Lewisburg Chair and Furniture Co.

LEWISBURG CHAIR AND FURNITURE COMPANY 641 Lewisburg Chair and Furniture Company and Upholsterers' Inter- national Union of North America, AFL. Case No. 4-CA-1006. May 10,1955 DECISION AND ORDER On October 28, 1954, Trial Examiner Louis Libbin issued his Inter- mediate 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. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations.' We agree with the Trial Examiner that Respondent seized upon an alleged falsification in the work records of Moyer and Snyder as a pretext for a discharge which was actually for union activities. Our dissenting colleagues recognize the reasonableness of the infer- ence drawn by the Trial Examiner, but state they are unable to accept this conclusion largely because they cannot perceive why Accountant Glover should have issued special instructions to Moyer and Snyder for the handling of "split orders." This seems to be an oblique way of saying they do not think Glover ever gave such instructions. On the other hand, there is evidence which supports the Trial Examiner's credibility finding. In view of this we can see no justification for overturning the Trial Examiner's credibility finding that Glover did give the instructions. There are numerous factors relied upon by the Trial Examiner to support his finding. At the meeting with Brouse held on October 21, Glover did not deny Moyer's account of his instructions but gave a noncommittal answer to Moyer's state- ment that he had handled the split order in the manner Glover in- structed. When Glover thus did not then deny that he had issued such instructions for handling "split orders" to Moyer and Snyder, it is plain to us that Brouse could not have had a good-faith belief that Moyer and Snyder handled the orders in that manner for the purpose of cheating the Company rather than because Glover had so instructed them. Additional factors which fully support the find- ing of the Trial Examiner that "arouse did not in good faith believe that Moyer and Snyder had deliberately falsified their work reports 1 As the record, and exceptions and brief adequately present the issues and positions of the parties, we deny the Respondent's request for oral argument 112 NLRB No 90. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and consequently did not discharge them for that reason," are : (1) The improbability that if Moyer and Snyder had intended to cheat they would have adopted a method which, as Brouse conceded. would have surely resulted in their detection; (2) the testimony as to the manner in which the investigation of the work reports was conducted, particularly the inconsistencies and discrepancies in that testimony, and the failure first to consult with Yost, the immediate foreman, as was the normal procedure where discrepancies were discovered, and Brouse's attempt to cover up such failure by his contrary written statement submitted to the General Counsel's field examiner; (3) the manner in which Brouse ignored the marking on the dischargees' calendar called to his attention only a day after the discharge; and (4) the fact that Brouse was not a credible witness in many respects. When we consider, on the other hand, that Moyer and Snyder were the most active protagonists of the Union-in fact the only ones who continued openly to engage in such activity after the lost election; that Brouse had unsuccessfully sought to have their foremen find something unsatisfactory about their work as an excuse to discharge them; that their immediate foreman had warned them that Brouse was looking for an excuse to get rid of them because they were strong for the Union; and after their discharge reminded them of his warning and told them the Company had found an excuse to discharge them for their union activities, we are fully persuaded that the Trial Examiner's inference that the incident of the "split reports" was only a pretext and that they were in fact discharged for their union activi- ties is well supported and should be sustained. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Lewisburg Chair and Furniture Company, Lewisburg, Pennsylvania, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Upholsterers' International Union of North America, AFL, or in any other labor organization of its employees, by discharging any of its employees, or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (b) In any manner interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form labor organizations, to join or assist Upholsterers' International Union of North America, AFL, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage LEWISBURG CHAIR AND FURNITURE COMPANY 643 in other concerted activities for the purpose of collective bargaining or other rlutual aid or protection, and to refrain from any or all of such ac- tivities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of el -loyment, as authorized in Section 8 (a) (3) of the Act.' 2 Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Robert C. Moyer and Bruce E. Snyder immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges pre- viously enjoyed. (b) Make whole Robert C. Moyer and Bruce E. Snyder for any loss of pay each may have suffered by reason of the Respondent's discrimi- nation against them, in the manner provided in the section of the In- termediate Report entitled "The Remedy." (c) Upon request make available to the National Labor Relations Board or its agents, for examination and copying, all payroll records, social-security payment records, timecards, personnel records and re- ports, and all other records necessary for a determination of the amounts of back pay due and the right of reinstatement under the terms of this Order. (d) Post at its plant at Lewisburg, Pennsylvania, copies of the notice attached hereto marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply therewith. ME-31BER LEEDOM, concurring separately : I concur in the result reached by Members Murdock and Peterson. It is my view, however, that the Trial Examiner's recommendations rest on his choice as to which witness he believed. I see improbabili- ties in the testimony of witnesses on both sides of the decisive issues, re- sulting in a close fact question, supported on either side if credibility be given the respective witnesses. The record, in my opinion, does a AT L R. B v Entevistle 31anufacturvng Co., 120 F 2d 532 (C A 4) 3In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words; "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 369028-56-vol. 112- 42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not warrant overturning the Trial Examiner's findings as to the wit- nesses' credibility. CHAIRMAN FARMER and, EMBEIZ RODGERS, dissenting: We dissent from the majority's adoption of the Trial Examiner's finding that the Respondent discharged Moyer and Snyder because of their union activities. We are convinced upon the entire record that Superintendent Brouse discharged Moyer and Snyder because he believed that they had de- liberately falsified their production reports for the purpose of obtain- ing compensation which was not clue them. We do not say that our colleagues in the majority are unreasonable in inferring from evidence found to be reliable by the Trial Examiner that these two employees were acting pursuant to instructions and that their erroneous reports were merely the pretext for discharging two union adherents. The evidence is undoubtedly suspectible of that interpretation. But, we are unable to agree largely because we can see no reason why Glover, the cost accountant, would have instructed Moyer and Snyder to report "split orders" differently from the standard procedure which had been in effect for a number of years and with which they were both thoroughly familiar. Even if these two men may have thought that Glover had instructed them to deviate from standard practice-al- though the record disclosed no reason why they should have been given special instructions-we think it was reasonable for Superintendent Brouse to conclude, and we believe that he did, that Moyer and Snyder had falsified their production records. He may have been wrong in this conclusion, and the error may have resulted from a misunderstanding between these two employees and Glover. We would not wish to find on this record that these two employees were deliberately cheating their Employer, but we are convinced that Brouse thought that they were doing just that, and discharged them for that reason. The reason is valid under the Act which we administer even if we assume that there was a mistake as to the fact. Therefore, we would dismiss the com- plaint. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in Upholsterers' Inter- national Union of North America, AFL, or in any other labor organization of our employees, by discriminating in any manner with regard to their hire or tenure of employment, or any term or condition of employment. LEWISBURG CHAIR AND FURNITURE COMPANY 645 AVE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organization, to join or assist Upholsterers' Inter- national Union of North America, AFL, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Robert C. Moyer and Bruce F. Snyder im- mediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make each of them whole for any loss of pay suffered by reason of the discrimination practiced against them. LEWISBURG C11AIn AND FURNITURE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges duly filed by Upholsterers' International Union of North America, AFL, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board, respectively, by the Re- gional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint, dated March 11, 1954, against the Lewisburg Chair and Furniture Com- pany, herein called the Respondent, alleging that the Respondent had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Na- tional Labor Relations Act, 61 Stat. 136, herein called the Act, by discharging Robert C. Moyer and Bruce E Snyder on October 21, 1953, because of their union and concerted activities. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent. In its answer, duly filed thereafter, the Respond- ent conceded certain facts with respect to its business operations, denied the com- mission of the alleged unfair labor practices, and affirmatively alleged that Moyer and Snyder were discharged for cause. Pursuant to notice, a hearing was held on May 12 to 14 and May 18 to 19, 1954, inclusive, at Lewisburg, Pennsylvania. All parties were represented at the hearing, afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions The Respondent's motion to dismiss the complaint, made at the close of its case and upon which I reserved ruling, is disposed of in accordance with the findings herein. Oral argument was had by the attorneys for the General Counsel and the Respondent. Subsequent to the hearing, the Respondent submitted a brief which I have fully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits, and I find, that the Respondent is a Pennsylvania corporation with its office and principal place of business in Lewis- burg, Pennsylvania, where it is engaged in the manufacture, sale, and distribution of chairs and other furniture; that the Respondent annually causes products valued at more than $200,000 to be shipped and transported from its plant to points located outside the Commonwealth of Pennsylvania. Upon the foregoing admitted facts, I find that the Respondent is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED The parties stipulated , and I find, that Upholsterers' International Union of North America, AFL, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction: the issues The union organizational campaign among the Respondent's employees was begun early in March 1953. On April 17, 1953, the Board conducted a consent election in which the Union failed to poll a majority of the votes cast. Thereafter, by agreement of the parties, this election was treated as null and void and a second consent election was conducted on May 23, 1953. The Union failed to poll a majority of the votes cast in this election On October 21, 1953, the Respondent discharged employees Robert C. Moyer and Bruce E. Snyder. The General Counsel contends that these employees were discharged because of their union and concerted activities, the Respondent contends that they were discharged for deliberately falsifying their production records In broad outline, the testimony adduced by the General Counsel in support of his con- tention is to the effect that these two employees were most active in the election campaigns, that thereafter they were the only employees who continued to engage in union and concerted activities, that the Respondent told their foreman to try to find an excuse for discharging them, that the foreman warned them that the Respondent was looking for a pretext to get rid of them because of their union activities, that they did not deliberately falsify their production records but filled them out as instructed, that the Respondent did not in good faith believe that they had deliberately falsified their production records, and that after the discharge their foreman told them that they were discharged because of their union activities. In support of its position the Respondent adduced testimony controverting the testimony adduced by the General Counsel. It also adduced testimony in support of its position that they had deliberately falsified their production records, and that they were discharged for that reason in accordance with the Respondent's practice. The principal issues which have to be decided are (1) the credibility of the witnesses and (2) whether the Respondent discharged Moyer and Snyder because of a good-faith belief that they had deliberately falsified their work records or whether it seized upon the work records as a pretext to discharge them for their union and concerted activities. B. The discriminatory discharge of Moyer and Snyder 1. Their union and concerted activities, Respondent's knowledge thereof Robert C. Moyer and Bruce E. Snyder began working for the Respondent in August and September 1950, respectively. They worked together as a team on machine 18A, known as the polisher, which polished or sanded the material as it went through. In November 1952 Moyer, Snyder, and another employee met with a union organizer in a Lewisburg hotel They discussed the matter of union organization and decided that they would not start a campaign at that time but would wait to see what the Christmas bonus would be like. They did, however, take some union cards back with them. After Christmas, Snyder wrote a letter to the Union, inquiring as to when a representative would be in the area. On March 7, 1953, Snyder met with the union representative at another employee's home where they discussed general LEWISBURG CHAIR AND FURNITURE COMPANY 647 conditions at the factory and how a union could benefit the employees. Later that evening he went to the Legion Hall with employee Melvin Walters, whom Snyder introduced to the union representative, and they again discussed the benefits of a union. They both signed union cards at that time. Thereafter, Snyder met the union representative at the plant gate and helped him to distribute union cards to the employees. A few days later Moyer signed a union card. From that time until the second election on May 23, Moyer and Snyder assisted the union repre- sentative in handing out union cards, papers, and leaflets at the plant gate almost daily. They even handed some of the leaflets and newspapers to the supervisory personnel, including Superintendent Brouse, Foreman William Russell Yost, Fore- man William H. Yost, and General Foreman Delcamp. When not passing out cards or leaflets, they would sit and talk to the union representative during the lunch hour outside the main gate in front of the office. In both elections in April and May 1953, Snyder was the official observer for the Union to check the lists as the employees came in to vote. Moyer represented the Union in going over the eligibility list for the second election on May 23, 1953. After the May 23 election Moyer and Snyder were the only employees who continued to be active on behalf of the Union. Once a month 100 copies of the union newspaper, known as the UIU Journal, were sent to Snyder. Continuing right up to the date of their discharge, Moyer and Snyder would distribute these newspapers during the lunch hour at the plant gate to whoever went in or out, employees and company representatives. Snyder also continued to talk to the plant employees about the benefits of the Union. In August or September 1953, Snyder took an active part in the case of three female employees who had been laid off by the Respondent. He met at the home of one of the laid-off employees one noon and explained their case to the union representative. He also made arrangements with a notary public for the laid-off employees to sign affidavits, spoke to their immediate foreman about their layoff, and one evening went with the union representative to the home of their general foreman to try to get a statement which might be helpful in getting the laid-off employees back to work. Clayton Brouse, the Respondent's superintendent, admitted that he was aware of Snyder's union activity during the election campaigns and that he received some union leaflets from Snyder. He admitted that Snyder was "promoting" the Union but was unwilling to admit knowledge that Snyder was assisting the Union, insisting that he could only "assume" that from Snyder's activities. He further admitted re- ceiving copies of the union newspaper during the period after the elections. He testi- fied however that "they were handed to me by other individuals. I never saw them given out." He denied knowing that Moyer was engaged in union activity at any time. In view of the fact that Moyer's union activities were extensive and openly carried on in close association with Snyder, that Moyer was one of the union representatives who went over the eligibility list at the last election with Brouse being present as one of the company representatives, that Moyer and Snyder were the only employees who openly distributed the union newspaper every month at the plant gate during the period from the last election up to the date of their discharge, and that Brouse had the Union in mind when he called the Respondent's counsel in connection with the discharge of Moyer and Snyder on October 21, 1953, as more fully described later in this report, I find upon the basis of the entire record that Brouse was well aware of the union activities of Moyer and Snyder both before and after the elections. Moreover, Brouse did not deny knowledge of Snyder's efforts to get the three laid-off employees recalled to work, although he testified that he remembered the occasion of the layoffs. While the foremen could make recommendations, Brouse was the only one with final authority to affect the hire and tenure of employment. Under all the circumstances, it is a reasonable inference that Snyder's conduct in championing the cause of the three laid-off employees, his intercession on their behalf with their im- mediate foremen, and his visit with the union representative to the home of their general foreman for the purpose of obtaining statements to help the laid-off em- ployees get back to work, came to the attention of Superintendent Brouse. I so find. 2. Discharge pretext is sought; Moyer and Snyder warned about it 1 a. Foreman William Russell Yost William Russell Yost was the foreman of the machine floor and the immediate supervisor of Moyer and Snyder. He testified that beginning about the middle of i The testimony was in dispute as to whether Mrs Phoebe Albanese, at the time when she was the Respondent's personnel cleric, warned Snyder to refrain from engaging in union activities The record discloses that, as personnel clerk, Mrs Albanese neither possessed 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD March 1953 when the union campaign started, until July, Superintendent Clayton Brouse, on a number of occasions in the presence of certain named foremen, asked him in effect if he could find some reason for discharging Moyer and Snyder as they were undesirable employees because of their union activities. The first time was in the mill office before 7 a m. while Moyer and Snyder were distributing union liter- ature at the gate. According to Yost, Brouse stated on this occasion, "We can see out at the gate who our friends are now," and the went on to say that if the Union had an election and lost, "these undesirable people would have to be gotten rid of." On another occasion in the mill office Brouse asked Yost, according to the latter's testi- mony, "if he could find something the matter with these boys work," naming Moyer, Snyder, and a number of other employees under his supervision; that they "were very undesirable" and "couldn't be discharged for union activities but could be discharged for any other reason." Thereafter, on several other occasions in the mill office, the last one being about 2 weeks before Yost left the Respondent's employ in July, Brouse asked Yost, according to the latter's further testimony, if he had found anything wrong with the work of Moyer and Snyder When Yost replied that he had not, Brouse stated, "We'll have to watch a little closer." Yost also testified that during this period, at two foremen meetings, Brouse stated that "those undesirable workers would have to be gotten rid of," without mentioning any specific names. Yost named the foremen who were present when the foregoing statements were made With respect to the occasions in the mill office, he testified that General Foreman Delcamp and Foreman William H Yost were present He did not re- member whether Foreman Fertig was present on one occasion at the mill office. With respect to the two foremen meetings, he testified that these were not general meetings of all the foremen in the plant but were meetings of the foremen of the mill floor (Delcamp and William H Yost), of the fitting floor (John Straub), and of the sanding department (L. Romick). Yost also testified that during this period he warned Moyer and Snyder a number of times that they should be careful because the Company "had the bug out for them and they were going to be gotten rid of." Both Moyer and Snyder testified that on about four occasions from the commencement of the Union's campaign until late in June, Foreman William Russell Yost came over to their machine and warned them to be careful because the Company was looking for an excuse to get rid of them. Superintendent Brouse denied making the statements attributed to him by William Russell Yost. He admitted that he might have said, "I see our friends are out at the gate" and that, "they gave me some literature like the rest of you." He explained that the characterization, "our friends," was not intended as a sarcastic remark but was used because he did not know that he had any enemies and that he also con- sidered the union organizer as one of his friends He further admitted that he may have made the statement that "we will have to get rid of undesirable employees " He explained that by the term, "undesirable employees," he had in mind those with low production or excessive absenteeism. There is no showing that low production and excessive absenteeism were problems at the plant, or that anyone was ever discharged for such reasons. In fact Brouse admitted that there was very little turnover and had difficulty in recalling any other discharges General Foreman Delcamp and Foreman William H. Yost denied ever hearing Superintendent Brouse make the statements attributed to him by William Russell Yost They admitted hearing Brouse say, "I see our friends are out at the gate." However, they also both denied ever hearing Brouse say, "we have to get rid of undesirable employees," a statement which Brouse admitted making. Foreman Romick testified that he was never at a meeting where Superintendent Brouse told Yost to find a pretext to discharge Moyer and Snyder for union activity However, Yost's testimony was that Romick was present at the foremen meeting where no specific names were mentioned but where Brouse merely made the statement about getting rid of the undesirable employees. Foreman Straub did not testify.2 nor exercised any of the duties of a supervisor within the meaning of the Act. Nor is theie any shoeing in the iecord that the emplovees had just cause to believe that she leas acting for and on behalf of management Upon the basis of the entire record, I am in full agi cement is ith the Respondent s contention, and find, that the Respondent is not liable foi the statements attributed to Phoebe Albanese, even assuming they were made. I therefore find it unnecessart to resolve the_ conflict in testimony in this respect 2Several other foiemen answered in the negative when queried by the Respondent's counsel as to whether they "eves heard" or "iecalled hearing" Biouse state at general foremen meetings attended bl them that a pretext should be found to discharge some employees for union activity however, these foremen were not named by Yost as having LEWISBURG CHAIR AND FURNITURE COMPANY 649 Superintendent Brouse did not impress me as a credible witness On several material matters he failed to testify in a forthright manner, was evasive and incon- sistent, and tried to fence with the General Counsel in his answers His lack of candor, inconsistency, and reluctance to disclose the true facts are further demon- strated elsewhere in this report Nor can I attach much weight to the denials of Delcamp and William H. Yost. As previously noted, they also denied having heard the statements which Brouse admitted making They both testified in a manner which indicated to me more of a concern not to give answers unfavorable to their Employer than to disclose the true facts as they knew them. As for Foieman Romick, he did not testify with respect to the only statement attributed to Brouse in Romick's presence On the other hand, William Russell Yost impressed me as an honest and sincere witness. He testified in a calm, assured, and specific manner. While a comparison between his direct and cross-examination discloses some confusion as to the exact meeting at which a particular statement attributed to Brouse was made, this is quite understandable as the events in question occurred about a year prior to his testimony The essence of his testimony, however, remained the same and was not shaken by a long and vigorous cross-examination. His testimony concerning his warnings to Moyer and Snyder is corroborated by Moyer and Snyder who, I find for reasons hereinafter set forth, are credible witnesses. Yost's testimony that only the names of Moyer and Snyder were repeatedly mentioned by Brouse, to my mind, explains why only they were warned by him Moreover, when the Respondent's counsel interviewed him about a week before this hearing, Yost gave essentially the same version about Brouse's statements, thereby demonstrating his consistency both off the stand and as a witness under oath. In appraising the reliability of Yost's testi- mony, I have given full consideration to his admitted belief that the Respondent treated him in a "dirty, stinking way" by demoting him from his foreman's job in July 1953, which resulted in his acceptance of the Respondent's alternative offer of a 30-day severance pay. I recognize that such a feeling could give rise to a biased attitude towards the Respondent On the other hand, the fact that he openly and readily admitted his feeling in this regard and explained the basis for it, could also attest to his candor, forthrightness, and intention to disclose all the true facts His testimony that he felt no animosity toward the Respondent is consistent with the later analysis, which I accept. Resolving the credibility of witnesses is usually a difficult and trying task In arriving at my resolution in this as well as in the other instances in this report, I have attached great weight to the impressions and reactions which I received from a careful and searching scrutiny of the witnesses while testifying on the stand Under all the circumstances, I credit the testimony of William Russell Yost and find that Superintendent Brouse, in substance, asked Yost on a number of occasions to try to find something about the work of Moyer and Snyder which could serve as an excuse for discharging them because their union activities made them un- desirable employees, and that Yost warned Moyer and Snyder to be careful because the Respondent was looking for an excuse to get rid of them. b. Foreman William H. Yost 3 After the Union lost the second election on May 23, 1953, Moyer and Snyder were the only employees who continued to be active on behalf of the Union As previously found, sometime in August or September 1953, Snyder took an active part in trying to get the three laid-off employees reinstated and in enlisting the aid of the Union on their behalf Moyer testified that late in September or early in October 1953, Foreman William H. Yost, who replaced William Russell Yost as their immediate superior, came over to their machine, that Yost motioned for Moyer to come around to Snyder's side of the machine, that Yost propped his foot up on a truck that was alongside the machine, that Yost stated that he was not "supposed to tell you fellows this" but that he wanted to warn them to "be careful what you do" because the "Company's out to get you"; that he asked Yost what he meant by "out to get us"; that Yost replied, "You know as well as I do," that "you two are very strong for the Union" and that the "Company wants to get rid of you", that Yost warned them not to "say anything that I told you fellows about this"; and that they thanked him for his warning been present at the meetings in question and they themselves admitted that the foremen of the mill department have their own meetings which they do not attend Moreover, Yost did not testify that such statements were made at general foremen meetings. 3 He is not related to William Russell Yost. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Snyder, who worked with Moyer as a team on the same machine, corroborated Moyer as to his conversation with Yost in all specific details. Yost denied ever making the statements attributed to him by Moyer and Snyder. He did admit having a conversation with them about that time in which he told Moyer about employee complaints concerning the disturbing noises resulting from Moyer dropping certain steel drums, that "I told them they'd better be careful" and that "they ought to watch themselves." When asked by the Respondent's counsel if he had ever discussed union activities with them, Yost replied, "not to the best of my knowledge." I do not credit Yost's denials. As previously indicated, Yost did not impress me as a credible witness by his demeanor on the stand. He was not a very forthright witness and testified in a manner which leads me to conclude that he was refraining from disclosing any facts which might be regarded as unfavorable to the Respondent. Moyer and Snyder were responsive and cooperative witnesses who, throughout their testimony, impressed me with their sincerity, candor, and forthrightness They both testified with the clarity and detailed specificity which usually does not accom- pany a fabrication. Their testimony was not shaken by a vigorous cross-examination. The mere fact that their testimony coincides does not, to my mind, detract from its trustworthiness. As they were both active union protagonists who worked as a team on the same machine, whatever affected one would normally arouse the close atten- tion of the other. Their honesty and proclivity to disclose the true facts is further demonstrated by the ready admission that they had discussed the facts between them before testifying. Under all the circumstances, I credit the testimony of Moyer and Snyder and find that, in substance, Foreman William H. Yost made the state- ments attributed to him. 3. Events immediately preceding the discharge a. The Respondent's operations 4 A brief explanation of the Respondent's operations may be helpful to a complete understanding of the material incidents involved. The employees at the plant worked a 9-hour day. However, the Respondent had an incentive system which enabled an employee to get more than 9 hours work credit for a day. The Respondent's desired level of efficiency under this system was about a 130 percent efficiency, which meant about 12 hours' work credit for a 9-hour day. The work performed by Moyer and Snyder on machine 18A, known as the polisher, was part of a chain operation, with other employees performing different machine operations on the same material both preceding and following Moyer and Snyder. Each order was accompanied with a work ticket which consisted of a number of perforated stubs on the left and right sides of the ticket. Each stub showed the number of the machine upon which a specific operation was to be performed and the name of the part involved. On each stub was also marked the total quantity of the order involved, the man-hour rate previously determined for the particular operation, the setup time alloted for that operation, and a space for the computation of the total work hours to be credited for the performance of that operation. The rate is the amount of time needed to do the work at the particular operation on 100 pieces. The total number of work hours to be credited for a particular operation was determined by multiplying the rate by the number of pieces run by the operator and then adding the setup time As an order passed through each operation, the applicable stub for that operation was removed from the work ticket by the operator and glued to his daily production sheet, or daily worksheet as it was sometimes called. As Moyer and Snyder worked as a team, they used only one daily worksheet. If the number of pieces run by an operator differed from the quantity listed on the stub, the operator would cross out the quantity listed and write in the number of pieces actually run by him on that operation. Sometimes only a portion of an order came through for processing, with the work ticket for the entire order remaining with the balance of the order which would come through a few days later. This was known as a shortage or split order. When that occurred, the operator did not have a stub to glue to his daily worksheet for the first portion of the order. In that event, he merely wrote down on his daily worksheet the order number involved, the name of the particular part on which he worked, and the number of pieces which he actually ran. When the balance of the order came through a few days later, accompanied by the work ticket on which 4 The findings in this section, as to which there is no dispute, are based on a stipulation of the parties and undisputed testimony. LEWISBURG CHAIR AND FURNITURE COMPANY 651 was marked the quantity for the entire order including the portion already run, the operator would cross out the total quantity listed on the applicable stub, write in the number of pieces actually run by him that day on the remaining portion of the order, and glue that stub on his worksheet for that day. The checker on the first floor counted the number of pieces actually run on an order and recorded the total, together with the order number and the name of the item, on a white check sheet: During the course of a day's work, an operator would sometimes have occasion to do some work which did not come under the incentive system. This was called daywork as distinguished from incentive work. On such occasions, he would merely write on his daily worksheet the type of work performed and the amount of time involved. An employee's daily production sheet would thus contain the stubs of all orders on which he worked plus whatever he himself wrote on the worksheet in the case of a split order or daywork. At the end of the workday, the daily production sheets were collected by the immediate foreman who checked them in his office and initialled them if they ap- peared to be correct. The next day these sheets were turned over by the foreman to William Glover, the Respondent's efficiency cost accountant, whose chief duty was to check for irregularities. Glover analyzed the daily worksheets to see if the foreman initialled them properly, checked the quantities listed on the stubs and the multiplication by which the work hours to be credited for the various operations was determined, added up the total number of work hours to be credited to the em- ployee for that day, and recorded that number on the upper right hand corner of the daily worksheet. If Glover discovered an irregularity or duplication of an order by an employee, it was his practice to consult the immediate foreman involved. If the foreman reported that the duplication was intentional and that the duplicated order was not actually run by the employee, Glover would report the matter to Superintendent Brouse. After Glover finished inspecting the daily worksheets, they went to the cost department where the wages to be paid for the day's work was computed. The employees were familiar with the above described operations. They all knew that it was the foreman's job to check the daily production reports before initialling them, that it was Glover's job to look for irregularities in the reports, and that the inspector counted and recorded the total number of pieces actually run on an order. b. Incident concerning Glover's instructions on split orders Machine 18A, which was operated by Moyer and Snyder, was a new type polishing machine. There was also an old type polishing machine, known as machine 18, which ran much slower than machine 18A. Very frequently, material, accompanied with a work ticket marked machine 18, was sent to Moyer and Snyder for processing on machine 18A. As the man-hour rate for machine 18A was different from that listed on the ticket for machine 18, it was Glover's practice to come down to Moyer and Snyder in the afternoon to collect the machine 18 tickets, correct them in his office to conform to the machine 18A rate, and return the corrected tickets to Moyer and Snyder so that the applicable stub glued on their daily worksheet would contain the machine 18A rate. There was a period about October 1953 when Glover had neglected to pick up the machine 18 tickets to make the necessary rate changes .5 Moyer and Snyder testified that about 2 weeks before their discharge on October 21, 1953, Moyer called Glover over to their machine and the following conversation ensued: Moyer asked Glover why he had not been coming down anymore to pick up the machine 18 tickets to change the rate to machine 18A. Glover replied that he was too busy, that they should just paste the machine 18 stub on their daily worksheet, and that he would correct the rate when the sheets came to his office. Moyer then asked Glover what they should do in the case of a split order. Glover told them to write down on their worksheet the amount actually run on the day when the first part of the order came through and that, when the work ticket came through with the balance of the order, they should change the quantity listed on the ticket to reflect the total number of pieces run on the entire order. Glover stated that he would catch it in his office when he went over the daily worksheets and make the necessary correc- tions of which he would later inform them. Although Glover was present in the hearing room throughout the entire testimony of Moyer and Snyder, he did not testify with respect to the above conversation. He admitted changing rates on tickets. On the crucial question by the Respondent's counsel as to whether he had ever instructed Moyer and Snyder on the manner of 5 The findings in this paragraph aie based on the undisputed and credible testimony of Moyer and Snyder 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reporting split orders, his negative answer was given in a defensive manner. On another issue to which a great deal of significance was attached at the hearing, he shifted his position several times, depending on which side was questioning him 6 His testimony on that issue demonstrates an alacrity to shift to a version more favor- able to the Respondent when questioned by the Respondent's counsel. Under all the circumstances, Glover did not impress me as a reliable witness. I have already found Moyer and Snyder to be credible witnesses. Their testimony concerning Glover's instructions on the handling of machine 18 tickets and that in the same conversation Moyer asked Glover what to do about split orders, stands wholly unrefuted in the record. I credit their testimony. On the very next occasion when a split order came through, they recorded it on their worksheet in accordance with their version of Glover's reply to Moyer's question in this conversation, as described in detail later in this report. If, in response to Moyer's question on what to do about a split order, Glover had answered in terms which were not at least reasonably susceptible of the reply set forth in the testimony of Moyer and Snyder, it hardly seems likely to me that, after initiating the subject, they would have deliberately defied Glover, especially when they were fully aware that such a departure was too obvious to escape detection. It may be noted that during the period in question there was some confusion at the plant because the Respondent was in the process of lowering the in- centive rate and raising the base pay, so that the take-home pay would be the same. Under all the circumstances, I find that at the very least Glover's reply to Moyer's question of what to do about the split orders reasonably led Moyer and Snyder to be- lieve, and that they in good faith interpreted his reply to mean, that they were to handle them in the manner in which they testified. c. The split order of October 1953 On October 14, 1953, Moyer and Snyder processed the first portion of a split or shortage order on table leaves. As the work ticket remained with the balance of the order, they merely wrote on their daily worksheet for that day the order number, the item, and the number of pieces which they actually ran through their machine, which was 374 table leaves. On October 19, 1953, the balance of the order came through, accompanied with the work ticket for the entire order. There were 42 table leaves in the balance of the order which they ran through for that day The quantity of table leaves for the entire order listed on the applicable stub of the work ticket was 400. This number included the 374 leaves previously run on October 14. There were 16 extra pieces to allow for spoilage. In accordance with their under- standing of Glover's recent statement on what to do with a split order in the con- versation previously mentioned, Moyer and Snyder crossed out the figure 400 listed on the stub and in its place wrote 416, which was the total number of pieces which they actually ran on that entire order on October 14 and 19. They then glued the applicable work stub, containing the 416 figure, onto their daily worksheet, which also contained the stubs of other orders processed by them that day. At the end of the day, this worksheet was in due course collected and initialled by their im- mediate foreman, William H. Yost. When first questioned by the General Counsel as to why he wrote the word "ticket" on the worksheet of Moyer and Snyder for October 14, 1933, and not on the worksheet of other named employees who had recorded the same order in the same manner, Glover testified that he did it to remind hint to check against the original ticket to see if the order was duplicated and lie did not feel it necessary to check on the other employees because they had proved themselves to be accurate and iehable lion ever, these is no showing or claim that Moyei and Snyder had ever befoie made eiioneous or inaccurate reports Thereafter, on examination by the Respondent's counsel, lie was asked whether writing the word "ticket" on one woi kslieet would not be a sufficient reminder for him to check the entire order upon which all the employees worked and whether his reason for writing "ticket" on the worksheet of Moyer and Snyder could have been to renund him to check that particular older and not the individuals involved Glover replied in the affirmative when questioned again by the General Counsel whether the reason lie did not write "ticket" on the work reports of the other named employees was because they had proved themselves to be reliable and therefore did not have to be checked, lie again answered in the atfnimative A few days later when Glover was recalled by the Respond- ent's counsel and asked again why lie wrote the nord "ticket" only on the worksheet of Moyer and Snyder, lie testified it was because their operation was one of the last before the material would go upstairs and lie wondered whether the men upstairs would have a ticket to go by LEWISBURG CHAIR AND FURNITURE COMPANY 653 d. Investigation of work reports on the split order Superintendent Brouse testified that on October 20, 1953, Glover reported to him on the telephone that there was an irregularity on the work records of Moyer and Snyder for October 14 and 19; that, at his request, Glover brought the reports into his office, that he saw that on the order in question 374 table leaves were reported on the worksheet for October 14, and 416 were reported for the same order on the worksheet for October 19; that he then called in General Foreman Delcamp, showed him the reports, and instructed him and Mr. Huntington of the production and planning department to count the number of table leaves on the floors to ascertain whether there were 1 or 2 orders of table leaves in process, and that Delcamp and Huntington later reported back to him and Glover that there were 415 or 419 table leaves but no double order in process. He further testified that it looked to him like a "loading of reports", that in accordance with his customary practice before discharging an employee, he called the Respondent's attorney and presented the case to him; that the Respondent's attorney advised that "he would go along with the discharge" provided the men had no satisfactory explanation; and that on October 21, he instructed General Foreman Delcamp to have Moyer, Snyder, and their immediate foreman, Yost, come to the personnel office at 4.45 p m. Brouse testified that when he first called Delcamp into his office on October 20 in connection with these reports, "I didn't ask him any particular thing about it I simply asked him to check the reports, and then make the count." However, Delcamp testified on cross-examination that, after showing him the reports, Brouse asked him if he agreed it was "padding" or "cheating" on the part of Moyer and Snyder, that he (Delcamp) replied, "it looked that way", and that after the con- versation about cheating, Brouse instructed him to make the count. Brouse could have readily ascertained whether there were I or 2 orders of table leaves in process at that time by examining the white check sheets prepared by the first floor checker, Irving Heim, who recorded the total number of pieces actually run by Moyer and Snyder on every order However, he testified that he instructed Delcamp and Huntington to go on the floor and count the number of table leaves involved Delcamp testified that after checking the mill floor himself he went up to the fitting floor and asked Huntington to "go along to prove my check." Hunting- ton testified that it was Glover who asked him to count the number of leaves on the different floors. Glover did not testify at all as to what he did after inspecting the work reports of Moyer and Snyder. Brouse also testified that he asked General Foreman Delcamp why Yost had initialled the October 19 work report and that the "report I got back from the General foreman" was that Yost "put his signature on there without checking all the details." Delcamp did not corroborate Brouse in this respect Delcamp testified that he first informed Yost about the matter on the morning of October 21 and that Yost made no comment. He admitted that he did not ask Yost why he had ini- tialled the October 19 work report. Yost testified that the first he heard about the entire matter was on the morning of October 21 when Delcamp merely informed him that "there was some discrepancy in the work reports" of Moyer and Snyder "for the 14th and 19th," and that "it was being checked." As previously noted, Glover gave no testimony at all as to what he did or whom he consulted in connection with the work reports in question It is obvious, how- ever, from all the other testimony that in this case Glover did not follow his admitted customary practice of first checking with the immediate foreman when an irregularity or seeming duplication is discovered and not reporting the matter to Brouse unless the immediate foreman advised that the duplication was intentional. Brouse testified that he discussed the matter only with General Foreman Delcamp, and not with Yost, the immediate foreman of Moyer and Snyder. He further testified that the first time he saw Yost in this connection was when they assembled in the personnel office, pursuant to his request, about 4.45 p in. on October 21. However, he admitted dictating and signing a statement, in the presence of the Respondent's counsel and a field investigator of the General Counsel, in which he said that "after gathering the above information, and discussing it with Franklin Delcamp, general foreman, and Mr William Yost, the immediate foreman of Moyer and Snyder, it was decided to call the men in the personnel office at 4 45 and present the case to them." When pressed by the General Counsel for an ex- planation, Brouse testified that, "in my own mind," dealing with the general foreman is "the same thing as dealing with the immediate foreman," and that the difference between the written statement and his testimony was only a technical one On cross-examination, Brouse testified that the reason he consulted the Respond- ent's counsel was because he "wanted everything clear so that there was no reflec- tion in any way for reaction, should something come up in relation to the discharge." 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He admitted that he had no doubt in his mind that he could fire an employee for what he regarded as stealing but that he still wanted to check with the Respondent's counsel "to see if everything is in order with the law." When asked what law he had in mind, Brouse testified, "Nothing special. We knew we were through the Union test, and Mr. McNerney has been our lawyer for several years, and why shouldn't I confer with him on anything relating to it." 4. The discharge of Moyer and Snyder About 4:45 p. in. on October 21, pursuant to Brouse's instructions, Moyer, Snyder, and Yost came to the personnel office.? Present in the office also were Delcamp, Brouse, and Crow, the Respondent's personnel officer. According to the composite testimony of Moyer and Snyder, the following, in substance, occurred: Brouse showed them their daily work reports for October 14 and 19 and pointed out that with respect to the table leaves for the order in question they had listed 374 pieces on October 14 and 416 pieces on October 19, whereas Arthur Heim's report on the operation immediately preceding theirs listed 42 pieces for October 19. Brouse asked them if they were trying to cheat the Company and get paid twice, and stated' if they did not have a good explanation they would both be discharged immediately. Moyer admitted to Brouse that the 416 figure on the October 19 work report in- cluded the 374 pieces listed on the work report of October 14 but claimed that Glover had instructed them to report a split order in that manner. At that point Brouse called Glover into the personnel office. Moyer then called Glover's attention to the time when he came down to their machine and told them he was too busy to pick up the machine 18 tickets but that they should paste them on their worksheet and he would correct the rate when he checked the worksheet in his office He asked if on that occasion he did not tell them that in the case of a split order they should write down on the daily worksheet the amount they ran the first time and then when the ticket came through with the balance of the order they should change the total number on the ticket to conform to the exact number they had run on the entire order. Glover re- plied that that was a "big statement," and that he would not say that he did or did not make such a statement but that he did not remember saying it. Brouse then stated that it looked like they were trying to cheat the Company and asked Yost what he thought about it. Yost's reply was to the effect that he did not have time to go over each man's time sheet thoroughly each day. Brouse then asked Delcamp what he thought, and Delcamp replied that he thought they were trying to cheat the Company. Moyer called Brouse's attention to the figure 17 78 which Glover had written on the upper right-hand corner of their October 19 worksheet as representing their total number of work hours credited for all operations recorded that day, including the operation for 416 table leaves,8 and asked Brouse if he thought "one man could run that num- ber of hours in one day." Brouse answered, "No, I don't think it's possible for you to run that many hours in one day." Moyer then pleaded with Brouse that "we are not trying to cheat the Company"; that if they had been trying to cheat the Company, "we'd carry it over a period of days, instead of putting it all down in one day" because "it's too obvious, that we could been seen." Brouse agreed that "it does look too obvious." Brouse did not accept Moyer's explanation and told Crow to pay them off. Except in the three respects hereinafter indicated, the foregoing testimony of Moyer and Snyder was not materially disputed by Brouse, Delcamp, and Yost, the only wit- nesses who testified on this matter on behalf of the Respondent. Under all the cir- cumstances, and for the additional reasons indicated below with respect to the disputed aspects, I credit the entire version of Moyer and Snyder as to what occurred in the per- sonnel office. Brouse testified that after Moyer and Snyder left the room, he made a memorandum of his version of what took place in the personnel office, that he showed it to the company representatives present in the room, and that he "asked them if that's what happened." Delcamp testified that Brouse showed him this memorandum and 7Delcamp testified that Brouse instructed him by telephone to have "Bill Yost bring Snyder and Moyer up to my-to the personnel office, at four -forty-five, and unless they can give us a satisfactory explanation , we are going to let them go, or fire them " He fuither testified that he transmitted this message to Yost and that Yost merely stated "he would bring them up " Moyer testified that when he asked Yost why he was wanted in the personnel office , Yost replied that he did not know 8In arriving at the figure 17.78 , Glover added the work hours to be credited for running 416 table leaves instead of for the 42 which were actually run that day. LEWISBURG CHAIR AND FURNITURE COMPANY 655 "asked me if that's what happened in there, and I said, `Yes, sir.' " Yost testified that he left the room "as quick as Mr. Brouse told Mr. Crow to make out their pay," and that he did not see the memorandum. The most important conflict between the testimony of Moyer and Snyder and that of the Respondent's witnesses relates to the nature of Glover's reply to the query as to whether he had instructed Moyer and Snyder to report a split order in the manner in which they testified. Brouse testified that Glover replied, "That's an awful big statement. I never told them that." Delcamp and Yost testified that Glover stated he had never given them such instructions. However, I regard it as significant that on this important issue Glover, the only person who was in the best position to know what he himself had said at this meeting in the personnel office, did not testify. Under all these circumstances, and for the reasons already stated concerning the credibility of the witnesses concerned, 1 credit the testimony of Moyer and Snyder and find that Glover's reply was to the effect that he did not remember and would not say that he did or did not make the statement attributed to him. According to the testimony of Brouse and Delcamp, it was Brouse, and not Moyer, who asked Glover if he had told them to make out their reports on a split order in the manner in which they recorded it. They testified that Moyer did not talk to Glover at all. Yost testified that Moyer was the one who asked Glover this question and that Brouse asked him the same thing. That Moyer would question Glover on this occasion, seems to me to be more in accord with the realities of the situation. Under all the circumstances, and for the reasons already indicated, I credit the testimony of Moyer and Snyder and find that Moyer questioned Glover in the manner hereinabove related. Brouse testified that when he asked Yost's opinion as to whether it looked like the men had padded their report and were trying to cheat the Company, he "believed" that Yost replied that "it looks that way." Delcamp testified that Yost's reply was to the same effect. Yost at first testified that he did not "remember" saying anything more than that he was too busy to check the reports thoroughly. This much is corroborative of the testimony of Moyer and Snyder. On being questioned further as to whether that was his only comment or whether he said that "it looked that way," Yost replied, "I may have said that, too." When he was pressed for a definite answer as to whether he made the latter statement, Yost testified, "I think I did; yes, sir." In view of Yost's first response, the luck of definiteness in the testimony of Yost and Brouse as to whether the later statement was made, and for the reasons already indicated concerning the credibility of the witnesses concerned, I credit the testimony of Moyer and Snyder and find that Yost's reply was only to the effect that he was too busy to check each man's report thoroughly. 5. Events immediately following the discharge a. Incident concerning calendar of Moyer and Snyder For their own personal use, Moyer and Snyder had a calendar hanging behind their machine. At the end of each day, they wrote down on the corresponding calen- dar date the total number of work hours which they figured should be credited to them for that day. At the end of the week, they added up the figures recorded for each day and wrote the total on the Saturday date for the corresponding week. Their purpose in keeping this check was to see if they received the proper amount of bonus. Both Glover and Yost were aware of their practice in maintaining this calendar. Moyer testified that in the case of a disagreement with Yost, he would iefer Yost to the number of hours marked down on the calendar and sometimes Yost would look at the calendar. Yost admitted seeing the calendar near the machine and that "at one time when we had a little difference in our time there, he [Moyer] pointed out where he had marked it down by the date." The calendar, which is in evidence, shows that the figure written down for October 19 is 11.45+. Moyer testified that that figure represented their computation of the total number of work-hours credit performed by them for that day, and that the "plus" referred to the machine 18 tickets which Glover had failed to pick up and which had to be changed by Glover to conform to the machine 18A rate 9 Moyer further testi- fied that in computing the work-hours credit for the balance of the split order in Corroborative of Moyer's testimony in this respect is the fact that their October 19 daily worksheet, which is in evidence as an exhibit, does contain three machine 18 work stubs; whereas their daily worksheet for October 14, also in evidence as an exhibit, does not contain any machine 18 work stubs and the figure marked on the calendar for October 14 has no plus sign after it 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD question, he used the figure 42, which was the number of table leaves actually run that day, and not the figure 416 which he had marked on the worksheet for that day in accordance with Glover's instructions, as previously described. 1 credit the fore- going undisputed testimony of Moyer. On October 22, the day after their discharge, Moyer and Snyder went to see Robert Parker, the Respondent's general manager, to enlist his aid in getting their jobs back. According to the undisputed testimony of Moyer and Snyder, which I credit, the fol- lowing conversation occurred in Parker's office: Moyer first asked Parker if he was aware of their discharge the preceding day. When Parker replied that he was, Moyer asked if he could do anything for them about it. Moyer told Parker that "we did not try to cheat the Company in anyway whatsoever," that "it was too obvious to try to put seventeen hours down in one day and try to get away with it," and that "it's impossible to try to run that much in one day on that type machine." Parker answered, "Yes, I think it is, too." Moyer then told Parker about the calendar hanging behind their machine, informed him that on the calendar was marked the number of work hours they had figured out they were to be paid for that day, and stated that that figure would show they were not trying to cheat the Company. Parker told them he would check into it and let them know. A few days later Moyer received a letter from Parker, dated October 23, which stated: We have examined the calendar and find that it does not in any way excuse you from intentionally changing the four hundred to read four hundred and sixteen. Your discharge was based on falsification of records, and we can have no other conclusion but that it was done intentionally. Superintendent Brouse testified that, at Parker's request, he examined the calendar hanging near Moyer's machine, that he saw the figure "eleven, point, something, plus" written on the date for October 19, that "we could not determine that the `plus' meant anything," and "so, as far as we are concerned, it has no bearing on the case." On cross-examination Brouse admitted that it was obvious and reasonable to as- sume that each of the figures alongside each of the dates on the calendar was the men's approximation of the hours to be credited to them. He also admitted that, because the rates were being changed during that period, it was quite possible that the men would not be sure what they would be ultimately credited with in the office and that that would be a reasonable and obvious reason why they would write "plus " He further admitted that he knew that machine 18 was paid differently from machine 18A, that sometimes machine 18A men were handed tickets made out for machine 18, that the men could assume adjustments would be made in the office, and that that would be an obvious reason why they would write "plus." Despite his awareness of all these factors, Brouse testified that he did not even bother to ask Yost about the meaning of the calendar, although he further admitted that it was reasonable to assume that Yost would have seen the calendar. He further testified that he also did not ask Moyer and Snyder about it. b. The visits to Foreman Yost's home Moyer and Snyder testified that about 4 or 5 days after their discharge, and on a number of occasions thereafter, they visited Foreman William H. Yost at his home where they talked to him about their discharge and things in general at the plant. In substance, their relevant testimony with respect to these visits was as follows- When they asked Yost on their first visit how he felt about their discharge, Yost told them that he had warned them "the Company was looking for an excuse to get rid of them and that they did it " Having been advised by the Union to try to get statements from anyone whose testimony would be helpful to their case in connec- tion with the filing of an unfair labor practice charge, they asked Yost on one of these visits if he would sign a statement for them concerning "what he had told us about." Yost indicated his willingness but told them he was too busy that night. However, after making arrangements with a notary, they were told by Yost on a subsequent visit that he could not sign such a statement because of his position as foreman. On one of their visits Yost told them they all knew the reason they were fired was because of their union activities. On their last visit they went there with "another fellow," Tom Smith, and asked Yost if the employees were still changing the quantities on their tickets Yost named an employee who had changed his ticket the preceding day, and told them that the employees were doing it all the time. LEWISBURG CHAIR AND FURNITURE COMPANY 657 Yost admitted that Moyer and Snyder visited his home a number of times after their discharge. With respect to these visits he testified in substance as follows: On their first visit, they asked him why they were fired. He told them that "you boys know as well as I do. They had the evidence right there." When they asked him if he could help them get their jobs back, he told them he could not do anything and that it was up to management. On another visit, they wanted to know if he would sign an affidavit to the effect that they were fired for union activity. His only re- sponse to this request was, "no, I wouldn't." They also asked him if the work tickets were still being changed. When he replied in the affirmative, they asked him if he would sign an affidavit to that effect. He told them he had no objection but that he did not see what good it would do them as that was a common practice. On a subse- quent visit they came with "a man they introduced as Mr. Smith," and wanted him to go along and sign an affidavit that they were still changing the work tickets. Yost re- fused to go because he was expecting company that night The material credibility issue to be resolved is whether Yost told Moyer and Snyder, in effect, that he had wai ned them that the Company was looking for an excuse to get rid of them, that the Company had found such an excuse, and that they were discharged because of their union activities. I have already found Moyer and Snyder to be honest and forthright witnesses with a proclivity to disclose the true facts. If Yost had in fact told Moyer and Snyder on their first visit that they were in effect discharged for cause, it does not seem to me in keeping with their character that they would under those circumstances come back several times to try to pressure their foreman into signing a false affidavit. That Yost must have told them something in this first visit which encouraged them to come back and make such a request, seems more believable. Moreover, their version has a true ring in the light of the findings already made in this report. Yost, on the other hand, has previously been discredited on other disputed testimony. Under all the circumstances, and for the reasons previ- ously indicated concerning the credibility of these witnesses, I credit the testimony of Moyer and Snyder and find that, in substance, Yost made the above statements attributed to him. 6. Concluding findings The Respondent contends that Moyer and Snyder deliberately padded or falsified their work repoits with the intention of defrauding the Company by recording the entire split order of 416 table leaves on the October 19 work report, and that they were discharged for this deliberate falsification in accord with company policy. As heretofore found, Moyer and Snyder did not falsify the work reports in question but recorded their production in accordance with their understanding of Glover's previous explanation in response to Moyer's question of what to do with a split order. In my opinion, however, this finding does not dispose of the Respondent's defense For, if Superintendent Brouse in fact entertained a good-faith, albeit mistaken, belief that Moyer and Snyder had deliberately falsified their work reports and discharged them because of such a good-faith belief, that would be a complete defense to the discharge. There remains therefore for determination the good faith of Superintendent Brouse. A full and careful consideration of the record as a whole leads me to conclude that Brouse did not entertain such a good-faith belief. At the meeting in the personnel office on October 21, Glover did not deny Moyer's claim that Glover had told them to record a split order in the manner in which they recorded it. Glover stated that he would neither affirm nor deny it because he did not remember. Glover's response certainly afforded no basis for a good-faith belief that the records had been deliberately falsified At the very least, such a response left the question of Moyer's veracity unanswered. At the most, such a response would create the belief that Moyer's explanation could be true. It is also significant, as pointed out to Brouse, that if Moyer and Snyder had de- liberately falsified their production on the October 19 report, it would mean that they were claiming credit for having run 17 78 work hours for that day, an amount which Brouse admitted at the meeting in the personnel office it was impossible to run in 1 day. Brouse examined the production of the employees each week. Moyer and Snyder were known to average about 12 or 13 work hours a week. All employees were familiar with the Respondent's methods of checking production, including Glover's function to check for irregularities in the work reports and the function of the checker on the first floor to count and record the number of pieces actually run on an order. As Brouse himself admitted when Moyer called it to his attention in the personnel office meeting, a claim for 17.78 work hours credit in 1 day was so obviously out of line that it would be impossible to avoid detection. That Brouse, after the foregoing matters were called to his attention, entertained a good-faith belief that under such circumstances Moyer and Snyder, who appeared to be intelligent employees, de- 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD liberately falsified their production records to claim credit for having run an impos- sible number of work hours, strains credulity. In addition, the testimony concerning the manner in which the investigation of the work reports was conducted, as heremabove detailed, bears further on Brouse's lack of good faith. I note in particular the inconsistencies and discrepancies in the testi- mony, the failure to consult with Yost, the immediate foreman involved, and Brouse's attempt to cover up such failure by his contrary written statement submitted to the General Counsel's field investigator. Furthermore, the manner in which Brouse ignored the marking on the calendar, called to his attention the very next day after the discharge, casts additional doubt on the existence of any good-faith belief of deliberate falsification. On the October 19 calendar date was marked the figure 11.45±, which Moyer had informed General Manager Parker represented the number of work hours they had run and for which they claimed credit that day. Brouse testified that the calendar meant nothing to him because he did not known the meaning of the plus sign.. Although he agreed that it was reasonable to assume that the plus sign had reference to the rate changes which had to be made on machine 18 tickets, a practice of which he was aware, and that it was reasonable to assume that Foreman Yost would have seen the calendar, he made no inquiry about it either of Moyer and Snyder or of their immediate foreman, Yost. Such conduct bespeaks a fixed mind, sealed against the thought of examining any additional data which might serve to undermine a previously determined posi- tion. The record does not support the statements in the Respondent's brief that "no one individual in a supervisory capacity made the decision to discharge Moyer and Snyder" and that "a group of several supervisory employees of respondent finally determined that Moyer and Snyder intentionally falsified their production records and that discharge of these men for so doing was the proper way to handle the matter in order to maintain plant discipline and discourage dishonesty." The record is clear that there was no real discussion or consultation among the Respondent's supervisors. At the meeting in the personnel office, only Delcamp agreed with Brouse's statement that it looked like they were trying to cheat the Company. Foreman Yost, as previ- ously found, parried Brouse's question in this regard by merely stating that he did not have time to check each man's report thoroughly. In fact Yost testified that if he had noticed the manner in which the split order was recorded on the October 19 work re- port, he would have called it to the attention of Moyer and Snyder and, after giving them an opportunity to change it, would have concluded that they were not at- tempting to cheat the Company. Only if an employee were constantly reporting more than he actually produced, Yost testified, would he conclude "that he was intentionally building up his payroll." The record warrants the conclusion, which seems obvious to me, that Brouse was the controlling force throughout, that Brouse alone decided upon a course of action, and that Brouse alone made the decision to discharge Moyer and Snyder. In assessing the good faith of Brouse with respect to his belief of a deliberate falsification, I cannot wholly ignore the fact that Brouse was not a credible witness in many respects, that he regarded Moyer and Snyder as undesirable employees because of their union activities, and that he was desirous of finding something about their work which might serve as an excuse for discharging them. Nor can I close my mind to the statement of Yost, their immediate foreman who was present at the meeting in the personnel office, that the Company was looking for an excuse to get rid of Moyer and Snyder because they were "very strong" for the Union and that they were discharged because of their union activities No one factor is conclusive and some no doubt carry more weight than others. But when all of them are added together and considered as a whole, I am con- vinced and find, upon the basis of the entire record, that Brouse did not in good faith believe that Moyer and Snyder had deliberately falsified their work reports and consequently did not discharge them for that reason. The two prior instances of discharge for falsification of work records, relied upon by the Respondent, are inapposite. For Brouse testified that the employee in each case admitted that he had "loaded" his report to get more pay. Moyer and Snyder were the most active protagonists of the Union. Snyder was also the prime instigator of the union campaign. Brouse was aware of their exten- sive activities during the election campaigns and regarded them as undesirable employees for that reason. He unsuccessfully sought to have their foreman find something about their work which might serve as an excuse for discharging them. With the loss of the last election on May 23, 1953, all other employee interest in the Union ceased Only Moyer and Snyder continued to display any further LEWISBURG CHAIR AND FURNITURE COMPANY 659 interest in the Union and openly carried on their activity on behalf of the Union right up to the date of their discharge. Brouse was aware of their continued and persistent promotion of the Union. Sometime in August or September, Snyder took an active part in trying to get three laid-off employees back to work and openly enlisted the aid of the Union on their behalf. Snyder's prominent role in this regard also came to the attention of Brouse. Shortly thereafter Moyer and Snyder, who worked together as a team on one machine, were warned by their immediate foreman that the Company was looking for an excuse to get rid of them because they were "very strong" for the Union. A suitable excuse for their dis- charge soon arose when a seeming irregularity appeared on their October 19 work report. Brouse's explanation as to why he consulted the Respondent's counsel before discharging Moyer and Snyder shows that their connection with the Union was at least in his mind at the time. Shortly after Moyer and Snyder were dis- charged, their immediate foreman reminded them of his prior warning and told them that the Company had found such an excuse and that they were discharged because of their union activities. In view of the foregoing, and upon the basis of the entire record, I am convinced and find that Brouse seized upon the alleged falsification in the work records as a suitable pretext to discharge Moyer and Snyder because of their continued union and concerted activities.10 By such conduct the Respondent discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the Union, in violation of Section 8 (a) (3) and (1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, 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 obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated in regard to the hire and tenure of employment of Moyer and Snyder, I shall recommend that the Respondent offer to each of them immediate and full reinstatement to their former or sub- stantially equivalent positions 11 without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay suffered by them as a result of the discrimination, by payment to each of them of a sum of money equal to the amount each would have earned from the date of his discharge to the date he is offered reinstatement, less his net earnings 12 to be computed on a quarterly basis in the manner established by the Board in F W Woolworth Company, 90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other such period. It will also be recommended that the Respondent make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of back pay due. As the unfair labor practices committed by the Respondent were of a char- acter striking at the roots of employee rights safeguarded by the Act and discloses a propensity on its part to continue, although not necessarily by the same means, to defeat self-organization of its employees, it will also be recommended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. 10I find no merit in the Respondent's contention in its brief that any alleged discrimina- tion is disproved by the Respondent's failure to discharge other employees who were active during the union campaigns Moyer and Snyder were the most active union protagonists and were the only employees who persisted in promoting the Union after the last election was lost Moreover, a discriminatory motive otherwise established is not disproved by an employer's showing that he did not weed out every adherent of the union. N L R B. v W C. Nabors, 196 F 2d 272, 275-276 (C A 5), cert denied 344 U S 865 11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 12 Crossett Lumber Company, 8 NLRB 440, 497-498. 369028- 56-vol. 112-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Upholsterers' International Union of North America, AFL, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Robert C. Moyer and Bruce E. Snyder , thereby discouraging membership in Upholsterers' International Union of North America, AFL, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act, and has thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication. ] Jersey Contracting Corp. and International Longshoremen's Association, AFL and Local 976, International Longshoremen's Association, Independent, Party to the Contract Local 976, International Longshoremen 's Association, Independ- ent and International Longshoremen's Association, AFL and Jersey Contracting Corp., Party to the Contract Jersey Contracting Corp. and International Longshoremen's As- sociation, AFL Local 976, International Longshoremen 's Association, Independ- ent and International Longshoremen's Association, AFL. Cases Nos. 2-CA-3473, O-CA-3553, 2-CB-1052, 2-CB-1081, 2-CA-3875, and 2-CB-19254. May 10, 1955 DECISION AND ORDER On October 12, 1954, Trial Examiner Reeves R. Hilton issued his Intermediate Report in Cases Nos. 2-CA-3473, 2-CA-3553, 2-CB- 1052, and 2-CB-1081, finding that the Respondents, Jersey Contract- ing Corp., herein called Jersey, and Local 976, International Long- shoremen's Association, Independent, herein called Independent, had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of his Intermediate Report attached hereto. Thereafter the Charging Party, International Long- shoremen's Association, AFL, herein called AFL, filed a brief in sup- port of the Intermediate Report and Jersey, Independent, and Inter- venor Penn Industries, Inc., herein called Penn, filed exceptions to the Intermediate Report and supporting briefs. On January 13, 1955, Trial Examiner David London issued his Intermediate Report in Cases Nos. 2-CA-3875 and 2-CB-1254, finding 112 NLRB No. 92.