Superior Co., Inc.

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has been found that the Respondent has refused to bargain collectively With the Union as the exclusive representative of the employees of the Respondent in the appropriate unit. It will, therefore, be recommended that the Respondent bargain collectively with the Union, upon request, as the statutory representative of the,employees in the unit found to be appropriate, and, if an understanding is reached, embody such understanding in a signed agreement. Since the record does not reveal any evidence that the Respondent has engaged in any other unfair labor practices, and since it appears that the Respondent's refusal to bargain is based on its desire to litigate the issue of the Board' s juris- diction over the operations of the Respondent, rather than a fundamental atti- tude of opposition to the objectives of the Act, it will be recommended merely that the Respondent cease and desist from refusing to bargain with the Union as the exclusive representative of the employees in the unit, and from in any man- ner interfering with the efforts of the Union to bargain collectively on their behalf. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1. International Association of Machinists. Lodge No. 750, Ind, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All mechanics, bodymen, painters, trimmers, apprentices, and helpers at the Respondent's Colorado Springs, Colorado, plant, excluding all office and clerical employees, salesmen, guards, professional employees, and all super- visors as defined in the Act, constitute, and at all times material herein have constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Association of Machinists, Lodge No. 750, Ind , was, on April 19, 1950, and has been at all times material since, the exclusive representative of all the employees in the unit above described for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 4 By refusing, on May 23, 1950, and thereafter, to bargain collectively with International Association of Machinists, Lodge No. 750, Ind, as the exclusive representative of all the employees in the unit above described, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said refusal to bargain, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act [Recommended Order omitted from publication in this volume.] SUPERIOR COMPANY, INC. and TEXTILE WORKERS UNION Or AMERICA, CIO. Case No. 8-CA-425. May 17, 1951 Decision and Order On January 29, 1951, Trial Examiner Isadore Greenberg issued his Intermediate Report in the above-entitled proceeding, finding that 94 NLRB No. 90. SUPERIOR COMPANY, INC. 587 the Respondent had engaged in and was engaging in unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other alleged unfair labor practices and recommended that the complaint be dismissed in this respect. ' Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Respondent also filed a request for oral argument. The request for oral argument is denied as the record 'and exceptions and briefs, in our opinion, adequately, present the issues and the positions of the parties. The Board 1 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 Intermediate Report, the exceptions, briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recom- mendations of the Trial Examiner, with the following additions and modifications : 1. The Trial Examiner found that on or about August 24, 1950, during a conversation in the plant's cafeteria, General Manager Nicholas stated to employee Paul Baker that if Baker attended a Board representation hearing then scheduled for September 6, he would be dealt with as he had been on July 27, when he was laid off for 7 days. The Trial Examiner made no finding as to whether or not this statement was violative of the Act. Attendance by employees at a Board representation hearing for the purpose of giving testimony, advice, or assistance or for any other reason in connection with such proceeding is a form of concerted ac- tivity for the purpose of collective bargaining. As such it is pro- tected by the Act against interference, restraint, and coercion by the Employer. We find that by threatening to penalize Paul Baker if he engaged in such activity in the future without giving a valid reason for its objection thereto, the Respondent interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. 2. We agree with the Trial Examiner's conclusion that this Re- spondent, by permitting a petition to be circulated among the em- ployees in its plant during working hours, which stated that the employees neither needed nor desired a union of any kind, committed 1 Pursuant to the piovisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles] In the absence of exceptions, we adopt without discussion the Trial Examinei ' s finding that the wage increase announcement by the Respondent in August or September 1950 was made for bona fide business reasons and did not constitute an unfair labor practice. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no violation of the Act.3 The Respondent's action constituted no more than acquiesce in antiunion activities of its employees during working hours. There is no evidence that comparable privileges of carrying on prounion activities in the plant were either sought by or denied to adherents of the Union. Nor does the record show that the Respondent had any part in the preparation, sponsorship, or circula- tion of the petition.4 We also adopt the Trial Examiner's conclusion that General Man- ager Nicholas' letter to the signers of the petition expressing his gratification at the "cooperation and consideration" thus displayed by these employees, and assuring them that he would be ready to do any- thing in "regards our business relationship or even in the personal matters" cannot be reasonably construed as a premise to bestow bene- fits upon the employees in payment for having taken an antiunion position .-5 3. We also agree with the Trial Examiner's finding that the Re- spondent refused the "Committee's" request for a day off to attend a conference with the Board's representative, and subsequently imposed a penalty upon the members of the Committee for taking a day off contrary to the Respondent's instructions, because of its animus against the Union and a desire to frustrate the Union's efforts to organize its employees, and thereby violated Section 8 (a) (1) and (3) of the Act. In its brief to the Board the Respondent argues that, assuming that the denial of the request was discriminatory, the employees' action in taking time off contrary to the Respondent's instructions amounted to insubordination and that the employees thereby forfeited their right to the protection of the Act. The employees, the argument runs, had an adequate remedy to test the validity of the Respondent's instruc- tions, namely, they could have filed with the Board an unfair labor S The Trial Examiner found that the Respondent not only permitted but "encouraged" the circulation of the petition among its employees. In so finding the Trial Examiner relied on the following remark of Forelady Cronies to employee Floyd Brocow while she was circulating the petition : "I hope you have luck " We do not agree with the Trial Examiner's finding that this isolated remark by a minor supervisor constituted encourage ment by the Respondent of the circulation of the petition. 4 Cf. Somerset Classics, Inc , and Modern Mfg. Co , Inc., 90 NLRB 1676, Kansas-Nebraska Natural Gas Company, Inc, 90 NLRB 1423; Rubin Brothers Footwear, Inc , 91 NLRB 10; Royal Palm Ice Company, 92 NLRB 1295 5 Chairman Herzog dissents from this holding, believing that under all the circumstances the Nicholas letter constituted a violation of Section 8 (a) (1) of the Act. That letter reads as follows : It is with a deep sense of gratitude and sincere thanks to you for signing the petition which was recently submitted to me by the employees of the Superior Company. I feel that with this cooperation and consideration the company cannot help but to succeed Please rest assured that if there is ever anything I can do which regards our business relationship or even in the personal matters, please feel free to call upon me. Once again I wish to [sic] my thanks to you Nice. SUPERIOR COMPANY, INC. 589 practice charge. Instead, it is asserted, they took the law into their own hands and disobeyed the specific order of their Employer to come to work, and their layoff to vindicate the Respondent's man- agerial authority therefore was justified. We find no merit in this contention. Even assuming that the managerial authority of the Respondent was, as the Respondent claims, "flouted" by the employees' unauthorized absence, this was a direct consequence of the Respond- ent's own unlawful conduct. But for the Respondent's discriminatory denial of the request there would have been no need to take any dis- ciplinary measures.6 Nor did the employees in taking a day off contrary to the Respondent's instructions engage in such serious mis- conduct as to forfeit the protection of the Act. While it is true that the employees disobeyed the instructions, nevertheless as found by the Trial Examiner, the instructions themselves were discriminatory and the purpose for which the employees sought the time off was to engage in legitimate organizational activities for the purpose of col- lective bargaining. Because the Respondent by its unlawful conduct set in motion the chain of events which it contends resulted in the 'disregarding of its authority, it may not be now heard to say that the responsibility therefor rests elsewhere. Order Upon the entire record in the case and pursuant to Section 10 (c) .of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Superior Com- pany, Inc., Piqua, Ohio, its officers, agents, successors,, and assigns, shall: 1. Cease and desist from : (a) Interrogating employees concerning their union membership, .or threatening them with reprisal for engaging in concerted activity for the purpose of collective bargaining. (b) Discouraging membership in Textile Workers Union of Amer- ica, CIO, or any other labor organization of its employees, by dis- crinnnultory layoffs, or by discriminating in any other manner in regard to the hire and tenure of employment or any term or condition .of employment of any of its employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to jour or assist Textile Workers Union of Amer- ica, CIO, or any other labor organization, to bargain collectively c Cf Republic Ai iat,oma Corporation v N L R B . 324 U S. 793, where an employee -violated a rule against solicitation at the plant by soliciting on his own time in the face -of a warning not to engage in such activity There the Supreme Court held that if the 'rule against' solicitation was invalid as to union solicitation on the employee's own time, a discharge because of violation of that rule wag-violative of Section 8 (3) of the Act 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through representatives of their own choosing, to engage in con- certed activities for the purpose of collective bargaining or other mutual-aid or protection, or to refrain from any or all of such activi- ties, except to the extent that such rights may be affected by an agree-, ment 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 which the Board finds will effectuate the policies of the Act: (a) Make whole Paul Baker, Miriam Baker, Donna Bryson, Evelyn Bryson, and Zelpha McNutt, for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by payment to each of them of a stun of money equal to the amount which he or she normally would have earned as wages from the date of his or her discriminatory layoff to the date upon which Respondent rein- stated him or her to its employment, less his or her net earnings during the period of such layoff. (b) 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 to analyze the amounts of back pay due. (c) Post at its plant in Piqua, Ohio, copies of the notice attached to this Order, entitled "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Eighth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that the Respondent committed unfair labor practices by an- nouncing a forthcoming general wage increase to its employees in late August or early September 1950, by its conduct in relation to the distribution of an antiunion petition in its plant, or by its discharge of Paul Baker on August 28, 1950. 'Since the issuance of the complaint , Donna Bryson has married and is now known as Mrs Donna Bryson Lyon 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted before the words , "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." StPERIOR COMPANY, INd' Appendix A NOTICE TO ALL EMPLOYEES 591 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, we hereby notify our employees that : WE WILL NOT discourage membership in TEXTILE WORKERS UNION or AMERICA, CIO, or any other labor organization of our employees, by discriminatory layoffs, or by discriminating in any other manner in regard to the hire and tenure of employment or any term or condition of employment of any of its employees. WE WILL NOT interrogate our employees concerning their union membership and activities, or threaten them with reprisal for engaging in concerted activity for the purpose of collective bar- gaining, or in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-mentioned union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. WE WILL make whole the employees named below for any loss of pay suffered as a result of the discrimination : Paul Baker Evelyn Bryson Miriam Baker Zelpha McNutt Donna Bryson All of our employees are free to become, remain, or refrain from becoming or remaining members of the above-named union or any other labor organization, except to the extent that any such right may be affected by an agreement as authorized in Section 8 (a) (3) of the Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in of activity on behalf of any such labor organization. SUPERIOR COMPANY, INC., Employer. Dated -------------------- By ----------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report and Recommended Order Bernard Ness, Esq., for the General Counsel. Henry G. Friedlander, Esq., of New York, N. Y., for the Respondent. Mr. William H. Walters, of Toledo, Ohio, for the Union. STATEMENT OF THE CASE Upon a charge and amended charge duly filed by Textile Workers Union of America, CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued his complaint dated December 1, 1950, against Superior Company, Inc., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat 136, herein called the Act. Copies of the complaint, the charge and amended charge, and a notice of hearing thereon were duly served upon the Respondent and the Union. With respect to unfair labor practices, the complaint alleged in substance that the Respondent: (a) During and after March 1950, infringed upon the statutory rights of its employees by interrogating them regarding .their union affiliations; (b) promising them benefits for refraining from affiliating with the Union, and threatening them with reprisals if they did affiliate with or assist it ; (c) and by encouraging and ratifying the distribution of an antiunion petition among its employees. The complaint further alleged that the Respondent, in violation of Section 8 (a) (3) of the Act, on or about July 27, 1950, laid off five employees' because of their activities on behalf of the Union, and on or about August 28, 1950, discharged employee Paul Baker, and has since refused to rein- state him, because of his affiliation with the Union and his activities on its behalf. In its answer duly filed, the Respondent denied that it had committed any unfair labor practices. Pursuant to notice, a hearing was held on December 19 and 20, 1950, at Piqua, Ohio, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner of the Board. The General Counsel and the Respondent were represented by counsel and par- ticipated in the hearing. The Union was represented by one of its national repre- sentatives Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, counsel for the Respondent moved to strike para- graph VI of the complaint on the ground that the charge and amended charge did not contain a "short, concise statement of facts with regard to the allegations contained in Paragraph VI, as provided by the rules and regulations of the -National Labor Relations Board " This motion was denied. A motion by counsel for the Respondent, at the conclusion of the General Counsel's case, to dismiss the complaint, was denied. This motion was renewed at the conclusion of the hearing and ruling thereon was reserved. It is disposed of by the findings, conclusions, and recommendations hereinafter made The Genera al Counsel's motion, also made at the close of the hearing, to conform the pleadings to the proof with respect to formal matters, such as the spelling of names and the like, was granted without objection Opportunity was afforded the parties to present oral argument after they had rested their cases, and to file briefs, and proposed I Paul Baket, Miriam Baker, Donna Bryson, Evelyn Bison, and Zelpha 1lcNutt P1 SUPERIOR 'COMPANYhIIINC f 593, findings of fact anti conclusions of law, with the.'Trial Examiner: , Counsel for the. General Counsel and the-Respondent were heard in-oral argument. No briefs or other.'douinents were received. from any of the parties. -Upbn'theientire record in the case, and from my observation of the, witnesses;' I make the following: FINDINGS OF FACT I; THE BUSINESS OF. THE RESPONDENT SuperiOr Company,. Inc., is an Ohio corporation, having its principal office and place, of business at Piqua, Ohio, where it is engaged in the manufacture, sale, and distribution of men's cotton knit underwear, broadcloth shorts, and related products: . During the. period herein material, the Respondent purchased annually raw. ,materials valued at in excess of $1,500,000, of which more than 95 percent wa purchased from suppliers located outside the State of Ohio, and was shipped to the Respondent's plant in Piqua, Ohio. During the same period, the Respondent . produced at, its said plant, and sold, finished. products valued. at in excess: of $2,000,000, of which more than 90 percent was sold and delivered to customers: in places outside the State of.Ohio. The Respondent concedes, and I find,. that, the Respondent is engaged in, com- Inerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union, of America, CIO, is, a labor organization admitting employees of the Respondent to membership. M. THE UNFAIR LABOR PRACTICES A. Backgrounzd; sequence of events', The Respondent's plant at Piqua, Ohio, is managed by General Manager Dimitri Nicholas, who is also a vice president of the Respondent. During the period herein dealt with, from '350 to 400 workers were employed in the said plant. After some organizational efforts among the aforesaid employees, the Union, on June 5, 1950, wrote to-General Manager Nicholas, asserted that it had been designated by a majority of the employees to act as their collective bargaining representative, and requested that a bargaining meeting between the Union and the Respondent be arranged. Nicholas did not reply to this'letter. • . On June 15, 1.950, the Union filed,a petition with the Board for investigation and determination of the question of representation raised by its rejected claim.' In accordance with the'usual practice, the Regional Office of the Board scheduled an informal conference among representatives of the Board, the Respondent, and, the Union for July 26, the'purpose of which was to attempt to secure agreement of the parties for a-consent election as a means of determining the. bargaining representative of the Respondent's employees, and thus to obviate the formal and more time-consuming procedures which would ensue in the absence of such an agreement. . The Board field examiner in charge of the case sent out notices for the July 26 conference to be held in the Respondent's offices at Piqua. The Respondent objected to such an arrangement, however, and informed the field examiner that 2 Unless otherwise indicated, the findings of fact made herein are based on undisputed evidence. Case'No. 8-RC-926. 953841-52-vol. 94-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while it was willing to confer with a representative of the Board, It would stand on its legal right to refuse to meet with the Union until that organization was certified by the Board. The Respondent also informed the Board that it would prefer that even a limited meeting between representatives of the Respondent and the Board be held in some place other than Piqua. General Manager Nicholas testified at the hearing that the Respondent's objec- tion to having the conference take place in Piqua was based oil his feeling that the employees might be "influenced" by seeing the Respondent meet with a Board representative, because the "coming [of the Board representative had] been heralded by circulars" distributed by the Union, in which, as Nicholas testified, the Union boasted of having brought about such a meeting. Nicholas further testified that he wished to avoid giving the employees the impression that the Union was "going to tell us what will happen and what will be done," or that the Respondent in any way recognized the right of the Union to meet with it.' The July 26 conference was, consequently, rescheduled to be held at Dayton, Ohio. Upon being advised of this arrangement by the Board, the Union sent a letter, dated July 20, 1950, to General Manager Nicholas, informing him that five named employees of the Respondent ' had been designated to attend the aforesaid conference "as the Union committee," and requesting that they be granted the day off from work for that purpose.' On July 25, Nicholas telegraphed the following reply to the Union : RE YOUR LETTER JULY 20TH. OUR MEETING ON JULY 26TH WITH MR. VINCEK NATIONAL LABOR RELATIONS BOARD ONLY. WE CAN- NOT CONTENANCE ABSENCE OF ANY EMPLOYEE UNDER PRESENT CONDITIONS. In addition to sending the foregoing message to the Union, Nicholas summoned the members of the union committee individually to his office, told them that he had received the Union's request, stated that while there was to be a meeting on July 26 between representatives of the Board and the Respondent, there was not going to be one between the Respondent, the Board, and the Union, said that he could not countenance their absence from work on the 20th, and, finally, instructed them to be at work on that day, failing which they would be dis- ciplined.' 4 After giving the above -summarized testimony , Nicholas was recalled to the stand by Respondent's counsel and asked the following question : "Mr. Nicholas , as a result of a conversation with me last night, have you refreshed your recollection with regard to the direct reason why the company wanted the conference with Mr. Vincek [ the Board field examiner] to be held at Dayton, Ohio?" Nicholas answered that he had made this request for the convenience of the Respondent 's counsel , who was coming from New York City to attend the conference. I do not credit this testimony. ' Paul Baker, Miriam Baker , Donna Bryson , Evelyn Bryson , and Zelpha McNutt. 6 Despite the Respondent's assertion to the field examiner that it would refuse to meet with the Union at the July 26 conference, the Board representative went forward with arrangements to have the Union represented at the conference. This was based on his hope, as appears from the record, that if lie brought the parties together, the Respondent might be persuaded at the last minute to consent to participate in discussions with the Union. As will hereinafter be seen, this proved to be a. vain expectation. ' The record reveals that one of the five members of the union committee, Miriam Baker, was absent from work (with permission) on the day previous to July 26, and so was not personally interviewed by Nicholas with respect to the request for time off on the 26th as were the other four members. In view of Nicholas' telegram to the Union declining to grant the committee members the day off, and the fact that Paul Baker, Miriam Baker's husband , was told by Nicholas that the request was rejected , it is reasonable to SUPERIOR COMPANY, INC. 595 Despite Nicholas' prohibition, the five employees in question did absent them- selves from work on July 26 for the purpose of attending the conference in Day- ton. When they arrived at the scheduled place for the meeting, the members of the union delegation found the Board field examiner and the Respondent's representatives there together. The field examiner at this point made a final attempt to persuade the Respondent to consent to a joint conference, but when this proved unsuccessful, the representatives of the Union withdrew. They met with the Board field examiner later in the day, after the latter had completed his discussions with the Respondent. On July 27, the day following the scheduled Dayton conference, all five em- ployees on the union committee returned to their respective jobs. During that day each of them was summoned to the office of General Manager Nicholas and laid off until August 7, 1950, being told that this discipline was being im- posed in punishment for their action in absenting themselves from work the day before in the face of Nicholas' instructions to the contrary. After the above-described layoff of the five members of the union committee, and their subsequent return to work, Paul Baker, one of the aforesaid em- ployees, was discharged on August 28, 1950, allegedly for being an unsatisfac- tory employee. During a period of approximately a week preceding the July 26 meeting, employee Marie Rapp had, with some assistance from one or two other rank- and-file employees, secured the signatures of a number of the Respondent's employees to petitions reading as follows, which Rapp had herself drawn up: We are the people who work at Superior in Piqua. We are satisfied with conditions and the way we are treated. We have always worked out any problems which come up with Mr. Nicholas and have always been fairly treated. We don't need or want any union of any kind in our mill. Rapp and her helpers openly solicited signatures to the petitions in the plant, some of the signatures being obtained during the working hours both of the solicitors and the solicitees. It is undisputed that the Respondent, through General Manager Nicholas and one or more of its supervisors, was aware of the fact that the petition was thus being distributed among the employees and did nothing to stop this activity. After the signed petitions were presented to Gen- eral Manager Nicholas on or about Monday, July 24, he caused letters of thanks to be sent to each signer thereof, expressing his gratification for the "cooperation and consideration" thus displayed by these employees, and assuring them that he would stand ready to do anything he could for them "as regards our business relationship or even in personal matters." e After receiving both the petitions above referred to and the letter from the Union requesting that the five employees constituting the union committee be excused from work on July 26, Nicholas noticed that employees Paul Baker, Miriam Baker, Donna Bryson, and Evelyn Bryson, who were members of the union committee, had signed the antiunion petition. On or about July 25, Nich- infer, and I find , that Miriam Baker was informed of the Respondent's rejection of the request for the day off before she attended the scheduled conference on July 26. Paul Baker testified that during his conversation with Nicholas on the above-described occasion , Nicholas made remarks to the effect that the Respondent was in a position to move its operations to another town, and that some other town would be glad to offer inducements to it to do so Nicholas denied having made any such remarks. His secretary, Nancy Dolph, who was present during the conversation, also denied that Nicholas had made any such statements. I credit Nicholas' and Dolph's denials e B Employee Rapp testified that she presented the signed petitions to Nicholas on: Tuesday, July 25, but since some of the letters of thanks to employees who signed are dated July 24, the petitions must have been given to Nicholas at least that early. The exact day is of no importance. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD olas summoned each of these four employees individually to his office, called their attention to the 'seeming inconsistency of theirrhaving signed such a .petition while serving as members of a union committee, and asked each of them "which side of the fence" they were on. Thereupon, either at Nicholas' suggestion or on their own initiative , each of the employees erased or crossed his or her signa- ture off the antiunion petition.' As a consequence of the refusal of the Respondent to agree to participate in an informal conference with the Union, the Regional Office of the Board sched- uled a formal hearing on the Union's representation petition, to be held on Sep- tember 6, 1950. Notices thereof were sent to the parties sometime in the latter part of August. Shortly thereafter, on or about Thursday, August 24, the Board field examiner in charge of the case notified the Respondent that since the Union had filed unfair labor practice charges against the Respondent, further proceedings with respect to the representation petition would be postponed. At about this time, General Manager Nicholas, at a meeting of the employees, an- nounced that a wage"inc"rease would shortly be granted to all employees of the plant. B. The contested issues 1. The legality of the Respondent's announcement of a general wage increase The General Counsel contends that the Respondent announced a forthcoming general wage increase for the employees in late August or early September 1950, in order to forestall the organizational efforts of the Union. In support of this con- tention he points to the undisputed fact that the Respondent had never before effectuated a general, or "across-the-board," wage increase for all employees, and argues that the suspicious timing of this unprecedented announcement, just when the Union's attempt to organize the employees, and the Board proceedings arising therefrom, were "coming to a head," indicates that the wage increase was pro- claimed by the Respondent at a strategic time in order to win the employees away from adherence to the Union. The Respondent denies that the announced wage increase was actuated by any such purpose. It adduced testimony by General Manager Nicholas to the effect that efforts had been made by the Respondent for several years prior to 1950, gradually to institute a satisfactory wage structure for its employees, which would represent a just and proper ratio among the wage rates for the various operations in the plant. This had been done, according to Nicholas, by making adjustments of wage rates in individual cases as inequities became apparent, and, by July or August 1950, he was satisfied that an adequately balanced wage structure had been achieved. In August or September 1950 however, he testi- fied further, it became obvious, by reason of rising prices and a widespread movement on the part of other employers to raise wages, that a pay increase for the Respondent's employees was in order. Because by this time, as Nicholas testified, the wage rates in the plant were on an equitable basis, he felt that he was in a position to effectuate a general or "across-the-board" increase instead of having to scrutinize and adjust each employee's rate of pay individually. 9 Based on the composite testimony of Nicholas , both Bakers, and the two Brysons, whose versions of the conversations are not in conflict. Nicholas testified , in addition to the above , that he questioned each of the four employees as to whether or not they had been coerced into signing the antiunion petition , and that the reason for his inter- viewing them was to ascertain whether or not coercion had been directed against any prounion employees. While Nicholas ' motives for conducting these interviews might be material under some circumstances, I deem them immaterial to the issues herein in view of the disposition hereinafter made of the matter of the conversations in question. SUPERIOR COMPANY, INC. 597 I am not persuaded that the General Counsel has met the burden of establish- ing affirmatively by a preponderance of the evidence that the announcement by the Respondent of the aforesaid general wage increase was illegally motivated. The timing of the announcement, coupled with the Respondent's obvious hostility against the Union," raises some suspicion as to the Respondent's purpose in publicizing an impending raise in pay for its employees, but other circumstances surrounding the wage increase are such as to lend credence to the explanation advanced by Nicholas. Thus, there is evidence in the record supporting his testimony that he had granted individual raises to employees in the past. For all that apl3ears, therefore, the Respondent's wage structure may have been thus equalized to a point where it could reasonably be expected to take the hitherto unprecedented step of effectuating whatever changes in pay rates there- after became necessary on a plant-wide basis. Moreover, as is generally known, wage increases were being granted by other employers on a widespread scale during the period here in question, so that Nicholas' testimony that he felt called upon to increase the Respondent's wage rates at the time is indeed plausi- ble. In the light of the recPord as a whole, I conclude and find that the wage increase announcement by the Respondent in August or September 1950, was made for bona fide business reasons, and did not constitute an unfair labor practice. 2. The legality of the Respondent's conduct in relation to the distribution of the antiunion petition among its employees As has been set forth above, the Respondent knowingly permitted, and indeed encouraged," a petition to be circulated among the employees in its plant during working hours, which stated the view that the employees neither needed nor desired a union of any kind. Upon being presented with the signed documents, Nicholas, in letters to each of the signers, expressed thanks for the sentiments therein expressed, and assured them of his readiness to do whatever he could in the future to help them, if called upon, either in a personal or a business way. The General Counsel contends, and cites authorities which he claims sustain his position, that by permitting, encouraging, and "ratifying" the circulation of the antiunion petition, the Respondent violated Secton 8 (a) (1) of the Act. He further argues that Nicholas' assurances to the signers of the petition that he would do whatever he could in the future to help them, constituted a "promise of benefit," within the meaning of the Act, for repudiation of the Union by the employees concerned. I do not agree that the Respondent's above-described conduct constituted un- fair labor practices. It is true that the Respondent assented to the circulation of the.petition on its premises during working hours. However, the record is devoid of evidence that comparable privileges of carrying on prounion activities in the plant were either sought by or denied to adherents of the Union. There is thus lacking from this ease the factor of disparate treatment, or discrimination, which, in some of the decisions cited by the General Counsel, led to a finding that unfair labor practices had been committed. Nor do we find in this record another of the important elements upon which the decisions cited by the General 11 The Respondent's attitude of hostility against the Union was plainly revealed by General Manager Nicholas in the course of his testimony at the hearing. See, for example, his explanation, above summarized, for the Respondent's refusal to meet informally with the Union as requested by the Board, and for refusing to hold even the conference with a Board representative in Piqua. 11 One witness, Floyd Brocaw, testified, and I find, that he (Brocaw) was seen by Forelady Grace Comes circulating the petition in the plant, and that Comes remarked, "I hope you have luck." 598 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Counsel are based , for there is no evidence that coercion or- promises of benefit contributed to or had any part in the distribution of the antiunion petitions or the securing of signatures to them . Thus the Respondent's conduct here under consideration resolves itself to no more than an acquiescence in or encourage- ment of the legal antiunion activities of some of its employees on its premises during working hours. I do not perceive any violation of the Act in such conduct standing alone. As for the expansive assurances in the letters from Nicholas to the signers of the petitions , that he stood ever ready to help them when called upon, I am more inclined to view these as somewhat fulsome expressions of gratitude than as promises to bestow benefits upon the employees in payment for having taken an antiunion position . A different light might have been shed upon these state- ments had the Respondent, in contrast to its grateful reaction to the petition, been shown to have threatened reprisals against those employees who chose to affiliate with the Union, but in the absence of such a background , I am un- willing to find that by sending to employees the letters above discussed, the Respondent violated the Act. a 3. Interrogation of members of the union committee It will be remembered that General Manager Nicholas admittedly summoned employees Paul and Miriam Baker and Donna and Evelyn Bryson to his office on or about July 25, 1950, charged them with inconsistency in having signed the antiunion petition when, in fact , they were members of a union committee, and asked some or all of them "which side of the fence they were on." The Respondent contends that Nicholas ' aforesaid question addressed to the employees was "not for surveillance , not for espionage or spying , but [was] solely" part of an inquiry by Nicholas to ascertain whether or not the four employees had been coerced into signing the antiunion petition. The Respondents' argument overlooks the well-settled rule that "the legality of such interrogation does not turn on motivation ." 12 The questioning of em- ployees by their employer as to their union affiliations , activities, or preferences has been held to be per se a violation of Section 8 (a) (1) of the Act, because it interferes with their right to engage in union activities free from "employer intermeddling, intrusion , or even knowledge," and because it has a tendency to restrain or coerce employees in the exercise of the rights guaranteed in Section 711 It is plain that even if Nicholas ' testimony as to his reasons for questioning these employees be believed, the necessary effect of his requiring them to assume an unequivocal position for or against the Union , and to disclose that position to him, was nevertheless coercive , and constituted interference with and restraint of the employees in the free exercise of their statutory rights. Accordingly, I conclude and find that by interrogating the four members of the union committee as above described, the. Respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby committing unfair labor practices within the meaning of Section 8 (a) (1). 4. The disciplinary layoff of the members of the union committee With respect to the layoff imposed by the Respondent upon the five members of the union committee to penalize them for having absented themselves from work on July 26, the General Counsel's argument may be summed up as follows : 12 New Jersey Carpet Mills, Inc., 92 NLRB 604. 13 Standard-Coosa-Thatcher Company, 85 NLRB 1358 SUPERIOR COMPANY, INC. 599 He concedes that in the ordinary course of affairs an employer is the sole judge of such questions as whether or not employees should be granted leaves of absence from their work, and that this general rule applies even where the purpose of a requested leave of absence is to enable employees to engage in legitimate union activities. The General Counsel points out, however, that this principle does not absolve an employer from the prohibitions enunciated in the Act against discrimination to encourage or discourage membership in any labor organization, or other interference with employees' statutory rights. He further 'contends that the Respondent in this case refused permission to the five members of the- union committee to take the day off from work on July 26, not for the legitimate purpose of preventing disruption of operations in its plant, but solely because of the Respondent's animus against the Union, and because the purpose of the requested leave of absence was'to enable the employees to represent the Union at the conference called by the Board. Moreover, the General Counsel asserts, the layoff penalty imposed by the Respondent on the employees for taking the day off to attend the conference was similarly discriminatorily moti- vated, rather than by an application by the Respondent of a normal policy of maintaining discipline. The defense advanced by counsel for the Respondent rests on several grounds. In the first place, he contends, the Respondent's plant was busy at the time in question, and the Respondent felt that the five committee members could not be spared from their work. In sum, then, the rejection of the request for the day off was motivated by legitimate business considerations. Further, according to counsel for the Respondent, the latter had informed the Board and the Union that it would refuse to participate in a conference with the Union; therefore the five committee members were asking to take the day off for the purpose of going to a meeting that wasn't going to take place." In any event, counsel argues, even if the denial of the request be deemed discriminatory, the employees were unjustified in disobeying the Respondent's instructions and absenting them- selves from work, since they could have sought a remedy for that discrimination from the Board It was incumbent upon the employees, this argument runs, to submit to the Respondent's instructions and to seek redress from the proper tribunal Because they did not do this, but instead "flouted managerial author- ity," the Respondent was justified in imposing a penalty on them in order to preserve plant discipline. Careful consideration of the record leaves little room for doubt as to the Respondent's discriminatory motivation for rejecting the request for a day' s leave of absence from work on July 26 for the five members of the union committee. It is established by the ten tiiitony of General Manager Nicholas himself, and I find, that in the ordinary course of the Respondent's business, the Respondent has followed an exceedingly liberal policy with respect to granting time off from work to employees, and has even tolerated pet sistent absenteeism in some cases. Thus, employee Ruth Cox was not disciplined (nor even, so far as the record shows, reprimanded) for frequently absenting herself from work with and without permission over a considerable period of time. Nicholas testified that he tolerated Cox's absenteeism because of his sympathy for her status as a widowed mother, and that when her repeated absences were called to his atten- tion by Cog's supervisor, lie instructed the supervisor to "overlook" it and "do the best you can "" Employee Francis, who worked for the Respondent for i+ According to Nicholas, he finally ordered Cox discharged when her absenteeism persisted after she had remarried , and Nicholas felt that her domestic situation no longer justified her conduct: The point is, however, that in the ordinary course of business, Nicholas was very tolerant even of egregious absenteeism, and was willing to take an employee's personal difficulties into consideration. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approximately a month before voluntarily leaving, absented himself from work at least twice during that period, without asking for permission , and was never reprimanded or disciplined therefor." Nicholas testified that when Francis' supervisor consulted him as to "what are we going to do with him [presumably about Francis' absences ]," he (Nicholas) instructed the foreman to allow Francis to continue. Nicholas explained that he realized that Francis was an aspiring musician , occasionally was up late nights participating in radio or television programs, and that he did not wish to interfere with Francis' attempts to further his musical career. Employee James Anderson is customarily granted time off to attend the county fair because he has made it a lifetime practice not to miss the fair. This employee has also been granted time off from work for such reasons of personal convenience as to attend to the grinding of feed for his chickens , and other employees are, apparently as a matter of course, granted time off for a variety of personal reasons, such as to make hay, attend weddings or funerals, and the like. Against the background of the Respondent's customary liberality in granting time off to employees," even for reasons which, in some cases, were far from weighty, the rejection of the request for a day off for the members of the union committee appears discriminatory on its face." The Respondent contends, how- ever, that since the request was for the simultaneous absence from work of 5 employees, it was justified in fearing that such absence would seriously hamper the operations of its plant, and that such a group request for time off is not com- parable to the usual situation where an individual employee- seeks a day off. In this connection, it is to be noted that the 5 committee members worked on different operations in scattered departments of the plant, 18 and that the Respondent had standing arrangements in its plant to transfer employees from less essential to more essential operations to avoid disruption of its flow of production in the event of temporary absences . In a plant employing almost 400 workers the simul- taneous absence for :I day of 5 employees working in different departments would hardly be expected to create an abnormal problem of temporary replacement. I likewise see no merit in the Respondent 's argument that it was justified in refusing permission for the absence because it had already indicated its refusal to meet with representatives of the Union, and the purpose of the requested leave of absence was thereby obviated. So far as the Union was con- cerned, the Board's request to meet on July 26 was still in effect, and in fact, a conference was held on that day between the Board field examiner and the union representatives. It was not within the province of the Respondent to determine by its own unilateral refusal to meet with the Union that no proper occasion therefore remained for a conference between a union committee and the field examiner 19 15 Francis testified that his absences usually occurred on a Monday , and were occasioned by his having been up late the previous night, with the result that he was "lust too dog-goned tired to go in Monday morning , so I didn't." 16 The Respondent stresses the fact that the plant was busy on July 26. The record shows, however, that the plant was busy throughout the period here in question (at least a few months before and after July 26 ). Some of the specific instances cited above, of the Respondent's toleration of absences from work , occurred during the aforesaid period. 17 Cf English Mica Company, 92 NLRB 766. 1s At the time herein discussed , Paul Baker was employed in the shipping room ; Miriam Baker In the second floor knit-briefs department; Evelyn Bryson in the fourth floor press- ing department ; and Donna Bryson in the fifth floor leg-hemming department. The record does not reveal where Zelpha McNutt was employed. 19 Compare with English Mica case, supra, in which the employees took a day off with- out permission to testify at a Board hearing in a representation case , and in which it turned out that they actually did not testify. SUPERIOR COMPANY, INC. 'I am convinced that the Respondent rejected the request for reasons other than bona fide business considerations. A significant clue as to its motivation is afforded by the testimony of General Manager Nicholas. As has been set forth above, Nicholas testified in effect that he refused to participate in an informal conference with the Union on July 26, because he wished to prevent the Union from acquiring whatever prestige might accrue to it among the employees from the Re- spondent's consenting to meet with it. When asked whether "that was one of the factors in [his mind] when [he] refused these employees permission to attend this meeting . . . ," Nicholas answered, "Yes, that plus the fact that there was not going to be a meeting with the employees." Asked whether he did not wish to avoid "in any way [giving] the appearance of meeting with the Union," he again answered in the affirmative. I conclude from the foregoing, and on the basis of the record as a whole, that in the normal course of the Respondent's business, and absent the element of the Union's organizational campaign, and the Respondent's hostility thereto, a request of the five employees in question for a day off at that particular time would readily have been granted. I further conclude and find that the aforesaid request was rejected by the Respondent because of the Respondent's animus against the Union, in order to frustrate the Board's attempts to expedite a determination of the question of representation raised by the Union's petition, and for the pur- pose of interfering with the Union's attempts to organize its employees 20 I fur- tlie?r conclude and find that the Respondents rejection of the request for such reasons constituted discrimination against the five employees on the union com- mittee in regard to the terms and conditions of their employment, to discourage membership in the Union, and that it interfered with, restrained, and coerced the Respondent's employees in the exercise of the rights guaranteed by Section 7 of the Act, all in violation of Section S (a) (1) and (3) of the Act. The question remains whether the Respondent's imposition of a layoff on the five members of the union committee, to penalize them for disobeying its dis- erinnnatory instructions, constituted an unfair labor practice. This question seems to be answered squarely in the affirmative by the Board's holding in Relrannce Mgsvfact oring Ooiiipan,j, 60 NLRB 946, 950. In that case, four em- ployees had requested permission of their employer to leave work in order to testify at a Board representation hearing. The employer's denial of such per- mission was motivated, as the Board held, by the employer's "desire to interfere with [the representation] proceeding and by its anti-union animus, and consti- tuted a discriminatory application of its policy with respect to the granting of requests by employees for short leaves . " In the face of the employer's denial of permission, thise of the employees left the plant to testify at the Board pro- ceeding For this they were penalized by being deprived of seniority. The Board held : Having found that the respondent's conduct in prohibiting the employees in question from leaving the plant was violative of Section 8 (1) of the Act, it follows, and we find, as did the Trial Examiner, that its subsequent action in depriving three of their . .. of their seniority rights because they left the plant without the respondent's permission, was equally vtio- lative of Section 8 (1) . . . [Emphasis supplied.] The factual situation in the Reliance case being in all essentials identical with the facts encountered herein, I deem that decision to be dispositive of the 20 The Respondent's careful avoidance of anything which might "influence" the em- ployees to think that the Union was in a position to bring about a meeting between the parties, or might enhance the Union's prestige, was obviously calculated to impede the Union's organizational efforts among the employees. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD point here at issue . I therefore conclude and find that because the Respondent's conduct in prohibiting the five members of the union committee from absenting themselves from work on July 26 was violative of Section 8 (a) (1) and (3) of the Act, it follows that its subsequent action in imposing a disciplinary layoff on them because they were absent from work on July 26 without the Respondent's permission was equally violative of Section 8 (a) (1) and (3) of the Act. In any event, I am convinced from the record as a whole, and especially by the contrast between the Respondent's prompt imposition of a penalty upon these five employees, for their absence without permission, and the Respond- ent's complacent inaction in the face of records of persistent absenteeism on the part of other employees, that the Respondent was motivated in imposing the penalty on the five committee members by the same considerations which actuated it in originally denying them the day off. Consequently, I find that the Respondent's action in imposing a layoff on the five employees in question, from July 27 to August 7, 1950, was motivated by the Respondent's animus against the Union , and by its resentment against the said employees for their participation in the conference with a Board agent, which conference the Respondent had sought to obstruct by its refusal to grant the employees time off from work. I further find that by such action the Respondent interfered with, restrained, and coerced its employees in the ex- ercise of their rights under the Act; discriminated in regard to the hire and tenure and terms and conditions of employment of the five employees so dis- ciplined ; and that the aforesaid conduct was intended to, and did, discourage membership in the Union. For all the reasons stated above, I find that the Respondent's aforesaid conduct constituted unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act." 5. The discharge of Paul Baker Baker was hired by the Respondent on or about January 1, 1950, and was put to work in the shipping room at a starting pay of 80 cents per hour. His wage rate was increased to 90 cents per hour on or about June 17, 1950. Up to the date of his discharge, August 28, 1950, Baker continued to work in the shipping room. The Respondent claims that Baker was, throughout his employment , a generally unsatisfactory employee , and that on August 28 he committed a dereliction which in its view was the "straw that broke the camel's back," precipitating Baker's discharge on that day. The General Counsel contends that the Respond- ent terminated Baker's employment because of his affiliation with and activity on behalf of the Union, and that it seized upon a trivial incident, in connection with which Baker was not even blameworthy, as a pretext for discharging him. The alleged dereliction which led to Baker's discharge centers around his use of a banding machine to fasten metal tape around a parcel which he was preparing for shipment. One of the two banding machines then available in the Respond- ent's shipping department was empty of tape on the occasion in question. The " Counsel for the Respondent advances the argument that even if the Respondent's denial of the day off was discriminatory, the penalty imposed on the employees for taking it off in disregard of the Respondent 's instructions should be held valid in order to vindi- cate the Respondent 's managerial authority . If the managerial authority of the Respond- ent suffered damage as a result of the events herein discussed , that was brought about primarily by its own issuance of discriminatory and illegal instructions to the employees. I see no merit in a suggestion that the burden of the Respondent ' s wrong-doing be shifted to the shoulders of the employees who were wronged . That would be the result of denying the employees a remedy for the discriminatory penalty imposed upon them because they failed to obey the Respondent's discriminatory instructions. SUPERIOR COMPANY, INC. 603 other was being used by employee Davis, to tape up a parcel. Instead of refilling the empty machine, and using it to band the parcel on which he was working, Baker walked over to Davis, assisted him in finishing the taping of Davis' parcel, and then used Davis' machine to tape up his own parcel 2' This incident was ob- served by General Manager Nicholas, who asked Baker in a critical tone why he was not using the other banding machine,' and Baker was, later in the day, dis- charged by his foreman on Nicholas' instructions. The foregoing occurrence was litigated in great detail at the hearing. I do not believe that its significance to the issue of the legality of Baker's discharge warrants my summarizing all of the conflicting evidence. It is clear from the record, and I find, that standing by itself, Baker's conduct, though it probably was subject to some criticism,'' was certainly not of such a character that the Respondent would normally have discharged him for it. Indeed, the Respondent makes no such contention, but asserts rather that Baker's conduct on August 28 was merely the culminating point at which its previous dissatisfaction with Baker's work became crystallized into a decision to discharge him. Of crucial importance, therefore, is determination of the question whether Baker had, up to that time, been a generally satisfactory or an unsatisfactory employee in the eyes of the Respondent. With respect to that issue, the General Counsel points to the undisputed fact that as late as June 17, 1950, the Respondent voluntarily granted Baker a wage increase of 10 cents per hour. He argues that Baker must have been, at least up to that date, a satisfactory employee. General Manager Nicholas offered an unusual explanation for the wage in- crease.2' His testimony may be summarized as follows : From the beginning 22 From the testimony of Baker, Davis , and Roy L. Francis, I conclude and find that it generally took an employee from 10 to 15 minutes to replace an empty spool of tape in a banding machine with a full one, and from 3 to 5 minutes to tape up a parcel. Usually an employee preparing a parcel for shipment performed the taping up operation without assistance 2I conclude from the evidence , including the testimony of Baker himself, that Nicholas made clear his annoyance with Baker for waiting for the banding machine being used by Davis instead of filling the empty one which was not being used. In his testimony, how- ever, Nicholas described Baker's conduct in a way which would tend to make it appear that Baker deliberately flouted Nicholas' wishes in the matter . I am not convinced that Baker understood Nicholas' question, which he apparently thought he had answered satisfactorily , as being tantamount to an order to cease waiting for Davis , and to fill the empty machine. The whole incident was over in a few minutes ; Baker impressed me at the hearing as being slow to comprehend the meaning of questions addressed to him ; and I am persuaded, and therefore find, that Baker 's persistence in following the course of conduct which he had started did not evidence a deliberate defiance of Nicholas, but rather an inept failure to understand the intent of Nicholas ' question, which was not an explicit instruction. 141 conclude from all of the evidence that there was no rigid practice or rule in the shipping room governing the filling of the banding machines. Usually either the employee using a machine when it became exhausted of tape, or the next one having occasion to use it, and finding it empty, would refill it. Sometimes an employee finding one of the banding machines empty would pick up and use the other one. At times the foreman of the shipping room would refill an empty banding machine. I am convinced, however, that normally if an employee found the only available machine empty, he would be expected to refill it rather than wait for the one in use to become available The gist of Nicholas' complaint against Baker is that the shipping room was extremely busy at the time, and that Baker wasted time by waiting for Davis' machine. It should be noted that it would have taken Baker at least 10 minutes to refill the empty machine, and be only waited for Davis' machine for about 3-4 minutes. Eventually, the foreman of the shipping room filled the empty machine. Perhaps Nicholas considered such a use of the foreman's time wasteful I am willing to infer that this is the case, and conclude, there- fore, that Nicholas was genuinely annoyed with Baker on the occasion under discussion. 25 Nicholas prefaced his testimony as to why he gave Baker the aforesaid wage increase with the phrase, "strange as that may sound." 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Baker's employment, Nicholas found it necessary to criticize Baker for making errors in preparing orders for shipment, and for undue slowness in doing his work " On one occasion, only a day or so prior to June 17, the Respondent's president, Kittay, was in Piqua, and worked with Baker in the shipping room packing some orders for shipment. Kittay then came to Nicholas and demanded, "How do you keep an employee like that around here?" Kittay complained that Baker had packed first-class merchandise into a package intended to fill an order for "irregulars." 27 Thereupon Nicholas told Kittay that Baker's wife, also employed by the Respondent, earned from $1.10 to $1.20 an hour as compared to Baker's 80 cents per hour, and asked, "What the heck kind of interest can he have in his business and how can I expect him" to maintain his self -respect under such circumstances? Nicholas thereupon proposed to give Baker "a raise instead of an argument," and expressed the hope that "that will make a better em- ployee out of him." On that basis, Nicholas testified, he raised Baker's pay by 10 cents per hour on June 17. While Nicholas' explanation that he offered Baker a wage increase for the very reason that he considered him an unsatisfactory employee is improbable on its face, there is evidence in the record that lends it support. Thus, for example, Baker admitted that at one time during his employment he expressed the opinion that he had incurred Nicholas' disfavor.28 'Although Baker's testimony as to the time when he expressed this opinion was vague, I find, for the reasons sum- marized in the footnote below, that Nicholas had made plain to Baker his dis- pleasure with his work prior to the time when the Respondent possessed any knowledge of Baker's union activity or sympathy, and prior to June 17, when the wage increase was granted 2B In the circumstances above outlined I am constrained to credit Nicholas' tes- 4 timony, and I conclude and find that for some months preceding Baker's dis- 20 Nicholas' testimony was somewhat verbose and not too specific , but it may reason- ably be taken to amount to this-that Baker frequently had to be urged to work faster, and to be more careful to avoid such errors as including first grade merchandise in shipments to fill orders for "irregulars," and the like. 27 Nicholas testified that Kittay had made many complaints to him about similar errors committed in the shipping room, and the Respondent introduced into evidence a memo- randum from Kittay to Nicholas, dated July 17, 1950, detailing such complaints, and referring to numerous previous discussions between them about such mistakes. I credit the Respondent's contention that numerous mistakes in filling orders had been made by employees in the shipping room. Of course, Baker was not the only employee who pre- pared orders for shipment, but the evidence of such an incidence of errors lends some support to the Respondent's defense. ze As Baker picturesquely expressed it, he was under the impression that he was on a "list" which he described in scatological terms. 28 So far as the record shows, the letter dated July 20, 1950, from the Union to the Respondent, naming Baker as one member of the union committee, contained the first information possessed by the Respondent that Baker was connected with the Union's organizational campaign Baker was asked whether he had not made a remark about his being on Nicholas' aforesaid "list," as early as March 1, 1950, and replied that he could not recall When asked "what act or acts of Mr. Nicholas prior to . . . the first day of May 1950, gave rise to your belief that you had been placed on a list by Mr. Nicholas," Baker testified that extra work was available "during those months," and Nicholas "would leave the other fellows work and send me home." Moreover, Nicholas testified without contradiction that he made it a practice to penalize employees whom he considered unsatisfactory by pointedly laying them off for days at a time when other employees were working, or by depriving them of the opportunity to put in overtime when such work was available. He further testified that he had followed this course of action with respect to Baker for months prior to the latter's discharge. This is borne out by the Respondent's payroll records, which show that during the period from April through July 1950, the employees of the shipping department frequently worked overtime at times when Baker worked only the normal 40-hour week or less. 0 SUPERIOR COMPANY, INC. 605 charge, the Respondent , despite the fact that it granted Baker a pay increase on June 17, was dissatisfied with his work for reasons unconnected with his union activities or sympathies. This leads us to the final question which must be answered to reach a deter- mination of this case. Would the Respondent have continued Baker in its employ, as it had done for some time, despite its generally low opinion of his work, bad it not been motivated by its antiunion animus after Baker 's union affiliation became known to it, to seize upon some convenient pretext to discharge him? The Respondent's hostility against the Union and its adherents as displayed by its discrimination against the members of the union committee, the timing of Baker's discharge only a month after his connection with the Union became known,'° and the comparatively minor nature of the incident leading to his dis- charge, raise a suspicion that the episode of August 28 was welcomed by Nicholas as a fortuitous excuse to discharge Baker. On' the other hand, there is evidence in the record equally convincing in support of the view that the August 28 incident was not utilized by the Respondent to mask a discriminatory discharge, but constituted, as the Respondent contends, the "last straw" insofar as Baker's deficiencies on the job were concerned. Thus, as we have seen, the Respondent had not hesitated to communicate to Baker its low opinion of his qualities as a workman even prior to the time when antiunion considerations might have influenced it. Moreover, despite the relatively minor nature of the August 28 occurrences, they did reflect a certain degree of ineptitude on Baker's part, and as I have found, Nicholas was genuinely annoyed thereby. These circumstances impel me to the conclusion that the General Counsel has not met the burden of establishing by a preponderance of the evidence that the Respondent's dis- charge of Paul Baker on August 28, 1950, was discriminatory within the mean- ing of the Act. I shall, consequently, recommend that the complaint be dismissed insofar as it alleges that Baker's discharge constituted an unfair labor practice. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. "The General Counsel also points to a threat made by Nicholas to Baker only 4 days prior to his discharge , that if Baker attended a formal Board hearing on the Union's petition , then scheduled for September 6, he would be dealt with as he had been on July 27, as additional evidence of the Respondent 's hostility. With respect to this, Baker testified that on August 24, during a recess period , he and a group of other employees were having coffee in the plant cafeteria , that Nicholas joined the group, and that during a conversation between them , Baker asked Nicholas whether he had received notice of the scheduling of a formal Board hearing on the Union 's representation petition . Accord- ing to Baker, Nicholas said that he had received such notice and added a threat that if Baker attended the said hearing, as he had the July 26 conference , he would be punished again. Nicholas denied having made any such threat to Baker during the aforesaid conversation . Roy Lee Francis , a former employee of the Respondent, who was sub- poenaed to appear as a witness , testified that he was seated at the table with Baker and Nicholas on the aforesaid occasion , heard parts of the conversation , and that Nicholas did make such a remark to Baker. I credit the testimony of Baker and Francis in this respect, and discredit Nicholas ' denial. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that the Respondent violated the Act by discriminating with respect to the hire and tenure and the terms and conditions of employment of Paul Baker, Miriam Baker, Donna Bryson, Evelyn Bryson, and Zelpha McNutt. It will be recommended that the Respondent make these employees whole for any loss of pay they may have suffered by reason of the Respondent's discrimi- nation against them, by payment to each of them of a sum of money equal to the amount he or she would normally have earned as wages from the date of the beginning of their discriminatory layoff to the date he or she was reinstated to the Respondent's employment, less his or her net earnings during that period." The pay losses involved, if any, should be computed in the manner established by the Board in its recent decision in F. W. Woolworth, Company, 90 NLRB 289. In addition, I will recommend, in accordance with the Woolworth decision, that the Respondent, upon request, make available to the Board and its agents all records pertinent to an analysis of the amounts due as back pay. Since the Respondent, in addition to interrogating employees illegally about their union affiliations and sympathies, also committed acts of discrimination with regard to the hire and tenure and terms and conditions of employment of some of its employees-the latter a form of unfair labor practice which has been held to "go to the heart of the Act," I am convinced that there is a danger of a repetition by the Respondent of unfair labor practices directed against its employees in the event that they should again seek to exercise their rights under the Act. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, I will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed employees in Section 7 of the Act Since I have found that the Respondent did not commit unfair labor practices by announcing a forthcoming general wage increase for its employees in late August or early September 1950, by its conduct in relation to the distribution of antiunion petitions among its employees, or by its discharge of Paul Baker on August 28, 1950, I will recommend that the complaint be dismissed insofar as it alleges that the Respondent's aforesaid conduct constituted violations of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CANOLUsIONs OF LAW 1. Textile Workers Union of America, CIO, is a labor organization within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section S (a) (1) of the Act. " See : Crossett Lumber Company, 8 NLRB 440. 32 See: May Department Stores v. N. L. R. B., 326 U. S. 376, affirming as modified 145 Jr. 2d 66 (C. A. 8), enforcing 53 NLRB 1366. STEWART-WARNER CORPORATION 607 3. By discriminating in regard to the hire and tenure of employment and the terms and conditions of employment of Paul Baker , Miriam Baker, Donna Bryson, Evelyn Bryson and Zelpha McNutt, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices by announcing a forthcoming general wage increase for its employees in late August or early September 1950, nor by permitting and encouraging the distribution for signa- tures of an antiunion petition in its plant, nor by its discharge of Paul Baker on August 28, 1950. [Recommended Order omitted from publication in this volume.] STEWART-WARNER CORPORATION and JOHN KELLIHER, FRANCES' MIHELICH AND MARION E. WHITE STEWART-WARNER CORPORATION and INTERNATIONAL UNION OF ELECTRICAL, RADIO, AND MACHINE WORKERS, CIO. Cases Nos. 13-CA-306 and 13-CA-47. May 17,1951 Decision and Order On June 7, 1950, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceedings, 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 copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of these allegations. Thereafter, the General Counsel, the charging indi- viduals, the IUE, and the Respondent filed exceptions to the Inter- mediate Report and supporting briefs, and the IBEW filed a brief. On January 9, 1951, the Board heard oral argument at Washington, D. C., in which the General Counsel, the charging individuals, the IUE, and the Respondent participated. 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.' 1 Respondent has excepted to the Trial Examiner's failure to permit it to question certain witnesses with respect to their alleged membership in the Communist Party. As the Trial Examiner stated that he would have credited these witnesses even assuming each one was a Communist, and because we see no reason in the record for disturbing his credibility finding, we find that no prejudicial error was committed. We do not, however, adopt the Trial Examiner's discussion with respect to "The Communist ' issue'," finding it unnecessary to pass upon It. 94 NLRB No. 85.