Johnston-Tomigbee Furniture Co.

DI('ISiONS ()OF N IO()NAI I. LABOR RI.A IONS BOARI) Johnston-Tombigbee Furniture Company and South- ern Council of Industrial Workers, United Brother- hood of Carpenters and Joiners of America, jointly with Local Union No. 2462, United Brotherhood of Carpenters and Joiners of America, AFI,-CIO. Case 26 C'A 7126 June 27, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MEMBIRS JENKINS ANI) PENI .0 On January 10, 1979, Administrative Law Judge Joel A. Harmatz issued the attached Decision in this proceeding. Thereafter, both Respondent and counsel for the General Counsel filed exceptions and support- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brieft and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. The record reveals that Respondent and the Union were parties to a collective-bargaining agreement which was scheduled to expire on June 3, 1978. Just prior to contract renewal negotiations, the Union opened a campaign to increase membership. Parks, a union steward, as well as Glenn and Silvers, were among the principal employee participants in this campaign. Parks and Glenn solicited employees and, after an employee agreed to join the Union, Parks or Glenn would request use of the employee's identifica- tion badge. Parks or Glenn would then take the badge to Silvers who would use the information on the badge to fill out both a membership application and checkoff authorization. Silvers would also sign the employee's name on each document. Parks or Glenn later would sign as a witness in the appropriate section on the authorization card. It was Silvers' con- duct in signing and Parks' and Glenn's conduct in witnessing the authorization cards that prompted Re- i Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings, The respondent has requested oral argument. This request is hereby de- nied as the record, the exceptions, and briefs adequately present the issues and the positions of the parties. spondent's decision to discharge them for the stated reason that they violated the plant prohibiting 'falsi- fication" of production records. payroll records, or timecards. The Administrative L.aw Judge found that Respon- dent's stated reason for the discharge was pretextual and that the real motive for the discharge was Re- spondent's hostility toward the Union in general and toward the discriminatees' efforts to increase union membership in particular. In support of this finding, the Administrative l.aw Judge pointed out that the application of the "falsification" rule was unprece- dented: that the employees' conduct did not involve any fraudulent intent or result in injury to any party: and that Respondent's "investigation" of the matter, particularly Personnel Director Otis Garrard's admis- sion that he set out to prove that a "forgery" took place, evidenced animus toward the Union's support- ers. Additionally, the Administrative law Judge found that Parks', Glenn's, and Silvers' actions were consis- tent with the general understanding of employees in the plant that joining the Union meant paying dues by checkoff. However, the Administrative Law Judge declined to find that Parks, Glenn, and Silvers were authorized to sign the checkoff cards for other em- ployees. In reaching that conclusion, the Adininistra- tive Law Judge reasoned that because dues-checkoff cards under Section 302(c)(4) of the Act require the written authorization of the employee, the general un- derstanding of the solicited employees here that join- ing the Union meant that they would pay dues through checkoff was insufficient to create a princi- pal-agent relationship. In this connection the Admin- istrative Law Judge stated, "I]t is only rational that where in the law commands the principal be deemed bound only by conduct of a certain form, that the delegation of authority to the agent be of no lesser form." Contrary to the Administrative Law Judge we find the record evidence sufficient to establish an agency relationship. As mentioned previously, the Adminis- trative Law Judge found, and we agree, that Parks', Glenn's, and Silvers' actions were consistent with the understanding of employees in the plant that joining the Union meant paying dues by checkoff. As evi- dence for that finding, the Administrative Law Judge pointed to testimony showing that no employees paid dues directly to the Union, that employees were un- aware that dues could be paid in any way other than by checkoff, and that even Personnel Director Gar- rard was unaware of any other method by which dues could be paid. And, as additional evidence of that understanding, the Administrative Law Judge found that all 18 employees who joined the Union by ten- dering their identification badges told Garrard during 243 NLRB No. 21 116 JOIHNSIO()N-I()Mt3BI(iBIL FtIRNI RI (() his "investigation" that the5' understood at the tilme they were solicited that their dues would be checked off. Moreover, all 18 subsequently signed valid check- off authorizations. The Board has long recognized a statutory man- date to apply the "ordinary law of agency." 2 In deter- mining whether an agent is authorized to act on he- half of a principal, the Board has pointed out that the principal's consent is necessary, hut consent "ma bhe manifested by conduct, sometimes even passive ac- quiescence, as well as by words. Authority to act as agent in a given manner will be implied whenever the conduct of the principal is such as to show that he actually intended to confer that authority."' We con- clude that when the employees here tendered their identification badges, knowing that joining the union meant paying dues by checkoff, they at least impli- citly authorized Parks, Glenn, and Silvers to act as their agents to sign the dues-checkoff cards for themI. 4 Hence a "forgery" or a "falsification" never took place and Respondent's charge of "falsification" is contrary to the facts. Thus, even if the Respondent had acted in a good-faith. albeit mistaken, belief that the dischargees had been engaged in "falsification," Respondent would have violated Section 8(a)(1 of the Act because the dischargees were engaged in pro- tected organizing activities. As the Supreme Court found in N. L.R.B. v. Burnup & Sims, Inc.. 379 U.S. 21 (1964), in such circumstances employees are entitled to reinstatement; "otherwise, the protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees." Finally, contrary to the Administrative Law Judge, we conclude that Respondent's interrogation of dis- criminatee Silvers during the investigation of the al- leged "forgeries" was coercive and violated Section 8(a)(l) of the Act. According to the credited testi- mony, Silvers was called to Personnel Director Gar- rard's office where she was questioned by Plant Su- perintendent George Edwards. Among other things, Edwards asked Silvers if she knew who gave her the job, the Union or the Company. Edwards also asked Silvers what she was "getting out of signing people up for the union." Although the Administrative Law Judge concluded otherwise, we find that this ex- change exceeded the type of "rhetorical argumenta- tion" privileged by Section 8(c) of the Act. In this 2 International Longshoremen's Warehousemen's Union, C(10. o1al (Sunset Line & Twine Co.), 79 NLRB 1487, 1507 (1948). The quoted phrase is from Senator Taft's analysis of the 1947 amendments. 93 Cong. Rec 7001 (daily ed., June 12, 1947). Ibid. See also Restatement (Second) Agenci, . IS. and 27 (19581. See also 130. 4 In this connection, we note that at least some of the solicited employees were actual) present when their names were signed to the checkoff authorl- zations by Silvers. connection we Inote that Edw .ards' remarks not on)ll\ revealed Respondent's ni mlus toward Silvers fr the latter's union organizational activity. hut specificall, attempted to draw the employee into a defense of' those activities. We have found similar comments vio- lative of Section 8(a)(1 ). L And we colnclude that this incident, along with the other matters relied on bx the Administrative La\; Judge, further supports the infer- ence that Respondent's stated recason ftr the dlis- charge of Silvers and the other to union activists was pretextual and that the real reason Ifor the dis- charges was discriminlatoryv. ORDIER Pursuant to Section l()(c) of thile National Iahor Relations Act, as amended, the National I ahor Rela- tions Board adopts as its Order the recomIllended Or- der of the Administratie L.a Judge, as rnloditied he- low. and hereby orders that the Respotndent. Johnston-Tonmbighee Furniture (omlpaniN, ( oluil- bus. Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the said rec- ommended Order. as so modified: 1. Add the fol lowilng paragraph as pragraph (h) and reletter the subsequent paragraphs accordinglN '(b) Interrogating emplo ees as to their unilon ac- tivity." 2. Substitute the attached notice for that of the Administrative l.aw Judgc. MI MBE R PI \l .(), dissenting: I cannot agree with the majorit that Respondent violated Section 8(a)( I and (3) b discharging three employees who admittedl, participated in what the Administrative Law Judge termed the "misconduct" of entering the signatures of 18 other employees on dues-checkoff authorization cards. Contlary to, mn colleagues. I would dismiss the complaint in its en- tirety. My colleagues apparently rel on two rationales. First, they find that a principal-agency relationship existed whereby the dischargees were authorized to make the entries on the checkoff cards. However, the Administrative Law Judge explicitly rejected this contention and I find his analysis to be far more per- suasive than that of my colleagues.7 Second. my colleagues adopt the Administrative Law Judge's conclusion that the reason asserted bh Respondent for discharging the emploees. i.e.. falsi- ' (Cf Jeffer..n National Brank. 240 NLRB 1057 19791: l kmain, l 4 t Illnt & (onpanc, Detroit Pr'erinmg Di ion. 240 NlRB 81 (1979) (eon Foodds. Inc- , i &1 rl,n' 1(;4 r,oodliner. 217 NlRB 667 11978) ' In the abhsence exceptions. we need not pass in he dninlr.atlve Law Judge's dismissal of the allegation of the complaint that the Respondent had engaged in conduct iwolatie lt Sec 8(a.15) il the ct ' See sec 111, C, 2. par I. of the a(ttahed l)ecin.. I 1 7 I)< ['ISIONS Of1 NAIIONAL LABOR REI.ATIONS BOARI) fying and forging dues-checkofflcards, was pretextual. In this regard, the Administrative Law Judge found, inter alia, that Respondent's investigation of the inci- dent "radiated an overall design to discriminate." and that the employees' misconduct was "inconsequen- tial." This aspect of' the Administrative Law Judge's Decision I cannot affirm. In my opinion, evidence of union animus is lacking, as the Administrative Law Judge himself properly found that Respondent com- mitted no other violations of the Act. And the mis- conduct in issue here can hardly be dismissed as triv- ial since it placed Respondent in a position where it could have been subject to legal sanctions had it hon- ored the invalid cards and checked off dues.' For these reasons, I have not signed my name to the majority opinion. 8 As the Administrative aw Judge recognized in the conclusions section of his Decision. Sec 302(c)(4) imposes criminal penalties upon an employer that remits dues to a lahor organization unless "the employer has receised from each employee, on whose account such deductions are made, a written assignment." In addition, "the unauthorized deduction of dues is clear violation of Section 8(a}2) and (I) of the Act." Jo-Jo Management (orp. d/b/a GloriaiS Manor lomei /or Adults 225 NI.RB 1133, 1143 (1976), enfd. 556 F.2d 558 (2d ('ir 1977). APPENDIX No'IrIcr TO EMPI.OYEES POSIED BY ORDER OF TIIt NAriONAI LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties were represented by their attorneys and were afforded the opportunity to present evidence in support of their respective posi- tions, it has been found that we have violated the National Labor Relations Act, as amended, in certain respects and we have been ordered to post this notice and to carry out its terms. The National Labor Relations Act gives you, as employees, certain rights, including the right: To engage in self-organization To form, join, or help a union To bargain collectively through a represent- ative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. Accordingly, we give you these assurances: WE WILL NOT discourage activity on behalf of a labor organization by discharging, or in any manner discriminating against our employees with respect to their wages, hours, or terms and conditions of employment. WE WILL NOT interrogate employees about their union activity. WE WI1.l.L NOI in any other manner interfere with, restrain, or coerce our employees in the ex- ercise of rights guaranteed them under Section 7 of' the National Labor Relations Act. as amended. WE WlI., reinstate Earl Glenn, Robert Parks, and Lucille Silvers to their former jobs or, if those jobs no longer exists, to substantially equivalent positions, without prejudice to their rights and privileges previously enjoyed, and wi! wI.L. make them whole for any and all moneys lost by reason of our having discharged them be- cause of their union activity, with interest. JOIINS'O()N-T()NMIII(;11 Fi RNI I RI CO ()M- PANY DEC('ISION SIAILMINI ()I IiIt CASI Jonl. A. HARMArz., Administrative L.aw Judge: This pro- ceeding' was heard in Columbus. Mississippi. on August 17, 1978. upon an unfair labor practice charge filed on March 30, 1978, and a complaint issued on May 12. 1978. alleging that Respondent, Johnston-Tombigbee Furniture Com- pany, independently violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended, by interrogating employees concerning union activity and by coercive state- ments made in connection therewith. The complaint further alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging employees Earl Glenn. Robert Parks, and Lucille Silvers. Finally, the complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to check off union dues on behalf of certain named employees and to remit same to the Union. In its duly filed answer. Respondent denied that any unfair labor practices were committed. After close of the hearing, briefs were filed on behalf of the General Counsel and Respon- dent. Upon the entire record in this proceeding, including per- sonal observation of the witnesses while testifying and their demeanor, and after due consideration of the post-hearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENI Respondent is a Mississippi corporation with a place of business in Columbus, Mississippi, from which it is engaged in the manufacture and sale of furniture. During the 12- month period preceding issuance of the complaint, a repre- sentative period, Respondent in the course and conduct of' said operation purchased and received at said facility prod- ' The caption was amended at the hearing to reflect the status of the Charging Party. Southern Council of Industrial Workers, United Brother- hood of Carpenters and Joiners of America, jointly with Local Union No. 2462, United Brotherhood of Carpenters and Joiners of America, AFL-(CIO. as a joint employee representative. 118 JOHNSTON-TOMBIGBEE FURNITUIRE CO. ucts valued in excess of $50.000 shipped directly from points located outside the State of Mississippi and. during said period, sold and shipped from said location products valued in excess of $50,000 directly to points located out- side the State of Mississippi. The complaint alleges, the answer admits, and I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. II. rtW I.ABOR ()R(;ANI.AII()N IN()I \EI) The complaint alleges, the answer admits, and I find that Southern Council of Industrial Workers. United Brother- hood of Carpenters and Joiners of America, and Local Union No. 2462, United Brotherhood of Carpenters and Joiners of America, AFL CIO, collectively called the Union, are now. and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. Ill. Ht Al.l.t.(;ED) UNFAIR l.AB()R PRA( Il(FS A. The Issues The question of fundamental concern in this proceeding relates to the discharges on February 3, 1978. or Earl Glenn. Robert Parks, and Lucille Silvers. All three were terminated on grounds arising in the course of their effort to solicit new union members from among Respondent's work force during the period preceding contract renewal negotia- tions. Respondent claims that in the course thereof the dis- chargees engaged in conduct both unprotected and viola- tive of established company rules and that said conduct constituted the sole ground for their termination. Thus, it is undisputed that dischargee Silvers herself signed the names of some 18 employees to otherwise valid checkoff authori- zations, and that Glenn and Parks entered their signatures to cards as witnesses to those placed on the authorizations by Silvers. The General Counsel asserts dual theories in support of the view that Respondent. in effecting the discharges, acted without legitimate cause. First, it is alleged that all three of the discriminatees were agents acting on authority afforded by employees to sign the checkoff authorizations in their behalf. Hence, the General Counsel argues that their con- duct was protected, and citing N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21 (1964) argues that it is irrelevant that Respondent "may have" acted upon a good-faith belief that the dischargees had engaged in unprotected activity. Sec- ondly, counsel for the General Counsel argues that the rea- sons assigned for the discharges were pretextual and that the real motive for the discharge "was to chill the upsurge of unionism among its employees ... ." B. Background I. The membership drive Respondent and the Union were party to a collective- bargaining relationship prior to the events here in issue. Although the initial date on which recognition was con- ferred is not defined by the record, the production and maintenance employees were covered b a collecive-hbar- gaining agreement having a 3-year term, which bras sched- uled to expire on June 3. 1978. Apparently. in consequence of a decline in union mem- bership. in late 1977, a campaign was opened seeking to broaden the Union's membership rolls in anticipation of the 1978 contract renewal negotiations. Parks, a union steward, and Glenn and Silvers were among the principal emplosee participants in this effort. The drive was conducted with Parks and Glenn soliciling employees. When infoirmed of an employee's desire to join, it was their practice to request use of the emplo ee's identi- fication badge. That identification badge. which had been issued by Respondent, was then taken to Lucille Silvers. Silvers, using the information on the badge. would make all entries on a perforated document which included both a membership application and check-off authorization.2 Sil- vers would herself enter the employee's signature on each card, including the check-off authorization. copbing the name as it appeared on the employee's identification badge. Later, either Parks or Glenn would sign as a witness in the section provided therefor on the checkoff form. Subsequently. probably on February 1. 1978.' the check- off authorizations were delivered to Anita Caldwell. Re- spondent's personnel clerk. 2. The investigation Caldwell. upon receipt of the checkoff cards. examined them, noting two discrepancies on a card purporting to be that of employee Lois Atkins. First, Caldwell was aware that Atkins no longer went by that name., In addition. her signature was placed on the authorization backwards i.e.. "Atkins, Lois B."' Also arousing suspicion was another card, which included interlineations. suggesting that the sig- nature was entered by one uncertain as to the proper se- quence of her name.' Caldwell called these discrepancies to the attention of Otis Garrard. Respondent's personnel director. Garrard then instructed ('aldwell to check the balance of the signa- tures appearing against those contained on employment ap- plications. Caldwell did so, finding that the signatures did not match.' At this point Caldwell turned oer all the checkoff authorizations to Garrard. Garrard then urged Bill Miller, Respondent's security agent. to check with em- ployee Lois B. Johnson to determine whether she had signed her checkoff authorization. Miller reported that Johnson had not signed the card. Garrard himself then checked the signatures on the cards, concluding that thex did not appear to be authentic. 2See G.C. Exh 4 ] All dates refer to 1978, unless otherwise indicated I4 appears that Atkins had been married 3 months earlher nd. consistent therewith. her persannel records were changed to reflect the name ol I is B Johnson. see Resp. Exh 2 'See Resp Fxh 4(G) 'The official stenographic transcript is herehb amended to reflect the 1l1- lowing: "The signatures on the applicallons did not malch with the one oI the checkoff cards." 119 DI:(ISIONS OFt NATIONAL LABOR RELATIONS BOAR[) Garrard then conducted interviews with the employees whose names appeared on the checkoff authorizations. In advance thereof, a form had been prepared which was read to the employees during the interviews. It contained the following: I have been advised by Otis (iarrard that the com- pany has recently been made aware of several in- stances of employees' names having been forged on Dues Check Off Cards. Because of this, Mr. (Garrard advised that the company is concerned as to whether other employees may have had their names forged. Mr. Garrard further infirmed me that the company did not oppose my signing a Dues Check Off'Card and that I had a right to sign such a Check Off C'ard. Mr. Garrard further informed me that the only reason he was talking with me was to find out whether or not my name has been forged. I did not sign the Authorization for Deduction of Initiation Fees, Dues, Etc. dated - that was wit- nessed by - and attached to this paper. I do not know who signed it, and I did not authorize anyone to sign my name. During those interviews, 18 of the employees reported that they did not place their signatures on checkoff authoriza- tions. However, Garrard received information that all had indicated to union representatives their intention tojoin the Union, and that it was the understanding of' some, if not all. of those interviewed that joining the Union meant that dues would be taken out of their paychecks.8 Garrard then contacted the cheif union steward and in- formed him that, if the new members wished to have their dues deducted, it would be necessary for the individuals themselves to sign their names to authorization cards.9 Following this, Garrard separately questioned Parks and Glenn concerning the checkoff authorizations. According to Garrard, both initially asserted that they observed the sig- natures when entered by the employees, but then admitted that they did not witness the signatures. Both informed Garrard that Lucille Silvers delivered cards to them which they signed as witnesses. Garrard then talked with Silvers, who admitted she had signed the names to the cards. Published company rules include the following: Plant Rules Violation of Rules I through 14 below will result in immediate discharge. {8) Falsif'ying production records, payroll records, or time cards. s ee testimony of Lois Bell Johnson and a stipulation entered in behalf of counsel for the Respondent dispensing with the need to call additional em- ployees as witnesses. Although Garrard denied questioning employees as to whether they wished to join the Union, he testified that a few did say they wanted to get in the Uinion. Although there is no serious discrepancy be- tween his testimony and that covered by the stipulation, to the extent that his testimony is inconsistent therewith. it is rejected. 9 Art. XXII of the governing collective-bargaining agreement provided for the checkoff of dues and initiation ees, "of employees who have executed and furnished to the (Company a signed authorization so to do .. " Although Garrard initially testified that he had no alterna- tive under the above rule but to effect the discharges, he later conceded that the matter was discretionary. Giarrard also conceded that in the course of his investigation not a single employee questioned advised that he or she did not wish to join the Union, nor did any complain concerning dues being deducted from their pay. G(arrard also testified that to his knowledge there had been no prior discharges under the rule in question. By way of stipulation it was established that all cards bearing signatures inscribed by Silvers involved employees who in February and March 1978 executed new checkoff cards and that pursuant thereto their dues were in fact checked off by Respondent. Nonetheless. Parks. Glenn. and Silvers were discharged on February 3, and as of the date of' the hearing had not been offered reinstatement. C. ('oncluding F'inlings. I. Interference, restraint, and coercion The independent 8(a)( I1 ) allegations relate in the main to Garrard's investigation. First, it is claimed that the proce- dure utilized by Garrard in questioning the employees whose names appeared on the cards constituted coercive interrogation proscribed by the Act. I find no merit in this contention. The discrepancies apparent on the face of the authorizations presented a justification fir an investigation within an area of legitimate employer concern. Article 22 of the subsisting collective-hargaining agreement provided that the Company would checkoff and remit to the Union "monthly dues and initiation fees of employees who have executed and furnished to the Company a signed authoriza- tion so to do." Furthermore, Section 302(C)(4) of the Na- tional Labor Relations Act' 0 imposes criminal sanctions upon employers who remit dues to a labor organization unless "the Employer has received from each employee, on whose account such deductions are made, a written assign- ment which shall not be irrevocable for a period of' more than one year. or beyond the termination date of the appli- cable collective bargaining agreement. whichever occurs sooner .... " The legitimate purpose of the interviews was carried out with all employees involved specifically assured against reprisal and informed in writing that the sole pur- pose for their interview was to determine whether or not their name "has been forged." In the circumstances, I find that the questioning of individual employees was in full compliance with the standards set forth in Blue Flash Ex- press. nc., 109 NLRB 591 (1954). for noncoercive interro- gation. Accordingly, it is concluded that Respondent did not.violate Section 8(a)(1) in this respect. The General Counsel also contends that Respondent vio- lated Section 8(a)( ) through comments made to employees in the course of the investigatory interviews by Garrard and Plant Superintendent George Edwards. With respect to Garrard, incumbent employees Grace Ann Ervin and Lula Cunningham afforded mutually corroborative testimony that Garrard advised them during their interview that while he would not try to prevent them from joining the Union, the $8 that the Union would take from their checks each 1029 t.S.C. Sec. 186(')(4). 120 JOHNSFO()N-10MBIGI1(;B1 I RNll RI (O.() month could he saved in the credit union.'' It is claimed that the foregoing was coercive and violative h Section 8(a)(1). I disagree. Garrard's comments, while hetraing a stance of neutrality on his part with respect to the union membership drive, merely represented an argument or ex- pression of' opinion protected by Section 8(c) of' the Act. A further allegation is derived trom Lucille Silvers' testi- mony as to statements imputed to George Eldwards. In this respect, she testified that on February 2. when Edwards first questioned her concerning her involvement, he asked her it she knew who gave her her job. the Union or the Compan. and then went on to question her as to what she .was getting out of signing people up for the lUnion. Edwards afforded a different version of the conversation in question. but testi- mony of Silvers seemed more probable, and I credit her over Edwards.'2 Here again, the expressions communicated to Silvers by a management representative reflected a less than hospitable receptiveness to her eflbrts on behalf of' the Union, but, on balance, did not exceed the type of rhetori- cal argumentation privileged by Section 8(c) of' the Act. I find that Respondent did not thereby violate Section 8(a( I of the Act. 2. The discharges Dealing first with the General Counsel's claim that the entry of other employees' signatures on the checkoff autho- rizations by Silvers, and their attestation by Glenn and Parks, was protected. I find no merit in the argument that a principal-agency relationship existed wherehby the three dis- chargees were authorized to make such entries. In this re- gard the General Counsel correctly observes that "an agency arises when one person, the principal, manifests consent to another, the agent, that the latter should act on the former's behalf .... " It is also true that while the agency relationship need not be evidenced through a formal contract, the existence of authority must be manifested by written or spoken words, or conduct which. reasonably in- terpreted. would lead the agent to believe that the principal has designated the agent to so act on the principal's behalf. There is no such evidence in this case. The subject of check- off, insofar as this record discloses. was not discussed be- tween the new membership applicants and the solicitors. and the former engaged in no conduct from which a delega- tion of authority might be inferred. Indeed. it is only ra- tional that where the law commands that the principal be deemed bound only by conduct of a certain form, that the delegation of authority to the agent be of no lesser form. With respect to checkoff authorizations. Section 302(C)(4) of the Act affords all union members of those who wish to join a labor organization protection against union represen- tatives or employers or a combination thereof diverting their earnings through union dues remittances. The protec- tion afforded requires that a written assignment authorizing such remittances be made by each employee. and the fact I believed that testimony of Cunningham and Ervin. and credit them over Garrard's denial. In many respects, Garrard did not impress me its a trustworthy witness. i Garrard was present during the conversation in question. but was not examined as to this aspect thereof that employees have expressed their clear intent to join a unlionl does not carry with it an implied waiver of this con- gressionally coniferred option. Satislaction o the taitutor\ requirement , as not met by the undisclo sed intentii!n or understanding of the solicited eploees tht Oingin the Union meant pli ing dues land that this wuould hbe accllm- plished through the medium of check)off. lhe c idelnce doues not substantiate that Parks. (ilein. and Sil rs acted upon a grant f prior authority from the membership applicants. While rejecting the contention hased upon agency. I am nonetheless convinced that Respondent wvas not privileged lawfully to effect the discharges on the ground assigned. It knew. or should have known, that Silvers. Glenn, and Parks were unsophisticated employees who acted with little com- prehension for the technical strictures hearing upon em- ployee solicitation, and that they held no intention what- ever to prejudice the E:mployer as to material matters. impair the interests of employees. or to extort funids or the benefit of the L llion. G(arrard appears to have brushed aside these mitigating considerations through his testimon that he was uncoln- cerned with any question ats to hether the dischargees were engaged in a scheme to defraud hut that his sole inter- est was whether the were engaged in falsif'ing the rec- ords." In my view, the foregoing narrows to a legal issue as to the circumstances under which emplo ers may discharge employees for misconduct interlaced with that %which is in other respects protected b Section 7 of the Act. Thus. en- joymerint of statutorily guaranteed employeec rights might well, as practical matter. depend on the willingness of employees to volunteer to be among the vanguard of or- ganizational activity. Those who elect to do so might \well become vulnerable to legitimate discipline of a most severe nature should their conduct impinge upon historically rec- ognized rights of management or other employees. This does not mean, however. that the protective mantle of the Act is lightly removed. Where the conduct on which the employer acts is trivial and inconsequential and presents no real threat to the employer's ability to maintain production and efficiency, the adverse impact of such discipline entails a disproportionate intrusion upon Section 7 rights. In rec- ognition thereof. the Board, with court approval, has de- vised policies calculated to prevent any such imbalance. Thus. in the case of economic strikers it is now settled pol- icy that "serious acts of misconduct which occur in the course of a strike may disqualify a striker from protection of the Act while minor acts of misconduct may not."" Simi- lar limitations upon employer disciplinary prerogatives exist where the protected activity does not involve strike action. Thus, in N.L.R.B. v. Illinois Tool 4orA.s, 153 F.2d 811 (7th Cir. 1946). a layoff of a union official because he refused to correct a misrepresentation concerning swage scales was deemed violative of Section 8(a)(3) of the Act under such a formulation. The governing test in such cir- cumstances was reiterated by the Circuit Court of Appeals " See Ohio, Ps,,lr ('o,,paen . 216 N LRB 348. 354 ( 1975), and cases cited i fn 7 thereof See Nf I. R. Thaicr (l,npam and II N Thaiter (mrpar. 213 2d 748 (Ist (r 1954). Ifor the more stringent standards applied to employers in disciplining unfair laNr practice strikers 121 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Seventh Circuit in N.L.R.B. v. Thor Power 7iol Company., 351 F.2d 584. 587 (1965) as follows: As other cases have made clear, flagrant conduct of an employees, even though occurring in the course of section 7 activity, may justify disciplinary action by the employer. On the other hand, not every impropriety committed during such activity places the employee beyond the protective shield of the Act. The employ- ee's right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer's right to maintain or- der and respect.... Initially, the responsibility to draw the line between these conflicting rights rests with the Board, and its determination, unless illogical or arbi- trary, ought not be disturbed. In the instant case we cannot say that the Board's conclusion that Tinsley's remarks was within the protection of section 7 was ei- ther unreasonable or capricious. Reproduction of another's signature may, as an abstrac- tion, carry grievous overtones, and ordinarily no quarrel could be made that such indiscretions furnish valid cause for termination. Serious reservation is held, however, as to whether employees engaged in the statutorily protected conduct of obtaining union designations from among their fellow employees may be discharged for an incidental devi- ation which operates to the prejudice of no one. The accu- sation that Parks, Glenn and Silvers perpetrated "forgery" is utterly without foundation. On the contrary. their con- duct neither involved fraudulent intent nor resulted in in- jury; it was consistent with general understanding in the plant that union membership included the payment of dues by checkoff, and indeed was subsequently ratified by all in the class on whose behalf Parks, Glenn, and Silvers pur- ported to act. To conclude that the placement of the signa- tures on the checkoff authorizations involved a departure from activity protected by the Act would, in the circum- stances of this case, condone employer action which, while serving no cognizable management interest under this Act, would foreseeably create a serious impediment to employee involvement in union activity. Accordingly, without neces- sity for in other respects considering Respondent's motive. the discharges on the ground assigned by Respondent vio- lated Section 8(a)(3) and (I) of the Act. It also appears that the allegations of discrimination are substantiated on other grounds as well. For the entire rec- ord warrants the inference that the cause specifically as- signed for the discharges was pretext, and that Garrard acted out of a proscribed intent to discriminate on the basis of the union considerations. Thus, although Garrard re- peatedly disclaimed any opposition to the renewed effort to increase union membership rolls, Respondent's pretended lack of concern was refuted by credible testimony of incum- bent employees Ervin and Cunningham and discharges Sil- vers. The investigation conducted by Garrard. though ac- companied by the formality of assurances against coercion, like the slip made in the Ervin-Cunningham interview, radi- ated an overall design to discriminate. The interviews were conducted with the aid of a statement which accused Parks. Glenn, and Silvers of "forgery." I)espite the gravity of this charge, Garrard admittedly conducted the interviews for the limited objective of determining whether or not the em- ployees whose names appeared on the checkoff authoriza- tions actually signed them; he disclaimed any interest in developing the existence of mitigating circumstances. None- theless, the decision to effect the discharges was made on information which, despite Garrard's effort to narrow the scope of' the investigation, revealed that it was the general understanding among employees that the desire to join the Union included their will to have dues paid through check- off, and that the placement of their signatures on the autho- rizations by the dischargees might well have been attribut- able to misunderstanding. Thus, of the 18 employees whose signatures were placed on the checkoff cards not one com- plained or expressed any offense at the action taken by the dischargees. All 18 told Garrard that they desired union membership. Garrard also was informed that said employ- ees understood that, having joined the Union. dues would be deducted from their pay. Garrard himself testified that he was unaware that employees could remit dues through any means other than checkoff. These facts went unheeded, and Parks, an employee with 27 years of service, Glenn. an employee with 10-1/2 years of service, and Silvers, an em- ployee of I -1 /2 years, who expressed the need for her job at her discharge interview, were all terminated. Indeed, in the weeks that followed, all 18 new members executed valid checkoff authorizations. The brief filed on Respondent's behalf accurately notes that it is not the function of' the Board to substitute its judgment for business decisions. This limitation, however. does not hamstring the inference-drawing process to the point of requiring the finder of fact to deny that employer conduct is in actuality what, on its face, it appears to be. Here, through Garrard, Respondent, without full knowl- edge of' the facts, made the overreaching charge of "forg- ery," and then embarked upon a finely tailored investiga- tion which neither attempted to develop the truth of that accusation, nor to uncover evidence which might reveal the inconsequential nature of the misconduct under scrutiny. On the very next day, what appears to have been a biased predetermination to effect discharges was implemented, but only after Garrard had learned, through information volun- teered during the investigation, that the dischargees had simply acted upon the unspoken understanding of the new applicants for union membership. that none of' the latter had complained, and that though the dischargees had uti- lized the wrong procedure, their impropriety was not at odds with the objective of those on whose behalf they acted. Considering the foregoing against the total record. I re- ject as unbelievable the claim that Parks, Glenn, and Silvers were discharged for violation of a company rule.' Instead, taking full account of Respondent's opposition to union membership, and the harsh discipline meted out under an unprecedented application of a company rule against three i As heretofore indicated. Garrard could not recall that Rule 8 had been enforced previously. Therefore. the scope of the conduct under interdict pur- suant to that rule is left to self-serving testimony hby an unreliable witness. In passing. however. it is noted that the imagination need not he taxed to appre- ciate the probable trequenc with which emplo :ees knowingly hut mis- takenl.. submit false information to emplo3.ers on "production records. pas- roll records or time cards." Although it is possible, douhbt exists that Respondent would react as dramalicall against other mployees. in a non- union-related context. upon discovery that they ito had furnished misinfir- mation having no detrimental impact hateser 122 1JOINSION-TOMBBI(;l. t rRNIIIRIR (CO. employees highly active in the membership drive, the con- clusion is inescapable that Respondent's lack of concern for their innocence of any indiscretion was horn of resentment toward their involvement in the renewed effort to strengthen the Union's hand. I find that this resentment furnished the true motivating cause fr their discharge, andl that Respondent thereby violated Section 8(a1)(3) and ( I of the Act." 3. The refusal to bargain The complaint alleges that Respondent violated Section 8(a)(5) and (I) of the Act by refusing since November . 1977, and other unknown dates to remit union monthly dues on behalf of the 18 employees whose nallies ere placed on checkoff authorizations by Silvers. Although all of these employees subsequently condoned and ratified that conduct of Silvers. Glenn. and Parks, the latter acted with- out express or implied authority in signing the checkoff a u- thorizations. These cards did not meet the requirements of Section 302(C(')(4) and did not comply with contractual pro- cedures. Accordingly. they were invalid and imposed no obligation on Respondent's part. There being no eidence whatever that Respondent failed to remit dues or any other appropriate fees to the Union upon presentation of legiti- mately authorized assignments on the part of the named employees. I find that this allegation is not substantiated. CO)N('I :SIONS () L.AN. 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act, engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (I) of the Act on February 3, 1978, by discharging employees Robert Parks, Earl Glenn, and Lucille Silvers, to discourage union activity. 4. Except as found above, Respondent did not engage in any unfair labor practices. 5. The foresaid unfair labor practices have an effect upon commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. As the unfair labor practices found herein include discrimination which strikes at the heart of the Act, a broad cease-and-desist provision shall be recommended requiring the Respondent to cease and desist from "in any other manner" interfering 1 I have not overlooked the fact that Respondent and the Union subse- quently reached agreement on a new 1978 contract. That fact furnishes no ground for discounting the discrimination evident on the entire record herein. with, restraining. or coercing employees in the exercise of their Section 7 rights. laving found that Respondent discrimi natoril dis- charged Parks, I)unn, and Silvers in violation of Section 8(a)(3) and (I) of the Act, I will recomnmend that Respon- dent offer them immediate and full reinstatement to their fIrmer or substantially equivalent positions. without preju- dice to their seniority or other rights and pri ileges alnd make them whole for any loss of earnings suffered b rea- son of their unlawful termination. hb payment of a sum of money equal 1o lhat Mhiclh the normall Vwould have earned fronl the date of Respondent's discrilinaltion to the date of' a bona ide offer of' reinstatemennl. ess net interim earnings during such period. with hackpa l and interest thereon to he computed in the manner prescribed in F 1: ' $tool)v)/rII ( 1pImni. 90 NRB 289 ( 95(). lind 17. rda Slcl (oruraliol. 231 N .R B 651 i 1977). [Upon the foregoing findings of lact and coTnclutsio.ns (il law, nd upon the entire record in this case. and pursutiani to Section IO(c) of the Act. I hereb issue the tollovwine reconinlenlLed: ()RI)IR The Respondent. Johnston- lomnbigbee Iurniture ('onm- pany. Coluimbus, Mississippi. its offticers. agents, successors. and assigns, shall: I. Cease and desist from: (at) Discouraging employees from engaging in union ac- tivity by discharging. or in any other manner discriminating against, them with respect to their wages. hours, or tenure of employment. (b) In any other manner intreriring with. restraining, or coercing employees in the exercise of their right to sell- organization, to ftrm or assist labor organizations, to bar- gain collectively through representatives of their own choosing. to engage in concerted acti'iti es for the purpose of mutual aid or protection, or to retrain from an s and all such activit,. 2. Take the following atfirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer immediate reinstatement to Robert Parks. Earl Glenn, and l.ucille Silvers to their former positions, or if not available, to substantially equivalent positions. without loss of seniority or other benefits, and make them whole for all earnings lost by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying. all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records rel- evant and necessary to a determination of the amount of backpay due under the term of this Order. 16See. generally. lis Plumbing & Heating (,,, 138 NLRB 716 (19621 ' In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations or the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall as pro ded in Sec 102.48 of the Rules and Regulations he adopted b the Board and become its find- ings, conclusions. and Order. and ll objections thereto shall be deemed waived for all purposes. 1 23 I)I ('ISIONS ()01 NIIl)NAI IAB()R RIlAl'Io()NS BOARI) (c) Post at its (Columbus Mississippi, facility copies of the attached notice nmarked "Appendlix. " l (opies of' said notice. on fbrms provided by tihe Regionial I)irector ior Re- gion 26. after heing dull signed hby Respondent's represent- ative, shall he posted by Respondenlt iimediatelI upon re- ceipt thereof; and maintai ed hby ii fr (6) consecutive dlys thereafter. in conspicuous places including all pl;ces where notices to employees are custom;arily posted. Reasonable steps shall he taken bh Respondent to insure that said no- tices are not altered, defaced, or covered by any other mate- rial. (LI) Notify the Regional [irector lotr Region 2(6, III rt- ing, within 20 days from the date of this Order, what steps Respondent hs taken to comply herewith. I I R IIR Rl(()MMINI)I I) that all unfair labor prac- tice allegaltions not fiound herein he dismissed. in 1ie eeni at th i order s cilorced hN Judgreni ol t nited Strte- ('ourl o1 Appeal., the ords in Ihe notice readilng lo,ated h Order l the N.ioni.ial I a;hr Relatmin Board" shall read "lsled P'Lrsuant I ia Judgment ot Ile t nlled St;tes (ourl ot AppealrI tnlrfrcing n Order ol the National l ah, l Relatlrim, Board" 124