Tru-Line Metal Products Co.

National Labor Relations Board - Board Decisions

Sep 26, 1962

138 N.L.R.B. 964 (N.L.R.B. 1962)

964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tru-Line Metal Products Company ; Tru-Line Screw Products,
Incorporated and Loretta May Hall; Ralph James Clark.
Cases Nos. 7-CA-3362(1) and 7-CA-3362(2). September 26,
1962
DECISION AND ORDER
On May 28, 1962, Trial Examiner Wellington A. Gillis issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions to the Intermediate Report
and a supporting brief.
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 Intermedi-
ate Report, the General Counsel's exceptions and brief, and the entire
record in this proceeding, and finds merit in some of the General
Counsel's exceptions. Accordingly, we adopt the findings and con-
clusions of the Trial Examiner only insofar as they are consistent
with our decision herein.
1. Tru-Line Metal and Tru-Line Screw, the Joint Respondent, are
located in the same plant, and occupy some additional space across
the street in the plant of Bayley Products, an unaffiliated company.
Tru-Line Metal has a total of 24 female and 5 male employees work-
ing on a 3-shift schedule, and Tru-Line Screw has 7 male employees
working on a 2-shift schedule.
During the last week in August 1961, the Union, Local 408, Inter-
national Union, United Automobile, Aircraft and Agricultural Im-
plement Workers of America, AFL-CIO, began an organizing cam-
paign among the Respondent's employees. Reed, a Tru-Line Screw
employee, secured some authorization cards from Matti Miller, the
union shop steward at Bayley Products, whose employees were repre-
sented by the Union. Reed signed a card and gave the remaining
cards to Clark, who gave some of them to Hall. Hall solicited the
female employees, and Clark the male employees, and between them
they talked to practically all the employees about the Union.
Reed informed Finlayson, president of the Respondent that he had
signed a card for the Union. In a later conversation, on §eptember 6,
Reed informed Finlayson that he "was the one who started the trouble
in the shop about a union," and complained that he was working too
'hard, that he was dissatisfied with his rate of pay, and that he did not
get a vacation that year. Finlayson replied that he could not at that
time grant Reed a wage increase, but that Reed could take a vacation
the following week. Reed was thereafter given an extra part-time job
at a company in which an official of the Respondent had a substantial
interest, and, after the layoff of Clark on September 7, allegedly for
138 NLRB No. 98.
TRU-LINE METAL PRODUCTS COMPANY, ETC. 965
lack of work, as discussed below, Reed was assigned to do Clark's
work, although he had less seniority and skill than Clark.
On September 7, about 3:30 in the afternoon, Finlayson told Clark
that he was being laid off "due to lack of work." About the same
time, Supervisor Wolcott told Hall that she was being laid off "be-
cause of lack of work." According to Hall's uncontraclicted testi-
mony, Wolcott also remarked that he had asked her at one time to
go on the afternoon shift and she had refused, but when she asked
Wolcott why "he didn't put me on afternoons . . . he walked away
and didn't act like he wanted to talk about it." Wolcott had asked
Hall about 9 months to a year prior to her layoff to change shifts, but
when she told Wolcott and Finlayson she could not change because of
family problems, Finlayson said that he did not want to cause her any
trouble at home, and she was never again asked to change shifts.
The Respondent offered no explanation of why Clark and Hall were
the employees selected for layoff. Ilall had the greatest seniority, was
the highest paid, and was the most versatile of all the female em-
ployees. Clark had greater seniority than many other employees.
When he told Finlayson early in 1960 that he was looking for another
job, he had been given a 10-cent hourly wage increase, and he was
(riven another 10-cent increase early in 1961. Neither Clark nor Hall
had been warned or reprimanded for unsatisfactory work or conduct.
The Respondent did not show that there was a decline in the work-
load which necessitated the layoffs. On the contrary, the workload
had increased about that time, requiring more overtime work than be-
fore the layoffs. In addition, an employee was hired in November 1961
and another in January 1962. Moreover, during prior slack periods,
the Respondent had put in effect a share-the-work program whereby
employees worked reduced hours but no one was laid off. The Re-
spondent offered no explanation for the change in this policy when
Clark and Hall were laid off.
The Trial Examiner found many of the circumstances surrounding
the layoffs highly suspicious, and pointed particularly to the factors
that "(a) the Respondent was aware of union activity ainong its
employees; (b) apart from Reed, employees Clark and Hall were the
leaders in the union movement and, between them, apparently at one
time or another, most of the employees were contacted; (c) both
Clark and Hall were separated simultaneously not too long after the
union activity commenced, and without advance notice; (d) Hall was
capable of performing most of the jobs in the plant and neither she
nor Clark were at the bottom of their respective seniority lists:
(e) there had been no plant layoffs for a long time and, according to
one employee, in the past slack periods prompted the Respondent in
establishing a short week rather than necessitating the reduction of
personnel; and (f) testimony by General Counsel witnesses indicated
that there appeared to be little or no change in Respondent's overall
work load after the September 7 layoffs."
Despite these suspicions circumstances, the Trial Examiner found
that Clark and Hall were not discriminatorily laid off, principally
because he found no evidence establishing the Respondent's knowledge
of the organizing activities of Clark and Hall. We note, however, that
Reed, just before the layoffs, had two conversations with Finlayson
in which lie volunteered information about his activity in behalf of
the Union, following which he was given a vacation, an additional
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part-time job, and, after Clark was laid off, Clark's job. We are of
the opinion that the circumstances cast considerable doubt on Reed's
denial that he informed Finlayson about the union activities in gen-
eral, including the leading parts played by Clark and Hall. Further-
more, Pondzer, a supervisor, admitted that Clark, sometime before
the layoff, had remarked to him, "Once we get a union here things will
be different." We note also that the Respondent's operation was rela-
tively small, with about 13 employees on the day shift constituting
the largest group working at any one time. In addition, supervisors
worked on machines with employees or in close proximity to them.
Finally, as the Trial Examiner found, Clark and Hall were the leaders
in the union movement and, between them, had solicited most of the
employees to join the Union.
As indicated, despite the above evidence the Trial Examiner con-
cluded that the General Counsel had not established that Respondent
was aware of the organizing activities of Clark and Hall at the time
of the layoffs. We do not agree. Proof of knowledge of union activi-
ties may be established by circumstantial as well as by direct evidence.
We believe that a finding of such knowledge is warranted on the basis
of all the evidence in the record.' Particularly pertinent are the facts
that Clark and hall were the protagonists for the Union; their activi-
ties were extensive and were not carried on in a clandestine manner;
the plant is a small one and has few employees; on the day before the
layoffs employee Reed told President Finlayson that he had brought
the union into the shop thus definitely making Finlayson aware of
union activities; on the clay following the receipt of this information
Finlayson precipitately laid off the two union leaders; and Respondent
has offered no reasonable explanation, as the Trial Examiner himself
found, for the layoffs.' The above evidence raises more than a suspi-
cion of illegal motivation in the layoffs. Indeed the only plausible
inference on this state of the record is that Respondent did learn of
the union activities of Clark and Hall and laid them off for this rea-
son. We so find. We accordingly find that by the layoffs Respondent
discriminated against Clark and Hall in violation of Section 8 (a) (3)
and (1) of the Act.
2. On September 13, a few days after the layoffs, Clark and Hall
had arranged to meet with Miller, the shop steward at Bayley Prod-
ucts, and Bocks, the union representative, for the purpose of soliciting
employees of the Respondent to join the Union. They were to meet on
a corner near the plant after the clay shift had ended and while the
afternoon shift was going to work. Bocks arrived first. When he
observed Finlayson coming out of the plant in his car, Bocks drove
away, but Finlayson followed him for several blocks. Later Finlay-
son again followed Bocks while Clark and Hall were in Bocks' auto-
mobile, and, when they parked, Finlayson drove by several times. The
Trial Examiner found that Finlayson was not engaging in surveillance
' Wiese Plow Welding Co ., Inc., 123 NLRB 616.
2 Angwell Curtain Company, Inc . v. N.L R.B, 192 F. 2d 899, 903 (C A. 7) ; N.L.R B. v.
Abbott Worsted Mills , Inc., 127 F. 2d 438, 440 (C A. 1) ; N.L.R B. v. Entwistle Mfg Co.,
120 F 2d 532, 535-536 (C.A. 4). Accord : Bituminous Material & Supply Co. v. N.L R.B,
281 F. 2d 365 , 371 (C A 8).
TRU-LINE METAL PRODUCTS COMPANY, ETC. 967
as alleged in the complaint, but that he drove by while engaged in
making business calls, and then drove by again several times to "satisfy
an aroused curiosity." Even if Finlayson originally drove past where
this group was meeting "to satisfy an aroused curiosity," in view of
the number of times he drove by and the persistence with which he
followed the union representative's car, we find that he was thereby
engaging in surveillance of union activities, in violation of Section
8(a)?1) of the Act.
3. Supervisor Kondzer admitted telling employees that "if the
Union gets in the Company has to fold up, we'll all be without a job."
The Trial Examiner found that Kondzer's remarks were merely ex-
pressions of his own feelings made in "a friendly context." On the
record as a whole, however, we find the remarks were coercive and,
therefore, that the Respondent thereby further violated Section
8(a) (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices , we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondent unlawfully laid off Loretta May
Hall and James Ralph Clark on September 7, 1961, and thereby vio-
lated Section 8(a) (3) and ( 1) of the Act , we shall order that the Re-
spondent offer them immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their se-
niority or other rights and privileges , and make them whole for any
loss of earnings they may have suffered as a result of the discrimina-
tion against them, by payment to each of them of a sum of money
equal to the amount he or she would have earned from the date of the
discrimination to the date of the offer of reinstatement,' less net earn-
ings during said periods to be computed on a quaterly basis in the
manner established by the Board in F. IF . TVool2vorth Company,
90 NLRB 289 , and shall include the payment of interest at the rate of
6 percent to be computed in the manner set forth in Isis Plumbing &
Heating Co ., 138 NLRB 716 . We shall also order that the Respondent
preserve and, upon request, make available to the Board or its agents,
for examination and copying , all payroll records , social security pay-
ment records and reports , timecards , and all other records necessary
to analyze the amounts of backpay due.
ORDER
Upon the entire record in this case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Joint Respondent , Tru-Line
Metal Products Company and Tru-Line Screw Products , Incorpo-
rated, Detroit , Michigan, their officers, agents, successors , and assigns,
shall :
See A.P.W. Products Co., Incorporated , 137 NLRB 25
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in Local 405, International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, AFL-CIO, or any other labor organization of its em-
ployees, by discriminatorily laying off any of its employees because
of their union membership or activities, or by discriminating in any
other manner in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Engaging in surveillance of union activities, making coercive
remarks, or in any other manner interfering with, restraining, or co-
ercing its employees in the exercise of their right to self-organization,
to join or assist the above-named Union or any other labor organiza-
tion, 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, as guaran-
teed in Section 7 of said Act, and to refrain from any or all such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Loretta May Hall and Ralph James Clark immediate
and full reinstatement to their former or substantially equivalent, posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of earnings they may have
suffered as a result, of the discrimination against them, in the manner
and to the extent set forth above in the section entitled "The Remedy-."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records and reports, tinmecards, personnel records, and
all other records necessary to compute the amount of hackpa„y due
under the terms of this Order.
(c) Post at both plants in Detroit, Michigan, copies of the notice
attached hereto marked "Appendix." a Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained for a period of 60 consecutive days after posting, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered, defaced, or covered
by any other material. I
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
4 In the event that this Order is enforced by a decree of a United States Court a,f
Appeals , there s hall be ^ubstitnted for the words "Pursuant to a Decision and Order"
the words "Pursuant to a Decree of the United Status Court of Appealc , Enforcing an
Order."
TRU-LINE METAL PRODUCTS COMPANY , ETC. 969
MEMBER LEEDOM, dissenting :
I do not agree that the evidence establishes the commission of unfair
labor practices by the Respondent , and would, like the Trial Exam-
iner, dismiss the complaint.
The majority finds that Clark and Hall were laid off because of their
union activities . There is, however, no evidence that the Respondent
had knowledge that they were engaging in such activities . Reed, an
employee , told Finlayson , president of the Respondent , of his part in
bringing the Union into the plant. He denied , however, that he told
Finlayson about the activities of Clark and Hall, and the Trial Exam-
iner credited his denial . The majority places considerable reliance,
in finding knowledge by the Respondent , on the small size of the opera-
tions. Clark , however, spoke to employees about the Union only dur-
ing nonworking hours and off the plant premises . While Hall spoke
to the female employees in the plant about the Union, she did so only
in the ladies' restroom , and there were no female supervisors. It is
clear , therefore, that Clark and Hall did not carry on their activities
" in such a manner or at times that in the normal course of events
Respondent must have noticed them." 5
Nor do I agree with the weight which my colleagues attach to
Clark's remark to Supervisor Kondzer that "we get a union here
things will be different ." It was made several months before the
advent of the Union , and hardly establishes Clark's intent to play
a leading part in organizing a union.
Furthermore , I find no evidence in this record of union animus by
the Respondent. The majority points to only one remark , by Super-
visor Kondzer, that "if the Union gets in the Company has to fold up,
we'll be out of a job." This remark , which Kondzer admitted, was
made after the layoff of Clark and Hall, in a conversation in which
employees expressed the opinion that the Respondent , if organized,
could not compete on a competitive level with "all the small alley
shops in the city," and in which Kondzer was merely indicating agree-
ment with these opinions . Like the Trial Examiner , I would not find
a violation of Section 8(a) (1) on this basis.
I likewise disagree with the majority 's finding that Finlayson,
about a week after the layoff of Clark and Hall, engaged in unlawful
surveillance of a meeting , on the street near the plant , of the union
organizer with Clark and Hall . As the Trial Examiner found, Fin-
layson drove in and out of the plant frequently on business calls in
the immediate area of the plant, he noticed the individuals involved
near the plant, and, "solely to satisfy an aroused curiosity as to their
presence in the vicinity, he drove around the several -block area for
several minutes. . . ." In my opinion , this chance encounter hardly
establishes unlawful surveillance of union activities.
The Trial Examiner pointed out in the Intermediate Report that
there are a number of suspicious circumstances in this case . I agree.
But suspicious circumstances do not satisfy the General Counsel's
duty to establish the commission of unfair labor practices by a pre-
ponderance of the evidence.
Hadley Manufacturing Corporation , 108 NLRB 1641, 1650; see also Diamond Ginger
Ale, Incorporated , 125 NLRB 1173, 1177.
)70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
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 discourage membership of any of our employees
in Local 408, International Union, United Automobile, Aircraft
and Agricultural Implement Workers of America, AFL-CIO,
or any other labor organization of our employees, by discrimina-
torily laying off any of our employees or by discriminating in any
other manner in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT engage in surveillance of union activities, make
coercive remarks, or in any other manner interfere with, restrain,
or coerce our employees in the exercise of their right to self-
organization, to join, or assist the above-named labor organiza-
tion 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, and to refrain from any or all
such activities except to the extent that such right 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 National Labor Relations Act, as amended, by the Labor-
Management Reporting and Disclosure Act of 19,59.
WE WILL offer to Loretta May Hall and Ralph James Clark
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their respective senior-
ity or other rights and privileges, and make them whole for any
loss of earnings they may have suffered as a result of the dis-
crimination against them.
All our employees are free to become or remain and to refrain from
becoming or remaining, members of the above-named or any other
labor organization.
TRU-LINE METAL PRODUCTS COMPANY, TRU-LINE
SCREW PRODUCTS, INCORPORATED,
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 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, 501 Book Building, 1249 Washington Boulevard, Detroit 26,
Michigan, Telephone Number, Woodward 3-9330, if they have any
questions concerning this notice or compliance with its provisions.
TRU-LINE METAL PRODUCTS COMPANY, ETC. 971
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge and an amended charge filed on September 13 and November 15,
1961, respectively, by Ralph James Clark, an individual, and a charge filed on
November 15, 1961, by Loretta May Hall, an individual, the General Counsel of
the National Labor Relations Board issued a complaint on November 17, 1961,
against Tru-Line Metal Products Company, hereinafter referred to as Tru-Line
Metal, and Tru-Line Screw Products, Incorporated, hereinafter referred to as
Tru-Line Screw, as Joint Respondent, alleging violations of Section 8 (a) (3) and (1)
and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat.
136), hereinafter referred to as the Act. The Respondent thereafter filed an answer
to the complaint denying the commission of any unfair labor practices.
On January 16 and 17, 1962, pursuant to notice, a hearing was held in Detroit,
Michigan, before Trial Examiner Wellington A. Gillis, at which all parties were
represented by counsel. All parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence pertinent to the
isues, and to submit argument. Timely briefs were subsequently filed by counsel
for the General Counsel and the Respondent.
Upon the entire record in this case,' and from my observation of the witnesses
and their demeanor on the witness stand, and upon substantial, reliable evidence
"considered along with the consistency and inherent probability of testimony"
(Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the
following:
FINDINGS AND CONCLUSIONS 2
1. THE BUSINESS OF THE JOINT RESPONDENT
Tru-Line Metal Products Company and Tru-Line Screw Products, Incorporated,
are Michigan corporations with their common office and place of business located
at 19176 Glendale, Detroit, Michigan. During the calendar year 1960, Tru-Line
Metal, which is engaged in the manufacture, sale, and distribution of metal stampings
and lubricating devices, manufactured, sold, and distributed products valued in
excess of $600,000, of which products valued in excess of $400,000 were shipped from
its plant directly to States other than the State of Michigan, and purchased mate-
rials valued in excess of $300,000, of which amount in excess of $5,000 was directly
transported to its plant from points outside the State of Michigan. During the same
period, Tru-Line Screw, which is engaged in the manufacture, sale, and distribution
of screw machine parts, purchased and transported to its plant, materials valued in
excess of $100,000, which were transported directly from suppliers located in States
other than the State of Michigan, and manufactured products valued in excess of
$300,000, all of which were delivered to Tru-Line Metal at their common plant.
I find that each company is engaged in commerce within the meaning of Section
2(6) of the Act.
Concerning the operations of both companies, additional facts, most of which
were stipulated, disclose that Norman D. Finlayson and Ben H. Burton, president
and secretary-treasurer, respectively, of both companies, and the only officers of
both companies, constitute a majority of the board of directors of both companies
and together own all of the stock of Tru-Line Screw and two-thirds of the stock
of Tru-Line Metal, the remaining one-third belonging to Claude Wolcott, foreman
at Tru-Line Metal. Except for a relatively small amount of space leased by Tru-
Line Screw in the Bayley Products plant located directly across the street from their
plant, the operations of Tru-Line Screw and of Tru-Line Metal are confined to the rear
and front portions, respectively, of their common plant at 19176 Glendale, where both
companies use the same office and clerical staff and the same shipping and receiving
area. Although each company has its own employee production complement, there
appears to be some employee interchange and Finlayson supervises all aspects of the
operations of both companies.
Accordingly, notwithstanding the fact that each company is a separate legal entity,
I find, under these circumstances, including the integrated nature of their operations,
' Motions made without objection at the start of the hearing by counsel for the
General Counsel and the Respondent, respectively , to amend and correct portions of the
complaint and to amend the answer , as set forth in the record, were granted by the
Trial Examiner.
9 To the extent that the record discloses any testimony at variance with these findings,
it is regarded as being of insufficient weight to be controlling or unworthy of belief.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the common control and ownership centered in Finlayson and Burton, that Tru-Line
Metal and Tru-Line Screw constitute a single employer within the meaning of the
Act, and, having been charged as Joint Respondent, both companies are jointly
liable and responsible for remedying any conduct herein found to constitute unfair
labor practices under the Act.3
II. THE LABOR ORGANIZATION INVOLVED
Local 408, International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, AFL-CIO, hereinafter referred to as the Union,
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issues
1. Whether, between September 1 and 14, 1961, the Joint Respondent engaged in
certain specified acts of interrogation, threats, promises of benefit, and surveillance
in violation of Section 8(a) (1) of the Act.
2. Whether, in terminating the employment of Loretta May Hall and Ralph
James Clark on September 7, 1961, and thereafter failing to reinstate said em-
ployees, the Joint Respondent was discriminatorily motivated, thereby violating
Section 8(a) (3) of the Act.
A. Section 8(a) (1) allegations
During the 3,week period commencing about the last of August 1961, the Union,
through the efforts of three employees, was engaged in an apparently unsuccessful
attempt to organize the employees of the Joint Respondent. At that time, as reflected
by Joint Exhibit No. 1, it appears that the employee complement of the Joint
Respndent consisted of approximately 7 male employees employed on 2 shifts at
Tru-Line Screw and 29 employees, all but 5 of whom were women, employed on 3
shifts at Tru-Line Metal. The union activity, as far as the record discloses, was
for the most part confined to the distribution, signing, and return of authorization
cards around the first part of September and an attempt by union adherents to
intercept employees between shifts 11/2 blocks from the plant on September 13. As
testified to by Ralph Clark, one of the two alleged discriminatees whose employment
was terminated on September 7, "most of all [sic] the union proceedings took place
off company property and not on company time," and, with the exception of the
activity of Loretta Hall, the other alleged discriminatee, in talking to, and distributing
cards among, the day-shift girls in the ladies' restroom, there is little evidence
of union activity on plant premises.
As violative of Section 8(a) (1) of the Act, the complaint alleges that during this
period the following incidents occurred:
(1) On or about September 1 and 14, 1961, Joint Respondent, through its
supervisor and agent, John Kondzer, warned and threatened employees that the
shop would be closed and with other reprisals if they would not refrain
from becoming or remaining members of the union or giving any assistance or
support to it.
(2) On or about September 6, 1961, Joint Respondent, by its supervisor
and agent, Norman D. Finlayson, interrogated an employee concerning the
union membership activities and desires of the employees; attempted to get said
employee to turn over union authorization cards to Joint Respondent; and
promised said employee economic and other benefits if said employee refrained
from becoming or remaining a member of the union or from giving any
assistance or support to it.
(3) On or about September 7, 1961, Joint Respondent by its supervisor
and agent, Claude Wolcott, interrogated employees regarding their union
membership and activities.
(4) On or about September 13, 1961, Joint Respondent through its super-
visor and agent, Norman D. Finlayson, kept under surveillance the union meet-
ing places and activities of its employees.
a See Lykes Bros. Inc. of Georgia, 128 NLRB 606, 612 ; Dearborn Oil and Gas Corpora-
tiooi, 125 NLRB 645, 647, citing N L.R B v Somerset Classics Inc, at al, 193 F. 2d
-613 (C.A. 2), enfg. 90 NLRB 1676; and N.L R B. v. Federal Engineering Company, Inc.,
153 F. 2d 233 (C.A. 6). See also Esgro Inc. and Esgro Valley Inc., 135 NLRB 285;
and Cone Brothers Contracting Company, 135 NLRB 108.
TRU-LINE METAL PRODUCTS COMPANY, ETC. 973
As to (1), above, according to Warren Fairbanks, a Tru-Line Screw employee,
about a week or 10 days before the September 7 layoff of Clark and Hall, John
Kondzer, an admitted supervisor, told him at noon that "the union in a small shop
wouldn't work because you'd have to close up the shop," with which sentiment
Fairbanks expressed his concurrence. Later that same day, in a conversation with
Kondzer and Ted Le Mieux,4 according to Fairbanks, "Ted and John were telling
me that the only way you could make a union pay in a small shop was to unionize
all the small alley shops in the city in order to keep a competitive level the same."
Fairbanks also testified that, during a lunch hour about 1 week after the September 7
layoffs, after he had been observed by Kondzer that morning talking with Clark
who had given him a ride to work, Kondzer asked Fairbanks if he were not afraid
that he would get into trouble for associating with Clark.
Kondzer, who credibly denied having had any conversation with Fairbanks
relating to union matters prior to the September 7 layoffs, (a) credibly denied
making the statement attributed to him by Fairbanks concerning the latter's as-
sociation with Clark; (b) corroborated in substance Fairbanks' testimony relating
to the three-way conversation with Le Mieux, Fairbanks, and himself, but testified
that this took place after September 7, that Le Mieux made the statement, and that
he (Kondzer) merely expressed agreement with it; and (c) admitted stating to
Fairbanks after the layoff that "Well, if the Union gets in the Company has to fold
up, we'll all be without a job."
Based upon the above testimony generally it would appear that on two occasions
brief discussion took place concerning the feasibility of a union in a small shop
and that, to the extent that Kondzer entered in the conversations, he merely ex-
pressed his own sentiments on the matter, which, in fact, were in accord with those
expressed by employees Fairbanks and Le Mieux. Considering the friendly con-
text in which these two brief discussions occurred and the fact that it appears that
Fairbanks and Kondzer on one occasion, and Fairbanks, Le Mieux, and Kondzer
on the other, were expressing similar views as to the economic effect that the Union
might have in their small shop, I am of the opinion that, under these circumstances,
such statements by Kondzer fall far short of substantiating the complaint allegation
cited above and do not constitute interference, restraint, or coercion within the
meaning of Section 8(a) (1) of the Act.
As to (2), above, Norman Reed, who signed a union card on or about September
1, testified that on that day or the day following he told Finlayson, apparently
voluntarily, that he had signed a card, to which he received no response. Reed
further testified that 2 or 3 days prior to the September 7 layoff, Finlayson told him
"to stay away from Bayley Products at all times," and, when asked by counsel
for the General Counsel whether Finlayson indicated why he should stay away
from Bayley Products, Reed answered, "on account of union activities." Then, on
September 6, while he was working overtime at the Bayley Products location, Fin-
layson approached him and wanted to know what the trouble was, and, according
to Reed, "we started getting to the trouble and I told him, he said I was a trouble-
maker, and I told him if I was a troublemaker I was the one who started the trouble
in the shop about the Union " Reed, whose further testimony as to the substance
of this conversation is no less than confusing, testified that Finlayson "wanted
me to get the union cards back and stop passing out union cards," to which Reed
replied that he would try to comply.
Finlayson denied the complaint allegations attributed to him and, as to the
Bayley Products conversation, testified that, because it was apparent to him that
something was troubling Reed, he asked Reed on or about September 6 what was
the matter, to which Reed replied that "you're not using us fellows right" and that
be was being worked too hard. After a further exchange concerning the avail-
ability of help if Reed needed it and Reed's expressed desire to work alone, Reed
told Finlayson that he belonged to the Union and that the Company could not fire
him. When Finlayson stated that he was not talking about the Union and that
he had had trouble with Reed not getting along with fellow employees, Reed parried
with an admission that he was passing out union cards on his own time, to which
Finlayson concluded the conversation by replying that he was not interested in hear-
ing anything about that.
Reed, like Clark and Hall, was active in support of the Union, but, unlike Clark
and Hall, was not laid off on September 7. In part, the explanation as impliedly
4 Le Mieux was described by Fairbanks as an operator on the afternoon shift Although
Joint Exhibit No. 1 classifies Le Mieux as a "Foreman-Set up & Operator," there is neither
an allegation nor any evidence that Le Mieux is a supervisor within the meaning of the
Act.
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted by General Counsel for the fact that Reed's employment tenure was not
also affected is that Reed was converted, or at least so the Respondent believed
(from his active leadership in the union effort) to that of a loyal employee whose
interests coincided with the Respondent's alleged antiunion sentiments, as evidenced
by Reed's testimony asto the September 6 conversation with Finlayson.5 If, how-
ever, Finlayson, in his conversation with Reed, had in fact expressed his interest
in curtailing union activity in the plant, as testified to by Reed, and had impliedly
assured Reed of continued employment by securing from Reed his agreement to
get the union cards back and to refrain from further union activity in this regard,
it would seem logical to assume, contrary to the fact, that Finlayson would have
made subsequent inquiry of Reed on the matter. There is no evidence, including
any testimony by Reed, that such is the case or that the Union was ever again
the subject of conversation between Finlayson and Reed. Also, had Finlayson in
fact demanded of Reed that he stay away from Bayley Products at all times on
account of union activities, as testified to by Reed, it would seem strange that Fin-
layson did not admonish Reed for refusing to follow his directive in this regard
when, a day or two later on September 6, he approached Reed at the Bayley
Products location.
For the above reasons and based upon my observation of Reed and his demeanor
on the witness stand, I am inclined to credit Finlayson's version of the conversation,
and to discredit Reed's testimony to the extent that it attributes to Finlayson a
directive that Reed stay away from Bayley Products on account of union activities
and an expressed desire that Reed get the union cards back In view of my finding
that Finlayson engaged in no interrogation of Reed, contrary to the General Coun-
sel's assertion as to promises of benefit I am of the opinion that no unlawful inference
as to an ulterior motive should be drawn from the fact that Reed, according to
his unrefuted testimony, asked Finlayson during the September 6 conversation for
a raise in pay and fora vacation and, in reply, was told as to the former that the
job did not pay that kind of money, and, as to the latter that he could have one
the following week,s even when coupled with the fact that shortly thereafter Reed
accepted an extra part-time job at Berkly Tool Company which he allegedly ob-
tained through the efforts of Ben H. Burton, one of Respondent's officials.
As to (3), above, Anna Ardanowski testified that Claude Wolcott. a supervisor,
once asked her whether she had heard anything about the Union, to which she replied
in the negative. In view of the fact that Ardanowski was totally unable to recall
when this conversation took place, even after repeated attempts by counsel for
the General Counsel to elicit such information and after she had been given the
opportunity to refresh her recollection by reading her affidavit, coupled with Wol-
cott's credited denial that he ever talked to any employee concerning union activities,
I find that the General Counsel has failed in his burden of proof as to this allegation.
As to (4), above, Bocks testified that, pursuant to an agreement whereby he
would meet Clark, Hall, and Miller of Bayley Products on the corner of Westwood
and Glendale Streets at 3 p.m. on September 13 for the purpose of talking with
employees between shifts, he arrived at 2:45 pin and, while waiting for Clark
and Hall to arrive, parked his car at the designated corner 7 After having been
there for almost 10 minutes, Finlayson backed out of the Tru-Line driveway and
"proceeded toward me," at which point Bocks started his car and drove around
the block three or four times, with Finlayson following him Finally, when Bocks
noticed that Finlayson was no longer in sight. Bocks again parked at the prearranged
corner, where he found Clark and Hall waiting for him in the former's car After
telling Clark and Hall that, because Finlayson was driving around the neighborhood,
they should move on and meet him later, Bocks went down to Bayley Products, met
In fact, contrary to the assertion set forth by counsel for the General Counsel in his
brief that Fnlayson successfully got Reed to cease his union activity, Reed's own testi-
mony indicates that he subsequently attended a union meeting on a Friday, either Sep-
tember 15 or 22, 1961
In another part of his direct testimony Reed testified that Finlayson's reply was that
he could have it the following year
7 Necessary to an understanding of the testimony relating to the alleged ambulatory
surveillance incident, the undisputed testimony as well as Joint Exhibit No 2 discloses
that the Tru-Line plant is located on the north side of Glendale Avenue ; that Glendale
Avenue is a dead-end street with three streets running north from it, Ashburn at the
extreme west, Artesian at the extreme east, and Westwood, approximately in the middle
but to the west of the Tru -Line plant ; and that one block north of, and running parallel
to. Glendale Is Davison , which , like Glendale , is a dead -end street running between
Auburn and Artesian.
TRU-LIVE METAL PRODUCTS COMPANY, ETC. 975
Miller, then told her to wait for him at the corner of Westwood and Glendale
while he went to find Clark and Hall. Having located the tatters' parked car, Bocks
noticed Finlayson driving "out of one of the driveways of a plant," and, after
telling Clark and Hall to follow him, Bocks drove around several blocks with
Finlayson, who had pulled in behind him, following. Finally, with Finlayson still
behind him, Bocks returned to Westwood and Glendale where he told Clark and
Hall, who, contrary to his instructions, had not followed him, to park their car
and get in his. After parking Clark's car, Clark and Hall got in Backs' car and
the three of them then drove back to the corner of Westwood and Glendale, picked
up Miller who had been waiting for them, and proceeded to drive around a few
more blocks before parking their car at Davison and Westwood, where they s'at and
talked, during which time Finlayson "drove by several times watching us." Miller
then got out of the car and "waved some of the people down and talked to them."
Finlayson drove by several more times before going back to the Tru-Line plant.
Finally, having decided that they were not going to be able to talk to many people,
they drove away.
The testimony of Clark on the one hand, and that of Hall on the other, although
in part corroborative of Bocks', varies in many particulars from the version supplied
by Bocks. Thus, Clark and Hall both testified that the prearranged meeting place
was Westwood and Davison streets (rather than Westwood and Glendale); Clark
testified that, upon arriving at Westwood and Davison, he saw Bocks' car parked
at Westwood and Glendale, and therefore, drove down to meet him at that corner,
whereas Bocks testified that, after having circled the block a few times, Clark and
Hall were already waiting for him at Westwood and Glendale when he returned;
Clark testified that upon making an initial contact with Bocks at Westwood and
Glendale, Bocks told him that Finlayson had been driving around the area and
that he should pull around the corner, park, and get into Bocks' car, whereas Bocks
.and Hall testified that Bocks told Clark and Hall to move on and to meet him
later because Finlayson had been following him; Clark testified that the four of
them (Clark, Hall, Miller, and Bocks), finally got into one car (belonging to
Bocks) at Davison and Auburn, and thereafter proceeded to the final location at
Westwood and Davison, whereas Bocks testified that it was at Westwood and Glen-
dale that the four of them were first together in Bocks' car; and, as to testimony
on behalf of the General Counsel which would indicate the extent to which Fin-
layson could have observed any contact between his shift employees and the
principals allegedly under surveillance, Bocks testified that, at the final meeting
place at Westwood and Davison, Miller "waved some of the people down and
talked to them," whereas Clark testified that Miller "approached one of the cars." 8
While, as above indicated, the combined testimony of Backs, Clark, and Hall is
confusing, in many respects conflicting, and, in my opinion, cannot be completely
relied upon as reflecting the true facts,9 neither am I persuaded that the sketchy
testimony of Finlayson on this matter reflects the actual happenings on this after-
noon . Finlayson, who credibly testified that because of the inaccessibility and
boxed-in location of the plant (only three streets leading from Glendale Aevnue)
and because Tiu-Line deals with a number of different companies in the immediate
area, his normal functions require that he be in and out of the plant a great deal
using the same streets,10 also testified that on the day in question he saw Clark, Hall,
Miller, and Bocks parked at the corner of Westwood and Glendale. Confronted
8 Because of a typographical error in the transcription of Hall's testimony, namely,
"And Matti Miller got out of the car to talk to mene [sic] of the girlsl [sic] going to
work on the shift at Tru-Line," Hall's testimony contributes little to a factual resolution
of this issue Upon all of the testimony, I find that Miller waved down one car in
which several girl employees were riding and that the ensuing conversation was of short
duration Notwithstanding corroborating testimony indicating that Finlayson drove
past this intersection several times, in the absence of any testimony that he was driving
by at this precise moment or that he witnessed this bilef contact with a few of his
employees, I find that he did not see this occurrence
9 As Matti Miller was not called as a witness her version of what happened is not
known. Clark did not impress me as being completely reliable in his testimony generally,
contradicting himself at least on one occasion, and not infrequently supplying evasive
and meaningless answers such as "that cannot be distinguished," "that can't be distin-
guished at this time," and "that point is to be disputed "
'0 Corroborative of Finlayson in this regard is the testimony of Clark who testified that
it is well known in the plant that Fmlayson, as part of his functions in running- the plant,
frequently comes and goes during the course of certain days, using his car for various
reasons including the buying of parts and machines.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the specific surveillance allegations , Finlayson testified that "all I can say is
that I'm going around in there and it could be said that I'm following people or
passing"; and, when asked by counsel for the Respondent whether he at any time
followed them, Finlayson testified that "I could have been going in the same direc-
tion, but in thought I was not following anybody. There was no point in me follow-
ing anyone."
Based upon the record as a whole, I am persuaded and find that Finlayson, on
the afternoon in question, left the plant to make business calls in the immediate
area; it that, while so engaged, he by chance noticed one or more of the cars as well
as the people involved; 12 that, at this point, solely to satisfy an aroused curiosity
as to their presence in the vicinity, he drove around the several-block area for several
minutes for this purpose; and that at no time during the period in question did
Finlayson witness any contact between any of his employees and the occupants of
the parked car. These facts by themselves do not, in my opinion, constitute sub-
stantial evidence that Finlayson was engaged in unlawful surveillance of union
meeting places and activities as alleged in the complaint.13
Thus, in a fact situation not in many respects materially unlike that under con-
sideration, where the president of a small company, after having accidentally
stumbled upon a union meeting at an employee's home and impelled by curiosity,
drove back and forth five or six times, the court held that, absent evidence of
previous union hostility or planned espionage, "an isolated instance of observation
merely to find out what was going on without something to indicate that the in-
formation sought to be obtained was to be used to the disadvantage of the em-
ployees, or that the conduct was, in view of all surrounding circumstances, such
that the employees might reasonably assume the observation would result to their
detriment, there could be no restraint, and hence no unlawful surveillance." 14
For the reasons above set forth, and upon the record as a whole, I find that the
General Counsel has not established by a preponderance of the evidence that, on
this occasion, Finlayson was engaged in unlawful surveillance,15 or that the Re-
spondent otherwise engaged in conduct violative of Section 8(a)(1) of the Act.
B. Section 8(a) (3) allegations
Toward the latter part of August 1961, Norman Reed, one of approximately
seven employees then employed by Tru-Line Screw, solicited the assistance of Ralph
Clark, a fellow employee and one of the two alleged discriminatees , in an effort to
organize the employees of the Respondent's plant. Thereafter, Virgil Bocks, presi-
dent of the Union, was contacted and, through Matti Miller, chief steward at Bayley
Products Company, union authorization cards were transferred to Reed, who, after
signing one , turned them over to Clark. Clark then proceeded to discuss the Union-
with a number of employees and, on August 29, asked Loretta Hall, an employee
of Tru-Line Metal and the other alleged discriminatee , to sign a card , which she did
on August 30. Pursuant to her agreement with Clark that she would talk to the
women employees about the Union, sometime between September 1 and 3, Hall
received union cards from Clark. Thereafter, in addition to talking with the girls
employed on the afternoon shift, of whom there were 7, Hall met with all but 2 or
3 of the 14 day-shift girls in the ladies' restroom and, after discussing the Union,
distributed among them union cards which were signed and subsequently returned
to 'her. Hall then turned them over to Clark.
"Backs testified that at one point during this period he observed Finlayson leaving
a driveway of a plant , and both Clark and Hall testified that Finlayson was seen leaving
the Olds Plating Company lot.
12 In an apparent attempt to establish by Inference that Finlayson on the afternoon in
question had received prior notice that Bocks was parked in the area just prior to a
p in , Bocks testified that while waiting for the others to arrive at the corner of Westwood
and Glendale a few minutes before Bocks first saw Finlayson , he saw a white 1959 Ford
leave the True-Line plant, and that he believed that it belonged to "someone from Tru-
Line Products, a supervisor, but I'm not sure." Notwithstanding counsel for General
Counsel's efforts on cross -examination of Respondent 's witnesses, the record contains no
evidence to establish that the car beyonged to an official of the Respondent or that the
person driving it observed Bocks. Accordingly, I find that such an inference is totally
unwarranted and that Finlayson subsequently happened upon the union adherents by
coincidence and not by design.
13 B. F. Graybeal and K. W. Graybeal, d/b/a C. R. Graybeal & Sons , 114 NLRB 700,
705; Empire Pencil Company, 86 NLRB 1187, 1214.
14 N L.R B v. Palls City Creamery Company, 207 F 2d 820 (C A. 8)
15 See T. A. McGahey , Sr, et at, d / b/a Columbus Marble Works, 111 NLRB 1162, 1163_
TRU-LINE METAL PRODUCTS COMPANY, ETC. 977
On September 7, 1961, about 3:30 p.m , Clark, who had been employed since
February 1959 as a chip operator and laborer engaged primarily in washing parts,
was approached by Finlayson, handed two checks, and told that he was being
laid off due to the lack of work in his department. Similarly, on this date, at the
close of the day shift, Hall, who had been employed since August 1959 performing
various machine operations, was handed two checks by her supervisor, Wolcott, and
told that he had to let her off because of lack of work.
The General Counsel conmends that Clark and Hall were terminated from the
Respondent's employ because of their activities on behalf of the Union. The Re-
spondent denies having prior knowledge of union activity by Clark and Hall, and
asserts that they were laid off solely because of lack of work.
Because the Respondent offered little evidence to support its position that lack
of work necessitated the two layoffs, and, in the case of Hall, no explanation as
to its basis for her selection, the controlling issue presented for resolution is whether,
on the whole record, the General Counsel has established a prima facie case of
discrimination as to either or both of the alleged discriminatees.16 As it is well
settled that an employer may discharge an employee for any reason, or for no
reason, as long as it is not one proscribed by the Act,17 necessary to a determination
that a prima facie case of discrimination has been established is a finding that the
Respondent was unlawfuly motivated in terminating the employment of Clark and
Hall. Essential to a finding of unlawful motivation is the existence of evidence
disclosing that the Respondent knew that the alleged discriminatees were members
of the Union or were engaged in activities on its behalf. The record contains no
evidence, nor does the General Counsel assert that such exists, that the Respondent
or any of its supervisors, prior to the September 7 layoffs, possessed direct knowledge
of the union activities in which either Clark or Hall had engaged. However, as the
Board has held that evidence of direct knowledge of an employee's union activities
is not a sine qua non for finding that he has been discharged because of such activities,
and that direct knowledge may be inferred from the record as a whole,18 the question
of whether the General Counsel has made out a prima facie case of discrimination as
to Clark and Hall turns on a determination of whether, upon the record as a whole,
there is sufficient evidence to warrant, and in fact to require, an inference that the
Respondent possessed direct knowledge of their union activities prior to their
separation.
Before turning to the evidence bearing upon this issue, to say that the circum-
stances surrounding the termination of Clark and Hall are highly suspicious would
be an understatement. Thus, lending itself to this proposition is the fact that (a) the
Respondent was aware of union activity among its employees; (b) apart from Reed,
employees Clark and Hall were the leaders in the union movement and, between
them , apparently at one time or another , most of the employees were contacted;
(c) both Clark and Hall were separated simultaneously not too long after the union
activity commenced , and without advance notice; ( d) Hall was capable of perform-
ing most of the jobs in the plant and neither she nor Clark were at the bottom of
their respective seniority lists, (e) there had been no plant layoffs for a long time and,
according to one employee, in the past slack periods prompted the Respondent in
establishing a "short week" rather than necessitating the reduction of personnel;
and (f) testimony by General Counsel witnesses indicated that there appeared
to be little or no change in Respondent's overall workload after the September 7
layoffs.19
19 In assuming its burden of proof by a preponderance of evidence as to the complaint
allegations , which burden remains with the General Counsel throughout , it is only after
the General Counsel has made out a prima facie case that the burden of going forward
with the evidence shifts to the Respondent , requiring the Respondent to produce evidence
to rebut that proffered by the General Counsel. See American Dredging Company, 123
NLRB 139, 142.
17 N L R B v. Standard Coil Products Co , Inc ., 224 F. 2d 465, 470 (C.A. 1).
19 Wiese Plow Welding Co , Inc., 123 NLRB 616, 618 ; see Radio Ofcers' Union of the
Commercial Telegraphers Union, AFL v. N.L.R B., 347 U S. 17 ( 1954).
19 As to ( c), (d), and ( e), however , there is no evidence that, in the past, the Re-
spondent had followed a practice of giving advance notice or using a seniority list in
effectuating layoffs, or that the Respondent considered the instant situation a slack
period. As to (f), the record discloses that no employees have since been hired by
Tru-Line Metal, and, with the exception of a screw machine operator , Peterson, who
had left Respondent 's employ in August and was reemployed by Tru-Line Screw for a
3-week period in November , and a second screw machine operator, Smith, who was
hued by Tru-Line Screw in January 1962, no employees have since beon added to the
employee complement of Tru-Line Screw.
'978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apart from these factors giving rise to suspicion, actual evidence upon which an
inference of employer knowledge might be drawn is confined to the fact that the
employee complement of Joint Respondent 's plant is small ; testimony by Kondzer
that on one occasion some 3 or 4 months before the period in question he heard
Clark say "we get a union here things will be different "; and Bocks ' testimony that he
bad met Reed, Clark , and Hall "around the plant" for the purpose of discussing
employee organization.
Tending to either minimize or negate the affirmative effect of the above factors
upon the issue of imputing to the Respondent knowledge of the union activities of
Clark and Hall , cognizance must be taken of the fact that ( a) the record contains
no credible evidence disclosing union animus , or hostility or even opposition to the
Union by the Respondent ; ( b) other than Hall's testimony relating to the discussion
and card distribution among some women employees in the ladies ' restroom and
Bocks' testimony that he had met with Reed, Clark , and Hall "around the plant," there
is no evidence of specific union activity on plant premises generally, no evidence that
Clark or Hall engaged in union activity on plant property , no evidence that either
one openly espoused the union cause, and the record thus bears out Clark's testimony
that most of the union proceedings took place off company property and not on
company time ; 20 (c) even assuming the existence here of union discussion generally
among the employees which normally occurs during periods of union activity, and
being completely aware of the small size of the Respondent's plant, the record
contains no testimony by Clark or Hall or, with one exception , by any witness
which would indicate that either of the discriminatees was at any time prior to his
separation observed by management officials talking with Bocks or discussing the
Union with other employees ; 21 (d) even the testimony of Reed, who told Finlayson
on September 6 that he had passed out union cards and, therefore , is the one
employee from whom the Respondent might have learned of the union activities of
Clark or Hall , does not indicate that Finlayson either asked for, or was supplied
with, the names of union adherents or the identity of employees to whom cards
were distributed , and (e) Reed, who voluntarily informed Finlayson that he had
signed a union card and that he had been primarily responsible for initiating the
union activity in the plant , not only was not terminated but in fact was assigned
certain work functions formerly performed by Clark.
With recognition that suspicion or conjecture is no substitute for proof and is
insufficient upon which to predicate an unfair labor practice finding ,22 or to impute
to an employer actual knowledge , the determination to be made is whether, con-
sidering all of the above circumstances , the evidence is sufficient to warrant an
inference that the Respondent acquired knowledge of the alleged discriminatees'
union activities . Having carefully , and at great length, reviewed the credited testi-
mony and all of the evidence pertaining to this issue , I am of the opinion that unless
the required knowledge may be inferred from the small size of the Respondent's
plant, the inference should not be drawn . While a majority of the present Board
has held on a number of occasions that the size of an employer's plant is an im-
portant factor to be considered in making such a determination , the Board has also
adhered to the proposition that "the mere fact that Respondent 's plant is of a
small size, does not permit a finding that Respondent had knowledge of the union
activities of specific employees , absent supporting evidence that the union activities
were carried on in such a manner, or at times that in the normal course of events,
Respondent must have noticed them ." 23 The instant record, as above documented,
fails to supply the necessary supporting evidence required by the Board under its
"small plant" doctrine.
Under all of the circumstances , particularly the fact that the record is void of
credible evidence reflecting union animus on the part of the Respondent, and in
view of the credited denial by Finlayson that he was aware of the union activities
20As to the restroom incident , it does not appear that any of Respondent 's officials was
aware of this activity or that any supervisor was in a position whereby, in the course
of his normal duties, he would have learned of its occurrence
"The one exception is Iiondzer 's testimony that 3 or 4 months before union activity
occurred he heard Clark say "we get a union here things will be different " As no other
witness testified to this matter and Kondzer was not questioned further on it, there is
no evidence which would reveal to whom this statement was made or the circumstances
under which it was uttered
zs Lo-K Foods, Inc , 134 NLRB 956
21 Hadley Manufacturing Company, 108 NLRB 1641 , 1650 ; Diamond Ginger Ale, Incor-
porated , 125 NLRB 1173 • S B. Thomas, Inc, 128 NLRB 1434, 1438-1439, Audio Indus-
trics, Inc, 135 NLRB 1008
PRINCE MACARONI MANUFACTURING CO. 979
of Clark or Hall prior to their separation on September 7, I find the evidence in-
sufficient to warrant the inference that the Respondent possessed direct knowledge
of their union activities 24 Accordingly, as it necessarily follows that, without
knowledge of the union activity of Clark or Hall, it cannot be said that the Re-
spondent was unlawfully motivated in terminating their employment, I find that
the General Counsel has failed to make out a prima facie case of discrimination as
to the separation of either Clark or Hall.25
Notwithstanding the fact that subsequent to their separation the Respondent ac-
quired knowledge of their union activity, in view of my finding above coupled with
the fact that the record discloses that no employees other than two skilled operators
in Tru-Line Screw have been employed since September 7, 1961, I find that the
General Counsel has failed to establish by a preponderance of the evidence that
the Respondent has refused to recall or rehire Clark or Hall because of their union
activity.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Tru-Line Metal Products Company and Tru-Line Screw Products, Incorporated,
are, as Joint Respondent, engaged in commerce within the meaning of Section 2(6)
of the Act.
2. Local 408, International Union, United Automobile, Aircraft and Agricul-
tural Implement Workers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Joint Respondent has not engaged in any unfair labor practices as alleged
in the complaint.26
RECOMMENDED ORDER
It is hereby recommended that the complaint be dismissed in its entirety.
2; See Diamond Ginger Ale, supra, and S. B. Thomas, Inc., supra ; cf. Weise Plow
Welding Co , Inc., supra
25 Hadley Manufacturing Company, supra; American Dredging Company, supra
=5 At the close of the hearing I reserved ruling on Joint Respondent's motion to dismiss
the complaint. Consistent with my finding and conclusion that no unfair labor practices
were committed by the Joint Respondent, said motion is hereby granted.
Prince Macaroni Manufacturing Co. and Esther M. Hibbard.
Case No. 1-CA-3586. September 26, 1962
DECISION AND ORDER
On April 6, 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 Inter-
mediate Report. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint.' Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate report and supporting briefs.
INo exceptions were filed to the Trial Examiner's dismissal of certain alleged violations
of Section 8(a) (1).
138 NLRB No. 125.
662353-63-vol 138-63