JEK Manufacturing Co.

JEK MANUFACTURING COMPANY 485 Order IT IS ORDERED that the petition in Case No. 10-RC-1794 be, and it hereby is, dismissed. [Text of Direction of Election omitted from publication in this volume.] J. LEE KLESNER, AN INDIVIDUAL, DOING BUSINESS AS JEK MANUFACTUR- ING COMPANY and AMERICAN FEDERATION OF LABOR. Case No. SO-CA-189. June 4, 1952 Decision and Order On November 23, 1951, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from 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 alleged unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. 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 Inter- mediate Report, the exceptions, the brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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, J. Lee Klesner, an individual, doing business as Jek Manufacturing Company, Al- liance, Nebraska, his agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in American Federation of Labor, or any other labor organization of his employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment. I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel. [ Members Houston, Murdock, and Styles]. 99 NLRB No. 81. 215233-53-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Informing his employees-that an employee has been discharged because of her activities on behalf of American Federation of Labor or any other labor organization of his employees. (c) Threatening his employees that his operations would cease and employees would be discharged if they formed a labor organization. (d) In any other manner interfering with, restraining, or coercing his employees in the exercise- of their -right to self-organization, to form labor organizations, to join or assist American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or 'other mutual aid or protection, or to refrain from any and 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 Act, as guaranteed in Section 7, thereof.2 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Make whole Frances C. Perry for any loss of pay she may have suffered by reason of the Respondent's discrimination against her in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Post at his plant in Alliance, Nebraska, copies of the notice attached to the Intermediate Report marked "Appendix A." 3 Copies of such notice, to be furnished by the Regional Director for the Seven- teenth Region (Kansas City, Missouri) shall, after being duly signed by the Respondent, or his duly authorized representative, be posted by him immediately upon receipt thereof, and be maintained by him for a period of at least sixty (60) days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventeenth Region, in 2 As the record shows that the Respondent at present has no agreement with any labor organization requiring membership in that organization as a condition of employment, and may never make such an agreement , we deem it unnecessary at this time to pass upon what effect, if any, such an agreement would have upon the rights guaranteed employees in Section 7 of the Act in the light of Sec. 13, Art. XV of the Nebraska Constitution and Section 14 (b) of the Act . In employing the usual form of a cease and desist order in this case we are not to be taken to have prejudged that question in any way , contrary to the Respondent's contention that we necessarily do so. 9 This notice, however, shall be, and it hereby is, amended by striking from line 4 thereof the words "The recommendations of a Trial Examiner " and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." JEK MANUFACTURING CONTANY 487 writing within ten (10) days from the date of the receipt of this ,Order; what steps the Respondent has taken to comply herewith. IT IS ALSO oRDERED that the complaint's allegations that the Respond- ent refused and failed to reinstate Perry to her former or substantially equivalent position be, and it hereby is, dismissed. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by American Federation of Labor, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director of the Seventeenth Region (Kansas City, Missouri), issued a complaint dated September 26, 1951, against J. Lee Klesner, an individual, doing business as Jek Manufacturing Company,' Alliance, Nebraska, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices 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 charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent, (1) on or about June 4, 1951, discriminatorily discharged Frances C. Perry s and thereafter failed and refused to reinstate her to her former or a substantially equivalent position, although he reemployed her in a less desirable position about August 13, 1951, because she had joined or assisted the Union or engaged in other concerted activity for the purpose of mutual aid and protection, and (2) from on or about June 11, 1951, sought to induce, persuade, .and coerce his employees to cause them to refrain from becoming or remaining members of the Union and to refrain from engaging in concerted action for the purpose of mutual aid and protection and threatened his employees with discharge if they joined, assisted, remained members of the Union, or engaged in concerted activities for the purpose of mutual aid and protection. The complaint alleged that by the foregoing conduct the Respondent engaged in violations of Section 8 (a) (1) and (3) of the Act. Thereafter, the Respondent duly' filed an answer and an amended answer, admitting certain allegations of the complaint but denying that he had engaged in any unfair labor practices and affirmatively alleging that Perry was dis- charged for cause, was reemployed about August 10, 1951, in a substantially equivalent position to that held before her discharge, but voluntarily quit the Respondent's employ on September 1, 1951. Pursuant to notice, a hearing was held on October 11 and 12, 1951, at Alliance, Nebraska, before Frederick B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by an official representa- tive. 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 conclusion of the hearing, the Respondent moved that the complaint be dismissed. Ruling thereon was reserved. The motion is disposed of in ac- I The General Counsel and his representatives at the bearing are referred to as the General Counsel The National Labor Relations Board is herein called the Board. 2 At the outset of the hearing the complaint was amended to set forth the correct name of the Respondent, as appears herein. 3 The complaint was also amended to set forth the correct name of Perry, as appears herein. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cordance with the findings of fact and conclusions of law made below. The General Counsel and the Respondent argued orally but waived the privilege of filing briefs with the undersigned. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT J. Lee Klesner, an individual doing business as Jek Manufacturing Company, processes and manufactures radio condensers and other products at his plant in Alliance, Nebraska. In the course and conduct of his business, Respondent annually performs manufacturing services valued at an amount in excess of $50,- 000 upon goods and products shipped from his plant to the Good-All Manu- facturing Company, a firm doing business in the State of Nebraska. The lat- ter company annually ships goods and products, valued at an amount in excess of $25,000, from points within the State of Nebraska to points outside of the State of Nebraska. A substantial amount of the goods and products processed by Respondent for the Good-All Manufacturing Company are manufactured and processed by Respondent pursuant to specification of the ordnance departments of the United States Army and of the United States Navy and are processed and manufactured by Respondent for the Good-All Manufacturing Company as part of the national defense production program. The Respondent concedes that he is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED American Federation of Labor is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The issue as to Perry's employment Respondent discharged Perry on June 4, 1951, but reemployed her August 10, 1951, in a different job. Although the complaint alleged that she was not reinstated to a position substantially equivalent to that she held at the time of her discharge, the General Counsel early in the hearing conceded that Perry was reinstated to a substantially equivalent position on August 10, 1951, and that the issue as to Perry was whether her discharge on June 4, 1951, had been discriminatory and whether she was entitled to back pay between June 4, 1951, and the date of her reinstatement by the Respondent. B. Sequence of events 1. Union and concerted activities of Perry Perry initially entered the Respondent's employ on March 22, 1951, and was assigned the next day to the ground dip department, the employees of which sealed or welded one end of the condensers by dipping them in a solution. The employees were paid 75 cents an hour and a bonus based upon daily production in excess of 3,000 units. On May'23 or 24, 1951, she was transferred to "repairs," which consisted in dipping again condensers rejected by inspectors and which did not pay any bonus or incentive pay. Around mid-May 1951, during rest JEK MANUFACTURING COMPANY 489 periods at the plant, Perry began to talk to various employees about the possibility of organizing a union and shortly thereafter wrote the Union seeking advice and aid in organization. She informed three employees of her intention to write the letter. On Sunday, June 3, 1951, Elmer Dowell, general representative of the Union, called upon Perry at her home and discussed with her the matter of the employees' self-organization. Their conversation concluded with the under- standing that Dowell would return in 4 or 5 days, at which time a meeting of the Respondent's employees would be held. The afternoon of June 3, Perry telephoned five employees and told them of her conversation with Dowell. The next morning, June 4, 1951, upon the commencement of the plant's op- erations, Perry was summoned to the office of Foremen Robert Roberg and James Stanfield and was discharged. 2. Respondent's defenses to the discharge of Perry The Respondent contends that Perry's discharge was justified because of the low quantity and quality of her work production, a tendency on her part to talk excessively during working hours, and excessive absenteeism. In respect to Perry's work performance, the Respondent's records introduced into evidence are inclusive, since records for the rejections of employees in the ground dip de- partment were not complete. However, the records as such tend to support the testimony of the Respondent's witnesses that her rate of rejections was high and that she did not perform as much work as some employees in the department. Inasmuch as the practice, according to Foremen Roberg and Stanfield, was to transfer to repair work employees whose rate of rejections was high, or begin- ners, and as Perry was transferred permanently to repairs on May 23 or 24, the undersigned finds that her work performance was not as good as certain other employees in the department, but notes that the production record of employee Geneva Noreen, who was also working permanently on repairs, appears to have been less, so far as quantity is concerned, than Perry's production record. In respect to the question of her tendency to talk during working hours, Perry testified that she did not believe that she talked any more than the other girls in the department, although she stated that it was possible that she talked a bit louder than other employees. She denied that she had ever been reprimanded for talking at work. Employee Beverly Ann Hawley testified that all employees talked during working hours and admitted that she had been reprimanded for talking. According to employee Grettel Brice, Perry did not talk at work "any more than some of us do." On the other hand, employees Pearl Ferbracher, Geneva Noreen, and Dora Lee Snoddy, who worked in the ground dip depart- ment with Perry, testified that she talked exceedingly and loudly during work. Snoddy complained about Perry's talking to employee counselor Emma Wurzel, who reported the complaint to either Foreman Roberg or Foreman Stanfield. According to the latter, he had reprimanded Perry for conversing at work on two -or three occasions. Foreman Roberg testified that employees had complained about Perry's talking at work and that he had "told her please hold the talking down" on numerous occasions, "probably once a week," but could not recall that he had reprimanded her for talking between May 14 and June 4, 1951, although to the best of his recollection be had "probably" done so. Although the matter is not free from doubt, the undersigned finds on the basis of the entire record that Perry did engage in conversations with fellow employees during working hours, for the purpose of this Report, however, it is unnecessary to determine the extent of such activity. Although employees were instructed when they were hired that they should limit their conversations during working hours to matters relating 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to their duties, no rules to this effect in writing were posted until after Perry's discharge. .t Inasmuch as the Re§pondent's records indicate that Perry was absent only 1 day between March 26 and April 30, and possibly a half day between May 14 and June 4, its contentions as to her absenteeism apparently relate to the period beginning April 30 and ending May 14, 1951, when Perry, according to her credible testimony, did not appear at the plant because of the illness of her chil- dren. Perry testified that she advised the Respondent of her inability to come to work and the reason therefore and telephoned the Respondent two or three, times during that period. Foreman Roberg had no recollection that Perry had given him or the Respondent any reason for her absence. Upon the entire record and his observation of the witnesses, the undersigned credits the testimony of Perry in regard to her absence from work between April 30 and May 14 and accordingly finds no merit in the Respondent's defense to the discharge of Perry insofar as such defense was based upon her alleged absenteeism. There remains for consideration other evidence in the record to determine whether Perry's inefficiency and conversing at work were the actual reasons for her discharge or were merely a pretext to hide an illegal discriminatory motive on the part of the Respondent. 3. Conference of Respondent's officials on June 2, 1951 J. Lee Klesner, the Respondent, testified that Foremen Roberg and Stanfield had directed Klesner's attention on several occasions, beginning in April 1951, to the poor quality of Perry's work and her "bothering other ladies on the table and so forth." On direct examination, Klesner gave the following testimony in respect to a conference held between him and Foremen Roberg and Stanfield on Saturday, June 2, 1951: Q. [By Mr. Reddish.] What was the general character of this discussion? A. Well, at that particular time, we were having grief within the plant, and we thought it was coming from several girls. We had been warned by [the Good-All Manufacturing Company, for whom the Respondent was a subcontractor]. The quality of her work, because we do work on a rejection basis and we knew that there was a lot of confusion in the plant and it seems as though a lot of it was coming-confusion on her table. Q. [By Mr. Scott.] Who do you mean by her? A. Mrs. Perry. Her quality of work has been bad for sometime. We dis- cussed it before, and I said let's start finding out where our trouble is at and get it cleared up, we got to do something. Q. [By Mr. Reddish.] Did you instruct Mr. Stanfield and Mr. Roberg to discharge Mrs. Perry? A. I didn't definitely instruct them, no. Q. What did you instruct them? A. As I said before, probably been brought out, she had been corrected several times and sometimes the reports to me was the corrections weren't taken heed to. A couple of times it was more or less ignored and as it planned out she started giving us a bad time as it happened before. I said don't mess with her or anybody else in the plant, I said the same thing with, anybody. ' I said we got to clean it up, we can't help whose toes we step on, we got to get our work going, we got to have it, it has got to be done right. That was her instructions, if she didn't want to cooperate, her or anyone else, that was in the same boat that didn't cooperate. On cross-examination , glesner testified in addition as follows: JEK MANUFACTURING COMPANY 491 Q. [13y Mr. Scott.] When did you first learn that the employees were discussing the union? A.•-Oh, I never knew exactly that they were outside of hearing rumors that they were. Q. You heard rumors? A. That's right. Q. What were those rumors? A. That they were talking about organizing the union.' Q. And who told you, who gave you those rumors? A. Oh, I heard in different places outside the plant and in the plant. Q. There was quite a bit of discussion about it , was there? A. That's right. Q. Can you recall the names of anybody that discussed these rumors with you? A. Oh, several business men downtown came in and told me, I was talking to-several of the employees have told me. Q. And when was this? A. Oh, that had been going on for a month or six weeks Q. That is prior to the discharge of Mrs. Perry? A. That's right. Q. Well, now, is that the grief and confusion that you complained about? A. I don't know what it was, that is what we was trying to find out if that is what it was, that is what we were trying to find out what it was, our production was down, the production was down and the quality of our work was down. We was trying to get at the root of the trouble to find out what was causing it. Q. And was it your opinion that that was part of the trouble? A. Well, we knew there was confusion in the plant, that is the only, we didn't have any idea if that was it, or whether there was trouble amongst our employees, nobody had said anything to us about they had any complaint about our management, that is what we was trying to find out. We had to get at the bottom of it and find out what it was. As far as outside of the plant, we didn't care because we didn't have the confusion in the plant, after all, we are a new company and there are certain things we have to do. Q. Did you and Mr. Roberg and Mr. Stanfield and anyone of you have an opinion as to who these girls were who were pushing the union? A. We had heard rumors. Q. It was Mrs. Perry that you heard it was? A. Not her alone. Q. Who else did you hear? A. We heard several women, Mrs. Wilson, Mrs. Brice, Mrs. Fronapfel, oh, I don't know, Barrett, probably 12 or 15 of them at different times. One person would tell you one thing and one another. Q. Was Mrs. Perry's name ever mentioned to you? A. That is right. Q. Mentioned foremost, wasn't it? A. No, I wouldn't necessarily say that. We weren't worrying about that, because we weren't worrying about that part of it. On direct examination Foreman Stanfield testified that the purport of the discussion with Klesner and Foreman Roberg in regard to Perry on June 2, 1951, was "the quality of Mrs. Periy's work, the amount of production that she had been doing, the oh, continual disrest I would call it in the plant," having had "some complaints come in about Mrs. Perry on agitation at her table," which 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was "more of an,internal confliction you might call it between the employees in the plant. Things weren't running quite as smoothly as they should have been." Klesner instructed the foremen, according to Stanfield, "that the agitation and the grief we were having in the plant had to come to a stop because it was inter- rupting our production and disrupting our production and things weren't as smooth as they should be and that if she or anyone else in the plant gave us con- tinual trouble we were to discharge them " On cross-examination, Stanfield gave the following significant testimony in regard to the June 2 conference: Q. [By Mr. Scott] What else did you say about [Perry] that day? A. Oh, of course these rumors, and of course, the plant agitation was one of the main things. Q. Were the rumors about the union activity? A. Not only that. Q. What rumors were there about union activity? A. Just heard rumors, like you will, people come to us and say there are people trying to organize a union and so forth. Q. What people came to you? A. Some of the employees of the plant I know. Q. Do you know what the substance of those rumors were? A. Well, that somebody was trying to start a union. Q. And was there talk about Perry talking about the union during the rest periods? A. No, all I know is that the fact had been brought to our attention or not the fact, but the rumors had been brought to our attention that someone was trying to organize a union and we merely discussed the matter. Q. Was it your opinion that it was Mrs. Perry that was doing that? A. Didn't know at the time. . . . Of course, after the whole thing come out in the open we found outh that she was trying to organize the union. In respect to the discussion on June 2 with Klesner and Stanfield about Perry, Foreman Roberg testified, "at the time we were having trouble with a few of the girls, there was a lot of confusion in my department there, and we talked about that, and at the same time we discussed Mrs. Perry's rejects and her type of work." According to Roberg, Klesner "told me that something had to be done about the rejection rate she had, about the confusion she caused on the table, he usually left that to our discretion," but did not instruct Roberg to discharge Perry, leaving the matter to Roberg's discretion. 4. The discharge of Perry on June 4, 1951 On Monday morning, June 4, 1951, the day after her consultation with Or- ganizer Dowell, Perry was summoned to tile Respondent's plant office by either Foreman Roberg or Foreman Stanfield, and according to Perry, the following conversation ensued : ... [Foreman Roberg] said, "We have a reliable authority that you saw a union man" and I remarked that the news traveled fast and he said "it certainly does and there is just one thing we can do and that is give you your check" and Mr. James Stanfield was standing there and . . . handed me my check and he said "yor are fired" ; . . I started to say to Mr: Stanfield that there was a law that said he couldn't and he told me that that law did not apply to them. JEK MANUFACTURING COMPANY 493 Perry denied that there was any discussion on June 4 of the quality of her. Work performance or of her talking to other employees duri ig working hours. Her testimony that she was never warned prior to June 4, that she might be, discharged was uncontroverted. As to their interview with Perry on June 4, at the time of the termination of her employment, considerable variance exists between the testimony of Stan- field and that of Roberg. Thus, Stanfield testified that although the purpose of calling Perry to the office that morning was "to ask her why her production had been down and about her rejects and why all the disruption in the plant," he could not remember that either he or Roberg mentioned her production or whether she asked about the quality of her work. He further testified as follows : Q. [By Mr. Reddish] What was said to her about her talking at that time? A. Well, as I remember she was told that through her, the complaints had been filed against her and the agitation that she had been causing in the plant and what-not, we wanted all the reasons for it. Q. What did she say? A. I don't remember just the words, just what she did say. Q. Did she make any statements about unions? A. Yes, I do remember one statement, really the main thing that she said was that, well, after the union does come in, why, you fellows won't be so smart, I do remember that. Q. Did either you or Bob say anything about unions. A. Not previous to that, no. Q. What was said then? A. We broached her, asked her what about the unions, I mean, asked her why all this flare up about the union, I mean to us when we called her up to the office. Q. Then exactly why was she discharged that Monday morning then? A. We felt that the agitation she had that seemed to be coming from her part of the plant on top of the fact that her production was down and that her rejections remained on a continual high level for, oh, practically ever since she started over on the dip table, that in itself was enough to discharge her. On the other hand, Roberg testified "the only thing I heard mentioned about unions was when Mrs. Perry said that if I were you two, I, you won't be so smart when the union comes in"' and denied that he said anything about unions during the interview. According to Roberg, "we told her about her work, her rejection rate, and causing confusion in the plant, and we believed that it called for dis- charge and included her absenteeism and rejection and just continual talking." Roberg denied that he told Perry that he had been informed that she had con- sulted with an organizer of the Union on Sunday and, like Kiesner, denied that he had any knowledge of such consultation at the time Perry was discharged. Upon the entire record and more particularly the variance in the testimony of Roberg and Stanfield as to their interview with Perry, the fact that Perry's version of the conversation was to some measure inferentially admitted by Stanfield, and the findings set forth in the immediately succeeding section of this Report as to remarks made to employees by Klesner and Roberg at a meeting held a week after Perry's discharge, as well as the undersigned's impression from his observation of the witnesses that Perry was a more sincere, forthright, 4 Perry specifically denied making this remark attributed to her by Roberg and Stanfield. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and reliable witness than either ' Stanfield or Roberg, the undersigned credits Perry's testimony in regard to the conversation with Roberg and Stanfield, occurring at the time of her discharge on June 4, 1951, and rejects the testimony of Roberg and Stanfield , except to the extent that it was in accord with the credible testimony of Perry. 5. Meeting of employees addressed by Klesner on June 11, 1951 On June 11, 1951, a week after the discharge of Perry, the employees were assembled during working hours and addressed by Blesner. As to Klesner's remarks, employee Grettel Brice gave the following testimony: Well, I don't remember exactly how he started his speech out, I didn't quite understand what he was talking about at first, but he said that he had a contract with the Good-All Electric Company, and that as far as he knew he had fulfilled his contract in every way and that he had heard some rumors that there was a talk of a union trying to be organized out' there, and he said that he wouldn't stop any of us from joining the union, that any time we wanted to join the union, pay our money to someone. like John L. Lewis; why, it was all right with him, he didn't care, but he said when we joined the union that we were through out there, that his contract would terminate. Q. He said you were through if you join the Union. A. Yes, because he said his contract with the Good-All Company would terminate when we joined the union and he said he would be against the President and the United States if we did join and he also said that he would be willing to discharge all of us if we did form the union because he said he wouldn't have it, he said he had started from scratch and he could start again. According to Brice, Klesner then asked Roberg whether "he had anything to say," and Roberg "said he had fired a girl the week before for trying to organize the union and that he had come to work that morning with the intention of firing four more girls because they had been- in constant contact with this girl, but he had changed his mind." Employee Eldora Margheim corroborated the testimony of Brice in regard to the remarks made by Blesner and Roberg on June 11. Klesner denied that he made any statement in reference to 'John L: Lewis or other labor leaders In his address to employees on June 11, admitted that he referred to unions indirectly, and gave the following version of his remarks: ... as near as I can recall, we started out in the meeting that day trying to find out what our trouble had been in production and quality and so forth, just general what had happened in the plant, why things were not going right. I had a copy of the rules of contract which you presented here at one time this morning, and I asked the girls what the trouble was, that we had to fulfill a lot of things it says in there about the Walsh-Healey Act, and I believe it is the wage and hour, that we can't be prejudiced against race, creed or color and that if we weren't paying the minimum wage and anything that pertained to a labor matter, and that if any time they had complaints to come to us and if they had complaints to come to us now, that we were a new plant, at that time we were having trouble with the city. . . . And they had all been with me, it was a good unit, I hoped that they would stay with me and I couldn't see at the present time, if we weren't doing something, that was mainly why they was getting a third party to present their complaints to me. I was wondering what JEK MANUFACTURING COMPANY 495 their complaints was that they was afraid to bring them to me themselves. And also that if we weren't doing in the contract rules with them and there was nothing brought up during the meeting or after the meeting, any questions asked about why we weren't doing anything that says in the rules. Aside from the foregoing, Klesner did not specifically deny the remarks attributed to him by Brice and Margheim and his testimony was not corroborated by.any of the other witnesses of the Respondent.' He was not questioned in regard to the statements made by Roberg in the meeting. Roberg admitted that at the meeting in question he stated, "I fired one girl snd I had an idea that I was going to fire three or four others," but denied that he gave any reasons or mentioned anything about unions. None of the other witnesses for the Respondent was questioned in regard to his remarks at the meeting and consequently his denials are unsupported. Upon the entire record, including the undersigned's observation of the demeanor of the witnesses as they testified and the fact that Klesner's and Roberg's versions of their remarks stand alone in the record without the support of any other witnesses for the Respondent, the undersigned credits the testimony of Brice and Margheim and rejects the testimony of Roberg and Klesner except to the extent that it was in accord with the credited testimony. C. Conclusions In view of the foregoing findings, it is clear that the reasons advanced by the Respondent for Perry's discharge-inefficiency, talking during work hours, and absenteeism-were mere pretexts in an attempt to conceal his real and illegal motive, based upon a desire to rid himself of the leader of the union movement. The testimony of Klesner and Stanfield, standing alone, is capable of supporting an inference that the Respondent's concern as to the "confusion," "disrest," "trouble," "grief," and "agitation" in the plant and in Perry's department was due to her union activities, of which the Respondent admittedly had knowledge, and that her subsequent discharge was consequently illegally motivated. This inference and conclusion is further supported by the timing of her discharge upon the opening of the plant on the day following her consultation with Organ- izer Dowell, by the fact that she was precipitantly discharged without prior warning that the reasons advanced by the Respondent for her discharge might lead to the termination of her employment, and by the fact that rules of the Respondent of which she allegedly was in violation were not posted in written form until after her discharge. However, it is unnecessary to found the conclusion that her discharge was discriminatory upon these inferences and circumstances alone, for, as found above, at the time Perry was discharged, Roberg stated, "We have a reliable authority that you saw a union man . . . there is just one thing we can do and that is give you your check." When she remonstrated that "there was a law that said he couldn't," Stanfield replied that "that law did not apply to them." Moreover, at the meeting of employees held a week after Perry's dis- charge, Klesner indicated that his plant would close if the employees joined the Union and stated that "he would be willing to discharge all of [the employees] if [they] did form the union because he wouldn't have it." Furthermore, at the Of such witnesses, only employee Loyola McKeag was interrogated in regard to the meeting on June 11. Her testimony is not entitled to credence since she was effectively 1mpeachad by the General Counsel on cross -examination. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same meeting, Roberg avowed that "he had fired a girl the week before for try- ing to organize the union." In view of these findings, demonstrating the illegal discriminatory motive of the Respondent in discharging Perry, the reasons ad- vanced by the Respondent for her discharge-Perry's inefficiency, talking, and absenteeism-are to no avail, even if it be assumed that such reasons were established by the record, for, as the Board has consistently held, "If an em- ployer in fact discharges an employees for discriminatory reasons, the circum- stance that the employer might have discharged him for a valid reason, for example, participation in unprotected activities, is not subsequently available as a defense to the discriminatory discharge."' The undersigned concludes and finds that by discharging Perry because of her union and concerted activities, the Respondent engaged in violations of Section 8 (a) (3) of the Act and that by discharging Perry, by Roberg's statement that he had discharged an em- ployee "for trying to organize the union," and by the threat of Klesner and Roberg that the Respondent's operations would cease and employees would be dis- charged if they formed a labor organization, the Respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed. in Section 7 of the Act. 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 the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the Respondent discriminatorily discharged Frances C. Perry because of her union and concerted activities. As stated above, on August 10, 1951, the Respondent reinstated Perry to a substantial equivalent position but without a restitution of back pay. Thereafter Perry voluntarily left the Respondent's employ. In view of the Respondent's discrimination against Perry, the undersigned will recommend that the Respondent make Perry whole for any loss of pay she may have suffered by reason of the Respondent's dis- crimination against her by payment to her of a sum of money equal to that which she normally would have earned as wages from June 4, 1951, the date of her discharge, to August 10, 1951, the date of her reinstatement by the Respondent, less her net earnings during said period.? Loss of pay shall be determined by deducting from a sum equal to that which Perry would normally have earned for each quarter or portion thereof, her net earnings, if any, in other employment dur- ing that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. The quarterly periods described herein shall begin with the first day of January, April, July, and October H It is recom- mended further that the Respondent make available to the Board upon request e Wallick and Schwalm Corp., 95 NLRB 1262. 7 Crossett Lumber Co., 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 8 F. W. Woolworth Company, 90 NLRB 289. JEK MANUFACTURING COMPANY 497 payroll and other records, in order to facilitate the checking of the amount of back pay due.' It will be recommended that the Respondent cease and desist from interfering with, restraining, or coercing its employees in violation of Section 8 (a) (1) of the Act by threatening to cease operations or to discharge employees if they should form a labor organization. Because of the Respondent's unlawful conduct and its underlying purpose and tendency, the undersigned finds that the unfair labor practices found are persuasively related to other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondent's conduct in the past.1° The preventive pur- pose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, .to prevent a recurrence of unfair labor practices, and thereby to minimize in- dustrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Frances C. Perry, thereby discouraging membership in American Federation of Labor, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) 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. [Recommendations omitted from publication in this volume.] Appendix A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMERICAN FEDERATION OF LABOR, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection, or to refrain from any and 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 Act. 9 F. W. Woolworth Company, 90 NLRB 289. 10 N. L. R. B. v. Express Publishing Co., 312 U. S. 426. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT inform our employees that any employee has been discharged because of his activities on behalf of AMERICAN FEDERATION OF LABOR or any other labor organization of our employees. WE WILL NOT threaten our employees that our operations will cease or employees will be discharged if they form a labor organization. WE WILL NOT discourage membership in AMERICAN FEDERATION OF LABOR or any other labor organization of our employees by discriminating in any manner with regard to their hire and tenure of employment , or any term or condition of employment. WE WILL MAKE WHOLE Frances C. Perry for any loss of pay sufferedby her as a result of the discrimination against her. All our employees are free to become, remain, or to refrain from becoming or remaining members of the above-named union or any other labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. J. LEE KLESNER, an individual, doing business as JEK MANUFACTURING COMPANY, Employer. Dated------------ By -------------------------------------------------- (Representative ) (Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. JOHN ALMEIDA, JR., D/B/A ALMEIDA Bus SERVICE, AND ALMEIDA Bus LINES, INC.,' and AMALGAMATED ASSOCIATION OF STREET, ELECTRIC RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA, DIVISION 1442. Case No. 1-CA-879. June 4, 1952 Decision and Order On August 21, 1951, Trial Examiner John H. Eadie issued his In- termediate 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 copy of the Inter- mediate Report attached hereto. In his Intermediate Report the Trial Examiner also recommended the dismissal of certain allegations in the complaint. Thereafter the Respondent and the General Counsel filed exceptions to the Intermediate Report. The Respondent filed a brief in support of its exceptions, and a request for oral argument. This request is hereby denied as the record, the exceptions, brief, and other argument in this case adequately present the issues and positions of the parties. Together with its exceptions and brief, the Respondent filed a mo- tion to reopen the record for the purpose of receiving in evidence and 1 Herein collectively called the Respondent. 99 NLRB No. 79.