Wendt-Sonis Co.

National Labor Relations Board - Board DecisionsSep 25, 1962

138 N.L.R.B. 855 (N.L.R.B. 1962)

WENDT-SONIS COMPANY 855 Wendt-Sonis Company and United Steelworkers of America, AFL-CIO. Cases Nos. 26-CA-1199 and f6-CA-1199-2. Septem- ber 25, 1962 DECISION AND ORDER On June 1, 1962, Trial Examiner James V. Constantine issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed as to such allegations. Thereafter, the Gen- eral Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs, and the Charging Party filed exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this proceeding, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations with the following additions, modi- fications, and exceptions.' 1. The Trial Examiner found that the Respondent coercively inter- rogated employees concerning union membership and activity, and threatened employees with discharge if they became or remained union members, in violation of Section 8 (a) (1) of the Act. We adopt these findings, except as indicated below : (a) We agree with the finding in the Intermediate Report that Superintendent West's statement to employee Fitzhugh, that there al- ways existed a nonunion reason for discharging a man engaged in union activity, was an unlawful threat. We do not, however, adopt the Trial Examiner's comment about whether such statements would be violations if isolated, as they were not, in fact, isolated. (b) The Trial Examiner found that Plant Superintendent West asked employee Sandlin, on December 10 or 11, 1961, what he thought about the Union, and whether he thought it would "go over" in the plant. The Trial Examiner concluded that this was not unlawful i The Intermediate Report states that Bush acts as the Respondent's plant super- intendent in the absence of Plant Superintendent West. The record indicates that Bush was a leadman who, although a supervisor within the meaning of the Act, does not serve as an acting superintendent. The Intermediate Report is corrected accordingly. 138 NLRB No. 102. 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interrogation because West and Sandlin often talked about the Union. This interrogation, however, occurred after West had discriminatorily discharged two employees and had engaged in other conduct viola- tive of the Act. Moreover, prior to the conversation here in ques- tion, West had made clear to Sandlin his opposition to concerted em- ployee activity. When a petition for a wage increase was circulated among the employees in July 1961, West told Sandlin, as Sandlin testi- fied and the Trial Examiner found, that "he [West] didn't like it be- cause we did it behind his back . . . [and] anybody wasn't satisfied with what they were making had the privilege of punching the clock...." Accordingly, we find that West's interrogation of Sand- lin, in the light of the Respondent's other antiunion conduct, was violative of Section 8 (a) (1) of the Act .2 (c) We agree with the Trial Examiner that Supervisor Hall's state- ments to employee Sandlin were noncoercive expressions of personal opinion. We adopt his recommendation, therefore, that the Section 8 (a) (1) allegation based thereon be dismissed. We do not, how- ever, rely in this regard on his characterization of Hall as "a minor supervisor." 2. We agree with the Trial Examiner that James Hollis was dis- charged by Plant Superintendent West on July 24,1961, because Hollis had originated, prepared, and circulated a petition seeking a wage increase, which was signed by 32 of the 35 employees at work that day.' As this conduct of Hollis was a protected concerted activity, his discharge therefor violated Section 8(a) (1) of the Act. 3. The Trial Examiner found that employee Walker, who was al- legedly discharged for signing the wage increase petition, was not discharged but quit his job. We do not agree. Walker had been employed for only 2 weeks when the petition was circulated, and had been told, when hired, not to expect a wage increase for at least 3 months. The record establishes that, on July 24, Superintendent West interrogated a number of employees about signing the petition, dis- criminatorily discharged Hollis for his activity in regard to the peti- tion, and expressed to a number of employees his anger and resentment because of the petition. It is apparent, from the entire record, that he was particularly resentful that Walker, a new employee, had signed such a petition. Walker was reminded by West that he had been a Blue Flash Empress, Inc , 109 NLRB 591. a West had returned to the plant on July 24 during his tour of duty at guard camp. He claimed that he had returned to see his stepmother who was leaving town, not his mother-in-law as the Intermediate Report inadvertently states While we do not accept the Trial Examiner 's findings that West returned from camp for the purpose of discover- ing the instigator of the petition and to crush this movement , we deem it significant, as the Trial Examiner also did, that West spent virtually the entire day at the plant, much of it interrogating employees about the petition . We make no unfair labor practice finding based on such interrogation as the complaint does not include any allegation with respect thereto, and no exception has been taken to the Trial Examiner 's failure to find such conduct to be a violation. WENDT-SONIS COMPANY 857 informed that he had to wait 3 months for a raise ; he was also told that if he wanted a raise sooner he should have asked West. At the end of the discussion, West asked if Walker "didn't think it would be a good idea to hit the clock." Walked replied, "I guess so," punched the time- clock, and left. The Trial Examiner concluded that West's remark was not a dis- charge because West had made a similar remark about hitting the clock to two other employees who were not terminated. In these other instances, however, West had immediately followed this remark with an ameliorative statement. Thus, in one instance, he added that after the summer was over he would try to obtain a raise for the employee involved, and, in the second, he added that the employee involved should return to work. There was no such qualifying statement by West to Walker. We are convinced that West's statement about "hitting the clock," in the context of his angry remarks about the petition, was intended by West, and understood by Walker, to mean that Walker was termi- nated because he had signed the petition. His termination was there- fore a violation of Section 8(a) (1) of the Act. Even if Walker had quit his job, however, we would find, under all the circumstances, that it was a constructive discharge. Moreover, we note the testimony of employee Smith, credited by the Trial Examiner, that West told him that he, West, had "laid off two men, one of whom was Hollis, for passing out a petition for a nickel raise." We are satisfied, from the entire record, that the second of these two men was Walker, and that his termination, whether an actual or constructive discharge or a layoff, was a violation of Section 8 (a) (1) of the Act. 4. We agree with the Trial Examiner that the Respondent dis- charged employee Mayfield on December 8, 1961, because of his union activities, in violation of Section 8(a) (3) of the Act. In addition to the testimony of employee Fitzhugh on which the Trial Examiner relied to show the Respondent's knowledge of Mayfield's union organ- izing activities, we note that Mayfield, on December 7, the day before his discharge, gave Supervisor Hall a card and asked him to join the Union. Moreover, shortly after Mayfield's discharge, Supervisor Coonfield told employee Shipman, as the Trial Examiner found, that "everybody knows danged well they [Mayfield and Samuel] got fired over bringing the union cards in here and trying to get them signed." 4 & At the time of his discharge , Mayfield accused West of discharging him for union activities . West denied this , and said the discharge was for not doing enough work. Both Mayfield and West called others over to hear this colloquy . Finally, Mayfield asserted that West had no right to discharge him for union activities , whereupon West retorted , as the Trial Examiner found , "Yes, I do . . you are fired " We do not agree with the Trial Examiner that West thereby told Mayfield in the presence of others that West could discharge him for union activity. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. We also agree with the Trial Examiner that the Respondent dis- charged employee Samuel on December 8 because of his union activi- ties, in violation of Section 8 (a) (3) of the Act. As the Trial Examiner pointed out, Samuel, who was discharged by West about 10 minutes before his 4 p.m. quitting time, was given his paycheck about 11:30 that morning by West without any indication that Samuel was about to be discharged. The Respondent maintains that West did not dis- charge Samuel at 11:30 because it would have disrupted production and impaired the efficiency of other employees. While it is arguable, as the Trial Examiner found, that if the Respondent had decided to discharge Samuel for cause that afternoon, West would have notified him of it when he gave Samuel his pay in the morning, we do not rely on this as an operative factor in Samuel's discharge. For, in any event, we agree with the Trial Examiner's finding that Samuel was discriminatorily discharged in view of all the circumstances, includ- ing particularly West's knowledge that Samuel vigorously espoused the Union, West's union animus, Samuel's precipitate discharge the day after he distributed union cards, and the lack of convincing evi- dence that the discharge was caused by Samuel's unsatisfactory work. 6. The Trial Examiner rejected the General Counsel's contention that any backpay awarded should include the payment of interest at the rate of 6 percent. In accord with Isis Plumbing dl Heating Co., 138 NLRB 716, however, the backpay obligation of the Respond- ent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in the Isis case.' ORDER The Board adopts the Recommended Order of the Trial Examiner with the following modification : Amend paragraph numbered 2(a) to include the name of Walker following that of Hollis.", 5 Member Leedom , consistent with dissent in the Isis case, would not grant (3 -percent interest. 6 The "Notice to All Employees " appended to the Intermediate Report is amended by adding the name Edwin O'Neal walker after that of Tames Perry Hollis, in the paragraph providing that certain named employees will be reinstated and made whole INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by United Steelworkers of America , AFL-CIO, on December 26, 1961, and January 23, 1962, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Twenty-sixth Region (Memphis, Ten- nessee), issued his consolidated complaint, dated F; hruary 16, 1962, against Wendt- Sonis Company, herein called the Respondent or the Company. In substance the complaint alleges that Respondent had engaged in and was engaging in conduct condemned by Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act, and that such conduct affected and was affecting commerce within the meaning of Section 2,(6) and ( 7) of the Act . Respondent 's answer as amended at the trial , while admitting certain facts , denies committing any unfair labor practices. WENDT-SONIS COMPANY 859 Pursuant to due notice, a hearing was held before Trial Examiner James V. Con- stantine at Fayetteville, Arkansas, on April 10 and 11, 1962. All parties were repre- sented at and participated in the hearing and were given and accepted an opportunity to present evidence, to examine and cross-examine witnesses, to offer oral argu- ment, and to file briefs. Oral argument was waived by all parties. Briefs have been received from all parties. At the hearing, Respondent moved to dismiss (1) paragraphs 9 to 18, both in- clusive, of the complaint, and (2) the complaint in its entirety. Both motions were denied Upon the entire record in this case, including the stipulations of the parties and the admissions in the answer, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Missouri corporation, is engaged at Hannibal, Missouri, and Rogers and Bentonville, Arkansas, in the manufacture of carbide and carbide tipped cutting tools. During the year preceding February 16, 1962 (the date of the complaint), Respondent manufactured, sold, and distributed from its three plants finished prod- ucts valued in excess of $50,000 directly to States other than Arkansas and Missouri. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will fulfill the purposes of the Act to assert jurisdic- tion over the Respondent in this proceeding. Only the Bentonville operations are involved herein. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The findings made in this section reflect admissions in the answer, stipulations of the parties, such of the evidence as was not contradicted, and credited evidence in those instances where the evidence was conflicting. In general, I have not set out the evidence where I have made findings based upon credibility, although in a few instances I have done so. Evidence consonant with these findings has been credited; evidence inconsistent therewith has not been credited. In some instances I have credited in part and rejected in part the testimony of a witness. A. The discharge of James Perry Hollis 1. The testimony of Hollis James Hollis was employed by Respondent from September 1959 to July 24, 1961, as a grinder. In June 1961, Hollis had told Plant Superintendent Don West that he might leave to go into the garage business. West discouraged this by telling Hollis that he was "a good hand," that he hated to lose him, and that if he stayed with the Company he "stood to work into a good position." West added that if Hollis did enter business he could return at any time to the Company where he could "always have a job there." Two or three weeks later, Hollis told West he had changed his mind and would remain with the Company; West was glad to hear it. On July 21, 1961, shortly after he saw a notice on the bulletin board informing employees that the Company was changing its workweek, Hollis discussed a "peti- tion" with a few employees. He then drew up a petition which read: "We the em- ployees of Wendt-Sonis signed below hereby ask for a five-cents raise per hour for every man in the plant. Effective July 31, 1961." On Friday, July 21, 1961, while talking to Durward Hall, a supervisor who later signed the petition, about the notice on the bulletin board, Dale Buttram, another supervisor, came over and told them to forget the notice.' Buttram stated that he had just been instructed by Respondent's "Rogers plant" to this effect. Thereafter Hollis circulated the petition among the employees for their signature. It was signed by 31 employees in addition to Hollis. Then the latter showed it to Supervisor Buttram, so that Buttram would know about it before it was sent to Respondent's officials at Hannibal. Buttram requested that Hollis withhold mailing of the petition ' It is admitted that on that day Buttram was In charge of the plant in the absence of Plant Superintendent West who was on duty at a National Guard camp. I find that Hall and Buttram are supervisors as defined by Section 2(11) of the Act 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD until the following Monday because Vice President Del Rhino was out of town and would not return until then. Buttram added that he would like to talk to Del Rhino to try to obtain a wage increase for the men without the necessity of the petition. After talking over this request with some of the signers of the petition, Hollis agreed not to submit the petition until Monday. This was on Friday, July 21. On the next day, Saturday, Hollis asked Buttram whether the latter had been able to get in touch with Del Rhino. Buttram replied that he had not. On the following Monday, July 24, when Hollis reiterated this inquiry, Buttram replied that "Del Rhino said that the Company didn't honor a petition of any kind." 2 In the morning of July 24, Don West, Respondent's plant superintendent at Benton- ville and a supervisor as defined by Section 2(11) of the Act, called Hollis to his desk, and elicited from the latter that he had passed around the petition. Upon learning this, West replied that he already knew it and that "this messed up some of the guys good." West then asked why Hollis drew up the petition, and Hollis replied that "some men" felt they deserved a raise in pay. Shortly after the above conversation, Supervisor Buttram asked Hollis to show the petition to West, but Hollis refused. That afternoon West came to Hollis' machine and told him that he felt that Hollis was dissatisfied and that he would be better off "somewhere else," and that "if we parted company right now didn't I [Hollis] think it was best too." After a long conversation, during which West repeatedly stated he "thought it would be best if we parted company," Hollis made clear that he was not dissatisfied and that he would not quit. West then threatened Hollis with discharge, telling Hollis that (1) firing him would deprive him of drawing unemployment compensation benefits, and (2) quitting was the only way to obtain such payments. Faced with this alternative of being discharged or losing unemployment benefits, Hollis agreed to quit. West assured Hollis, however, that he was a good worker and he hated to lose him, and that he would aid him in finding a job with any other em- ployer. West actually told Hollis to call a certain official he knew, to whom he would recommend Hollis, at a new plant in Rogers. 2. Other testimony touching upon the discharge of Hollis John Carroll Smith, a brother-in-law of Hollis, was hired by West about August 1. About July 28 or 29,3 while Smith and West were returning from National Guard camp in Fort Smith, Arkansas, Smith asked West for a job. West directed Smith to see the former when they got back to Bentonville. In this conversation West remarked he had laid off a couple of men, one of whom was James Hollis (Smith's brother-in-law), for passing out petitions for a nickel raise. West observed to Smith that he (West) could not afford to have that going on because he could lose his job over it. Smith was laid off after working 3 or 4 days. Jimmie Lee Jones signed the petition on Friday, July 21. On the ensuing Mon- day, July 24, Plant Superintendent West called Jones to his desk. West opened the conversation by asking Jones what he meant by signing the petition, and pointed out that "they wouldn't accept a petition like that." According to Jones, West called about 10 or 15 of the employees who had signed the petition to his desk that morning. In July, employee Jerry Loper saw, but did not sign, the petition. At sometime thereafter, Supervisor Buttram told Loper that he was glad Loper had not signed it. Plant Superintendent West also made a similar statement to Loper. Phillip Todd also signed the petition on July 21. Three days later, West asked him why he had signed it and how the petition was initiated. When Todd answered that he wanted a nickel raise for himself and all the employees, West rejoined that the Company would not honor the petition, and that if Todd did not like his job he could "punch out." Donnie Shipman also subscribed to the petition on July 21. On July 24, West called him to West's desk and, after ascertaining that Shipman had signed, com- plained, "You guys wait till I get my back turned and ... sign a petition for a nickel raise and threaten to send it to Hannibal." West then insisted that he did not want it to happen again, although he added he would not fire Shipman for having signed the petition. 2 Buttram admitted making this statement but testified it was not true that be spoke to Rhino because be did not talk to Rhino until "very recently." I credit Buttram's ad- mission since it is corroborated by Hollis, but I do not credit Buttram's assertion that he did not speak to Rhino in July 1961. 8 As more fully narrated below, West also left camp temporarily on July 22 and re- turned on July 24 In the afternoon. WENDT-SONIS COMPANY 861 James Sandlin is another one of those who signed the petition on July 21. Plant Superintendent West, in July, talked to him about it. West wanted to know if Sandlin signed the petition and, upon receiving an affirmative reply, asked why he became a party to it . West then said that raises could not be obtained "that way." West also stated that he did not like it because the employees prepared the petition behind his back while he was away at National Guard Camp, and commented that those who were not satisfied with their wages "had the privilege of punching the clock and finding a job somewhere else." Sandlin also talked about the petition to Supervisor Buttram , telling the latter , among other things, that he had heard it would be sent to Mr. Wendt if not acted on soon. Buttram replied that he would not be surprised if every signatory to the petition would be fired if it reached Wendt. Another employee who signed the petition on July 21 is Carroll Rogers. Not long thereafter Supervisor Buttram asked Carroll to remove his name from the petition because Buttram said the Company would not be too pleased with it. 3. The testimony of Don West West , who is Respondent 's plant superintendent at Bentonville , testified that Hollis started as a "real good" employee, but about a year later became "lax" and, on one occasion, broke a diamond wheel valued at $1,200 to $1,400 at some undisclosed time. What caused West to discharge Hollis, according to the former, was Hollis' insubordination and belligerency during a lengthy reprimand about leaving his de- partment. West testified that he decided to fire Hollis "a couple of minutes or less" before the discharge. It was prompted by insubordination resulting from profanity. Prior to this, West talked to Hollis about the latter's attitude toward his work, but Hollis stated he was dissatisfied and felt he could do better elsewhere. West contends that Hollis was not discharged for signing, nor did he talk to him about, the petition simply because West had no knowledge of it. During the last 2 weeks of July, West attended National Guard Camp and was absent from work. However, contrary to his original plans, he returned home on July 22, a Saturday, to see his mother-in-law who was visiting from California. While at home on July 22 or 23, Acting Superintendent Buttram and he discussed problems at the plant. Buttram asked West to come to the plant to talk to some of the men on a production problem. The nature of the problem was not described at the hearing . West did go to the plant on the morning of July 24 and talked to several employees about wages. Although he stayed at the plant all morning, West did ,not speak to Buttram at any time that day. West then returned to camp on the afternoon of July 24. 4. Concluding findings as to the discharge of Hollis Although West denies that he had any knowledge of the petition on July 24, when he discharged Hollis, I find that he knew of it on that date. In this connection it is difficult to ignore the testimony of several witnesses other than Hollis that on the morning of July 24, West interrogated them regarding their signature on the petition , on their reason for signing it, or their role in connection with it. These witnesses , none of whom was discharged by West, impressed me as creditable and I accept their testimony on this branch of the case . Accordingly , I am unable to credit the testimony of West and other witnesses of the Respondent tending to show that West was unaware of the petition on the morning of July 24. I also find that Hollis was discharged because he originated , prepared , and cir- culated the petition , and not because he was insubordinate or used profanity prior to his discharge. It is true that Hollis quit, but this was only because West wanted him to "part company" and because it would aid Hollis in obtaining unemployment compensation which he would have lost if he had been discharged. It is likewise true that Hollis broke an expensive diamond wheel, but West did not claim that this directly or indirectly prompted the discharge; moreover, this damage occurred a long time prior to July 24. The following factors persuade me that the real reason for the discharge of Hollis involved his connection with the petition . These are: 4 a. West's statement to employee Smith that (1) he, West, had laid off two men, one of whom was Hollis, for passing out a petition for a nickel raise , and (2) he, West, could not afford to have the petition circulate because he could lose his job over it. 4I credit all testimony consistent with these enumerated findings and do not credit such testimony which conflicts therewith. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. West's statements to Hollis that (1) the petition "messed up some of She guys" good, and (2) Hollis was a good worker whom he hated to lose and whom he would recommend to any other employer. c. West's resentment or opposition to the petition as disclosed by his statements to employees Jones, Loper, Todd, Shipman, Sandlin, Mayfield, and Walker. d. Supervisor Buttram's statement to employee Sandlin that, if the petition reached Mr. Wendt, he would not be surprised if every subscriber thereto would be discharged. e. Although West interrogated several employees who signed the petition, he discharged only the prime mover of it, Hollis. f. The failure of West to return to camp on Sunday, July 23, his visiting the plant on the morning of July 24, and his talking to several employees. While West testified that he went to work on July 24 to straighten out a production problem, he did not identify the problem. Nor did he talk to Buttram who allegedly posed the problem. I find that West came in to work on July 24, contrary to his plans to be in camp on that day, to discover the instigator of the petition and to crush the movement before it caused trouble or embarrassment to him or his superiors I also find that the preparation and circulation of the petition was a concerted activity for mutual aid or protection, and that it was protected by Section 7 of the Act. Accordingly, I find that Hollis was discharged for engaging in protected concerted activity, and that such discharge violated Section 8(a) (1) of the Act. B. The discharge of Edwin O'Neal Walker 1. The testimony of Walker Walker was hired by Respondent in the middle of July 1961 as a machine operator. He signed the petition on Thursday or Friday, July 20 or 21. He was reluctant to sign because, as a new employee, he did not feel that he deserved a raise yet. On the following Monday, July 24, Supervisor West caused Walker to come to the former's desk. West asked Walker what the latter had heard about this petition and whether he had signed it. Upon Walker's replying that he had signed it, West asked him why he did that and whether he was dissatisfied. West added that the employees should ask him, "and not the company," for raises in pay, and reminded Walker that, on being hired, he was told he would get a raise in 3 months. West then asked Walker if the latter "didn't think it would be a good idea to hit the clock " Walker replied "I guess so" and thereupon "punched out" his timecard at about 9:30 in the morning. Walker "assumed" he was fired; he testified that he did not quit. 2. The testimony of West According to West, about 2 weeks after he was hired as a trainee, Walker asked West for a raise. When this was denied, Walker quit. 3. Concluding findings as to the discharge of Walker I find that West did interrogate Walker, and that West did ask Walker if the latter did not think it was a good idea to "hit the clock." But I find that Walker quit voluntarily and that he was not discharged by West. This conclusion is based upon the following considerations • (a) West interrogated several other signers of the petition but did not take reprisals against them solely because they signed. (b) West told some other signers that, if they were dissatisfied, they should quit; but he took no punitive action against them. (c) West was concerned in getting at the leader of the petitioning group and sought his identity. Once West had ascertained who was the leader, West fired him. West was not interested in discharging 32 employees, i.e., more than half the working force. Accordingly, I find that (1) the General Counsel has failed to make a prima facie case that the discharge of Walker was unlawful, and (2) this portion of the complaint has not been sustained. C. The discharge of James LeLand Mayfield 1. The testimony of Mayfield and other employees Mavfield was hired by Respondent in September 1959. He was one of those who signed the petition. In July, when West temporarily returned from National Guard WENDT-SONIS COMPANY 863' camp, he called Mayfield to his desk. West then asked Mayfield what the petition was about and inquired as to Mayfield's reason for signing it. When Mayfield an- swered that the petition was designed to get a "blanket raise for the plant," West retorted that he did not like to be stabbed in the back while he was gone, that Re- spondent's 'officers at Hannibal "weren't real happy" about the petition, and that he did not know whether Respondent would proceed with its plant expansion program at Bentonville "since this petition came up." About December 6, 1961, accompanied by three other employees, Mayfield met with representatives of the Union. This meeting was arranged by employee Bill Samuel and was held in Bill's home. Mayfield and Samuel were given, and requested to distribute, application cards for membership in the Union, and Mayfield later sought to sign up members in the plant. On or about December 7, while riding home from work with Supervisor Durward Hall, Mayfield gave a card to Hall and asked him to join the Union. Hall was not enthusiastic about this. On December 8, Plant Superintendent West came to Mayfield's machine about 15 minutes before the 4 p.m. quitting time. West then wanted to know why Mayfield was not working at night as often as requested. Mayfield replied that he often worked nights, that he was "a pretty dependable worker," that no one in the Company complained about his work or the number of hours he worked, and that he sometimes did not work nights because he had "some previous plans and commitments," or spent a night home with his wife, or was disabled by headaches. Mayfield remon- strated that, unlike other employees, he never took off to go deer hunting. West then told Mayfield, "I am going to have to get another man to do this job." As a result of West's last statement, Mayfield called over employee Rogers. There- upon, in the presence of Rogers, Mayfield said, "West, I am for the union and you know that I am, and that is the real reason you are firing me." West denied that was the cause for the discharge West then called over employee Grady and, in Mayfield's and Roger's presence, told Grady that he was firing Mayfield because "he hasn't been doing the work." Then West called over Supervisor Bush to whom Mayfield said that "West is firing me because he knows I am for the union." West denied this by stating that Mayfield was fired because was not doing enough work Mayfield then maintained that West had no right to fire him for union activities, but West, disagreeing, insisted by saying, "Yes, I do . . you are fired." 5 Although West had brought Mayfield the latter's paycheck about 11:30 that morning (payday), West did not at that time mention Mayfield's failure to work overtime or discuss discharging him for that reason. Nor had Mayfield previously been warned for not working overtime. Mayfield claims he was never ordered to work overtime; rather, either Supervisor Jack Bush or, less frequently, West would ask him, "Would you like to work tonight" Mayfield did not work some of the few times West asked him to remain for overtime. In the last 6 months of his employment, Mayfield averaged 5 to 10 hours a week of overtime work On cross-examination Mayfield declared he wanted a witness to his accusations against West "because we knew that West knew of the union activities in the plant." 6 Early in December 1961, but prior to the discharge of Mayfield and Samuel, em- ployee Samuel Fitzhugh spoke to West about talk going around that the Union was organizing the plant Fitzhugh quit as an employee about a week before the hearing In the course of the conversation West learned from Fitzhugh that a union meeting had been attended by fellow employees. West then asked for the names of these employees. Fitzhugh answered that they were Mayfield, Samuel, Rogers, and McMillan. Upon being asked by West who was the "strongest" among them for the Union, Fitzhugh stated that Rogers seemed to be pushing it most but that Samuel had been in touch with union representatives and arranged for the meeting. West then replied, "They'd better watch out. there was always a reason for firing a man: there could be some reason found other than the Union for firing a man." $Emnloyee Rogers, who was present, testified in substance confirming the facts re- counted in this sentence 6 Shortly after Mayfield was fired, supervisor Coonfield told employee Shipman that "everybody knows danced well they [Mayfield and Samuel] got fired over bringing the union cards in here and trying to get them signed " A few days after Samuel and Mayfield were fired, employee Rogers asked Supervisor Bush If Plant Superintendent West had really told Bush that West would fire every man in the plant to keep out the Union Although Push denied this, he added, "I don't think the plant can be organized by four or five men . . . I guess you know they fired every man at the [Respondent's] Rogers plant trying to get a union one time." 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, West did tell Fitzhugh that Mayfield refused to work evenings and Samuel was slack in his work. Fitzhugh also testified that on one occasion when he told West and Supervisor Buttram that the Union was organizing, they replied that they did not want the Union in the plant and they were against it. In assessing the credibility of Fitzhugh, I have taken into consideration his testi- mony on cross-examination that (1) he offered to spy for West on the union activi- ties of fellow employees, (2) he told West that he, Fitzhugh, could outlie any man living, and (3) he passed on to West "what was going on" in the way of union activi- ties at the plant. 2. The testimony of Plant Superintendent West West testified that he had trouble with Mayfield in getting the latter to work over- time for 3 or 4 months prior to his discharge. Mayfield was discharged, according to West, because he refused to work overtime three times during the last week of his employment.? West also testified that the quality of Mayfield's work was "not as good as it could be," and that he often left his workbench, but these factors did not enter into the decision to discharge him. At another point in his testimony, West claims that Mayfield refused to work overtime on four different occasions in the week when he was fired, and that previous to that he often refused to work evenings. However, Respondent's payroll records show that between August 6 and December 8, 1961, Mayfield worked overtime in all but 2 weeks, and that he put in 10 hours of overtime during the week ending December 8. 3. Concluding findings as to the discharge of Mayfield While Plant Superintendent West denies that he was aware of union activity at the plant and asserts that he discharged Mayfield for refusing to work overtime, the evidence overwhelmingly points to the conclusion, and I find, that Mayfield was fired on December 8 because he actively espoused the organizing efforts of, and solicited membership for, the Union. This result emerges from the following factors, and evidence in support thereof, which I credit: a. West was cognizant of union activity at the plant, and knew that Mayfield was one of those engaging in such activity. While I base these findings principally upon the testimony of employee Fitzhugh, I recognize that his statements bear serious scrutiny because he sought to get on the good side of West for personal advantage. Nevertheless, Fitzhugh's testimony is credited not only because judging from his demeanor he was a frank and candid witness, but also because he had nothing to gain by distorting facts while on the witness stand. Nor is his testimony inherently inconsistent or otherwise unworthy of credit; certainly it is undeniable that he talked to West, and other witnesses corroborated much of Fitzhugh's testimony. b. Other supervisors, some of whom were solicited to join the Union, knew of the Union's organizational campaign.8 Hence Respondent is charged with actual knowledge of the campaign. c. Plant Superintendent West and other supervisors were hostile to the Union and were opposed to its obtaining a foothold in the plant. ,d. If Mayfield's refusal to work overtime for several months was serious, he never- theless was never warned of it or at least not disciplined over a period of great duration. In any event, he was not told of his dereliction in this area when West gave him his paycheck in the morning of the same day. Then again , there is diffi- culty in believing that Mayfield was asked three or four times during his last week to work overtime; certainly a refusal or two should have sufficed to convince West that, if this were serious, Mayfield should be discharged. Finally, it is clear that Mayfield worked 10 hours' overtime during the last week; hence it is unlikely that his prior refusals to work could have culminated in a precipitate dismissal for actually working overtime during this week.9 T Employee Sandlin, a witness called by the General Counsel, testified that West told him, during the course of a conversation after December 8, 1961, that Mayfield was fired because he had refused West's requests " two or three times" to work overtime when West "needed him [ Mayfield] bad." s Employee Rogers Informed Supervisor Hall of the union meeting and invited Hall to attend . Rogers also solicited Supervisor Coonfield for membership in the Union. 9 Although employee Sandlin did not always work overtime when requested, he was never warned or disciplined for rejecting such work . Nevertheless, I do not rely on this in, making the above findings as Respondent was lenient with Sandlin because he had been suffering from hepatitis. WENDT-SONIS COMPANY 865 e. Prior to Mayfield's discharge West told employee Fitzhugh that Mayfield and another who were active on behalf of the Union could be fired for union activity but another reason could be assigned. When Mayfield was fired, West told him in the presence of others that West could fire him for union activity. f. Shortly after Mayfield was discharged, Supervisor Coonfield told employee Ship- man that everyone knew that Mayfield and another were let go because they solicited union membership. D. The discharge of Billy Joe Samuel 1. The testimony of Samuel Samuel commenced working for Respondent on July 5, 1961. About the first week of December he went to a meeting of the Union in nearby Springdale, Arkansas. Shortly thereafter Union Representative Smith discussed organizing plans at Samuel's home. After receiving some union membership application cards from Smith, Samuel, on December 7, sought to interest employees in joining the Union and passed out union cards. Although Samuel regularly quits at 4 p.m., he was fired on December 8 at 3:40 p.m. by Plant Superintendent West. At that time West came to Samuel at the latter's machine to complain that he was "not quite satisfied with your work," and stated that he intended to try someone else on Samuel's cutter sharpener. Since Samuel did not realize the severity of this criticism, and believed he would be transferred to another job, he did not immediately protest. But West continued by informing Samuel that, because the latter "had too much conversation with employees" and his work was not satisfactory, West was discharging him. Although West handed a paycheck to Samuel about,11:30 a.m. that day, which was payday, West on that occasion offered no remarks or even hints as to the un- satisfactory quality of Samuel's work. During his term of employment with the Company Samuel received three pay raises. It also appeared that some of Samuel's union organizing efforts on behalf of the Union were expanded during working hours, but he was never told orally or in writing not to solicit in the plant on company time. On or about August 10 and November 13, West told Samuel, while the latter was conversing with an employee, that the policy of the Company "didn't allow much conversation in the plant." About a month prior to December 8, West warned Samuel that it was the last time he would talk to him about conversing with other em- ployees, and would give him another chance for a week. The record is obscure whether this warning was given on November 13 or on some other day. When Samuel applied for unemployment compensation, he gave certain informa- tion to an employee of the commission who put it down in hand print on a claim form. Samuel then signed the form. It contains the printed question among other things, "Why did you leave your last work?" It is answered in hand print "Dis- charged-work unsatisfactory." Samuel explained that he told the commission's employee that "Mr. West said my work was unsatisfactory with him and that I was discharged." Nevertheless this employee, with Samuel's permission, said, "Well, we will put it down unsatisfactory." When Samuel first started to work, West told him he was working too slow. But after a month or two this was corrected and he was not again reproached for slow work. Samuel also testified that he always kept up in his work, and that those employees whose operations followed his never complained that he was holding up their production.'° 2. The testimony of Superintendent West According to West, he had problems with Samuel because the latter (1) would not or could not perform "quality work," (2) worked too slowly, and (3) talked too often with other people. Although West claims that he mentioned these de- ficiencies "a number of times" to Samuel, West did not note all of these occasions on Samuel's personnel record. In fact, West testified that he noted only the slow work on Samuel's personnel record and then only on August 8 and October 10, although he conceded that he talked to Samuel about slow work after October 10. West also claimed that some templets which Samuel worked on had to be reworked by others. West testified that he had to discharge Samuel after speaking to him a "number of times" about his work. 10 Employee Rogers testified that, although Samuel at first had difficulty doing the work, he improved within a month and thereafter his work was satisfactory. Employee Clark described most of Samuel 's work as average. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Other testimony relating to the discharge of Samuel Employee Sandlm often discussed the Union's organizing efforts at the plant with West and Supervisors Buttram and Hall. However, his talks with West occurred after December 8, when Samuel was discharged. At one of these talks with Sandlin, West asked him what he thought of the Union and whether it would succeed at the plant. In one of Sandlin's talks with Supervisor Hall, the latter commented that he would not be surprised if the Company would shut down the plant. One of those solicited by Samuel to join the Union is employee Carroll Rogers, who was also one of those who signed the petition. Samuel induced Carroll to attend a union organizing meeting on December 6 in nearby Rogers, Arkansas, and also gave Carroll some authorization cards to distribute. Supervisor Coonfield, whom Rogers approached for membership, told Rogers that he, Coonfield, had heard that someone was passing out cards but, he, Coonfield, was not interested in joining. 4. Concluding findings as to the discharge of Samuel As noted above, I have found that both Superintendent West and some super- visors knew that the plant was being organized by the Union and that West knew that Samuel vigorously espoused the cause of the Union. It is manifest, and I find, that Samuel was discharged for union activity and not for unsatisfactory work. Regardless of whether Samuel's work was satisfactory or not, I find that it did not prompt West to fire him. Not only did West fail to mention this when he handed Samuel his paycheck, which I consider significant, but West did nothing about Samuel's alleged unsatisfactory work for several weeks. Then Samuel was discharged quite suddenly within a day or less after he distributed union cards and solicited support for the Union. Nor do I find that the alleged defective templets, if their condition is attributable to Samuel, played a part in West's decision to fire him Not only did West continue to employ Samuel after this incident, but West also did not note this defection on Samuel's personnel record. Yet West testified that serious derelictions were noted by him on such records E The other alleged violations 1. Interrogation of employees As recited above, Superintendent West asked employee Fitzhugh early in Decem- ber who had attended the Union's meeting and who was strongest for it. Although this inquiry was made only because Fitzhugh "brought the union talk up" when West addressed him in connection with a job, nevertheless it was West who was responsible for the question. The events leading to interrogation do not, in my opinion, detract from its repressing or restraining effect I find that, taken in con- nection with the discharge of Mayfield and Samuel, and absent a showing that this information was needed in ascertaining the extent of the Union's representation for legitimate objectives, this interrogation exceeded the margins set by Section 8(c) of the Act. West also asked employee Sandlin after December 8 what Sandlin thought of the Union and whether the Union would go over. But Sandlin added that "it was nothing unusual" and that he "talked to [West] lots of times about the union " In this setting, the structure of the interrogation is innocuous. Accordingly, I find hese questions not to contravene Section 8 (a)( I) of the Act. 2. Threats of discharge The General Counsel contends that West's statement to Fitzhugh that there existed always a nonunion reason "for firing a man" engaged in union activity constitutes a threat that any employee would be discharged for such activity Although West was referring only to those who were "strongest for the union," and warned that "they had better watch out," nevertheless the reasonable import of these words conveys an impression that those not strongest for the Union may likewise suffer similar fates. While I may have had some hesitation in finding these statements to be violations if isolated, nevertheless, taken in the context of all the findings herein, I find these statements are coercive as to all employees, and, therefore, unlawful under Section 8(a) (1) of the Act. WENDT-SONJS COMPANY 867 3. Mentioning previous discharges for union activities Shortly after Mayfield and Samuel were discharged, employee Rogers, who had solicited on behalf of the Union at Samuel's request, asked Supervisor Bush if West "had really told [Bush] that [West] would fire every man in the plant to keep the union out " While Bush denied this he did volunteer , in the ensuing conversation, that "1 guess you know they fired every man at the Rogers plant trying to get a union one time " Since Bush is a supervisor and acts in West's stead as plant superin- tendent in the latter's absence, this statement reflects Respondent 's attitude toward those who would organize at the Bentonville plant. I find it to be interference, re- straint, or coercion prohibited by Section 8(a) (1) of the Act 4 Threat to close the plant In discussing the Union with Supervisor Hall, employee Sandlin asked Hall what Respondent's "position on the union would be." When Hall replied that he did not know, Sandlin asked him for Hall's personal opinion. Hall replied, according to Sandlin. "It wouldn't surprise him of anything, anything wouldn't surprise him what would happen . . . it wouldn't surprise him if the place wouldn't shut down, he didn't know , that was his opinion ." It is reasonable to infer that 1-lall was expressing neither the Company's policy nor his personal conviction that the plant would be closed to defeat the Union At most it was a pure guess which employee Sandlin persisted in obtaining. Hence I find that Hall's statement contained no threat of reprisal against those who desired to unionize the plant. In any event I find that Hall, a minor supervisor , was not regarded so high in the managerial echelon ii that his personal opinion could reasonably be mistaken to be that of the Company. Accordingly, I find no violation of Section 8(a)(1) of the Act in Hall's utterance. J S Abercrombie Company, 83 NLRB 524, 530, upon which the General Counsel relies, does not compel a different result. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the operations of the Respondent as described in section 1, above , have a close, intimate , and substantial relation to trade , traffic, and commerce among the several States , and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in certain unfair labor practices in violation of Section 8 ( a) (1) and ( 3) of the Act, it will be recommended that the Respondent cease and desist therefiom and take certain affirmative action designed to effectuate the policies of the Act. In view of the findings that Respondent dis- criminated with respect to the tenure of employment of employees James Perry Hollis, James LeLand Mayfield, and Billy Joe Samuel , the Recommended Order herein will require Respondent to offer immediate and full reinstatement to their former or substantially equivalent positions, and to make them whole for any loss of earnings suffered by payment of sums of money equal to those which they normally would have earned from the date of the discrimination against them to the date of Respondent 's offer of reinstatement or actual reinstatement , as the case may be, less net earnings during the intervening period . The backpay provided herein shall be computed in accordance with the formula promulgated in F W. Woolworth Company, 90 NLRB 289. Since Respondent 's activities in discharging the above -named employees go "to the very heart of the Act" ( N.L.R B v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ), and these , together with Respondent's other unlawful activities , seriously impede and hinder the self-organization of its employees , the remedy herein should be adequate to assure compliance with the congressional objectives enacted in Section 7 of the Act. It follows that an order adapted to assure Respondent 's employees of their rights as guaranteed in said Section 7 is warranted. " In fact, Hall was one of the signers of the pay raise petition circulated by I3ollis. and also was solicited by Mayfield to join the Union 662353-63-col 138-56 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In his brief counsel for the General Counsel strenuously contends that any back- pay be augmented with interest , but cites no authorities investing a Trial Examiner with the power to grant the same. Nor have I been able to discover pertinent prece- dent or Board practice enabling me to include interest. Cf. Indianapolis Wire- Bound Box Company, d/bla Cleveland Veneer Company, 89 NLRB 617, 624, footnote 26; Earl I . Sifers, an individual doing business as Sifers Candy Company, 92 NLRB 1220 , 1222. Accordingly , this request for the award of interest is denied. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(5), and it is engaged in commerce within the meaning of Section 2 ( 6) and (7), of the Act. 3. By discriminating in regard to the tenure of employment of Mayfield and Samuel , thereby discouraging membership in a labor organization , Respondent has engaged in unfair labor practices as defined in Section 8(a)(3) and (1) of the Act. 4. By discharging Hollis for engaging in protected concerted activity, Respondent has interfered with, restrained , and coerced employees and thereby has engaged in unfair labor practices as defined in Section 8(a) (1) of the Act. 5. By coercively interrogating employees concerning their union • membership, activities , and desires ; threatening employees with discharge if they became or re- mained members of the Union or gave any assistance or support to it; and by in- forming employees that on a previous occasion it had fired those who had sup- ported a labor organization , Respondent has engaged in unfair labor practices comprehended by Section 8(a)(1) of the Act. 6. Respondent has not committed any other unfair labor practices within the meaning 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, it is recommended that the Respondent , Wendt-Sonis Company, its officers, agents , successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in the Union , or any other labor organization, by discriminating in any manner in respect to their tenure of employment, or any term or condition of employment , of its employees. (b) Discharging employees who engage in concerted activities for the purpose of mutual aid or protection. (c) Coercively interrogating employees concerning their union membership, ac- tivities, and desires. (d) Threatening employees with discharge if they become or remain members of the Union, or give any assistance or support to it, or any other labor organization. (e) Informing employees that on previous occasions it had fired employees who had supported a labor organization. (f) In any other manner interfering with , restraining , or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Hollis, Mayfield , and Samuel immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges , and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." ,(b) Preserve and , upon request , make available to the Board and its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due under the terms of this Recommended Order. WENDT-SONIS COMPANY 869 (c) Post at its plant at Bentonville , Arkansas , copies of the notice hereto attached marked "Appendix ." 12 Copies of said notice , to be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondents to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 20 days from the date of receipt of this Intermediate Report and Recommended Order, what steps Respondent has taken to comply herewith.13 It is further recommended that the complaint be dismissed in all other respects. It is further recommended that , unless the Respondent shall within 20 days from the receipt of this Intermediate Report notify said Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring the Respondents to take the action afore- said. 11 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." is In the event that this Recommended Order is adopted by the Board this provision shall be modified to read: "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization, by discharging employees, or in any manner discriminating against them in regard to their hire, tenure of em- ployment, or any term or condition of employment, except as may be authorized by Section 8(a) (3) of the Act, as amended. WE WILL NOT coercively interrogate our employees concerning their mem- bership, activities, and desires regarding said United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT discharge employees who engage in concerted activities for the purpose of mutual aid or protection. WE WILL NOT threaten employees with discharge if they become or remain members of said United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT inform employees that we had on a previous occasion fired employees who had supported a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization , to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer James Perry Hollis, James LeLand Mayfield , and Billy Joe Samuel immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privileges , and make them whole for any loss of pay suffered by reason of their discriminatory discharge. All our employees are free to become or remain , and to refrain from becoming or remaining , members of said United Steelworkers of America , AFL-CIO, or any other labor organization. WENDT-SONIS COMPANY, Employer Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify any of the above -named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced , or covered by any other material. Employees may communicate directly with the Board 's Regional Office, 714 Falls Building, 22 North Front Street , Memphis, Tennessee , Telephone Number, Jackson 7-5451, if they have any question concerning this notice or compliance with its provisions. Applied Research , Inc. and George W. Frangos . Case No. 2-CA- 8273. September 25, 1962 DECISION AND ORDER On April 24, 1962, Trial Examiner Harold X. Summers issued his. Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter mediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices. Thereafter, the Respondent and the General Counsel filed exceptions to the Inter- mediate Report and briefs in support thereof.' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the following additions and' modifications.2 'The Respondent 's request for oral argument is hereby denied as the record in this proceeding, including the exceptions and briefs of the parties , adequately presents the- issues and positions of the parties. 21n the absence of exceptions thereto, we adopt pro forma the Trial Examiner ' s find- ings that Leadman Epanimondo ' s conversation with employee Ahlf on November 8, 1961, 138 NLRB No. 109.