times that morning and he would always turn off on something else. Q. Did he ever give you a recommendation? A. No, sir. At this point I reiterate the observation I made above to the effect that the record herein is most barren as to not only the activities of Akins and Lockhart on behalf of the Union among their coworkers, but evidence that the Respondent had any knowl- edge thereof either through its supervisors, Huggins and Wright, or from information given it by employees in the plant, particularly during the Union's organizational activities that started around August 17, 1964. The primary purpose of my observa- tion in this regard is to again point out what I have been faced with "evidentiary wise" in disposing of the issue concerning the alleged discriminatory discharges of both Atkins and Lockhart, which I must decide upon the evidence considered in the light of the record as a whole, not by a lifting out of context of certain testimony in the record nor by suspicion and prediction of facts upon inference upon inference ad infinitum. With the foregoing in mind, I will now insert below the following excerpt from Atkins' testimony on both cross-examination and redirect, which in my opinion amply illustrates the dilemma that I and other triers of facts are faced with in assaying the testimony and resolving the issues in cases of this nature: CROSS-EXAMINATION Q. Mr. Atkins you did not attend any union meeting for this union, did you, before your discharge? A. No, sir. Q. Didn't engage in any unusual union activity for them? A. No, sir, not on company time, it was never mentioned to me in the com- pany buildings. Mr. MARTIN: I don't have any other questions. REDIRECT EXAMINATION Q. (By Mr. BOYER.) You did sign a union card? A. I sure did, sir. - Q. But you were on your vacation? A. I was on my vacation. Q. While this question was going on? A. Yes, sir. TRIAL EXAMINER: You weren't even in the plant? The WITNESS: When all this activity was going on I was out there catching the fish. TRIAL ExAMINER: Your only union activity was the signing of the union card? The WITNESS: That is right, sir. Mr. BoYER: No further questions. Lockhart's testimony, in the main, corroborated that of Atkins as to what transpired in Koch's office on September 2, 1964. In addition he testified to matters that were discussed concerning him personally, such as Respondent's reasons for discharging him, which as indicated above was the primary reason that he, Atkins, and Dodge were given permission by Huggins to go to Koch's office after they had been dis- charged. Lockhart's version of what transpired was about the same as Atkins', except regarding certain reasons advanced by Koch and Huggins as to him personally. In such circumstances I feel that the following excerpt from Lockhart's testimony would likewise be helpful to all concerned. Q. If it wasn't your work you were being laid off for, what was the reason? A. Further on after George and Mr. Atkins and I went down to Charley Koch's office we went in there and- asked very much the same question that Atkins wanted to know of Huggins. Charley Koch-and I was addressing myself to Charley Koch, and he said, well, he had evaluation sheets there if I 1288 DECISIONS OF NATIONAL LABOR RELATION S BOARD wanted to go into it. I told him, "Yes, I wanted to know." Before he had a chance to answer Huggins spoke up and he said, he said, "you know I come down there on Saturday and I look all around and ask where is Lockhart, and Lockhart is no where around." So Charley Koch went ahead and started' answering the question for me. He said he would fire any of his office employ- ees if they wouldn't work on Saturday with the rest of the employees. Q. Had they ever asked you to work on Saturday? A. Yes, sir, one time. Q. Did you work that time? A. Yes, sir. I worked over hours to do it. Q. Had they ever spoken to you about not working on Saturday? A. No, sir. For five years or better I worked there, there was never a thing- said to me except one time and I did work that one time. The gist of Lockhart's testimony was to the effect that he was discharged because his "evaluation rating" was below the standard set by the Respondent as qualifying an employee to remain in its services. In addition, he further testified that Koch also told him that another reason was his attitude toward his job, which had been considered in his overall rating, which, as indicated above, was below the standard` set by the Respondent to "qualify" an employee for retention in its services. In addition Lockhart also testified that though Huggins had promised to give him recommendations for employment elsewhere, he told him that ". . . I wasn't sure I should have a reference from them because maybe it would be something that would- be against me instead of for me as matters had turned out." According to Lockhart he ". . . accepted Charley Koch's deal "concerning the reason for his discharge and told that "... if that is your reason, that is good enough for me." Shortly after he made the above statement to Koch, he and the other discharged employees started to leave Koch's office. As they reached the door, Koch stopped them and took Dodge aside for reasons that will be discussed below. He and Atkins then left the office. The reason that Koch took Dodge aside, so to speak when Lockhart and Atkins started to leave his office was because he wished to discuss certain matters with him as to the reasons for his discharge. My observation is predicated on Lockhart's testimony that Koch told them in the course of tae meeting in his office that Dodge was terminated for "entirely different ..." reasons than he and Atkins. The issue as to Dodge will be disposed of below. - Conclusionary Findings as to Atkins and Lockhart As pointed out above. I granted the Respondent's motion tc dismiss the allegations in Vie complaint as to the alleged discriminatory discharges of Atkins and Lockhart. at the close of the General Counsel's case-in-chief, on the grounds that he had failed to sustain his position as to this issue by 'a "preponderance" of the evidence as required by Section 10(c) of the Act. The General Counsel took except to my ruling. In the circumstances I have reconsidered my ruling at the hearing and at this point, for reasons which should be apparent to all concerned, reaffirmed . ry origi- nal ruling as to both Atkins and Lockhart, and for the same reasons I stated on the record at the hearing hereby recommend that the allegations in the complaint as to the alleged discriminatory discharges of Atkins and Lockhart be dismissed in their entirety for the reasons that the record does not support the General Counsel's contention in this regard I have carefully considered the record herein and have set forth above resumes and excerpts therefrom that I consider of importance to any disposition of 'he issues herein., as to the 8(a)(13) and (1) allegations in the complaint. For that reason I see no necessity for reiterating my observations and findings as to the activities of either Atkins or Lockhart. In my opinion there -is no substantial evidence in the record to support the General Counsel's position as to either their activities on behalf of the Union or that the Respondent had reasons to believe that they had been so engaged either by way of "rumors," hearsay, or any other conceivable means of communication. In other words the record is barren in this regard as far as i am concerned, or to put my assayance of the test_mony offered by the General Counsel in support of my position as to Atkins and Lockhart in the language of a naivete in legalistic jargon, there is nothing "to hang your hat on" to justify a finding of either 8(a)(1) or 8(a)(3) violations of the Act either as to Atkins and Lockhart or the alleged independent violations by the Respondent of 8(a) (1) of the Act. In all the circumstances discussed, described, and found above, at this point I will not only KOCH ENGINEERING COMPANY, INC. 1289 recommend the dismissal of the complaint as to Atkins and Lockhart but also as to the allegation in the complaint as to independent violations of Section 8(a)(1) of the Act. The case as to Dodge will be disposed of below.in As pointed out above, in my resume of the testimony of Atkins and Lockhart as to what transpired in Koch's office on the morning of September 2, 1964, George B. Dodge, Jr., accompanied them to the office and was with them throughout the meet- ing with Koch. In addition they both testified that Koch told them at the meeting that Dodge was discharged for a different reason than they were. They further tes- tified that when they were leaving the office Dodge was with them, and that Koch requested Dodge to remain and at the same time "escorted" him away from them as they went out the door. What transpired thereafter will be disposed of belo`v. According to Dodge he went to work for the Respondent on June 10, 1958. During his tenure of employment he was a punch press operator. His immediate superior at all times material herein was Lloyd Wright. At the time he applied for a job with the Respondent he was interviewed by Huggins. During the course of the interview, Huggins asked him what he thought of unions. and he told him "... I never worked for a union before and I just didn't know." Huggins then told him that "... they had a smooth running organization there and he didn't feel they needed a union." 21 At the time Dodge did not belong to any union. According to Dodge's credible testimony he signed a union card on August 17, 1964. After he signed a card he talked with two other employees in the plant, Dick Scofield and Jim Rogers. Since his testimony in this regard is the only reference to his activities for and on behalf of the Union in the record, I feel that it should be inserted below. Q. Whom did you contact? A. I talked to Dick Scofield first. During coffee break I asked him how he felt about it and he said he was all for it. I told him that there is a good pos- sibility there would be a couple of men out to see him about the Union. And also I talked to Jim Rogers a few days later, to see how he felt about a union coming in again or trying to get in again. It is to be noted that Dick Scofield, who likewise testified at the hearing herein, was one of the employees Dodge talked to. An examination of Scoield's testimony shows that he was not queried by the General Counsel in this regard. The only reference to Dodge in his testimony was to the effect that they worked next to each other in the plant and that he operated the punch press that Dodge was assigned to "off and on ...' as, for example, when Dodge was on vacation, which the record shows was from August 24 to 31, 196=. Scofield further testified that when Lloyd Wright asked him if he had been contacted by representatives of the Union, Dodge was on vacation, and that Wright made no reference to bins in the course of their conversation.22 At this point it should be pointed out that the foregoing is the only testimony in the record concerning Dodge's activities for and on behalf of the Union-23 Dodge's testimony as to what transpired after he returned to work on August 31, 196A, will be discussed and disposed of below. The purpose of this observation is to point out that while Dodge was on vacation from August 24 to 31. 1964, the union activities among the Respondent's employees was at its "peak," so to speak There is another facet of the case as to Dodge that has been most disturbing to me insofar as his alleged activities for and on behalf of the Union among the employees in the plant is concerned. I have reference to the fact that the General Counsel, in support of his case-in-chief, presented nine witnesses who were working in the plant and were interrogated in regard to what transpired during the Union's organizational efforts among the employees in the unit, that none of them were queried as to Dodge's activities. Consequently, the only testimony in this regard is that of Dodge himself, which I commented upon above, and will not reiterate at this stage of my Decision. Suffice it to say at this point that Dodge's testimony was not only most meager in this regard, but of little if any value to the issues herein as to him. w For citations of eases in support of the findings see supra in re the Council Menu fae- turing_ Corp., 334 F. 2d 161. 1163 (C.A. 8), and infra for excerpts from the syllabus thereof. 21 Quotes from Dodge's credible testimony. 22 See supra in re rdsumd of Scofield's testimony at the hearing herein. 28 See infra for further comment in this regard. 1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As pointed out above Dodge was requested by Koch to remain in his office after Atkins and Lockhart left the meeting referred to above. Suffice it to say at this point that the meeting in question was on September 2, 1964, and was held at the request of Atkins, Lockhart, and Dodge for the purpose of discussing the reasons for their discharge by the Respondent. Before I get into what transpired at the meeting between Dodge and Koch at the time in question, September 2, 1964, Dodge was not discharged because his rating on the "evaluation" chart was below standard, but for other reasons which will be discussed and disposed of hereinafter. The reason for the Respondent's discharge of Dodge is best told in his own tes- timony on direct examination as to what Koch told him, after Atkins and Lockhart left the meeting in his office on September 2, 1964. In the circumstances, the excerpt therefrom follows: Q. State what happened there and who else was there? A. Mr. Huggins was there and Mr. Koch and the three of us went in and we was wanting to know why we were discharged and I asked Mr. Koch why and he told me the reason for my discharge was entirely different from these other boys, and he more or less left me out of the conversation at that time while he was talking to Wayne and Roy. But then, when the conversation was over, the three of us got up to leave, if I am not mistaken I believe Wayne shook hands with Mr. Koch and Roy shook hands with Mr. Koch second and started through the door, I shook hands with Mr. Koch thirdly and never got to the door and he closed the door. He said, "We will talk to you about your discharge," he said, "he won't tolerate threats or violence among his employees." That was quite a shock. And I asked him who I had threatened-I didn't even think to ask what I had threatened anybody about-and he said, "I won't tell you." I told him even in court of law you get to face your accusers, and he told me not always. He said, "What would you have done in our case?" I told him, "Well, I would have at least asked me if I had threatened someone." He told me if they made a mistake they were sorry but they couldn't look back, they had to look forward. He wanted to know what went on in 1WMMr. Huffins' office, the day before. So I proceeded to tell him, I asked him why I was being discharged. was it because of my work, and I said then, when I got unsatisfactory answers of them, I asked if it was over union activities. He said Cliff said you came in my office like the union was the first thing on my mind. I said, "No, sir, that is not the way it happened, and I related how it happened, and Mr. Huggins said that was the way it hapened, and Mr. Koch wanted to know why anyone would lie about me and I told him I didn't know. And he said, "What makes you think that your union activities have anything to do with your being terminated?" So I told him if my grade sheet was all right, Mr. Huggins and Mr. Wright gave me good grades on it, if my work was entirely satisfactory, what other reason could there be besides union activity. He told me that wasn't the reason because to discharge somebody because of union activities was against the law. And that is about the whole conversation. Conclusionary Findings as to the Discharge of George B. Dodge, Jr. After long and careful consideration, I am convinced and find that the General Coun- sel's case as to George B. Dodge, Jr., should likewise be dismissed for the same reasons found above as to Atkins and Lockhart, to wit, that he has failed to show by a preponderance of the evidence, as required by Section 10(c) of the Act, that Dodge was discriminately discharged for his alleged activities for and on behalf of the Union, in violation of Section S (a) (3) and (1) of the Act. Though I have commented at considerable length above as to Section 10(c) of the Act, and in particular as to its requirement that there must be a preponderance of the evidence to support a finding of violations of the Act, I honestly feel that it would be beneficial to insert below the following excerpt from the dissenting opinion of Judge Prettyman, Senior Judge, in the recent opinion of the United States Circuit Court of Appeals for the District of Columbia, No. 19051, accorded July 13, 1965, Retail Store Employees Union, Local 400, et al. v. N.L.R.B.,24 which I consider not not applicable to the case-at-hand, but to -all cases where a trier of facts is faced with factual situations similar to those herein. Though I realize that this insertion 24 See supra. KOCH ENGINEERING COMIPANY, INC. 1291 unquestionably will emburden this already too-lengthy Decision, nevertheless I feel that the reasoning of Judge Prettyman is well worth it, and will be beneficial to all concerned herein: The statute here involved puts the duty of finding the facts and making the decision on the Board. We have twice pointed this out recently. Section 10(f) specifically makes the findings of the Board, if supported, etc., conclusive. It does not refer to the findings of the examiner. I, for one, think a vast improve- ment would be wrought in the federal adjudicative process if the role of the examiner were changed, but that is another matter and is for the Congress, not for the courts. The Board notably quoted the requirement of the statute (Sec. 10(f) ), "on the record considered as a whole." The expression means that all the evidence must be taken into account, the evidence which is pro as well as that which is con, all the conflicting elements of evidence, not just the evidence tending in one direction. Our petitioner notably relies upon a few selected facts. And the Board emphasized, by quoting, the requirement of the statute that there must be a preponderance of the evidence to support a finding of violation of the statute. The provision is in Section 10(c). It says that, if the Board shall not be of opinion, upon a preponderance of the evidence on the record as a whole, that there has been a violation of the law, it shall dismiss the complaint. While the statute is precise and clear in this mandate, that if the Board fails to ,find a violation by a clear preponderance it roust dismiss (and contains an equally clear provision concerning a preponderance to the contrary), it makes no simi- lar specific provision as to what happens if there be no preponderance of evi- dence one way or the other. That eventuality, like many similar eventualities elsewhere in the law, is left for disposition according to the rule as to the bur- den of proof. In Labor Board cases that burden is upon the General Counsel, technically the complainant.6 That is precisely where the Board put the case now before us. It found no preponderance of proof of a conspiracy; in other words, there was a failure of proof in that respect; so it dismissed. [Emphasis supplied.] 6 NLRB v. Council Manufacturing Corporation,... 334 F. 2,11 161; 163 (8th Cir 1964) : NLRB v. International Bro. of Elec. M s. Local U. 340,... 301 F 2d 824, 827 (9th Cir. 1962). On passing, I point out that both the Board and the courts have held in many cases, too numerous to cite herein. ad infinitum that an employer has the right to discharge an employee for any reason or for no reason at all, under the Act, provid- ing it was not motivated because of the employee's activities for and on behalf of a labor organization So is it here. ,Another factor that I was faced with herein in soy valuation of the General Co- - sel's case was the lack of substantial evidence as to the Respondent's animosity toward the Union. The record herein is most barren in this regard. For example, one of the incidents that I offered in support of this facet of the case was Dodge's testimony to the effect that Huggins asked what he thought about unions at the time he was hired by the Respondent on June 10, 1958, a little over 6 years ago. Another incident is found in the testimony of Lockhart regarding his conversation with Wright which has been set forth hereinabove. The critic_sm of unions came from Lockhart himself and in language that invited comment from Wright, which contained no threats of reprisal or other phrases that some might deem violative of Section 8(a)(1) of the Act. In such circumstances and for reasons set forth above, and after long and careful consideration, I have no alternative but to recommend the dismissal of this independent allegation in the complaint in tcto, which I did above in the section of my Decision devoted thereto.25 Finally, for reasons discussed, described, and found above, I recommend that the complaint herein be dismissed in its entirety. CONCLUSIONS OF LAw 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondent is engaged in commerce within the meaning of the Act. 25 See the syllabus as set forth in 56 LRRM 2241 in re Bonnie Bourne, d/b/a Bourne Co. v. N.L.R.B., 332 F. 2d 47 (C.A. 2), enfg as modified, 144 NLRB 805. 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The Respondent did not violate Section 8(a) (3) of the Act as alleged in the complaint. 4. The Respondent did not violate Section 8 (a) (1) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that the complaint herein be dismissed in its entirety. Leeds and Northrup Company and Leeds and Northrup Em- ployees' Union . Case No. 4-CA-3335. December 2, 1965 DECISION AND ORDER On e lay if, 1965, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled case, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set. forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed except-ions to the Trial Examiner's Deci- sion and supporting briefs, and the Respondent filed briefs in support of the Trial Examiner's Decision. The National Labor Relations 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 and the entire record in this case, including the exceptions and briefs, and hereby adopts the conclusions and recommendations of the Trial Examiner for the reasons herein set forth. The Trial Examiner concluded that the Respondent did not violate Section 8(a) (1) of the Act by offering and providing to employee union members the services of company counsel without cost to the employees, and by payment of other legal expenses incurred in resist- ing the Union's court action to collect fines -imposed by the Union for crossing its picket line. - nder the circumstances of this case, we agree. As set forth more fully in the Trial Examiner's Decision, the relevant events which occurred during an 18-month period are largely undis- puted. The background facts show that on November 28, 1962, the employees of the Respondent Company went out on strike. Of the 2,092 employees in the unit, 50 union members did not participate in the strike. Early in January 1963 after the strike ended, the Union announced that those employees who had crossed the picket line would be charged with violating the Union's bylaws and tried before its '. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three- member panel [Members Fanning, Brown , and Jenkins]. 155 NLRB No. 125.