The Syracuse Stamping Co.

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE SYRACUSE STAMPING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. O. Case No. 3-CA-150. January 14, 1953 Decision and Order On August 7, 1952, Trial Examiner Frederic B. Parkes 2nd issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act, 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, The Syracuse Stamping Company, Syracuse, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. 1. 0., or any other labor organization of its employees, by discriminating in regard to the hire and tenure of their employment or any term or condition of employment. (b) Refusing to rehire employees because they filed with the Board charges that the Respondent had engaged in unfair labor practices; interrogating employees as to their union affiliation, sympathies, de- sires, and activities; threatening employees with reprisals by way of discharge or cessation of employee privileges previously enjoyed; engaging in surveillance of union activities of employees; or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist International Union, United Automobile, a Pursuant to the provisions 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 Houston and Murdock]. 102 NLRB No. 31. THE SYRACUSE STAMPING COMPANY 231 Aircraft and Agricultural Implement Workers of America, C. I. 0., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of 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. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Joan Grosso and Grace Chilson immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's unlawful action against them. (b) Post at its plant in Syracuse, New York, copies of the notice attached to the Intermediate Report herein and marked "Appen- dix A." 2 Copies of such notice, to be furnished by the Regional Direc- tor for the Third Region (Buffalo, New York), shall, after being duly signed by the Respondent's duly authorized representative, be posted by the Respondent immediately upon receipt thereof, and be main- tained by it for a period of at least sixty (60) consecutive days there- after, 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. (c) Notify the Regional Director for the Third Region, in writing, within ten (10) days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Edward Litke and Joan Grosso within the meaning of Section 8 (a) (3) of the Act. ? This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" in the caption thereof the words "A Decision and Order." If this Order is enforced by 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." Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, 0 I. 0., herein called the 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, the General Counsel of the National Labor Relations Board' by the Regional Director of the Third Region (Buffalo, New York), issued a complaint dated March 5, 1952, against The Syracuse Stamping Company, 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, as amended,' alleged in substance that the Respondent (1) on June 7, July 12, and October 5, 1951, discriminatorily discharged Joan Grosso, Grace Chilson, and Edward Litke, respectively, and thereafter failed to reinstate them for the reason that they joined or assisted the Union or engaged in other concerted activities for the purpose of collective bargaining; and (2) since about April 1, 1951, interrogated its employees concerning their union affiliations and activities ; threatened and warned its employees to refrain from assisting, becoming members of, or remain- ing members of the Union ; threatened its employees with discharge or other reprisals if they joined or assisted the Union ; and kept under observation and surveillance the meeting places, meetings, and activities of the Union or the concerted activities of its employees for the purpose of self-organization or improvement of working conditions. The complaint further 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, admitting certain allegations of the complaint but denying that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held on May 19, 20, and 21, 1952, at Syracuse, New York, before Frederic 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 repre- sentative. 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 outset of the hearing, the Respondent moved for the dismissal of the complaint's allegations in respect to the discharge of Grosso ; the Respondent's motion was based upon the variance between the charges and the allegations of the complaint, viewed in the light of the 6-month period of limitations of Section 10 (b). The original charge, filed by the Union on July 27,1951, alleged violations on the part of the Respondent of Section 8 (a) (3) but did not mention the discharge of Grosso. An amended charge filed by the Union on January 17, 1952, alleged that Grosso was discriminatorily discharged on or about May 29, 1951. The Respondent argues that since the Union's charge failed to specify allegations of unfair labor practices on the part of the Respondent with respect to Grosso within 6 months from the date of her alleged discharge, Section 10 (b) precludes the issuance of a complaint by the Board based upon these events. The motion was denied' Upon the conclusion of the hearing, the undersigned granted a motion by the General Counsel to conform the pleadings to the proof as to dates, spelling, and I The General Counsel and his representative at the hearing are referred to as the Gen- eral Counsel. The National Labor Relations Board is herein called the Board. 3 At the outset of the hearing the complaint was amended as to the date of the alleged discriminatory discharge of Joan Grosso. i The undersigned ruled that the filing and service of the original charge tolled the running of the statute of limitation despite the failure of such charge to aver Grosso's discharge as matter material to the proceeding. See Cathey Lumber Company, 87 NLRB 157; Westinghouse Electric Supply Company, 96 NLRB 407; I. B. S. Manufacturing Com- pany, 96 NLRB 1263; Beaver Machine t Toot Co., Inc., 97 NLRB 33. THE SYRACUSE STAMPING COMPANY 233 minor variances. Ruling was reserved upon the renewal of the Respondent's motion to dismiss the complaint in respect to Grosso . The motion is disposed of in accordance with the findings of fact and conclusions of law reached below, as well as the conclusions set forth in the margin above. At the close of the hearing, the undersigned advised the parties that they might argue before and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner. The parties waived oral argument. Thereafter, the Respondent and the General Counsel each filed a brief 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 The Syracuse Stamping Company, a New York corporation with its principal office and place of business at Syracuse, New York, is engaged in the manufacture, sale, and distribution of metal stampings and related products. During the year ending December 31, 1951, the Respondent purchased raw materials, supplies, and equipment valued in excess of $500,000, of which approximately 50 percent was purchased outside the State of New York and shipped to the Respondent's plant at Syracuse, New York. During the same period, the Respondent manu- factured, sold, and distributed metal stampings and related finished products valued in excess of $500,000, of which approximately 60 percent was sold and shipped to customers located outside the State of New York. It is found that the Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, is a labor organization affiliated with the Congress of Indus- trial Organizations , admitting employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. The setting The Union commenced its organizational campaign among the Respondent's employees in May 1951, and on June 8, 1951, filed a petition with the Board in Case No. 3-RC-749, seeking certification as the collective-bargaining represent- ative for the Respondent's production and maintenance employees. On July 19, 1951, a hearing was conducted on the petition and on September 5, 1951, the Board issued its Decision and Direction of Election in the representation pro- ceeding, directing that an election be held among the Respondent's employees to determine whether they desired the Union as their statutory representative. On October 3, 1951, an election was conducted by the Regional Director and of the approximately 106 eligible voters, 21 cast votes for the Union and 73 cast votes against the Union. The Regional Director accordingly certified that a majority of the valid votes had not been cast for the Union. B. Organization of Union; interference, restraint, and coercion 1. Sequence of events The first indication of employee interest in self-organization shown by the record occurred on May 7, 1951, when employees Grace Chilson, Joan Grosso, Catherine Deraway, and Jane Webb conferred about the matter with Francis R. O'Mealia , area director for the Union, during their lunch hour and later in the 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afternoon after they ceased work. As a result of these discussions, the Union launched an organizational campaign by the distribution of leaflets on May 14, 1951, and thereafter. The Union held its first formal meeting of the Respondent's employees on May 25, 1951, at a hotel in downtown Syracuse. About an hour before the meeting, employees Grosso and Deraway met employee Chilson at White's Tavern, which was located near the Respondent's plant and which was patronized by many employees of the Respondent, so that Chilson's husband might convey them to the Union's meeting in his car. Fred Kuckhoff, second vice president of the Respondent, was also in the tavern that evening and chatted with the employees. In response to his question, they informed him that they were planning to attend the meeting of the Union and at Kuckhoff's request, agreed to give him a lift to downtown Syracuse. En route to the union meeting, Vice- President Kuckhoff told the employees that he had "spotters" around the hotel to ascertain the identity of employees attending the union meeting but that Chilson, Grosso, and Deraway did not "have to worry because he knew [they] were going." Upon their arrival at the hotel, he asked the employees to meet him after the meeting at a bar near the hotel. However, the employees did not do so at the close of the meeting but returned to White's Tavern. Kuckhoff later in the evening joined them there and asked them why they had not met him at the downtown bar as arranged. The next meeting of the Union was held on June 1, 1951, and, as at the earlier meeting, Ohilson and her husband met employees Grosso and Deraway and also Jane Webb and Loretta Galli at White's Tavern prior to the meeting to take them downtown. Again, Vice-President Kuckoff was in the tavern and, in conversation with the employees, inquired whether they were going to attend the union meeting and whether he might have a lift to town. Once more the employees agreed that he might accompany them downtown and en route Kuckhoff requested that the employees inform him later as to the number and identity of the Respondent's employees attending the meeting. The employees agreed to tell him the number in attendance but declined to reveal their identity. After the conclusion of the union meeting, employees Grosso, Chilson, Webb, Deraway, and Galli met Vice-President Kuckhoff, at the latter's invitation, at a bar near the hotel where the union meeting had been held. Kuckhoff inquired as to "how the meeting went" and the number and identity of the Respondent's employees in attendance. He further asked whether employees were obliged to sign union application-for-membership cards in order to attend the meeting. During the conversation, Kuckhoff stated, according to Chilson's credible testi- mony which was corroborated by that of Grosso and Webb, that "if he could find out who was joining the Union, who had filed application cards, he was going to make it awfully hard and miserable for us, and any reason he could find he would have us fired." After a short while, Kuckhoff called a taxi and took the employees to White's Tavern. In addition to making further inquiries as to the occurrences at the union meeting and in regard to the plans of the Union Kuckhoff said, as revealed by Chilson's credited testimony, "If you want a Union shop, why don't you go to a Union shop to work?" ` 4 The above findings as to statements made by Fred Kuckhoff on May 25 and June 1. 1951, are based upon the testimony of Chilson, Webb, and Grosso, who corroborated each other in varying degrees as to their group conversations with Kuckhoff. Kuckhoff admitted that he conversed with the employees an May 25 and June 1, 1951, at White's Tavern, that they gave him a lift to town on each evening, that he met them at a bar near the union meeting place after the meeting on June 1, 19451, and that he took them back to White's Tavern He denied that he told them that he had "spotters" In the hotel where the union meeting was held, that he threatened any of the employees with more rigorous working THE SYRACUSE STAMPING COMPANY 235 About June 15, 1951, Harold McNair, who was a setup man and inspector super, vising the assembly department,5 asked employee Grace Chilson why she "wanted conditions or with discharge as a consequence of their union activity, that be had any, knowledge of their destination until they informed him or whether they were union mem- bers, that he questioned them as to their union membership, and that he discussed the Union with them. These denials were for the most part of a general nature and he failed to deny specifically many of the remarks attributed to him by the employee witnesses. According to Kuckhoff, at the time in question , he frequently dined at White's Tavern and stopped there in the evening to wait for a bus to his home ; his testimony is credited in this regard. However, the undersigned does not credit Kuckhoff's denials of the state- ments attributed to him by the employee witnesses , as set forth in the text, for the reason that (1) Kuckhoff failed to deny specifically many of the remarks testified to by such em, ployees, (2) the testimony of Webb, who was a dispassionate witness without interest in the outcome of the proceeding and who appeared to be a more reliable witness than Kuckhoff, corroborated the testimony of Grosso and Chilson, ( 3) although a portion of Chilson's testimony, set forth infra, as to other events has not been accepted, she impressed the undersigned, in the main, as a sincere witness, and (4) much of the testimony of Webb, Chilson, and Grosso was mutually corroborative. For the reasons hereinafter discussed in rejecting other portions of Grosso's testimony, reliance upon Grosso's testimony has been limited to those portions which corroborated, or were supported by, the testimony of Chilson and Webb s McNair entered the Respondent's employ on May 21, 1951, as setup man and inspector in the spool assembly department, where Chilson and Grosso worked. Carl Kuekhoff, first vice president of the Respondent, estimated that there were between 20 and 25 employees in that department but Superintendent Gaston St Pierre placed the number of such employees at 35, whereas Chilson testified that there were about 50 employees in the department. In any event, the Respondent contends that McNair was not a supervisor for whose statements it was responsible and that the only supervisor for the department was Superintendent St. Pierre, who was in charge of all factory operations, having some 8 or 9 departments under his direction, according to the Respondent' s organizational chart. In all, the Respondent had approximately 125 production and maintenance employees at the time in question. Superintendent St. Pierre testified that he "hit" the spool assembly department "four or five times, a (lay, not too big a place," and that he would "go over and tell [McNair] where to put the girls, on what jobs to put on production maintenance and job finish up, and tell him to put a certain job here and there." McNair instructed the operators in their work and spent between 25 and 35 percent of his time setting up and adjusting machines. The remainder of his work was devoted to inspecting the output of the department. So far as the record shows , he had no authority to hire or discharge employees or effectively to recommend such action. He reported inferior production of employees to the chief inspector, who was superior to McNair and another inspector. Employees asked McNair for permission to be absent from work and he conveyed such requests to St. Pierre. According to Chilson's undenied and credible testimony, McNair "came to us one day, around the girls, told us if there was anything that had to be told to Mr. St. Pierre, we'd have to talk to [McNair] and tell him and he would report it to Mr. St Pierre, that we weren't to go to Mr. St Pierre any more." When he was initially employed, McNair was paid $1.75 and later $1 .80 an hour. The highest base rate for his subordinates was between $1 and $1.05 an hour. The record reveals that McNair's wage rate was considerably above the highest recompense paid employees on a wage incentive plan. The Respondent's argument that McNair was not a supervisor is, in essence, based upon the short length of time McNair was in its employ ; thus, Vice-President Carl Kuckhoff testified that in respect to the spool assembly department, "we eventually would have a foreman after a man was trained properly . We wouldn't naturally take a man the first day be came there and make him a foreman over a department which he knew nothing about. Take him at least six months to become sufficiently familiar with our method of doing business, and also of these various spools. We make about 150 different kinds of typewriters, adding machines and other ribbon spools and takes years and years to know what all the answers are in regard to production of these spools. We have to take some time-the man previous to Mr. McNair was not a foreman because he wasn't there long enough either. Eventually Mr. McNair, when he became familiar with all the workings of the different spools, he would have been made a foreman, but until such a time when he had to be shown how to assemble all parts , either by Mr. St. Pierre from the manufacturing standpoint , and from an inspection standpoint by Mr. Bubnack , in regard to what to watch out for on different spools, we couldn't give him the responsibility of running that department ." Upon the entire record , the under- signed finds that McNair was a supervisor within the meaning of the Act and that his statements are attributable to the Respondent. 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a Union in the shop." In another conversation with Chilson, around June 21, 1951, McNair said that "if the Union did get into the shop that the supervisors and the plant members would take away a lot of" the privileges then enjoyed by employees and that the employees "would have to have an examination and anyone found in anyway physically defective, they would be unable to work in the shop." In the summer of 1951, Foreman John Lecotta told employee Walter Flansburg, according to the latter's credible and undenied testimony, that a union would never succeed in organizing the Respondent's plant and if one did, "it would cost [the Respondent] the last dime they had." Flansburg also testified that in the summer of 1951, Superintendent St. Pierre asked whether Flansburg was in favor of the Union and said, "Well, others had been dismissed from this place and others can be dismissed from this place." St. Pierre denied generally that he threatened employees with discharge or other penalties if they joined or assisted the Union but failed to deny specifically the conversation with Flansburg and the remarks attributed to him by Flansburg. As between these witnesses, Flansburg appeared to be the more reliable ; further- more, he was without bias and had no interest in the outcome of these proceed- ings.' Flansburg's testimony is accordingly credited. 2. Conclusions The undersigned finds that by the following statements and inquiries of Fred Kuckhoff on May 25 and June 1, 1951, the Respondent engaged in violations of Section 8 (a) (1) of the Act: (1) Inquiries as to (a) whether the employees were going to attend a union meeting, (b) the number of employees present, matters discussed, and occurrences at the union meetings, (c) whether employees were obliged to sign union application-for-membership cards in order to attend the meeting, and (d) plans of the Union ; (2) the statement that he had "spotters" around the meeting place of the Union to ascertain the employees in attendance; (3) requests to employees prior to the union meeting that they subsequently inform him as to the occurrences and those in attendance at the meeting ; (4) his explicit threat that if he could ascertain "who had filed application cards, he was going to make it awfully hard and miserable for us, and any reason he could find he would have us fired" ; and (5) the threat of reprisal implicit in his statement, "If you want a Union shop, why don't you go to a Union shop to work?" The General Counsel contends and the Respondent denies that Kuckhoff's rid- ing downtown with the employees on May 25 and June 1, 1951, with knowledge that they were en route to a union meeting, constitutes unlawful surveillance of union activities. The undersigned finds merit in the position advanced by the General Counsel. Kuckhoff testified that he requested the lifts to town as he was on his way to visit his wife at a hospital. Had Kuckhoff merely accompanied the employees to the meeting place of the Union, even with knowledge of their destination, the undersigned would not be inclined under the circumstances of the case to find that Kuckhoff thereby engaged in surveillance of concerted activities of the employees. However, as found above, en route to town, Kuckhoff told the employees on May 25, 1951, that he had spotters on the hotel to observe the employees attending the meeting and on the second trip on June 1, 1951, he requested the employees to inform him later as to the number and identity of the Respondent's employees attending the meeting. In view of these factors, it is clear and the undersigned finds that by Kuckhoffs journeying with employees C The undersigned's observation of Flansburg's demeanor on the witness stand leads to a conclusion completely antipodal to that suggested in the Respondent 's brief at lines 10 and 11 on page 16. THE SYRACUSE STAMPING COMPANY 237 to the meeting place of the Union on May 25 and June 1, 1951, coupled with his foregoing statements and requests , the. Respondent engaged in surveillance of concerted and union activities of its employees in violation of Section 8 (a) (1) of the Act. It is further found that by the foregoing statements, inquiries, and conduct of Fred Kuckhoff, by Superintendent St. Pierre's inquiry of Flansburg as to whether the latter was in favor of the Union and St. Pierre's statement that "Well, others had been dismissed from this place and others can be dismissed from this place," by setup man McNair's Inquiry of Chilson as to the reason she supported the Union and his threat of cessation of employee privileges and of discharge in the event of the success of the Union's organizational campaign, and by Foreman Lecotta's statement to Flansburg that a union would never organize the plant and that if one should succeed, it would cost the Respondent the last dime they possessed, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.7 C. Termination of employment of Joan Grosso; Respondent's unlawful refusal to rehire Grosso 1. Alleged discriminatory discharge of Grosso Joan Grosso commenced her employment with the Respondent on January 31, 1951, having been interviewed and hired by Vice-President Fred Kuckhoff, who at that time and until April 1951, interviewed applicants for employment. She worked through February 8, 1951, when she became ill and entered a hospital for an operation. The Respondent's records show that about this time a "separation card" for Grosso was made out. The card noted that the last day she worked was February 8, 1951, indicated by a check mark that she had quit voluntarily, under the heading of "Reason for Separation" stated "Sickness operation," and also bore the notation, "Will be out for sometime?" Her name 'The General Counsel also argues that the Respondent violated the Act by a change in the system of paying employees their weekly wage and by granting employees certain paid holidays after the inception of the Union's organizational campaign. Although the matter is not completely free from doubt, the undersigned cannot concur in the General Counsel's contentions . At a date not clearly established by the record but shown by the preponderance of credible evidence to be a month or so after the Union commenced to organize the Respondent's employees, the Respondent changed the time for paying the employees their weekly wages. Prior to the change, employees were paid each Friday after the end of the work day at 5 p. in. However, Carl Kuckhoff, vice president of the Respond- ent, testified and it is found that the change was brought about by the complaint of the two paymasters, officials of the Respondent, that the system for distributing pay envelopes was consuming too much time and by their suggestion that the employees be given their pay envelopes at their work stations around 4 :30 p. in. each Friday. Although the change in time of payment of wages obviated the necessity for employees to wait after work on Fridays to obtain their pay, the undersigned is not convinced that the Respondent made the changes in order to discourage the employees from becoming members of or supporting the Union. Kuckhoff's explanation seems reasonable and is credited . Beginning on Memorial Day 1951 , the Respondent commenced a policy of giving employees certain paid holidays . Kuckhoff testified that in the past there had been no uniform policy as to paid holidays ; on some occasions , employees were given pay for holidays not worked and on others they were not. According to Kuckhoff , the Respondent determined to establish a uniform policy as to paid holidays and with the approval of the Wage Stabilization Board inaugurated the policy on May 30, 1981 . Although the Respondent's admitted knowledge of the Union's campaign by May 16, 1951, coupled with the Respondent's other unfair labor practices , gives one reason to doubt its motivation in starting the policy of holiday pay, the undersigned credits Kuckhoff's testimony in regard to this issue and finds that by granting employees holiday pay on and after May 30, 1951 , the Respondent did not violate the Act. 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remained on the payroll through February 16, 1951. As indicated by the separation card and payroll records, Grosso returned to work on March 12, 1951. As mentioned previously, Grosso was 1 of the 4 employees who first evidenced an interest in self-organization and discussed the matter with a representative of the Union on May 7, 1951. She signed an application for membership in the Union on May 14. Her union advocacy and activities became known to the Respondent through Fred Kuckhoff's surveillance of the union activities of Grosso and other employees on May 25 and June 1, as heretofore related. The Respondent's payroll records for Grosso showed that the last day she worked was May 18, 1951, and there is no indication therein or in the absentee records that she was absent from work that week. However, Grosso testified that she continued to work until May 21, 1951, that about 8 a. in., an hour after she commenced work that day, she became ill and obtained permission from Setup Man Temple to go home, and that she did not return to work that week. En route home, according to Grosso, she encountered Vice-President Fred Kuckhoff who inquired why she wasn't at work ; she told him that she was ill and was going home and he replied, "That is too bad, take it easy." On the other hand, Superintendent St. Pierre, Assistant Production Manager Irving Lewis, and Personnel Manager Lee Rounds denied that they had any knowledge of the reason for Grosso's absence from work the week of May 21 until some days later. The record reveals that McNair became the setup man for the department where Grosso was employed on May 21, 1951, succeeding Temple in that position. Accordingly, Grosso was in error when she testified that on May 21, 1951, she obtained permission from Setup Man Temple to leave the plant because of illness. In view of the latter circumstance, and the under- signed's impression of the witnesses, as well as the fact that the payroll records for Grosso do not show any credit for the hour she purportedly worked on May 21, 1951, the undersigned finds that Grosso last worked for the Respondent on May 18, 1951, putting in a full day according to the records, and accepts the testimony of St. Pierre, Lewis, and Rounds as to their lack of knowledge for Grosso's failure to report to work during the week of May 21; Grosso's testi- mony is rejected to the extent that it was inconsistent with the credited testi- mony or the documentary records of the Respondent.° Irving Lewis, who was assistant production manager and purchasing agent for the Respondent and who distributed the pay envelopes to male employees each week, testified that on Friday, May 25, 1951, he noticed Grosso enter the Respondent's offices and inasmuch as he had noted her absence from work that week, "when we were very busy in the plant and needed every worker that was available," he "was interested in knowing when she was coming back to work, and . . , asked her when she would return to work." Grosso replied, according to Lewis, that "she didn't think she would be able to return because she had to 9 Vice-President Fred Kuckhoff was not questioned in regard to this portion of Grosso's testimony 9 In making this resolution of the conflicts in testimony , the undersigned has considered the fact that Fred Kuckhoff was not questioned with respect to the conversation Grosso asserted they had on May 21. Any support which this circumstance may afford Grosso's testimony is more than offset by the discrepancies between her testimony and documentary evidence, established incidents, and credible testimony of other witnesses set forth in the text ; and accordingly, that portion of her testimony relating to the alleged conversation with Fred Kuckhoff is also rejected . The undersigned has also noted that on cross-exami- nation, Grosso was somewhat uncertain as to the date on which she left the plant because of illness but believed "it was the first part of the week. . . . It may have been the follow- ing Monday" after May 18. Absentee records of the Respondent show that Grosso was not at work because of illness for a day and a half on April 2 and 3, 1961, which fell on Monday and Tuesday, respectively, and at which time, Temple was the setup man in Grosso's department. Possibly this incident was the real basis for Grosso's testimony and she was in error as to the date. THE SYRACUSE STAMPING COMPANY 239 stay home and take care of her children; she had no one to take care of them at that time." Lewis then sent for Superintendent St. Pierre. St. Pierre, who distributed the pay envelopes to female employees each Friday, testified that he had the following conversation with Grosso on May 25, 1951: I was called into the office. I got in there. I saw Mrs. Grosso in there, so she had come after her pay [which was held back by the Respondent from, and was due Grosso for, her previous week's wages], and she said, "I want to tell you, Mr. St. Pierre, I won't be able to work. I don't believe I will be able to work any more because I haven't got anybody to take care of my children." So I paid her. That is all that was said. After this conversation, St. Pierre, according to his credible testimony which was supported by the Respondent's records made in ordinary course of business, .filled out another separation card for Grosso about May 28 or 29, 1951, stating thereon that she had quit voluntarily and giving as the "Reason for Separation- had to care for her children." It appears that an employee's name was not removed from the payroll until a separation card for such employee had been received and processed by the payroll clerk. Although the payroll records for Grosso revealed that she was carried on the payroll through June 1, 1951, the absentee records compiled by Personnel Manager Lee Rounds showed that Grosso was considered to be on the payroll through May 29, 1951. Grosso did not specifically deny the testimony of St. Pierre and Lewis in respect to the colloquies on May 25, 1951. When questioned as to whether she had been at the Respondent's plant after the last day she worked in May 1951, she testified, "I might have, and I might not have. I can't recall." She did not "believe" that she had ever talked to Assistant Production Manager Lewis. According to Grosso, she did not return to the plant for the week's wages held back by the Respondent and due her but obtained them by asking Vice-President "Freddy [Kuckhoff] if he would be so kind to bring me down my pay and he did, and he handed it to me right in White's Tavern." Fred Kuckhoff was not inter- rogated in respect to this testimony of Grosso. However, a portion of her testi- mony hereinafter related regarding her version of a telephone conversation with Personnel Director Rounds is in the nature of an admission that she had no one to care for her children during the day at the time in question. Moreover, Grosso admitted that her sister who tended Grosso's children while Grosso was employed by the Respondent left Syracuse in the summer of 1951, and according to Grosso and Peggy Beck, arrangements were made in late May 1951 for Beck to care for the children of Grosso in the latter's absence. In view of Grosso's failure to deny specifically the conversations testified to by St. Pierre and Lewis as occurring on May 25, 1951, the fact that St. Pierre's testimony was corroborated by the Respondent's records, that, in contradistinc- tion to Grosso, Lewis appeared to be an especially reliable witness, and that Grosso's admissions revealed that she had no one to tend her children in late May 1951, the undersigned credits the testimony of St. Pierre and Lewis and finds that they had the conversations with Grosso testified to by them and that St. Pierre made out a separation card for Grosso on May 28 or 29, 195110 1* In reaching these conclusions, the undersigned - has considered-the fact that Fred Kuckhoff was not interrogated with respect to Grosso's version of the delivery to her by him of her hold-back pay Any support which this circumstance lends her testimony is, in the opinion of the undersigned, more than counterbalanced by the factors enumerated in the text, including the conclusions as to the testimony of Grosso in regard to the last day she worked for the Respondent . Moreover, the fact that she did , in fact, request and obtain her hold-back pay lends further support to the conclusions reached in the text as to her conversations with St. Pierre and Lewis inasmuch as that action was an affirmative indication, under ordinary circumstances , of a voluntary termination of the employer- employee relationship. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Personnel Manager Rounds testified that during the week of May 21, 1951, Superintendent St. Pierre asked Rounds "to please contact Joan Grosso and find out why she wasn't there." According to Rounds , he failed to comply with St. Pierre's request until the following week, apparently on or about the day on which St. Pierre filled out the separation card for Grosso . It was Rounds' testimony that when he reached Grosso by telephone , he asked her why she had not been at work and Grosso replied , "I still haven't been able to find anybody to take care of my children." Rounds reported the conversation to St. Pierre, whose testimony was corroborative of that of Rounds in this respect , and St. Pierre informed Rounds that St. Pierre had obtained that information earlier and had already made out the separation card for Grosso. Grosso placed her conversation with Personnel Manager Rounds as occurring on June 4, the Monday following the union meeting of June 1, and testified that Rounds inquired when she would return to work, that she "told Mr. Rounds I was feeling better, I had someone to take care of my children , I would be in to work the following Monday," and that Rounds replied, "That is fine." The issue posed by the antipodal variance between the testimonial version of Grosso and Rounds as to their conversation is vital to Grosso's case and is manifestly perplexing , since there is no mutual grounds for reconciling the two versions. Since, as shown above, her testimony in respect to other incidents was not entitled to credence , being in conflict not only with mutually corroborative testimony of other witnesses but also with documentary evidence and established events, the undersigned is persuaded that her testimony as to the conversation with Rounds should be rejected and that Round 's version of the colloquy should be accepted. His testimony, in part corroborated by that of St. Pierre, when considered in conjunction with foregoing events, is plausible , both as to date and as to the conversation itself and carries with it a ring of conviction. Grosso testified that shortly after her telephone conversation with Rounds on June 4, she went to White's Tavern for lunch and encountered Vice-President Fred Kuckhoff and that she informed him of her intention to return to work the following Monday. He replied, according to Grosso, that "that was fine, he was glad to hear it." However, when Grosso saw Vice-President Fred Kuckhoff the following day at lunch time in the tavern , he called her to his table and told her, according to her testimony, "not to bother to come into work any more until the Union business blew over ." Vice-President Fred Kuckhoff specifically denied Grosso's testimony as to her two conversations with him on June 4 and 5, respectively. Before resolving these conflicts in the testimony of Grosso and of Kuckhoff, it should be noted that Grosso further testified, without contra- diction, that in July 1951, at which time the Union's petition in Case No. 3-RC-749 was pending before and being processed by the Board, Vice-President Fred Kuck- hoff called me at the house and asked me if I would like a job in the office, and asked me if I could do typing and shorthand and general office work . I told him "No, I didn't have experience in typing or shorthand but that I did know book- keeping and clerical work . . . He said 'We'll see."' Upon the entire record, the undersigned's observation of the witnesses, and the conclusions heretofore reached in rejecting other portions of Grosso 's testi- mony, the undersigned credits Kuckhoff 's denials and finds Grosso's testimony as to her conversations with Kuckhoff on June 4 and 5 unentitled to credence, notwithstanding the conclusions previously set forth as to Fred Kuckhoff's statements, inquiries , and conduct on May 25 and June 1, 1951." "There remains for consideration Grosso's testimony in regard to conversations with Vice-President Fred Buckhoff on May 25 and June 1, 1951, after the union meetings. THE SYRACUSE STAMPING COMPANY 241 In view of the foregoing findings, the undersigned concludes that Grosso quit the Respondent's employ on or about May 18, 1951, and that the complainant's allegations that Grosso was discriminatorily discharged on or about June 5, have not been sustained by a preponderance of credible evidence. 2. Respondent's unlawful refusal to reemploy Grosso The original charge filed by the Union on July 30, 1951, and formally served upon the Respondent on July 31, 1951, averred that the Respondent had engaged in violations of Section 8 (a) (1) and (3) of the Act by discriminatorily dis- charging Grace Chilson on July 12, 1951. During the investigation by a field examiner of the Board of these charges in the late summer and fall of 1951, a question concerning Grosso's termination of employment with the Respondent was raised and the Respondent informed the field examiner that its contention was that Grosso had quit but that the Respondent had no objection to her reemployment. On January 17, 1952, the Union filed a first amended charge alleging that the Respondent had violated Section 8 (a) (1) and (3) of the Act, inter alia, by discriminatorily discharging Chilson, Grosso, and Edward Litke. On March 5, 1952, the complaint herein was issued. Under date of March 25, 1952, Grosso wrote the Respondent the following letter : Last week I wrote you a letter in regard to reemployment but received no answer. Since the Company is employing new help every day I was won- Grosso testified that after she and other employees returned to White's Tavern from the union meeting on May 25, 1951 , the following occurred : Later on that evening [Vice-President Fred Kuckhoff] called me into the dining- room and he asked me how many people were present at the meeting and I told him about ten or eleven, but that included us five girls that he knew about, and-oh, he asked me what was discussed and I just told him it was more or less about the different things that the Union was going to do for the employees and the benefits and things we would derive from it. So he asked me how it looked for the company. I told him it looked very well because of that few people there at the Union meeting. According to Grosso, she had the following conversation with Vice-President Fred Kuck- boff on the evening of June 1, 1951, after the employees who had attended the union meeting and he arrived at White's Tavern : Well, [Kuckhoff] sat with all of us. We all conversed together, but a little later on Mr. Kuckhoff took me into the dining-room and told me that I had lied to him about the previous meeting ; that I told him there were ten people , whereas somebody else told him there was 75, and we had a gay party at the first Union meeting and I gave shim the wrong information. At that time be told me that I was an agitator in favor of the Union and he asked . . . "Are you getting paid $75 a week from the Union?" ,I says, "No, sir." He said, "Well, we will double that amount if you talk against the Union to the employees." Vice-President Fred Kuckhoff was not questioned specifically with respect to the con- versations testified to by Grosso. He denied that he ever asked Grosso whether she was a member of the Union , that he discussed anything about the Union with the employees after these meetings , and that anything was said about the Union after he and the em- ployees returned to White's Tavern on June 1, 1951. Ordinarily, the failure of one witness to deny specifically the utterance of statements attributed to him by another lends credence to the testimony of the latter However, as indicated previously, Grosso's testimony as to other incidents and events has not been found entitled to credence . This circumstance casts reflection upon the probity of Grosso's testimony, uncorroborated by other witnesses, in respect to her alleged conversations with Kuckhoff on May 25 and June 1, even though portions of such testimony were not denied generally or specifically by Kuckhoff, and impels the conclusion , in the opinion of the undersigned , that this testimony , too, must be rejected as being insufficiently trustworthy to serve as the basis for a finding that the Respondent engaged in violations of the Act. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dering if my old job was still open and if it is possible for me to come back to work. Would you please be so kind as to let me know whether or not there is an opening of any kind at your plant? Respondent's counsel answered Grosso's letter as follows on April 1, 1952: The Syracuse Stamping Company has referred to me your letter of March 25, 1952 in which you state in part as follows : "Since the company is employing new help every day I was wondering if my old job was still open and if it is possible for me to come back to work." You undoubtedly know that an unfair labor practice has been filed against the Syracuse Stamping Company with the National Labor Relations Board charging that the Syracuse Stamping Company discharged you on May 29, 1951. The National Labor Relations Board has in turn issued a complaint charging that the company discharged you on May 29, 1951, and is demand- ing that you be restored to your job under circumstances not acceptable to the company. In view of the fact that you are represented by counsel in this case against the company it would seem improper for us to engage in corre- spondence with you in regard to employment at the plant. We wish however to point out that the company states that it did not discharge you, but that you left voluntarily. If the National Labor Rela- tions Board has been misinformed and it is the fact that you did leave the company's employ voluntarily that of course puts a different complexion on things. If the latter is the case I believe this fact should be conveyed to the National Labor Relations Board, and to the company, and thereafter I am quite sure that the company would reexamine this whole case. Daniel C. Williams, counsel for the Respondent, testified as follows with regard to the above correspondence : Q. [Mr. Cavers] Just one other question. Do you know of any other reasons why the Respondent refused to reinstate Mrs. Grosso when she requested reinstatement in March of '52? A. Well, not for certain, but I am quite certain by that time, judging from my talks with Mr. Carl Kuckhoff, was at that time they were upset by the fact that she had pursued this action. Q Through the National Labor Relations Board? A. Yes. When questioned whether the Respondent would reemploy Grosso, Carl Kuck- hoff, first vice president of the Respondent, testified, "I would say that under the circumstances we don't feel that it would be good policy to take Miss Grosso back." The General Counsel contends in his brief that the Respondent's refusal to reemploy Grosso was "clearly a violation of Section 8 (a) (3)" and "likewise a violation of Section 8 (a) (4) of the Act." As noted above, Grosso's member- ship in, and advocacy for, the Union were known to the Respondent. Although the matter is not free from doubt, the undersigned is not persuaded that Grosso's union membership and activities were the motivating factors in the Respondent's refusal to reemploy her in April 1952, after the filing of the Union's first amended charges and the issuance of the complaint, for prior thereto, in the summer and fall of 1951, the Respondent had stated to a field examiner of the Board that it had no objection to reemploying Grosso inasmuch as she had quit and had not THE SYRACUSE STAMPING COMPANY 243 been discharged. In view of the letter from the Respondent's counsel and his testimony set forth above, it is clear that the reason for the Respondent's refusal to reemploy Grosso was that she had caused to be filed through the Union charges of unfair labor practice on the part of the Respondent and pursued through the instant proceeding her claim of having been discriminatorily discharged. Ac- cordingly, it is found that a preponderance of the credible evidence does not establish that Grosso was discriminatorily refused employment by the Respondent in April 1952, because of her membership in and activities in behalf of the Union in violation of Secton 8 (a) (3) of the Act. However, the Respondent's refusal to rehire Grosso would appear to be viola- tive of Section 8 (a) (1), and, had the complaint so alleged, also of Section 8 (a) (4) of the Act, when the Respondent's motivation for such refusal- Grosso's filing of charges and pursual of the present action-is considered in the light of the following principle concisely reiterated by the Board in the Waterman Industries case: '2 We have consistently held that a refusal to reinstate or reemploy a laid-off employee because he has filed charges with the Board constitutes a violation of Section 8 (a) (4) and 8 (a) (1) of the Act. We have also held that such a refusal is violative of the Act even though the employer believes that the charges are false or the ultimate proof does not sustain their validity" The undersigned concludes and finds that by refusing Grosso's request for reemployment on April 1, 1952, because she had caused charges in the instant matter to be filed by the Union and "pursued this action," the Respondent engaged in conduct violative of Section 8 (a) (1) of the Act. It is further found that in order to effectuate the policies of the Act, it is necessary to recommend that the Respondent reinstate Grosso to her former position, in which she sought reem- ployment, with back pay in the manner set forth below 14 D. Discriminatory discharge of Grace Chilson 1. Sequence of events Grace Chilson entered the Respondent's employ on January 11, 1951, and worked in the spool assembly department. Concededly she was one of the best machine operators in her department. As mentioned above, Chilson was one of the first employees to evidence an interest in self-organization and to launch the Union's organizational campaign. She was among the employees as to whose concerted activities Vice-President Fred Kuckhoff engaged in surveillance on May 25 and June 1, 1951, and on those dates was interrogated unlawfully by Kuckhoff, who, in addition, stated, among other things, that he would discharge union members if given an excuse and told her, "If you want a Union shop, why don't you go to a Union shop to work?" On July 10, 1951, Chilson asked Setup Man McNair, who was her immediate supervisor, for permission to take the following day off from work so that she might attend a funeral. There is some conflict in the evidence as to whether she was given permission to be absent the entire day of July 11. According to Chilson's testimony, McNair informed her that she might have July 11 off from 32 Waterman Industries, Inc., 91 NLRB 1041, 1043. is This principle is applicable to the facts of Grosso's case even though she voluntarily severed her employment with the Respondent in May 1951, and did not occupy the status of a laid-off employee when she applied for reemployment in March 1952 . Cf. Atlanta Broad. casting Company, 70 NLRB 626. 14 Cf. Wire Rope Corporation of America, Inc., 62 NLRB 380, 384-8 ; Columbia Pictures Corporation, 82 NLRB 568, 576. 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, although her testimony on cross-examination was somewhat equivocal about this issue. Superintendent St. Pierre could not remember whether he had been informed by McNair of Chilson's request for leave on July 11. It was Personnel Manager Rounds' testimony that when he subsequently investigated Chilson's continued absence from work on July 12, as hereinafter related, McNair "said he knew she wasn't going to be in" the morning of July 11, and that "she had told him that she was going to a funeral that morning and would be in at noon" on July 11. In view of the conclusions hereinafter reached, it is unnecessary for the purpose of this report to resolve the conflicts in evidence as to this issue, although it might be noted that Chilson's testimony as to her conversation with McNair in regard to her request for leave is more probative evidence than Rounds' hearsay testimony as to the subject matter of the McNair- Chilson conversation's On July 11, 1951, Chilson was supposed to meet her husband around 9 a. m. at White's Tavern, which as previously mentioned was located quite near the Respondent's plant and which was the locale of several incidents heretofore discussed, and then to proceed to the funeral. However, her husband failed to keep the appointment and when Mrs. White, the proprietor of the tavern, sug- gested that Chilson accompany her to Utica "to see this friend in the hospital," Chilson said, "Well, yes, seeing I've got the day off I might as well go with you." Chilson did not return from the journey to Utica until 3: 30 the next morning and did not report for work at the Respondent's plant the morning of July 12. Chilson testified that having no telephone at home, she requested her father, around 10 a. m. on July 12, to telephone the Respondent from a nearby public telephone and inform the Respondent that she would not report that day. Her father returned within a few minutes, according to Chilson, and reported that "he called Mr. Rounds as I asked him to, and Mr. Rounds told him that I was fired." Thereupon, Chilson dressed and went out to the telephone from whence she called Rounds around 10: 30 a. m. to verify her father's report. Rounds informed her that she was discharged because she "had been absent from work too much." The testimony of the Respondent's witnesses (Rounds, St. Pierre, and Vice- President Carl Kuckhoff), was, in brief, as follows: Personnel Manager Rounds noticed from his customary inspection of the timecard rack that Chilson was not at work on the morning of July 11, and was informed by Setup Man McNair that Chilson would not be in until after lunch, as she was attending a funeral that morning. In the afternoon, Rounds noted that she failed to appear and was also absent the next morning. About 1: 15 or 1: 30 p. m. on July 12, not having been given any reason by Chilson for her continued absence, Rounds removed her timecard from the rack and took it to Superintendent St. Pierre, saying it appeared that "we were being given the run around." Rounds and St. Pierre agreed that Chilson should be discharged because of excessive ab- senteeism. They discussed the matter with Vice-President Carl Kuckhoff who assented to their decision. Around 2: 30 p. m., Chilson's father telephoned Rounds and asked whether Chilson "still worked there or if she was through." Rounds replied that she had been discharged. Chilson telephoned Rounds a few minutes later and Rounds informed her that her employment had been terminated. Although the matter is not free from doubt and the probabilities of the sit- uation, under ordinary circumstances, would appear to support Chilson's testi- monial version of the events on July 12, the undersigned, for the purpose of discussion, credits the testimony of the Respondent's witnesses as to the foregoing 15 McNair was not called as a witness. THE SYRACUSE STAMPING COMPANY 245 occurrences on July 12, since in part their testimony was undenied, since there was mutual corroboration among the three witnesses for the Respondent, albeit with some variance as to details and between the testimony of Rounds and St. Pierre and their respective affidavits given a field examiner of the Board, and since Chilson's testimony was unsupported by that of any other witness on the points in conflict between her version of the events and that of the Respondent's witnesses. On July 16 and 17, 1951, in conversation with Vice-President Carl Kuckhoff and Rounds, Chilson was unsuccessful in obtaining reemployment with the Re- spondent. On July 16, Vice-President Carl Kuckhoff told Chilson, according to the latter's credible and uncontraverted testimony, that the Respondent had had "to do without good foremen and good workers before, due to quitting and passing on, and they would have to get along without them and he didn't like people coming into the shop and telling him how they were going to run it, and what they shouldn't do and what they should do." The Respondent contends that its discharge of Chilson was for justifiable cause due to an excessive amount of absenteeism without notice or excuse. It appears that shortly after Rounds became personnel manager for the Respondent on April 2, 1951, he began to keep a record of employee absenteeism throughout the plant, making notes thereon as to whether the absence was excused or without notice. Admittedly, however, the records were not wholly accurate inasmuch as foremen and the superintendent sometimes failed to notify Rounds that employees had given notification or been excused for absences. The records in respect to Chilson's absenteeism were introduced into evidence for the months of May, June, and July 1951. Inasmuch as absentee records for other employees show that Rounds commenced the compilation of such records in April and as the record submitted by the Respondent for Chilson does not indicate that she was absent from work in April, the undersigned infers and finds that Chilson missed no work days during that month. The records for May indicate that she was absent 1 day because of illness and that she gave the Respondent notice thereof. In addition, the May records show that she was absent 1 full day without notice and did not report for work after lunch on 2 days without notice. The June records demonstrate the fol- lowing : She was absent on 2 days without notice, failed to return to work after lunch without notice on 2 days, gave notice on another afternoon after lunch that she would not return by having a "party call in for her in afternoon," and left work on another day because of illness. Her only absences in July were those on July 11 and 12, which led to her discharge. In contradiction of the above records, Chilson testified that she never re- mained away from work without permission or without giving the Respondent notice, either by way of a telephone call or by a message from a fellow employee. In this regard, her testimony was corroborated in part by employee Jane Webb. Chilson's credible and uncontroverted testimony revealed that on one afternoon in June she was given permission by Superintendent St. Pierre to leave work, yet the absentee records do not so indicate. Upon the entire record and in view of the fact that admittedly the absentee records were not wholly accurate, that Chilson impressed the undersigned as being a candid and forthright wit- ness, that portions of her testimony in this regard were corroborated by another credible witness, Webb, and other portions were undenied, the undersigned credits Chilson's testimony to the effect that she was never absent from work without excuse or without notification to the Respondent. Vice-President Carl Kuckhoff admitted that at the time of Chilson's discharge the Respondent had no "hard and fast rules" in writing governing absenteeism, 250983-vol. 102-53-17 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although it had unwritten "rules of discretion." Personnel Manager Rounds testified that although he noticed in tours of the plant that Chilson was fre- quently absent, he never reprimanded or warned her that she might be dis- charged if her absenteeism continued. On the other hand, iii this regard, Superintendent St. Pierre testified, "I told her she was losing quite a lot of time and if she didn't start working steady probably have to replace her. Did that a couple of times as far as I know." Chilson resolutely denied that she had ever been reprimanded for absenteeism or warned, prior to her discharge, that future absences from work might result in the termination of her employ- ment. Although other portions of St. Pierre's testimony have been accepted, St. Pierre's demeanor in giving this testimony in regard to Chilson was not con- vincing and the variances between his testimony regarding Chilson's discharge and an affidavit he gave a field examiner of the Board cast doubt upon the candor and forthrightness of his testimony relating to Chilson. In regard to the issue in question, Chilson testified in a sincere and forceful manner. In view of these considerations, Chilson's denials that she was ever reprimanded or warned regarding her absences from work are credited and the conflicting testimony of St. Pierre is found not entitled to credence. It appears, chiefly from Vice-President Carl Kuckhoff's testimony, that the Respondent had discharged employees, both prior and subsequent to the termi- nation of Chilson's employment, because of excessive absenteeism. Rounds admitted that at the time in question when an employee was absent without excuse, it was the Respondent's practice to attempt to determine the reason for such absence 1° and to wait a day and a half before taking action in respect to the absent employee. 2. Conclusions The issue posed by the termination of Chilson's employment is the motivation of the Respondent in discharging her. That is, whether the Respondent dis- charged her for cause without any unlawful motivation or whether the Re- spondent seized upon her absences from work as a cloak to conceal its real and illegal motive, namely, to rid itself of one of the leaders of the union movement. Considering the record as a whole, the undersigned is of the opinion that Chil- son's discharge was illegally motivated and that this conclusion is impelled even if the Respondent's version of the events on July 11 and 12 is accepted. Thus, Chilson admittedly had permission to be absent the morning of July 11 to attend a funeral and was due to return to work after lunch on July 11. However, she did not appear at the plant on July 11 or the morning of July 12. Upon resumption of work after the lunch hour, Rounds removed Chilson's time- card from the rack and initiated the steps which promptly led to her discharge by 2: 30 p. m. on July 12. It is accordingly clear that in discharging Chilson, the Respondent did not follow its ordinary course of action in respect to em- ployees absent without excuse, that is, to attempt to ascertain the reason for their absence and to wait a day and a half before taking action in respect to the absent employee. Before discharging Chilson, the Respondent made no attempt to ascertain the reason for her absence and failed to accord her the customary day and a half period of grace. Without investigation but with dispatch, the Respondent discharged her upon the expiration of a day's time following the end of her leave of absence. The deviation from the usual practice as to ab- sentee employees and the haste in effectuating the discharge of Chilson, con- "It is to be noted that, as set forth above, this practice was followed in respect to Grosso after she ceased work on May 18, 1951 ; that is, Superintendent St. Pierre requested Rounds to ascertain the reason for her absence from work during the week of May 21. THE SYRACUSE STAMPING COMPANY 247 sidered in conjunction with the fact that she had never been reprimanded or warned as to previous absences and that earlier absences had been with per- mission of or notification to the Respondent, cast reflection upon the Respondent's motives. Particularly is this true when it is recalled that Chilson was one of the employees who instigated the Union's organizational campaign and that the Respondent was aware of her union membership and advocacy from Vice- President Fred Kuckhoff's surveillance of the concerted activities of Chilson and other employees on May 25 and June 1, 1951. On those evenings, Fred Kuckhoff interrogated Chilson and the employees as to their union activities and stated on June 1, that "if he could find out who was joining the Union, who had filed application cards, he was going to make it awfully hard and miserable for us, and any reason he could find he would have us fired." Later in the evening, he told Chilson, "If you want a Union shop, why don't you go to a Union shop to work?" Moreover, Vice-President Carl Kuckhoff's following statement to Chil- son when she sought reemployment on July 16, clearly inferred his hostility to the Union and reflected upon the Respondent's motives in discharging Chilson : "He didn't like people coming into the shop and telling him how they were, going to run it, and what they shouldn't do and what they should do." In view of the foregoing factors, demonstrating the illegal discriminatory motive of the Respondent in discharging Chilson, the reason advanced by the Respondent for her discharge-absenteeism-is to no avail, even if it be assumed that such reason was established by the record," for, as the Board has con- sistently held, "If an employer in fact discharges an employee for discriminatory reasons, the circumstance that the employer might have discharged him for a valid reason, for example, participation in unprotected activities, is not subse- quently available as a defense to the discriminatory discharge."" The under- signed concludes and finds that by discharging Chilson because of her union membership and activities, the Respondent engaged in violations of Section 8 (a) (3) of the Act and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. E. Alleged discriminatory discharge of Edward Litke Litke entered the Respondent's employ as a millwright on December 2, 1950. Prior to the employment of Litke, the Respondent had never had a permanent millwright on its force but when it had need for the services of a millwright, It had hired them for specific jobs as temporary employees. In late 1950 and early 1951, however, the Respondent was renovating its plant by installing some new machinery and transferring other machinery from one building to another; consequently, it had considerable millwright work available and hired Litke for this purpose. He was informed that the job was temporary in nature but the Respondent promised to retain him in its employ as long as possible. Upon 1' In this regard, it might be noted that if the Respondent's contentions as to Chilson's absenteeism are accepted for the purpose of discussion, the absentee records for employees Doris Didrill and Grace Owen would become pertinent. Although their absentee records were comparable to that of Chilson, they were retained in the Respondent's employ, thereby raising the question as to the reason the Respondent accorded Chilson disparate treatment by discharging her because of absenteeism yet retaining other employees who were absent from work an amount of time comparable to that missed by Chilson. Since the Respondent advanced no convincing reason for the differentiation in treatment among these employees with comparable absentee records, the undersigned would find, accepting arguendo the Respondent's contentions as to Chilson's absenteeism, that the reason for the disparate treatment accorded Chilson was the Respondent's discriminatory motivation found in the text 38 Wellick and Schwalm Corp., 95 NLRB 1262. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD completion of the installation and moving of machinery, Litke was assigned to miscellaneous tasks, best described in the following testimony of Vice-President Carl Kuckhoff : Well, he built a lot of racks , he built a lot of carts and . . . did some plumbing work , he cleaned out the boilers in the summertime for the fol- lowing winter, he made some die racks for [St. Pierre ], he made some benches for the different machines , and he did just about everything that had been sort of neglected during and after the war years when help was so scarce you couldn't get anybody to do it. We didn't have sufficient help in our plant to have it done. This was a good time inasmuch as Mr. Litke wanted to continue working after he was hired temporarily , to give him something to do and get some of these things done. On May 24, 1951 , Litke signed a card whereby he applied for membership in the Union and thereafter attended union meetings . About June 1951 , he com- menced wearing a union button to work and around the date of the election conducted by the Board in October 1951 he wore at work a shirt with a union insignia upon it. His wearing of these articles was noticed by the Respondent. In late September 1951 , Superintendent St. Pierre told Litke, according to the former's credible testimony which was consonant with that of Litke, that "his work was running out, we didn 't have much for him to do," and suggested, "If I were you I'd go and try to find a job. In the meantime , keep working." On Monday, October 1, 1951, Litke notified St . Pierre that Litke intended to quit the Respondent's employ at the end of the week on October 5. Litke gave the following testimonial version on direct examination as to the two conversations with Vice -President Fred Kuckhoff on October 3 or 4, and on October 5: I came to him ; I said to Mr. Kuckhoff, "I'd like to stay on the job." .. . he puts his arms around my shoulder , kept patting my neck and brought me over to the table. He sat me down . . . asked me if I wanted a cigarette. I said, "No. Why can't I stay on the job ?" I recall he started to laugh again and he said to me, . . . "You know, we had an instance happen here a little while ago." That instance was that I was going around soliciting for names. Those names were not for the Union . I was soliciting names for the Blue Cross. He said , "At that time I had a suspicion of you that you were doing something with the Union ." I said, "Look, Fred , at that time I had nothing to do with the Union ." I said, "You and Mr. St. Pierre stopped me and asked me what I was doing aside from my work ," and they had a smile on their face. I said, "What do you mean?" "Well ," he says, "What do you mean going around taking names for the Union ?" I said, "No, it's for the Blue Cross. We are trying to get some people grouped together to have a Blue Cross come into the shop at the time ." Then he said, "Well, forget that part." Then I said, "Why can't I stay on the job?" I am trying to think what he did say at that time, that he came out with it to me; he said, "Well, Ed. look. We have ways of knowing,"-in other words, telling me about I had something to do with the Union . I says, "I am going to let you know Friday. I am going out now." He said, "Will you do me a favor ?" "What is it?" "Will you come in Friday?" he said, "I have an airline to finish up." I said I would . I came in Friday and that Friday night he handed me my two pays. He said , "You can't stay here any more." The following testimony of Litke on cross-examination is in contrast to that above as to the receipt of his pay on October 5: THE SYRACUSE STAMPING COMPANY 249 Q. [Mr. Williams] Now, do you remember the incident on the day of Friday that you got your last check, do you remember that day? A. I remember that day. Q. Do you remember what you did? In other words, where did you go to get your check and so on? A. I didn't go to get my check. Q. You didn't go? A. No, they brought it to me. Q. Who, do you remember? A. I think Mr. St. Pierre. No, wait a minute; it wasn't St. Pierre ; I can't remember the man's name. Q. Was it in an envelope? A. That is right. Q. Was there one envelope or two envelopes? A. Two envelopes. Q. What was in the other envelope? A. I asked for a reference. Kuckhoff denied that the conversation testified to by Litke occurred and testi- fied that the last conversation he had with Litke at the time in question was after "St. Pierre told him that we were running out of work. [Litke] came to me and I verified it." Kuckhoff denied that anything was said about the Union in the conversation. Although Kuckhoff did not specifically deny the statements attributed to him by Litke as occurring on October 3 or 4, the undersigned is persuaded upon the entire record and his observation of the witnesses that despite this circum- stance, Litke's testimony is not entitled to credence and that Kuckhoff's denials and version of his last conversation with Litke should be accepted. Litke did not impress the undersigned as a reliable witness and his testimony was obviously confused, evidencing a somewhat too eager inclination on the part of Litke to advance his cause to the greatest degree possible. Moreover, as pointed out above, it was self-contradictory as to the payment of his final wages. Or direct examination he testified that Fred Kuckhoff handed him his wages and, said, "You can't stay here any more." Yet a few minutes after giving such testimony, he stated on cross-examination that he could not remember the name of the person who gave him his final check and letter of recommendation, which incidentally stated, "his work was satisfactory and he leaves our employ volun- tarily." The probabilities of the situation also support the testimony of the Respondent's witnesses. It is clearly established that there was no work for Litke. Furthermore, since his union advocacy had been known to the Respond- ent since June from his display of the union button at work, the undersigned is of the opinion that had the Respondent been inclined to discriminate against Litke, it would have done so earlier inasmuch as the temporary nature of his status as an employee afforded the Respondent with an excuse to terminate his employment at a much earlier date than October. Having rejected Litke's testimony, the undersigned concludes and finds that the Respondent has not discriminated in respect to the hire and tenure of employment of Litke, as alleged in the complaint. 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 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend 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 Grace Chilson on July 12, 1951, because of her union membership and activities and unlawfully refused to reemploy Joan Grosso on April 1, 1952, because she had caused the Union to file charges in the instant proceeding. Although the refusal of the Respondent to rehire Grosso has been found to be violative of Section 8 (a) (1) but not 8 (a) (3) of the Act, it is nevertheless necessary in order to effectuate the policies of the Act to recommend that she be reinstated by the Respondent to her former position.19 The undersigned will accordingly recommend that the Respondent offer to Chilson and Grosso immediate and full reinstatement to their former or substantially equivalent positions 20 without prejudice to their seniority and other rights and privileges. It will also be recommended that the Respondent make each of them whole, in conformity with the Woolworth formula,21 for any loss of pay they may have suffered by reason of the Respondent's discriminatory discharge of Chilson and unlawful refusal to rehire Grosso, respectively, by payment to each of them of a sum of money equal to the amount she normally would have earned as wages from the date of the Respondent's aforementioned unlawful action against her to the date of the offer of reinstatement, less her net earnings during said period 22 It is recommended further that the Respondent make available to the Board upon request payroll and other records, in order to facilitate the checking of the amount of back pay due.2i 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 refusing to rehire employees because they filed charges with the Board, from interrogating employees as to their union affiliation, sympathies, desires, and activities, from threatening them with reprisals by way of discharge or cessation of employee privileges previously enjoyed, and from engaging in surveillance of union activities of employees. 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 u The preventive purpose of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the inter- dependent guaranties of Section 7, to prevent a recurrence of unfair labor practices, and thereby to minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned will rec- as See footnote 14, supra. 2° See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 21 F. W. Woolworth Company, 90 NLRB 289. 92 Crossett Lumber Co., 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 29 F. W. Woolworth Company, 90 NLRB 289. 24 N. L. R. B. v. Empress Publishing Co., 312 U. S. 426. THE SYRACUSE STAMPING COMPANY 251 ommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. The dismissal of the complaint's allegations in respect to Edward Litke and Joan Grosso will also be recommended except to the extent that the evidence has been found to sustain such allegations in regard to the failure to reemploy Grosso. 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. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, C. I. 0., 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 Grace Chilson, thereby discouraging membership in the Union, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the foregoing unfair labor practices, by refusing to reemploy Joan Grosso, and by interfering with, restraining, and coercing its 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. 5. The Respondent has not discriminated in regard to the hire and tenure of employment of Edward Litke and Joan Grosso within the meaning of Section 8 (a) (3) 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 interrogate our employees in respect to their affiliation, sym- pathies, desires, and activities concerning INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., or any other labor organization. WE WILL NOT threaten our employees with reprisal by way of discharge or cessation of employee privileges previously enjoyed because of their mem- bership and activities in the above-named union or any other labor organization. WE WILL NOT refuse to rehire any employee because he filed with the Board charges that we have engaged in unfair labor practices. WE WILL NOT engage in surveillance of concerted or union activities of our employees. WE WILL NOT discourage membership in the above-named union or any other labor organization, by discharging any of our employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. 252 DECISIONS Or NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other 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-named union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer Joan Grosso and Grace Chilson immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of our unlawful action against them. All our employees are free to become or 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 conformity with section 8 (a) (3) of the Act. TIIE SYRACUSE STAMPING COMPANY, Employer. By ----------------------------------------- (Representative ) (Title) Dated -------------------- 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. BURLINGTON MILLS CORPORATION (ROANOKE WEAVING PLANT) and TEXTILE WORKERS UNION OF AMERICA , CIO. Case No. 5-CA-434. January 14, 1953 Decision and Order On June 19, 1952, Trial Examiner Ralph Winkler issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the. exceptions and brief, and the entire record in the 102 NLRB No. 26.