Johns-Manville Products Corp.

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD JOHNS-MANVILLE PRODUCTS CORPORATION and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO . Case No. 35-CA-266. August 6, 1952 Decision and Order On January 17, 1952, Trial Examiner David London 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. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pur- suant to leave previously granted by the- Board, Federal Labor Union 24716, AFL, herein referred to as the AFL,' filed an - am. cus curiae brief 1 The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered 'the Inter- mediate Report, the exceptions and briefs, and the entire -record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only insofar as they are consistent with our decision herein. We do not agree with the Trial Examiner that the record estab- lishes by a preponderance of the evidence that the Respondent, in violation of Section 8 (a) (1) and (3) of the Act, discharged Boll because of his CIO activities, and that the Respondent's asserted.- reason for the discharge that Boll had breached a plant rule forbid- ding employees to leave the plant without permission was a mere pretext. In reaching his conclusion, the Trial Examiner relied pri- marily"upon the fact that Foreman Johnson, Boll's immediate super- visor, had given Boll the required permission and the fact that later that day Boll, as a CIO representative, had attended a Board con- ference at the plant concerning the CIO's then pending petition -for representation. Although we are not persuaded to disturb the Trial Examiner's credibility findings that Foreman Johnson had given Boll permission to leave the plant, we are not satisfied that the record establishes that Grose, the Respondent's official whose decision resulted in Boll's dis- charge, was motivated by any improper considerations. For all that 1 As the record, exceptions , and briefs fully present the issues involved herein and the positions of the parties , the Respondent's request for oral argument is denied. 2 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, Styles, and Peterson]. 100 NLRB No. 79. JOHNS-MANVILLE PRODUCTS CORPORATION 509 appears, Grose honestly believed Johnson, whom he questioned 2 hours before he even learned of Boll's attendance at the Board conference, that Boll neither asked for nor was granted permission to leave. Understandably, the Respondent required this permission in order to make the necessary arrangements for the employee's replacement, par- ticularly, on such an important job as that on which Boll was working. That the Respondent regarded unauthorized departures from the plant to be a serious offense warranting dismissal is shown by the evidence. Not only have 11 employees been discharged for this rea- son within the past 5 years, but also an express provision authorizing such action was included in the Respondent's contracts with the CIO during the latter part of the CIO's incumbency as the employees' bar- gaining representative. The Respondent's current agreement with the AFL, the labor organization that supplanted the CIO after a Board-conducted election in May 1950, contains a similar provision. Moreover, -in addition to the seriousness of Boll' s assumed offense, Grose's uncontradicted testimony indicates that he was also influenced in his decision to discharge Boll by Boll's prior violations of other plant rules for which he had previously been reprimanded both ver- bally and in writing .3 Contrary to the Trial Examiner's finding, Boll, admitted at the hearing that Grose had mentioned these prior repri- mands on the morning of his discharge. Filially, the record is devoid of any evidence that the Respondent harbored any CIO animus or other hostility to its employees' organi- zational activities or sympathies. Indeed, the record discloses that from 1941 until May 1950 the Respondent had maintained stable bargaining relations with the CIO. Since that time, it has continued its amicable relations with the AFL. In addition, as the Trial Exam- iner stated in his Intermediate Report, the Respondent expressed its neutrality in the representation dispute between the two unions. No evidence was offered to impugn this assertion of neutrality. Because we are not convinced that the record supports the Trial Examiner's finding of discrimination, we shall dismiss the complaint herein.4 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 complaint against the Re- spondent, Johns-Manville Products Corporation, Alexandria, Indiana, be, and it hereby is, dismissed. 8 The record discloses that Boll had been warned on several occasions for engaging employees in other departments in conversation during working hours with regard to matters unrelated to his work. Boll had also received a written warning on October 24, 1950, for failing to report for Sunday work as scheduled. 4In view of our decision herein, we find it unnecessary to pass upon the other conten- tentions of the Respondent and the AFL. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report STATEMENT OF THE CASE Upon a charge filed by United Stone and Products Workers of America, CIO, hereinafter called the CIO, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for the Ninth Region (Cincinnati, Ohio), issued a complaint dated August 15, 1951, against Johns-Manville Products ,Corporation (hereinafter called the Respondent, alleging that the latter had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and Section 2 (6) and (7) of the National Labor Relations Act, as amended, (Pub. Law 101, 80th Cong., Ch. 120, 1st Sess.), herein called the Act. With respect to the unfair labor practices, the complaint alleged, in sub- stance, that on or about May 9, 1951, Respondent 'discharged its employee Frank Boll because of his membership in, sympathy for, and activity on behalf of, the CIO and for the purpose of discouraging membership in, sympathy for, and activity on behalf of, that labor organization. By its answer duly filed, Respondent denied the commission of any unfair labor practice and though admitting it had discharged Boll on May 9, 1951, specifically pleaded that he was discharged because he had left the plant with- out having requested or received permission to do so and had otherwise violated its plant rules. Further answering the complaint, Respondent pleaded that Boll had failed to avail himself of the grievance procedure provided for in the labor bargaining contract then governing the relationship of Respondent and its production employees.. Pursuant to notice, a hearing was held at Alexandria, Indiana, on September 17-19, 1951, before the undersigned Trial Examiner. The General Counsel, the Respondent, and the 010 were represented by counsel. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertaining to the issues were accorded all parties. Motions made during the hearing, on which rulings were reserved, are disposed of in accordance with the findings that follow. Since the close of the hearing, briefs have been received from the General Counsel and Respondent and have been duly considered. Upon the entire record in the case and my observation of the witnesses at the hearing, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Johns-Manville Products Corporation is a corporation organized and existing under the laws of the State of Delaware, and is engaged in the manufacture and sale of rock-wool products at various plants located in several States of the United States, including a plant at Alexandria, Indiana, the only plant involved in this proceeding. Its annual purchases of slag, coke, asphalt, oils, etc., for use in the Alexandria plant, are in excess of $1,000,000, of which approximately .75 percent is received from,sources outside the State of Indiana. Respondent's annual sales are in excess of $1,000,000, of which approximately 75 percent is shipped to points outside the State of Indiana. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Stone and Allied Products Workers of America, CIO, herein called the CIO, and Insulation Workers, Federal Labor Union No. 24716, AFL, herein JOHNS-MANVILLE PRODUCTS CORPORATION 511 referred to as the AFL, 'are both labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICE A. Background and sequence of events From 1941 to May 4, 1950, the CIO was the exclusive bargaining representa- tive of Respondent's production and maintenance employees . On the latter day, following a Board conducted election in which the CIO was defeated by 15-20 votes, the AFL was certified by the Board as such representative . On July 1. 1950, Respondent and AFL entered into a bargaining agreement effective to and including June 30, 1951 , with a proviso for automatic renewal upon failure by either party to give 60 days' notice prior to the expiration thereof of its intention to seek a change in the terms of the agreement . On December 27, 1950, the contract was amended to provide additional benefits to the employees and its specific duration date was extended to and including December 17, 1951. Frank Boll, the alleged discriminatee , was hired by Respondent in 1944 as a millwright in its maintenance department. Three days after he was hired, Boll became a pipefitter, second class, and remained such until he was discharged on May 9, 1951. At the time of the hearing, approximately 350 employees were employed at the plant, of which number 50 were engaged in the maintenance department. Boll joined the CIO in 1944, remained as a member thereof ever since, and served as its president and chairman of the grievance committee in 1947, 1948, and 1949. In 1946, he participated in a 3-day strike and during his term as chairman of the grievance committee took part in the adjustment of numerous grievances and in five formal arbitration proceedings. _ In December 1950, a group of workers found dissatisfaction with representation by AFL and asked H. Etchison , the CIO international representative , "to bring about an election." He informed them that the time was not appropriate for an election but that he would make arrangement with the CIO "to put on an organizing drive, a campaign to get the CIO back as bargaining representative." A meeting was held at his home in January 1951' attended by representatives from the various departments. Boll was selected by the group to be chairman of the organizing committee, with the other persons present constituting the remaining members of that committee. Applications for membership were dis- tributed to all members of the group. On or about April 11, Etchison made a written demand on Respondent for recognition of the CIO, which demand was denied. On April 16, Etchison, in behalf of CIO, filed a petition for representation of Respondent's production and maintenance employees with the Board (35- RC-515 ). During the last week in April , Etchison was advised in writing by the Board's representative that a "joint conference" on the petition would be held at the plant on May 8. On May 8, at about 6: 45 a . m., Boll and a number of other employees arrived at Respondent's maintenance shop preparatory to going to work at 7 a. m. Located in the shop were several tables and a number of chairs which the men used while playing euchre during the lunch period,(-Boll was seated at one table and Johnson, his foreman, at another, 6 to 10 feet away. Boll testified he told Johnson he "would like to go home at 11 o'clock" and that Johnson said "Okay, ... started kidding [him] and said `What are you going to do, electioneer for Elmer Tunis ?' " - A discussion then ensued about the number of candidates running for the office of Mayor in neighboring cities including Elwood where Boll resided. The whole subject was engendered by the primary election being ' All references to dates herein are to the year 1951 , unless otherwise expressly specified. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducted in Elwood and other Indiana cities on May 8. Johnson on the other hand, testified that he was talking to the men at his table about the municipal primaries and not being sure of the name of the candidate for mayor in Elwood, turned to Boll and said : "Is that right Frank? Mr. Tunis is running for Mayor?" According to Johnson, he received an affirmative reply and then said to Boll "I understand that he is supposed to be nominated ." Johnson further testified that "Boll throwed [sic] his hand up [indicating ] and said : 'In that case I may have to go home and vote"' and that Johnson then turned away from Boll and resumed his conversation with the three men at his table. The conflict between the two versions of the conversation is discussed at greater length and resolved in the concluding findings that follow. On May 8, Respondent was erecting a large "quonset hut" to be used for the production of permacoustic tile. The machinery necessary to produce that com- modity could not be tested or operated until a water line was drawn into the hut from another part of Respondent's premises. On the morning of May 8, Boll, Murphy, another pipefitter who also acted as group leader, and Freddie Morton, a millwright, were engaged in that task. Shortly after commencing work,at 7 a. in., Boll said to Murphy "Don't get too involved on something you can't get along on, because I am going to take off at 11 o'clock." Boll worked until 11: 02 a. in., at which time he punched out. In accordance with arrange- ments previously made , Etchison drove Boll to his home in Elwood , 9 miles away, where _Boll changed clothing and cast his vote in the primary election. The two men returned to Respondent's plant shortly before 2 p. in. and took part in the Board conference set for that hour, and presided over by Mr . Wilker- son, a Board field examiner. Boll and Etchison attended as representatives of CIO ; Fred Armstrong, plant manager, Otto Binder, industrial relations manager, and R. V. Turns, production manager, appeared for Respondent ; employee Virgil Leer, president of the AFL, and the latter's international representative appeared for the AFL. The CIO representatives sought a consent agreement for an election to determine representation. 'The AFL declined to give its consent and asserted that the existing contract was a bar to any such election. Armstrong stated that Respondent was "absolutely neutral in the matter." No agreement being reached, Wilkerson told the assembly that "the contract was a bar," and adjourned the `meeting between 2: 30 and 3 : 00 p. m.' Boll did not return to work but, together with Etchison, drove to the CIO club in Anderson, Indiana, about 10 miles away. In 'the meantime at 1:20 p. in., Murphy, Boll's group leader, reported to Grose, the master mechanic in charge of the entire maintenance department, that he required a replacement for Boll who, he reported, had left at 11 o'clock. Grose asked Johnson, who was present in the office at the time that Murphy reported, whether he ( Johnson ) knew Boll had left and Johnson replied that he did not. Grose asked him to "rack [his] memory and tell [him] if by any chance" he had given permission a day or two earlier. Johnson then related to Grose his version of what had transpired with Boll at the tables before 7 o'clock that morning. Grose asked Murphy what he knew about Boll's leaving. Murphy replied that shortly prior to 7 a. in., Boll "told him that he expected to leave about 11 o'clock and that it would be a good idea to try to shape the work up so that he wouldn't be missed too much." Between 3 and 4 p. in. of the same day, Grose met Armstrong and Binder some- -where on the premises where the latter two were engaged in conversation. Grose beard one 'of them "remark . . . that Mr. Boll had attended [the Board] meeting." He informed the two men that Boll "had left without permission and that that ' 2 Board file 35-RC-515 establishes that the CIO , on May 28, 1951, withdrew its petition for representation. JOHNS-MANVILLE PRODUCTS CORPORATION 513 warranted some disposal of the case; . . . [he] was alarmed to know that this had to happen, that [Boll] was in this meeting as of the same day. [Boll] was advised to be sure [he] had the facts before [he] made any move in any way." On the following day, at about 9 a. in., Boll was ordered to report at Grose's office. The latter there accused him of leaving the plant at 11 a. in. on the previous day without permission. According to Grose's own testimony, Boll was "stunned" by the accusation. Johnson, who was present, repeated his ver- sion of the disputed conversation, still insisting that Boll had not specifically asked permission to leave the plant. According to Grose's understanding of the conversation, Boll merely "assumed [he] had permission to go." Grose then went to the bulletin board and removed a "Notice to Employees" which had been posted by Respondent about May 3. It was headed "Election Day-Tuesday, May 8, 1951" and advised the employees that "everyone should exercise their voting privilege and the Company wants to cooperate." It cautioned, however, that "employees . . . who find it necessary to take time off during regular work- ing hours, should make the necessary arrangements with their foreman in ad- vance." (Emphasis in original text.) He studied this notice together with the applicable provisions of the current labor contract' and concluded that Boll bad violated both the notice and Respondent's rules. Grose asked the office to prepare the amounts due Boll, and at 11 a. in. delivered the available checks to Boll and discharged him. At the hearing, Boll admitted that he had not resorted to the remedies provided by the grievance procedures contained in the existing bargain- ing agreement with the AFL. B. Concluding findsngs It is well settled, as Respondent urges in its brief, that an employer "is at liberty, whenever occasion may arise, to exercise its undoubted right [to discharge any of its employees] for any cause that seems to it proper save only as a punishment for, or discouragement of, such activities as the Act de- clares permissible." Associated Press v. N. L. R. B., 301 U. S. 103, 132. Further- more, there is no presumption that the discharge of an active union member or advocate is necessarily in violation of the Act. On the other hand, experience in the administration of the Act has demonstrated that often, even in the most flagrant cases of discrimination, enipjoyers do not admit the existence of an illegal motive but instead submit varying pretexts, frequently plausible on the surface, in an attempt to defeat the purposes and effective administration of the Act. The facts and circumstances of each case must, therefore, be analyzed to ascertain whether the reasons assigned are in fac., the true reasons for the discharge of whether they serve only as a pretext to enable an employer to rid himself of an employee because he had engaged in union activity. The first important question of fact to be resolved is whether or not Boll was given permission to leave the plant on May 8. Boll testified unequivocally that Johnson said "okay" when informed by Boll that he "would like to go home at 11 o'clock." Johnson, on the other hand, testified that following a brief discussion as to the election, Boll merely made the observation that because Tunis was a candidate at that election he [Boll] might "have to go home and vote." Nothing about Boll's demeanor on the witness stand, or the attendant cir- cumstances, give me any cause to doubt his version of the conversation On the contrary, he impressed me as being a person worthy of belief. Furthermore, the attendant circumstances lend credence to his testimony : 3 Plant rules covered by Article XIV of the contract provide that "leaving assigned work without permission from the foreman in charge . . . shall be cause for immediate dis- charge or such lesser forms of discipline as the Company may determine." 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (1) Boll apparently was a man who appreciated and responded to his duties as a citizen. Not only had he "electioneered" for Tunis at the prior election, but be took two days off in 1948, with permission from his foreman, to act as an election .inspector, and also got permission from Johnson to get off and work on the election board at the 1950 election. (2) An Indiana statute 4 made it a misdemeanor for any "manufacturing .. . establishment" to refuse to allow leave to any employee for some period of four hours between the opening and closing of the polls on election day. (3) Respondent on May 3, by posted notice,. expressed its willingness to cooperate with its employees to the end that "everyone ... exercise their voting privilege." (4) It was undisputed, indeed specifically admitted by Johnson, that he had never "refused anyone permission to get off." In fact, he never even "require[d] a_man to give [him] a reason for being off." - -(5) It was similarly undisputed and admitted that Boll, in the 7 years he was employed by Respondent, had never before left the premises without permission. . Not only did Johnson by his demeanor fail to impress me as favorably as Boll, but his denial that he failed to interpret Boll's remarks as a request for time off seems most incredible. He knew that management was willing and desirous of Cooperating with its employees in the exercise of their right to vote. He ad- mittedly knew that Boll had been off v days the previous year to act as an inspector at the election polls. His conversation with Boll must have apprised him of Boll's interest in Tunis' candidacy. I find it difficult ,to understand why, under these circumstances, Johnson should conclude that Boll was'only "kidding" when, according to his own testimony, Boll informed him that "he may, have to go home and vote." On the entire record, and from myyobservation of the witnesses involved, I find that Boll received permission from Johnson to leave the job at 11 a. m. on May 8. Johnson testified that Boll's ability as pipefitter was good, and when Binder was asked on direct examination by his own counsel whether Boll's attendance record was "very, good, good, or fair," he testified that "it was very good." Though steadily employed by Respondent since 1944, Boll had never before been accused of leaving the plant without permission. He was nevertheless discharged within 24 hours after Respondent learned that he had attended a Board meeting which had been called because the CIO again had manifested its determination to be recognized by Respondent as bargaining representative for the Company's production and maintenance employees. It was undisputed that, at least to May 4, 1950, Boll was extremely active in CIO affairs, having served as its president and chairman of its grievance com- mittee during 1947, 1948, and 1949. Respondent, in its brief, however, repeatedly states that after May 1950, Grose, Johnson, Binder, and Armstrong had no knowl- edge of Boll's CIO membership or activity until he appeared at the Board hearing at 2 p. m. on May 8. It will be recalled, though, that in January 1951, Boll was made chairman of the CIO campaign committee whose work apparently was effective enough to culminate in the filing of the petition for representation with the Board on April 16. Grose admitted that though he "didn't absolutely know it," through "hearsay" he knew that Boll was "active . . . in organizational activities for the CIO on May 8, 1951, or the five or six months prior thereto." Though no direct evidence was offered to prove that Johnson had knowledge of 4 Burns' Indiana Statutes (1949 ) Vol. 7, Sec. 29-4807. JOHNS-MANVILLE PRODUCTS CORPORATION 515 Boll's CIO membership or activity in 1951, he admitted he had served as a 010 trustee while Boll was president 6 Armstrong, the plant manager, acknowledged having received Etchison's letter of April 16, demanding recognition of the CIO and of the Board's letter of April 25, setting the date for the conference on the CIO petition for May 8. He had "often sat across the negotiations table with [Boll]," knew him to have been president of the CIO and had no reason to "expect him to change his affiliation." Binder, Respondent's industrial relations manager also was aware of the "CIO's organizational activity" since April 16 or 17, 1951, and had knowledge, similar to that of Armstrong, of Boll's earlier CIO activity. In any event, the evidence is undisputed that Armstrong and Binder were expressly apprised of Boll's CIO activity by 2 p. m. of May 8 and that Grose was so informed between 3 and 4 p. m. of the same day. Boll was discharged on the following morning. The record, established in part by the testimony of Grose and Binder, shows conclusively that Respondent has followed an exceedingly liberal- policy with respect to granting time off to its employees. Johnson, as has heretofore been pointed out by his own testimony, never "refused anyone permission to get off," and in fact never even "required a man to give a reason for being off." The record also establishes that Respondent tolerated repeated absenteeism and that it rules and established practice gave Grose the widest latitude in the type of discipline to be imposed-verbal warning, written warning, limited suspension and discharge. In the light of Boll's long service, his ability as a good workman, and the fact that he had never before even been accused of leaving the plant without permission, it is appropriate to inquire, even if it be assumed that Boll had not actually received the disputed permission, whether imposition of the discharge ,was so disparate as to indicate discrimination. Bobby Mayes, who had only been employed since October 27, 1950, punched out at noon on at least four occasions and failed to return to work during the remained of the workday without having received permission to do so. For this violation, Mayes was warned verbally, at least once, by his foreman. On March 5, 1951, when, according to Respondent's records, it "was short of work [in the department in which Mayes was apparently employed]-and went to the trouble to try and provide work for the men," Mayes left the plant at noon without permission. The only discipline imposed was a written notice, made a part of his file, that Respondent would not thereafter go "to the trouble to try and provide work for him out of the department if his job is down." Respondent's records also disclose that on April 27, 1951, Mayes was warned again for "excessive absenteeism without reporting." The warning also in- cludes the following observation : "Usually works till noon and then lays off without reporting. Next offense 3 day lay-off." (Emphasis supplied.) On May 8, 1951, he was again warned in writing for "excessive absenteeism without reporting. This is the second warning for this employee and he is given a 3 day lay-off. Next offense will mean immediate discharge." (Emphasis sup- plied.) He repeated the violation on June 4, 1951, and was discharged. Elton Bell was hired by Respondent on a Wednesday in November 1950. On the following Saturday, because of his inexperience, he negligently permitted a large amount of fluid to escape with the result that he was in "water up to [his] knee. . . . [He] was wet from the top the head to the bottom of the feet, practically." The mechanics he called to assist him in repairing the damage "got mad and [Bell] got up in the air too; grabbed [his] dinner pail and walked out" in the middle of his work period. As Respondent states in 6 He also admitted he had been removed from that office on charges preferred by Boll that he [Johnson] "was soliciting for members in an AFL union." 227260-5d-vol. 100-34 - - 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its brief, Bell "believed he had a justifiable excuse for leaving the plant that night. His foreman and the Respondent agree with him." (Emphasis supplied.), No disciplinary action was imposed. The foregoing findings negate the statement in Respondent's brief, and Binder's testimony to the same effect, that "in the five years period prior to May 8, 1951.... 135 written warnings and disciplinary layoffs were issued for violation of plant rules, none of which were for leaving the plant without permission. The violation of leaving the plant without permission was looked on by the Company as a very serious offense." (Emphasis in Respondent text.) The same findings, and Elbert's testimony hereafter alluded to, also demonstrate that Respondent had, and exercised, a wide latitude in determining what disciplinary action to impose for violation of its rules, notwithstanding Grose's protracted and persistent reluctance to acknowledge such a practice when questioned by the Trial Examiner. In considering the disparity of treatment accorded to violators of Respondent's rules, the analysis pursuant to which I concluded earlier in these findings that Boll had in fact received the disputed permission should be kept in mind. It demonstrates that Respondent seized upon a situation which, even according to the version of Johnson himself, should at the very least have suggested to Grose that there was grave doubt as to whether or not Boll had received permission, and no doubt at all that Boll at least "believed" he had the permission. Instead, Respondent built and magnified the incident into an-arbitrary decision to inflict the most severe punishment within its power to impose! - Nor''ani' I persuaded by Respondent's argument that Boll's absence from the job justified the severest discipline because, among other factors, of the need for completing the "hut" as soon as possible and that his absence retarded its com- pletion: "Boll's regular working hours were from 7 a. in. to 12 noon and from I to 4 p. in. He was, therefore, only absent 4 working hours, a period which State law required every employer to grant its employees on that day, regard- less of the importance of the job on which he might be engaged. Furthermore at 1: 20 p. in. of May 8, when Grose learned of Boll's absence, and when Murphy, with whom Boll worked, first needed help, Grose was able to provide an immediate and apparently adequate replacement. And, if pipefitters were so sorely needed to complete the job-quickly, no explanation was offered why Godwin, another pipefitter, was granted a week's vacation during the entire week of May 7 to 13. Based on -the'r-ecord as a whole, sufficient evidence of discrimination was dis- closed to make it incumbent on Respondent to establish the allegations- of its answer that Boll was discharged "for cause in that on or about May 8, 1951, [he] left the plant without having requested or received permission so to do, causing a delay in work which had been assigned to him ; that Boll's unauthorized de- parture occurred after he had been warned for similar violations in the past and after he had likewise been warned in connection with other breaches of Respond- ent's other rules." It has already been found that Boll requested and received permission to leave the plant. That portion of the answer which pleads that Boll had previously been warned (allegedly on more than one occasion) for having "left the plant" without request or permission collapsed completely at the hearing. Johnson testified that he had never before reprimanded Boll for such a violation and Grose testified that he had never before "known Mr. Boll to leave the plant with- cut permission." And though Respondent in its answer pleaded, and at the hear- In determining the type of discipline to be meted out, Grose failed to consult John- son, who was Boll's immediate supervisor. r,' JOHNS-MANVILLE PRODUCTS CORPORATION 517 ing introduced evidence that Boll had previously been warned by Grose for vio- lation of the plant rules against talking to other employees, Grose made no mention of these warnings or violations when'he discharged Boll.' Furthermore, in its brief, Respondent concedes that "if Boll had told either Johnson, Grose, Binder, or Armstrong ten days or two weeks prior to May 8 that he was going to participate in the NLRB Conference, Boll would still be working today and the hearing on this matter would not have been necessary." On the entire record, therefore, I am convinced and find that Boll was not discharged for the reasons assigned by Respondent. But even though Respondent failed to establish its pleaded defense, the en- tire record must nevertheless establish by a preponderance of the evidence that Boll was discharged because he had engaged in activity protected by the Act before a finding of violation can be entered. The resolution of this ultimate issue is complicated by the fact that there is no other evidence of Respondent's interference with, or restraint, or coercion of its employees in the exercise of their rights under the Act. The absence of this factor weighs appreciably in its favor. Present, too, is the fact that the record discloses that the Company announced its "neutrality" with respect to the then pending request for recogni- tion by the CIO. Careful study and consideration of the entire record, however, has brought me to the conclusion that Boll was discharged because of his activity in behalf of the CIO. Certainly the fa et that Boll had been a satisfactory employee for approximately 7 years, that the reason assigned for his discharge was not established, and the' disparate. punishment imposed, are factors which cannot be ignored in resolv- ing the ultimate issue-. Significant, too, is the fact that when Grose met Arm- strong and Binder between 3 and 4 p. in. of May 8, at which time Grose already had Johnson's version of the conversation with Boll with respect to the disputed permission, he had "not definitely-decided to discharge him." His testimony disclosing his frame of mind at that time was as follows : - Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. You didn't know at that time, then, where Mr. Boll was? No, I didn't know where he was. It didn't make any difference to you where he was? Well, I knew he had-left the plant. Had you decided to discharge him at that time? Not definitely. Had you decided to warn him at that time? Yes, sir Had you decided to suspend him at that time? No, sir. You had not? Not fully. What additional development followed which caused Grose to definitely make up his mind to discharge Boll? Insofar as the record discloses,8 it was only the casual remark by either Armstrong or Binder, overheard by Grose, that Boll had attended the Board meeting during the previous hour. I can, therefore, only ' The first of these talking incidents occurred in June 1947 , another in 1948, and one in January 1951. 8 While it is true that on the following morning Grose also checked the election notice posted on the bulletin ' board and the working rules incorporated in the bargaining contract, those were matters with which he must be presumed to have been thoroughly familiar on the preceding day. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclude that it was this information that Boll was again active in behalf of the CIO which definitely crystallized Grose's determination to discharge Boll In its brief, Respondent argues that "perhaps the most convincing proof of an absence of an anti [sic] CIO animus on the part of the Respondent is the testi- mony on direct examination of Andrew C. Elbert, one of General Counsel's witnesses. Elbert, like Boll, had been president and vice president of the CIO union in the plant when the CIO was the bargining agent. He also had been a member of the grievance committee. He left the plant without permission De- cember 23, 1950-under different circumstances, however, than Boll. We believe that Elbert's violation was excusable, but if the Respondent, as General Counsel contends it is doing in the instant case, was so anti-CIO in its attitude and policy why wasn't this equally well known CIO member fired? (Emphasis supplied.) I have, of course, considered the Elbert incident, but cannot agree that it fur- nishes "most convincing proof" of an absence of CIO animus by Respondent. That event occurred on December 23, 1950. The CIO campaign to regain recog- nition did not begin until January 1951, at which time application cards were first distributed in the plant. According to Respondent, it "had no notice of the CIO's organizational campaign in the plant until [the following] April 11th or 12th when [it] received a letter from Etchison requesting recognition." It may, therefore, be assumed that if Boll, too, had been absent on December 23, 1950, without permission, he might not have been discharged or otherwise disciplined. Boll, however, was discharged after Respondent had notice that both the CIO, and Boll personally, were waging an effective campaign to regain recognition. If there is to be any significance attached to a comparison of the two incidents, it is that Grose, who, on May 8 at about 3 p. in. had not yet "definitely" made up his mind about the type of discipline to be imposed, selected the most severe type of discipline after he learned during the following hour that Boll had attended a conference occasioned by the CIO's demand to again become the recognized bargaining agent. On the entire record, I am convinced and find that Boll was discharged not for the reasons assigned by Respondent, but because he was active in the movement to restore the CIO as bargaining representative for Respondent's employees. In arriving at this conclusion, I am not unmindful of the absence of any other viola- tive acts of interference, restraint, or coercion by Respondent and the expression of "neutrality" pronounced by Armstrong at the Board hearing. While these latter factors are persuasive, they are not controlling. To hold otherwise would require a trier of fact to shut his eyes to the facts of industrial life and insure the conquest of pretext over reality. There was nothing in the instant record to indicate that Respondent was so callous in the treatment of its employees that it would discharge a competent employee, with a record of 7 years' faithful serv- ice, without cause. Having found that the only reasons assigned by Respondent for that discharge have not been sustained, resort must be had to all the surround- ing circumstances to ascertain the true motive for the discharge. Here, the circumstances, related and found above, reasonably substantiate the inference and conclusion that Boll was discharged for his activities in behalf of the CIO. On that state of the record, it matters not "that there is a total absence of posi- tive and direct testimony that [Respondent] discharged Boll because of union 9 Both at the hearing and in its brief, Respondent took umbrage because Boll, who had several weeks notice of the Board hearing on May 8, failed to give notice prior to that day of his intention to participate therein. Grose, however, testified that Leer, president of the AFL, did not ask for permission until less than 1 hour before the hearing opened. Why Respondent should discriminate in the timeliness of the notice between the rep- resentatives of the two organizations was not explained. JOHNS-MANVILLE PRODUCTS CORPORATION 519 activities." Victor Manufacturing d Gasket Co. v. N. L. R. B., 174 F. 2d 867 (C. A. 7). There remains for consideration the contention of Respondent that this pro- ceeding should be dismissed because Boll admittedly failed to exhaust the griev- ance and arbitration procedures and remedies provided for in the existing barter- ing agreement with the AFL. The contention is without merit. Only a few weeks ago, in Monsanto Chemical Company, 97 NLRB 517, the Board had occasion to'con- sider the effect of Section 10 (a) of the Act on this problem. That section provides that the Board's power to prevent unfair labor practices "shall not be affected by any other means of adjustment or prevention that has been or may be estab- lished by agreement, law, or otherwise . . . ." In the Monsanto case, not only had the discharged employee made use of the arbitration procedures provided by the existing contract, but an award had actually been made. The Board said : "The Supreme Court in the Consolidated Edison case," after referring to this provision in the statute, said : `Clearly, agreements between private parties cannot restrict the jurisdiction of the Board. We believe the Board may exercise jurisdiction in any case of an unfair labor practice when in its discretion its interference is necessary to protect the public rights defined in the Act.' The Board has in the past exercised the `discretion' to which the Supreme Court alluded and has remedied an unfair labor practice even though arbitration had, in fact, been used by the parties to dispose of an issue arising under an agree- ment." (Citing authorities.) On the entire record, I find that "leaving without permission" was a mere pretext for Boll's discharge and that the real reason was to discourage activity and membership in the CIO by getting rid of one of its active leaders. Such discharge interfered with, restrained, and coerced Respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act and was in violation of Section 8 (a) (1) and (3) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III above, occurring in con- nection with its operations 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated in regard to the hire and tenure of employment of Frank Boll, I will recommend that, in order to effectu- ate the purposes and policies of the Act, Respondent offer him immediate and full reinstatement to his former, or to a substantially equivalent position, without prejudice to his seniority and other rights and privileges. It will also be recommended that Respondent make Boll whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, by pay- ment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge, to the date of Respondent's offer of reinstatement, less his net earnings during that period. Loss of pay shall be computed on the basis of the Board's formula in F. W. Woolworth 10 Amalgamated Utility Works v. Consolidated Edison Co., 309 U. S. 261. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company" In accordance with the Board's policy, Respondent shall make available to the Board, upon request, such payroll and other records necessary to facilitate the computation of the amount of back pay due. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS or LAW 1. United Stone and Allied Products Workers of America, CIO, and Insula- tion Workers Federal Labor Union, No. 24716, AFL, are labor organizations within the meaning of the Act. 2. By discriminating in regard to hire and tenure of employment of Frank Boll, Respondent has engaged in 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 its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in 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.] 1190 NLRB 289. HEYDEN CHEMICAL CORPORATION 1 and LOCAL 68 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL,2 PETITIONER. Case No. RC-4816. August 6,190 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Norman A. Cole, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.8 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]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. ' The name of the Employer appears as amended at the hearing. 2 The name of-the Petitioner appears as amended at the hearing. The Employees Welfare Association of Heyden Chemical Corporation , Garfield, New Jersey, was permitted to intervene on the basis of its contractual interest. 100 NLRB No. 82.