Thiele Tanning Co.

THIELE TANNING COMPANY 19 The Respondent's trespass upon employee rights under the Act, as disclosed by the discharges and statements and actions of its president showing a fixed intention of denying its employees a free choice of union representation is of such character and scope that in order to make the remedy coextensive with the threat, it will be recommended that the Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 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. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of its em- ployees, John Richard Gilbert, Lilburn Jones, and Dale B. and Fred Arden Gillaspie, thereby discouraging membership in the Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the aforesaid discharges and by threats of contracting out work otherwise to be assigned to its maintenance employees if the latter became organized, the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] ent's unfair labor practices, and not such an offer as the dischargees were required to accept in order to preserve their reinstatement rights. Seasonal work is not the equivalent of year-round employment . Stokely Foods, Inc, 91 NLRB 1267, 1289. Thiele Tanning Company and Leather Workers Union, Local No. 47. Case No. 13-CA-3270. July 12, 1960 DECISION AND ORDER On January 29, 1960, Trial Examiner Leo F. Lightner issued his Intermediate Report, and on February 4, 1960, an erratum, in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a support- ing brief.' The Board 2 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- 'The Respondent also requested oral argument . The request is hereby denied as the record, exceptions , and brief fully present the issues and the positions of the parties. 2Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its powers in connection with this case to a three-member panel ( Members Rodgers, Bean, and Fanning]. 8 The Respondent excepts to the Trial Examiner's ruling admitting In evidence General Counsel's Exhibit No. 7, a copy of a letter dated March 17, 1959. This letter was 128 NLRB No. 5. 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediate Report, the erratum,4 the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Thiele Tanning Company, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Leather Workers Union, Local No. 47, or in any other labor organization of its employees, by dis- charging or in any other manner discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right of self-organization, to form labor organizations, to join or assist Leather Workers Union, Local No. 47, or any other labor organization, 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, or to refrain from engaging in such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of addressed to the Respondent by the Union's business representative, Churka, and re- quested the Charging Party's, Armstead 's, presence at a Board representation hearing. The Trial Examiner admitted the copy and relied on it, inter alia, in finding that the Respondent knew of Armstead 's union activities , including his proposed attendance at a Board hearing. The Respondent argues that the admission of the exhibit was contrary to the best evidence rule and the rule against hearsay Union Representative Churka testified to writing and signing the letter , and his secre- tary, Anderson , identified the letter as a copy of the one she typed The record shows that, in the usual course of business , Anderson mails the office letters at the end of the day although Churka has done so infrequently . Anderson testified that the letter to the Respondent was mailed in the usual course. The Respondent 's president, Thiele, testified that he had not seen the original letter and that a search of his office files did not disclose it. The Union' s mailing of the March 17 letter was apparent from the testimony respecting the usual course of business practice Dunlop v United States , 165 U.S. 486, 495; Wigmore, Evidence, 3d ed., vol. I, sec. 95, pp. 525-528 . The Trial Examiner found that the Union mailed the letter and did not credit Thiele 's denial of its receipt There is no warrant in the record for overturning the Trial Examiner 's credibility resolution. We find that the evidence adduced by the Respondent was insufficient to overcome the presumption that it was received by the Respondent . See Wigmore , supra, vol IX, sec. 2519, pp. 430-431 . Ahonen Lumber Company, 77 NLRB 706, 707 4 We note that the Intermediate Report sets out transcript testimony largely as a continuous quotation rather than as excerpts The lack of appropriate markings to indi- cate omitted parts does not affect the tenor of the testimony and no exceptions have been filed with regard to it. Accordingly , we find it unnecessary to restate the quotations in full 5 The Trial Examiner found that it was unnecessary to pass on the 8 ( a) (4) allegation of the complaint. In the absence of exceptions thereto , we adopt pro forma the finding We will therefore dismiss the 8(a) (4) allegation. THIELE TANNING COMPANY 21 employment as authorized in Section 8(a) (3) of the Act, as amended by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Joseph Armstead immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," for any loss of pay he may have suffered by reason of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due in accordance with this Order. (c) Post at its plant at Milwaukee, Wisconsin, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, upon being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges a violation of Section 8(a) (4). 0In the event that this Order is enforced by a decree of a United 'States Court of Appeals , there shall be substituted Tor the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX 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, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Leather Workers Union, Local No. 47, or any other labor organization of our em- ployees, by discharging them or in any other manner discriminat- ing in regard to their hire or tenure of employment or any term or condition of employment. 577684-61-vol. 128 3 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form, join, or assist Leather Workers Union, Local No. 47, or any other labor organization, to bargain collec- tively 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, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer to Joseph Armstead immediate and full rein- statement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and we will make him whole for any loss of pay suffered by reason of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Leather Workers Union, Local No. 47, or any other labor organization. TIIIELE TANNING 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 This proceeding was heard before the duly designated Trial Examiner in Milwaukee, Wisconsin , on September 30 and October 1 and 2, 1959, on the com- plaint and amendment to complaint of the General Counsel and answer of Thiele Tanning Company, herein called the Respondent . The issues litigated were whether Respondent violated Section 8(a)(1), (3 ), and (4) and Section 2(6) and (7) of the Labor Management Relations Act, 1947. The parties waived oral argu- ment, and briefs filed by General Counsel and Respondent have been carefully considered. Upon the entire record 1 in the case, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Wisconsin corporation , maintaining its office and factory at Milwaukee, Wisconsin, and engaging in the business of tanning of leather. During the calendar year 1958 Respondent shipped and sold products valued in excess of $50,000 which were for delivery to points outside of the State of Wisconsin. I find that Respondent is engaged in commerce within the meaning of the Act. 'The transcript is corrected as follows. Page 371, line 1, and page 380, line 17, the word "now" is substituted for the word "not"; page 371 , line 9, the words "objecting to" are substituted for the word "rejecting" THIELE TANNING COMPANY II. THE LABOR ORGANIZATION INVOLVED 23 Leather Workers Union, Local No. 47, herein called the Union, is a labor organi- zation within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events The primary issue to be resolved is whether Joseph Armstead was, as alleged in the complaint, discharged by the Respondent, on April 27, 1959, for the reason that he had joined and assisted the Union or engaged in other concerted activities for the purposes set forth in Section 7 of the Act and, in the alternative or in addition, as alleged in the amendment to the complaint, for the reason that he had testified as a witness for the petitioning Union at a National Labor Relations Board hearing in Case No. 13-RC-6415 on March 20, 1959. It is further alleged that the Re- spondent has ever since failed and refused to reinstate him to his former or substan- tially equivalent position for the same reason. Joseph Armstead, the dischargee, worked for Respondent approximately 4 years. At the time of his termination on April 27, 1959, he was a "paster," having held this position approximately 11/2 years. "Pasting" is described as "putting the skin on a glass plate and stretching it"; it is "skilled" as distinguished from semiskilled or unskilled work; it is a "standing" job as distinguished from a "sitting" job. On Sunday, March 1, 1959, Armstead fell on the street in Milwaukee and sus- tained a fracture of the right external malleolus (the lower end of the fibula which protrudes outward at the ankle). This event took place away from the premises of the Respondent. On Monday, March 2, a neighbor telephoned the plant, advised them of the injury, and that Armstead would not come to work. On March 3, Armstead's son picked up the essential forms at Respondent's plant for Armstead to institute a claim under the group accident policy carried by the Respondent covering its employees. Dr. George Hilliard attended Armstead, X-rays were made at the Deaconess Hospital, and a cast was applied extending from the toes to the knee of the right leg, on March 3. About a week later, after a reduction in the swelling of the ankle, the cast was replaced with a new cast. On March 4, Dr. Hilliard filled out an "attending physician's statement" (General Counsel's Exhibit No. 6) and forwarded it to the Respondent. The doctor noted therein that he had attended Armstead at home on March 2 and applied the cast the following day. The doctor estimated the period of disability as 4 to 6 weeks. On April 17,2 the second cast was removed; Armstead was advised that he could return to work on April 27. Dr. Hilliard executed an "attending physician's supplemental statement" (General Counsel's Exhibit No. 2), on April 17, containing the information indicated and it was forwarded the same day or the following day to the Respondent. On Monday, April 27, Armstead reported for work and, under circumstances more fully treated below, was advised that he was being terminated as of that time. Armstead's services were terminated by Helmuth Thiele, president of the Thiele Tanning Company. The only other officer of the Company is Mrs. Thiele, who is secretary-treasurer. Respondent employed approximately 32 individuals as produc- tion and maintenance workers, in February, March, and April, 1959.3 Five other employees included a superintendent, two foremen, one assistant foreman, and one office girl. Early in February 1959 the Union sought a conference with the president of the Respondent for the purpose of obtaining recognition. The circumstances surround- ing the effort to confer are treated at more length below. On February 16, 1959, the Union filed a petition requesting an election (Case No. 13-RC-6415). A hear- ing on the petition was held on March 20, 1959. Armstead and Ray Schuster,4 another employee, appeared and testified. The appearance on behalf of the Re- spondent is discussed below. On April 17, 1959, the Board issued its order for the holding of an election and the same was held on May 13, 1959. Thereafter the Board certified the results of the election and the Union became the collective- bargaining representative.5 2 All dates are 1959 where not otherwise indicated 3It is noted , however, that in the election held May 13, 1959 (Case No 13-RC-6415), of which I have taken official notice, there was 36 eligible voters, including 3 challenged ballots ' Where the name Schuster appears incorrectly as Schuter in the transcript, the tran- script is hereby corrected 6 Thiele testified that a prior attempt to organize the employees , 4 or 5 years previ- ously, had been unsuccessful Board records, of which I have taken official notice, reveal 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 23, 1959, the Union held a meeting, which Armstead attended, at Old Mill Hall on Greive 6 Street, described as being approximately 1 city block from the premises of the Thiele Tanning Company. B. The discharge of Armstead 1. Armstead's employment history Respondent acknowledged, through its counsel, that it was not claiming that Armstead's employment was terminated, or that he was replaced, because of any type of inadequacy, prior to the time he was injured on March 1, 1959. I find accordingly. 2. The events of April 27, 1959 Armstead went to the plant on April 27, changed to work clothes, and went to his work station. Robert Hayes, the foreman, told him that President Thiele had said "not to let me work." He went back, changed to his street clothes, and awaited the arrival of Thiele at approximately 9:30 a.m. Armstead asked Thiele why Hayes had been advised not to let Armstead work. Thiele responded, "Well, you have been away 8 weeks and didn't come around to see us and we didn't know whether you had another job or what." Armstead told Thiele that he was still under the doctor's care until April 17 when he sent in a notice which stated that he would be able to return to work on the 27th. Armstead further quoted Thiele as stating, "You could have come by and seen us, you went other places." Armstead stated, "I went to other places but wasn't able to work." Thiele thereupon advised Armstead that he could not fire the man he hired to take Armstead's place in order to take Armstead back. Armstead then asked for a slip to take up to the Unemploy- ment Compensation Board. Thiele instructed the office girl to make such a slip and when the girl requested advice as to what to put on the slip Thiele stated, "Well, let's say he was off 8 weeks and didn't come around, and I had to replace him." 7 The office girl then asked Thiele if he was going to sign the slip and after replying in the negative Thiele advised her, "Well, put my stamp on it." 8 C. Replacement of Armstead Thiele testified that the foreman took over Armstead's work (presumably on March 2) for 2 to 4 days. Then another employee, who was familiar with that work, was transferred and took over "the skin work on Mr. Armstead's job." It "could have been" an employee named Maricio Rivera. The employee who took over Armstead's job left the Respondent's employment around September 1, before the hearing herein. On March 27, an individual named Sobnen Hein was employed by Respondent. Thiele testified he "took the job, the other fellow's job, who was transferred to Armstead's job." He then acknowledged this would be Rivera's job. D. Union activity; Armstead's participation John Churka, business representative and secretary-treasurer of Leather Workers, Local 47, and Charging Party herein, testified that he visited the Thiele Tanning Company early in February 1959 in an unsuccessful effort to confer with Thiele in regard to union representation of the employees. He left a business card with Thiele's secretary, and later made an unsuccessful effort, by telephone, to obtain two previous elections, in both of which the Union was unsuccessful , Case No 13-RC-1823, May 1951, and Case No. 13-RC-3959, October 1954. Where Greive Street is incorrectly spelled Greve in the transcript, the transcript is hereby corrected. 7 This is the testimony of Armstead whom I credit for reasons set forth hereafter Thiele testified at variance. Thiele related that when lie came to the office on April 27, Armstead was there and Thiele asked him how he was doing. Thiele then advised him, "I am sorry, I haven't heard from you in 8 weeks and we had to replace you " Thiele described that as about the end of the conversation. He then went on to describe a further conversation : "I asked him why he didn't ever call up or show around and tell us how you were getting along. Well, I believe his answer was, 'I couldn't.' I said, `why not" 'Well, I was on crutches.' I said, 'well, you are not on crutches now.' I said 'you must have gone around other places' . . . that was it " 8 General Counsel's Exhibit No. 3 is the slip referred to ; it bears the stamp of "Thiele Tanning Company," with the address. THIELE TANNING COMPANY 25 an appointment. Churka testified that when he talked to Thiele on the phone, "I told him we had the majority of his employees signed up in the Union, and we wanted to meet with him for the purpose of recognizing our union." Thiele first advised Churka to contact Respondent's attorney, then that he (Thiele) would con- tact his attorney. Churka advised Thiele the Union would file a petition for an election if there was no reply. This telephone conversation followed the office visit by about 2 days, and was before February 7, 1959. I credit this testimony of Churka, where it conflicts with the testimony, or inferences therefrom, of Thiele for reasons stated below. On February 7, 1959, the Union held a meeting at the union office, which was attended by 14 of Respondent's employees, including Armstead. One item of business discussed and disposed of was the question of which employees would testify at a National Labor Relations Board hearing (if and when one was held). Volunteers were requested. Armstead and Schuster volunteered. (Thiele in his testimony identified Roy Schuster as a combination night watchman, janitor, and firemen whose hours of work were from 11 p.m. to 7 a.m.) No claim is made that Respondent knew of this meeting at the time it was held. On February 16, 1959, the Union filed a petition for an election and certification.9 A hearing scheduled for March 10 was rescheduled for March 20, at the request of Respondent. On March 17, 1959, the Union, by letter, requested Respondent "to make the necessary arrangements for Joseph Armstead to be off from work on Friday, March 20, 1959, in order that he may be present at the rescheduled hearing" in Case No. 13-RC-6415. Churka testified to the preparation of this letter, his secretary testified to having mailed it. The presumption is that it was received in the ordinary course of business. There is no doubt, from the evidence, that Thiele left for a convention in Florida on the day of the mailing of the letter. I do not credit his denial that the letter was received, for reasons set forth hereafter. Armstead appeared at the March 20 10 hearing, on crutches, and testified. Counsel for the Respondent was the only representative of the Respondent present at that hearing, reflected by the transcript (Case No. 13-RC-6415). Counsel appeared solely to object to the hearing being held, and after his request for a continuance was denied withdrew before any testimony was given. It is clear from his record, and I find that Mr. Zelonky did not at that time have personal knowledge of the identity of Joseph Armstead. On April 23, 1959, the Union held a meeting of Respondent's employees at the Old Mill Hall on Greive Street, about a block from the premises of Respondent.. Armstead was among those attending. 9 The following questions were propounded by General Counsel to Thiele, and responses made by him . Q. Did you receive a copy of the petition that was filed for an election at your plant on February 16, 1959" A. I believe I did It was sent to my attorney, if I did, I don't know. Q But the one that was mailed out by the Board that came to you, didn't it" A I believe so Q What you are saying, you forwarded it to your attorney. So, the petition passed through your hands at your plant, and then your usual manner of conduct- ing your business, you referred the legal problem to your attorney . . . is that what you are saying? A. Yes. Q. When you received the petition did it come as a surprise to you? A. It probably was. Q What do you mean, it probably was" A. Well, we had no prior notice of any kind, that we didn't even know that there was any organizing of any kind going on in the plant Nobody knew anything about it. [Emphasis supplied ] Thiele then acknowledged that Churka had made a visit to his (Thiele's) office "A week or two" before February 16 in an unsuccessful effort to confer. He could not recall being advised that the Union claimed to represent the employees at the plant at that time, and denied that Churka ever offered to prove that he represented a majority (prior to the filing of the petition) Thiele then admitted knowledge of the Board' s requirement of a showing of interest, when such a petition is filed. In response to a question as to whether be was aware that an "organizing campaign had been going on" when he received the ,petition, he responded "at that time, naturally." [Emphasis supplied.] 10 Page 57, line 23, of the transcript, contains an incorrect date of the hearing. It is corrected from March 29 to March 20. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Respondent's knowledge of Armstead's union activity Thiele acknowledged that he was interviewed by Kenneth Keith, a Board field examiner, about June 11, 1959, and had supplied certain information to him at that time. General Counsel interrogated Thiele about those representations, including: Q. . . did you tell Mr. Keith that when you talked to Armstead on April 27, 1959, about not coming around, Mr. Armstead said he couldn't because he had his foot in a cast and couldn't get around? A. Yes, I think so. Q. And that is, in fact, what was said in the conversation of Armstead? A. Yes. Q. Did you tell Mr. Keith that you asked Mr. Armstead, why you haven't called? A. Yes. Q. And that in fact was said in the conversation? A. Yes. Q. Did Mr. Armstead answer that remark of yours? A. Yes. He said he was .. , he couldn't get around on account of his cast or whatever he had there. Q. Did you tell Mr. Keith that you said something to Mr. Armstead; some- thing about he got around to other places? A. That is right. Q. And did you, in fact, say that to Mr. Armstead? A. That is . . . I didn't say he got around other places. No doubt he got around other places. After the witness denied having told Armstead that he knew Armstead was across the railroad track at the union meeting, the questions and answers were: Q. Did you say anything to Mr. Armstead about why he didn't stop by? A. Yes. Q. Relate, exactly, what you said? A. I asked him why he didn't stop by or call our office, or call by telephone and let us know how you were progressing as far as the injury was concerned. Q. When you talked to Mr. Keith about this case, did you say anything to Mr. Keith to the fact [effect] that the Union was having a meeting across the track? A. Yes. Q. What did you say to Mr. Keith? A. . I told him the same story why the man couldn't call at the plant during the whole time he was off . Then, I told Mr. Keith just two days or three days prior to that I found out that later he was across the street at a meeting. Q. And did you tell Mr. Keith that it was your belief that this meeting had been at one of the saloons? A. I didn't say that. All I knew there was a meeting across the street. Q. Did you tell Mr. Keith that you knew Mr. Armstead had attended the union meeting across the street or either across the track? A. Yes, I told him. Q. This union meeting that you referred to in your conversation with Mr. Keith, when did that take place? A . three or four days whatever it was prior to when he (Armstead) reported back for work. Q. What did you tell Mr. Keith about later learning that Mr. Armstead had attended the union meeting across the street9 A. I told Mr. Keith that since the man was just about a block away from his former premises of his former employment, he never even called to let us know that he would report for work or not. I also told him just doubts in my mind whether Mr. Armstead is coming back at all because he was so close by and didn't call. [Emphasis supplied.] Q. What I am trying to get at, Mr. Thiele, is what you meant when you said that you told Mr. Keith that you later learned that Mr. Armstead had been to the union meeting across the street? What did you mean when you used the word, later learned? A. Well, the following week, apparently after Mr. Armstead wasn't taken back in our employment, certain talk probably got around in the plant that he was at certain meetings, and this and that; and, also, came around, and he was just over there a few days ago. That is why I learned it. This was a week or two later, I can't recall. THIELE TANNING COMPANY 27 Thiele then testified "the people in the plant talked and they saw Mr. Armstead over there. And finally, round about, it came to me." He testified "everybody talked" and described everyone in the plant as 30 people. Thereafter, Thiele testi- fied that it was not until after the charge was filed in this case, May 5, that he learned Armstead had attended the April 23 meeting. In spite of the evident effort of Thiele to imply that his knowledge of Armstead's attendance at the April 23 union meeting was subsequent to the discharge, it is reasonable to infer that if he had "just doubts" in his mind whether Armstead "is coming back" because he was so close by and did not call, also he was just a block away and never let us know he would report for work, as he testified, those doubts must have been created by knowledge predating the discharge. I so find I turn now to an examination of the capacity and relationship of Thiele with the Respondent. Thiele described his duties as: "I take care of all the business as such." He also does the hiring and firing or releasing. He testified that when he goes out of town "I have a habit of calling in every single day." If anything important comes up, his accountant knows where to get in touch with him. He acknowledged that even when he is out of town, if an employee requests time off the superintendent or foreman would call him (Thiele). He also interviews every employee before he is hired. In his absence, no one else assumes his duties, the plant ran on its own momentum. Thiele stated "we got a very small place and we have been doing it for twenty years." The record permits only a conclusion that Thiele exercised close supervision of all activities. The testimony of Armstead, unrefuted, was that the only occasions on which he left his home after treatment on March 3 and prior to April 27 were the Board hearing on March 20, the trip to the doctor on April 17, and the union meeting April 23. 1 so find. Particularly in view of Thiele's testimony of how the people in the plant talked, and he was thus informed of the attendance of Armstead at the April 23 meeting, it might even be reasonably inferred that he knew of the union meeting of February 7, and Armstead's designation as a witness at that time, prior to April 27. Regard- less, however, of whether this inference is drawn it is clear, and I find, that the March 17 letter from the Union to the Respondent clearly conveyed to the latter the purpose of requesting leave to permit Armstead to testify at the representation hearing. Since the record as a whole contains the preponderance of substantial evidence necessary to find that the Respondent had knowledge of Armstead's union activities at the time of his discharge, I find it unnecessary to resolve the question of Respondent's knowledge that Armstead actually had testified in a Board hearing. In arriving at my findings of credibility herein, I have considered carefully all of the testimony, and the demeanor of the witnesses. Armstead, with a sixth- grade education, was careful and deliberate in his answers. While uncertain on the precise date of the first union meeting and some other details, and subjected to careful and penetrating cross-examination, he sought nevertheless to answer all inquiries directly and fully, taking care to qualify where in doubt. His candor was impressive. Thiele, in contrast, while appearing self-assured and deliberate, gave testimony which was inconsistent, conflicting, and frequently, on important facts, nonresponsive or evasive. Illustrative: In the all-important area of what was said at the time of discharge, April 27, the inherent probability, based on the entire rec- ord, that Thiele with knowledge of Armstead's appearance at the union meeting 4 days before said "you went other places" is far more consistent with human behavior than Thiele's version that with no knowledge of Armstead's activity he said "you must have gone around other places." Thiele would justify the discharge on knowledge that on April 23 Armstead was just a block away "and never let us know he would report for work." Yet, he asserts his knowledge was obtained "later." If it was obtained "later" why did he have "doubts in my mind whether Armstead was coming back at all because he was so close by and didn't call," as Thiele testified. Certainly those "doubts" were not created after April 27. Since the implied reason for discharge was Armstead's failure to call or stop by the plant, Thiele's knowledge and expression of that knowledge on April 27 became the crux of the issue, and could be dispositive. The testimony of Churka, where the substance is of importance, was substantially corroborated by either Armstead or Thiele, or stands undisputed. The preparation and mailing of the March 17 letter was cor- roborated by Churka's secretary. F. Concluding findings There remains for resolution the uuestion of whether Respondent discharged Armstead for reasons proscribed by the Act. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The reason given by Thiele to the Unemployment Compensation Commission (General Counsel's Exhibit No. 3) for discharging Armstead was that he had been hurt at home, had been away from work for 8 weeks, and the job had to be replaced. Yet, as set forth by Thiele in his testimony herein, Rivera was transferred into Armstead's job after he had been off only 2 to 4 days. Rivera's replacement (to fill Rivera's old job) was hired March 27, 1 week after the Board hearing. The reason given by Thiele to Armstead on April 27, for finng him, was that he had been able to go other places and had not visited or called the Respondent. I have found above, that Armstead, after the hospital visit on March 3, left home only to testify on March 20 at the Board hearing, to have the doctor remove the cast on April 17, and to attend the union meeting on April 23. Thiele testified that he had no knowledge that Armstead had gone anywhere, at that time. He asserted, however, his view that no man could stay home for 8 weeks. This testimony is not credited. The evidence establishes the fact that about March 4, 1959, Dr. Hilliard forwarded to Respondent an insurance company form (given to Armstead's son by Respondent) advising that Armstead had suffered a fractured ankle, that a cast was applied, the projected estimate of period of disability was stated as 4 to 6 weeks. Thiele acknowl- edged having been so advised by his secretary. Armstead's son was sent to Re- spondent to obtain the weekly insurance benefit of $14, which was paid to Respondent by the insurance company. On April 17, Dr. Hilliard executed an additional insurance company form advising of the removal of the cast on that date, the applica- tion of an elastic bandage, and that Armstead "should be able to return to work" on April 27, 1959. This was the date Armstead reported for work. Armstead promptly forwarded this form to the Respondent. The insurance payments were as a consequence, it may be inferred, paid through the week commencing April 20, and not thereafter, and Thiele knew or could easily have ascertained this fact. Thiele acknowledged that he was not out of town the week commencing April 20. In spite of Thiele's admitted knowledge of the "showing of interest" required by the Board at the time of filing a petition for an election and determination of status as a collective-bargaining representative, filed by the Union herein on February 16, and in spite of his admission that he learned of Armstead's attendance at the April 23 union meeting within a week or two thereafter, because of talk in a small plant employing 32 people, Thiele testified that on April 27, 1959, he did not know of any activities by any of the employees in relation to union activities. In contrast, when he was asked if he was aware that ",an organizing campaign was going on" when he received the petition, immediately following February 16, he responded "at that time, naturally." In addition, on April 17, 1959, the Board had issued its Decision in Case No. 13-RC-6415 and directed the holding of an election which was held on May 13, 1959. It should be recalled that 14 of 32 employees attended the February 7 meeting. Thiele, by implication, would have it believed that news of this meeting had not reached him on April 27, though he obviously knew of the April 23 meeting by that date. Otherwise he would have had no "just doubts" whether Armstead is coming back when he was so close by and did not call on that date, neither would he have testified, "the man was just a block away-he never even called to let us know he would report for work." The intelligence and understanding of Board requirements (for certification) by Thiele, undoubtedly gained in part during the preliminaries and holding of two previous elections, are demonstrated by his testimony. I am, for all these reasons, constrained not to credit Thiele's denial of knowledge of employee concerted activities, of the type encompassed in Section 7 of the Act, on April 27. Particularly is this true in view of Thiele's testimony that when anything of importance occurs in the plant, even if he is absent, the facts are reported to him. No violation of any company rule or practice requiring reporting during an ex- tended absence has been asserted. Ward Baking Co., 123 NLRB 1687. Respondent has urged in its brief that three elements must be established to support a finding of violation of Section 8(a)(3) by the employer, i.e., (1) employer's knowledge that the employee was engaging in protected concerted activities, (2) that the employee was discharged for engaging in such activities, and (3) that the dis- charge tended to discourage or encourage membership in a union . Relative to the last point the U.S. Supreme Court has said that "subjective evidence" of encourage- ment or discouragement is not required "where encouragement or discouragement can be reasonably inferred from the nature of the discrimination." Radio Officers' Union of Commercial Telegraphers Union, AFL v. N.L R.B., 347 U S. 17. The dis- charge herein on April 27 immediately preceded the scheduled election on May 13. The anticipatory use of Armstead as a witness at the March 20 hearing was called to the attention of Respondent by the union letter of March 17. Armstead, if no one else, was known as a union adherent. THIELE TANNING COMPANY 29 General Counsel, in his brief, asserts that Respondent's knowledge of Armstead's union activities does not depend solely on the analysis of the words Thiele used, that there is other evidence in the record from which such knowledge can be inferred. I have so found above. The Board recently noted well-established Board and court precedent that direct knowledge of an employee's union activities is not a sine qua non for finding that he had been discharged because of such activities but may be inferred from the record as a whole. The small number of employees, the abruptness and timing of the discharge, were among the factors considered. Wiese Plow Welding Co., Inc., 123 NLRB 616. General Counsel had also noted that the discharge was on the first day Armstead reported for work after his testimony on March 20 and attendance at the union meeting on April 23. That the discharge was abrupt and without warning cannot be gainsaid. Respondent at the opening of the hearing advanced, and throughout sought to maintain, the premise that Armstead was not discharged because of any union activities, existence of which was unknown to it, that the employee was not injured in the course of employment, and that Respondent was advised by a son of the employee that he would return in 3 or 4 weeks and held employment open for that reasonable period. The Respondent adduced no evidence of such a communication from the son. However, the evidence that was adduced shows an initial estimate of period of disability of 4 to 6 weeks, from March 4, and supplemental advice from the doctor on April 17 (44 days later) that Armstead could return to work on April 27. If the job was held open 3 or 4 weeks (Rivera was transferred into it 2 to 4 days after Armstead's injury) then it was still open on March 27; in addition, Armstead was never advised he had been replaced, until April 27. The thrust of Thiele's testimony was that had Armstead stopped by the plant on April 23, he would not have been discharged. If so, Rivera's transfer about March 6 or 7, and the hiring of Sobnen Hein on March 27 (to replace Rivera in his former job) served merely as a pretext for Respondent's discharge of Armstead on April 27, the first day the doctor released him for work. General Counsel, in his brief, has cited cases in which the Board found discharges to have been discriminatory. In part these findings were based upon evidence of interrogation, threats, and other manifestations of animus." These cases are for that reason distinguishable from the facts here where the record is barren of any overt act which could be construed as animus, aside from the facts surrounding the dis- charge here being considered. The U.S. Supreme Court in Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, at 477, defines the "evidence" required by Section 10(e) of the Act as "such relevant evidence as a reasonable mind might accept as adequate to support a con- clusion. Accordingly, it must do more than create a suspicion of the fact to be established . . . it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." The Board has found a discharge discriminatorily motivated by reason of the unconvincing character of the reasons adduced to support the discharge, including the timing of the discharge. Pacemaker Corporation, 120 NLRB 987, 991. See also, United Fireworks Mfg. Co., Inc., 118 NLRB 883, 885. The facts herein include: (1) The timing of the discharge: 4 days after the union meeting, with knowledge that a Board election had been ordered and was pending; the first day of work for Armstead after he presumably testified on March 20; (2) the individual selected for discharge the one for whom the Union had re- quested leave so he could testify; (3) the acknowledgement that Armstead's 4 years of work had been satisfactory, and the further fact that his was skilled work; (4) the claim of lack of knowledge of continued incapacity, while Armstead was receiving insurance compensation paid through Respondent; (5) the claim of replacement when in fact a transfer, obviously temporary initially, was effected about March 6 or 7; (6) the failure of Respondent to notify Armstead before April 27 that he had been replaced, even though it knew about April 18 or 20 (Monday) that he would report (further affirmed by Thiele's advice to Foreman Robert Hayes not to let Armstead work, when he reported); and (7) Thiele's statement that Arm- stead "went other places" coupled with Thiele's testimony about Armstead failing to stop by "and let us know he would report for work" when "he was just about a block away"; in my view these and other facts stated above constitute a prima "Stationers Corporation, 96 NLRB 196, 199, discharge on return from illness ; Cranston Print Works Co , 117 NLRB 1834; Sanford Dress Corporation, 123 NLRB 1106; Waynline Inc., 119 NLRB 1698. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facie case of discrimination, the burden of going forward and presenting refuting evidence was upon Respondent. See Antonio Santisteban & Co., Inc., 122 NLRB 44. Speaking for the court, Medina, Circuit Judge, has said "the unexplained coin- cidence of time with respect to the principal events was really no coincidence at all, but rather part of a deliberate effort by the management to scotch the lawful measures of the employees before they had progressed too far toward fruition. If employees are discharged partly because of their participation in a campaign to establish a union and partly because of some neglect or delinquency, there is nonetheless a violation of the . . . Act." N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725 (C.A. 2). The existence of some justifiable ground for discharge or layoff is no defense if it was not the "moving cause." Wells, Incorporated v. N.L.R.B., 162 F. 2d 457, 460 (C.A. 9). In view of the above facts, and upon the entire record as a whole, I believe and hold that Respondent's purported reason for discharging Armstead was a pretext, and that the real reason and "moving cause" was the known union and concerted activities of said employee and said discharge constituted discrimina- tion with respect to his hire and tenure of employment to discourage membership in the Union in violation of Section 8 (a) (3) and (1) of the Act. Since the policies of the Act will be as well effectuated by a remedial order based upon my finding herein that Respondent violated Section 8 (a) (3) and (1) of the Act, I find it unnecessary to treat with the evidence respecting the alleged Section 8(a)(4) violation, which at best presents a borderline evidentiary question, since I have recommended reinstatement of Armstead, and found a violation of Section 8(a)(3) no purpose would be served in extending this report I shall, accordingly, refrain from recommending disposition of the allegations of the amendment to the complaint to that extent.I2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent having discharged Joseph Armstead because of his union activities, I recommend that Respondent offer to him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by a payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his discharge, April 27, 1959, to the date when, pursuant to the recommendations herein contained, Respondent shall offer him reinstate- ment, less his net earnings during said period. Said backpay shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289. It is also recommended that the Respondent be ordered to make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of earnings due. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Thiele Tanning Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Leather Workers Union, Local No. 47, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment of Joseph Armstead, thereby discouraging the free exercise of the rights guaranteed by Section 12 Cranston Print Works Company, 117 NLRB 1834, 1837, footnote 4. WESTINGHOUSE ELECTRIC CORP. (MANSFIELD DIVISION) 31 7 of the Act and discouraging membership in and activities for the above-named labor organization, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 4. 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.] Westinghouse Electric Corporation (Mansfield Division) and Federation of Westinghouse Independent Salaried Unions, Petitioner. Cases Nos. 8-RC-2774 and 8-RC-3810. July 12,1960 DECISION, ORDER, AND CLARIFICATION OF CERTIFICATION Upon a petition duly filed, a hearing was held before a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved claims to represent employees of the Employer. 3. The Petitioner was certified in Case No. 8-RC-2714 for a unit of all clerical employees at Employer's Mansfield, Ohio, plant, which included salaried works production clerks, but excluded, among others, hourly paid factory production clerks and engineering department employees. In this case, Petitioner seeks to gain representation of nine material controllers and a production coordinator. It requests a clarification of the certified unit to include such employees or, in the alternative, an election among the material controllers and production coordinator whom it would represent in a separate unit or as part of its existing unit. The Employer is opposed to any clarification of the certification by the way of this proceeding, and contends that the employees in issue do not constitute a separate appropriate unit. As noted above, salaried works production clerks were part of the certified unit. Their duties included the receipt of orders for renewal parts and the performance of the necessary clerical work for procure- ment of these parts, the execution of purchase orders to sources out- side the plant, and performance of clerical duties involved in handling foreign export orders. Since about 1958 the Employer has been en- gaged in a plant reorganization, a result of which has been the elimina- tion of the classification of salaried works production clerks and the 128 NLRB No. 9.