Cook Paint & Varnish Co.

COOK PAINT & VARNISH COMPANY 427 unfair labor practices within the meaning of Section 8 (a)(1), (2), and (3) and Section 8 (b) (1) (A) and 8 (b) (2) of the Act. 4. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Employer has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Homer F. Burdett, the Respondent Employer has engaged in unfair labor practices within the meaning of Section 8 (a) ,( 1) and (3) of the Act. 6. By attempting to cause and causing the Respondent Employer to discriminate against its employees, and thus to commit an unfair labor practice within the meaning of Section 8(a) (3) of the Act, the Respondent Unions have engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 7. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Unions have engaged in unfair labor practices within the meaning of Section 8(b) (1) (A) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Cook Paint & Varnish Company and District 50, United Mine Workers of America. Case No. 23-CA-971. October 25, 1960 DECISION AND ORDER On June 17, 1960, Trial Examiner Thomas N. Kessel issued his Intermediate 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. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended that those allegations of the complaint be dismissed. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Jenkins and Fanning]. 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 entire record in this case, including the Intermediate Report, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the entire record in this proceeding and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cook 129 NLRB No. 54. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paint & Varnish Company, its officers, agents, successors, and assigns,, shall : 1. Cease and desist from : (a) Discouraging membership in District 50, United Mine Workers of America, or any other labor organization of its employees, by dis- criminating in regard to hire or tenure of employment of its employees. (b) Soliciting from employees information to reveal union activi- ties of fellow employees and to reveal the identity of employees who are engaged in activities on behalf of the Union, or otherwise inter- rogating them in a manner violative of Section 8(a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist District 50, United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Lynne Perry, Jeanette D. Tallant, and Emma D. Godbey immediate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings suffered by reason of the discrimination against them in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (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 amounts of backpay due and the rights of employment under the terms of this Order. (c) Post at its plant in Houston, Texas, copies of the notice at- tached hereto marked "Appendix." 1 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 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. I In the event that this Order is enforced by a 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 " COOK PAINT & VARNISH COMPANY 429 (d) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent unlawfully discharged Peggy J. Denny and Roma J. Wells. 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 Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in District 50, United Mine Workers of America, or any other labor organization of our employees, by discriminating in any manner in regard to hire, tenure, or any term or condition of employment. WE WILL offer to Lynn Perry, Jeanette D. Tallant, and Emma D. Godbey immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights previously enjoyed by them, and make them whole for any loss of earnings as a result of the discrimina- tion against them. WE WILL NOT solicit from employees information to reveal the union activities of fellow employees and to reveal the identity of employees who have engaged in such activities, or otherwise interrogate them in a manner violative of Section 8(a) (1) of the Act. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, or to join or assist the above-named or other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in any or all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. COOK PAINT & VARNISH 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. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and amended charges filed by District 50, United Mine Workers of America, herein called District 50, the General Counsel of the National Labor Relations Board, by the Regional Director for the Twenty-third Region (Houston, Texas), issued his complaint dated February 11, 1960, against Cook Paint & Varnish Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the National Labor Re- lations Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the charge, and a notice of hearing were duly served upon the parties. With respect to the unfair labor practices, the complaint alleged that the Respondent had un- lawfully interrogated its employees concerning their union activities, had threatened to discharge them for engaging in such activities, and had discharged five employees for engaging in activities in behalf of the Union. The Respondent's answer denies these allegations and assigns various reasons legally to justify the discharges. Pursuant to notice, a hearing was held at Houston, Texas, on April 12 and 13, 1960, before the Trial Examiner duly designated to conduct the hearing. All parties were represented by counsel or other representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. After the hearing the General Counsel and the Respondent filed briefs with the Trial Examiner which have been carefully considered. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. PERTINENT COMMERCE FACTS The Respondent, a Delaware corporation with its principal office and place of business in Kansas City, Missouri, maintains plants and other facilities in several States of the United States, including a plant in Houston, Texas, where it is engaged in the manufacture of paint and paint products for wholesale and retail distribution. During the course of the 12-month period preceding issuance of the complaint, the Respondent in the operation of its Houston plant purchased goods and materials valued in excess of $50,000 which were shipped to its plant from locations outside the State of Texas. During the same period the Respondent sold goods and ma- terials valued in excess of $50,000 which were shipped from its Houston plant to points outside the State of Texas. From these facts I find that the Respondent is engaged in interstate commerce and that it will effectuate the policies of the Act to assert jurisdiction over the Respondent's business. H. THE LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, is a labor organization which admits to membership the employees of the Respondent and seeks to bargain for them with the Respondent concerning their rates of pay and terms and conditions of employment. III. THE UNFAIR LABOR PRACTICES During the evening of Wednesday, December 2, 1959, five female employees from the Respondent's office clerical staff were informed at a bowling alley where they had gone for recreation by two of the Respondent's production employees that the men were being organized, presumably by the Union, and were asked whether they, too, were interested in this activity. The next day the subject was discussed at the office by the female employees. During the next day, Friday, there was solicitation at the office for membership in the Union. Some of the girls signed membership cards. Others refused. On the following Monday morning, December 7, Lynne Perry, the office employee most active for the Union, was discharged. On Thursday, December 10, office employees Jeanette D. Tallant, Emma D. Godbey, and Peggy J. Denny were discharged. On January 13, 1960, office employee Roma J. Wells was discharged. All these discharges are alleged by the General Counsel to have resulted from the Respondent's knowledge or belief that the discharged employees were supporters of the Union. The Respondent maintains otherwise, and insists that they were discharged for various reasons including absenteeism, tardiness, improper attitude, inattentiveness to duty, and incompetence, and, in one case, for soliciting COOK PAINT & VARNISH COMPANY 431 membership in the Union during worktime . The particular defenses raised in each case will be separately discussed. Much of the testimony of the discharged employees is uncontroverted . For this reason, and because each favorably impressed me with her desire to testify truth- fully, I have, with minor exception, credited their accounts of the circumstances relative to their discharges. Lynne Perry was the most active office employee supporting the Union. On De- cember 3, 1959, she procured union membership cards from the production employee who had broached the subject of unionization at the bowling alley. On Friday, December 4, she distributed these cards to office employees and solicited their signatures . Cards signed by employees were returned to her for ultimate delivery to the Union. She was apprised of her discharge about 10:30 a.m. on Monday, December 7, by Office Manager Bogart. Perry called for an explanation and Bogart replied simply, "I think you know what I mean . We won't be needing you any more." Perry insisted she did not comprehend the action and asserted that her work had been good and that her attendance record was faultless . Bogart agreed, but still gave no explanation . Perry's insistence for a reason finally evoked Bogart's comment that he understood she has been talking about the Union. Perry acknowl- edged these conversations and pointed out that other office girls had done likewise. Bogart responded in effect that Perry had been "pushing" the Union or had been "behind it." Perry retorted, "In other words your reason for firing me is because of my talk about a union or labor union?" Bogart replied, "Yes, that is my reason." Bogart also asked Perry who had informed her about the Union, but she refused to involve others lest they got into trouble. Tallant, Godbey, and Denny were all discharged by Bogart about the same time shortly before 5 in the afternoon of December 10, 1959. Tallant and Godbey had signed union cards which they had returned to Perry. Denny had been solicited by Perry but did not sign a card until after her discharge. In response to Tallant's request for a reason for her discharge, Bogart first stated "unsatisfactory." When she reminded him that she had several times been complimented by her superior, Mr. Major, as the best secretary he had ever had, Bogart remarked, "Well, it just could be your absenteeism." Godbey was informed by Bogart of her discharge when he presented her with termination papers and a check. She asked for no explanation, and none was volunteered . Denny was also handed termination papers and a check by Bogart . In answer to her query, Bogart stated her discharge resulted from un- satisfactory work and her attitude toward the Company. Wells was discharged on January 13, 1960, by Office Manager Cook who had replaced Bogart. Wells had signed a union card on December 4, 1959, which she had returned to Perry. On December 7 she had also obtained a union card for another office girl for her signature . On December 11, 1959, she and office employee Joyce White had told Bogart that they understood some of the girls had been dis- charged because of the Union and acknowledged that they, too, had signed union cards. They asked whether he wanted them to leave , but Bogart directed them to return to work and asserted the discharges were not because of the Union but because the girls had been "goofing off." Wells remarked to him, "No. Honestly, I haven't seen them goof off, Mr. Bogart , I won't lie." When Cook notified her of her discharge he remarked, "Joan, I see you working awfully hard and I bate to tell you this, but I have to take you off this desk." In explanation he told her she had not in his opinion handled her desk as well as she should have. Each of the discharged employees testified without contradiction that she had not personally been criticized by any superior for improper performance of work, failure to abide by the Company's rules, or for any shortcomings. None had been warned about discipline for any reason or had received any indication that her job was imperiled . Except for their suspicion that their union activities had jeopardized their jobs, none had any indication from a superior that she was in danger of dis- charge. On the other hand , several had been warmly complimented by their superiors for their job performance, and had received salary increases or a promise of increase reflecting satisfaction with their work . Perry had been promised a raise by Bogart just 1 week before he discharged her, and, as shown, had agreed when he discharged her that he found no fault with her work. Tallant had been praised by Major as the best secretary he had ever had, and she had also been complimented by Assistant Foreman Ritterhouse and Chief Chemist Duhig. In October 1959, about 2 months before her discharge, Tallant had offered to resign because her ill- ness at the time necessitated visits to a doctor which she feared would interfere with her work. Major, with whom she discussed this matter, urged her to withhold her resignation until she knew better from her doctor what procedures he would prescribe . When she reported that surgery had been ruled out, Major told her to 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD forget about resigning. She had received a salary increase in the month of July preceding her discharge. Denny had been complimented by the Mr. Hill under whom she had worked and by a Mr. Odell for whom she also had done some work. Godbey also was frequently praised by the Respondent's staff and on two occasions when she indicated an intention to leave the Respondent's employ had been en- couraged to remain. She received a merit salary increase September 1, 1959. Tallant further credibly testified without contradiction that upon reporting for work on December 7, 1959, she was asked by Major whether she had heard anything about the Union. She acknowledged that she had heard the Union discussed but denied knowing of any "petitioning or solicitation." He thereupon remarked, "Well, it isn't that I have anything against the Union. I just hate to have it to fool with. But I would appreciate it if you heard anything, if you would let me know so we can talk it over with the Union and see if we can reach a compromise first." Later that morning she observed a conference being held in Major's office in which Major, Bogart, Assistant Vice President and General Manager Clasquin, and a T. R. Satcher from the shipping department participated. At one point she heard Major say, "I don't believe Jeannette signed a union card." When she stopped typing they lowered their voices so she could not overhear their discussion. Wells credibly testified without contradiction that on the day of Perry's discharge she heard Clasquin ask his secretary, Veeda Hancock, if she "knew who signed." The Respondent's explanation for the discharges was offered only by the afore- mentioned assistant vice president and general manager, Frank F. Clasquin. Al- though Bogart was the official directly in charge of the Respondent's office, Clasquin had ultimate responsibility for its operation and Bogart reported to him. Bogart as well as other supervisors under Clasquin were required by the latter to counsel with him on decisions to discharge employees. With respect to Perry's discharge on December 7, Clasquin testified that on that day Bogart had asked him whether he had any objection to discharging her. Clas- quin related that he had discussed with Bogart in the past a report from Major of dissatisfaction with her job performance and had himself noted that she often was helped by a male employee who had formerly handled her payroll duties; also that he had suggested to Bogart that he speak to Perry about the inadequacy of her work and that Bogart reported he had spoken to her. He consequently told Bogart that if he felt Perry was not doing her job it would be satisfactory to dismiss her. In sum, as expressed by Clasquin's answer to counsel's question, Bogart recom- mended Perry's discharge and he concurred. While it would appear from Clasquin's testimony that Perry's discharge is explained by the Respondent as a consequence of failure to perform her duties ade- quately, the justification for the discharge is premised on an entirely different reason in the Respondent's brief. While at the hearing counsel stated that the Respondent defended Perry's discharge "in part" because of her incompetence, and "in part" because of her inattentiveness to duty, the brief asserts "the undis- puted evidence established that Mrs. Lynne Perry was discharged for engaging in union 'activities during working hours." The argument in the brief is confined to an analysis of evidence to establish the contention that Perry had solicited membership for the Union during her working time and that she had justifiably been discharged for that reason. Clasquin, however, unreservedly testified that he knew nothing of such activities by Perry before her discharge, and it could, therefore, not have been a motivating factor in whatever part he played to effect her discharge. The evidence supporting the defense that Perry solicited on company time con- sists of the testimony of office employees Myra Matthies, Evelyn Brewster, and Wanda Matthews. Each testified that Perry had briefly asked whether she would like to join the Union, and each had tersely refused or had stated her indecision. While Perry specifically denied that she had solicited the membership of Matthies and Brewster during working time, she also conceded that it was possible she had spoken at such times about the Union to her fellow employees. I am satisfied that Perry was honestly mistaken about the precise time when she spoke jointly to Matthies and Brewster, and that her contact with them was just after the 8 a.m. starting time, as these ladies recall, and not before 8 a.m. as claimed by Perry. In view of Perry's concession of the possibility of solicitation during working time I am satisfied that she had also spoken to Wanda Matthews during such period about joining the Union. The Respondent further proved that on the reverse side of her employment record card which bore Perry's signature was a printed state- ment consisting of her pledge faithfully and honestly to discharge her duties, to give her full time to her job, and strictly to comply with the Company's rules and regulations. No rules and regulations were ever brought to her attention, however, or to the attention of the other employees herein involved, nor was there any COOK PAINT & VARNISH COMPANY 433 proof in the case that the Respondent had ever published any rules and regulations for its office employees. No evidence appears that there was a rule by the Respond- ent prohibiting union solicitation at any time, or for that matter any kind of solici- tation. On the contrary, Clasquin admitted that he permitted solicitation by the office girls of participation in baseball and football "pools." It is also a fact that the office employees felt no restriction against discussion of personal matters during working time and in fact did engage in such conversations. It is further evident that in the "relaxed atmosphere" of the office, of which Clasquin approved, it was not objectionable for the girls to take an extra coffee break which, as proved by Godbey's testimony, was done with the knowledge of supervisors and in their company. Concerning the discharge of Tallant on December 10, 1959, Clasquin related that he had returned to his office that morning after an absence of 2 days in which he had visited the Respondent's operation at Vashing, Texas. That morning he had looked for a laboratory report which should have been typed by Tallant, but was unable to find it. Inquiry revealed that Chief Chemist Duhig had dictated the report but that it had not yet been typed by Tallant. He took up the matter with Major who also explained that Tallant had not done the typing. Thereupon Clas- quin told Major that Tallant was not getting her work done because of her absences. Major assertedly shared this opinion. Clasquin then stated they would have to get someone who would get the work out. He consulted with Major and Bogart and repeated that someone would have to be obtained to do the work. Bogart asked whether Clasquin had objection to discharging her. Clasquin declared he had not. Clasquin further related he was upset at the time because of the workload on his desk and criticisms which he had received in the past from the Respondent's Kansas City office about the inadequacy of his office staff and had no time to wait for the unprepared report. Regarding Tallant's absences, he testified she had been absent regularly and so much in her last 2 months of employment that he and his associ- ates had concluded that she was a hypochondriac. In a prior discussion with Major about Tallant's September 1959 illness, Clasquin had told him that if she could not get her work done she should not be kept on the payroll. Major, he claimed, advised that he had told Tallant she was not producing. Tallant's timecards for the period September 6 to December 12, 1959, show absences on September 10, 13, and 14 and on December 7, a total of 4 complete days. They also revealed that she worked half days on September 26 and 27. In addition the cards show that Tallant reported after the 8 a.m. starting time on 41 of her last 64 working days. These late arrivals for the most part involved tardiness of 1 to 5 minutes. The cards also reflect that Tallant frequently made up these lost minutes by working beyond her quitting time, and on several occasions worked overtime substantially past the 5 p.m. quitting time. Concerning Godbey's discharge, Clasquin testified that on December 10 he was informed by Bogart that her attitude toward her work was "extremely poor," and that on several occasions he, Bogart, had to summon her from the restroom to do a specific job. Bogart also charged her with belligerence toward him when he requested her to do certain work. Bogart asked whether Clasquin had any objection to discharging her. Although the record does not contain Clasquin's response, his testimony implies that he registered no objection and that Bogart then proceeded to discharge her. Clasquin further testified that Godbey worked with other em- ployees as a team to prepare and send sales reports to the Respondent's Kansas City office. These reports, he stated, were 4 to 6 days delayed. He maintained that when she was not working at her own desk she should have been, but was not, helping someone else. He conceded that Godbey had the competence to do good work. Godbey was rehired by the Respondent upon its own solicitation of her on March 29, 1960. Clasquin testified that he conferred with her before she was reemployed and expressed concern over her attitude and performance before her discharge, and that Godbey conceded that it had not been good, but promised that she would henceforth be attentive and productive. Godbey offered a different version of this interview. According to her, it had been prompted by her inquiry of Office Manager Cook concerning the consequence of testifying in this proceeding which was already pending. Cook suggested that she discuss the matter with Clasquin. In the resulting conference Clasquin advised her there would be no reprisal against her for testifying and told her to testify truthfully. She recalled that Clasquin had also asked what had been wrong with her attitude and why she had not worked up to her capabilities. She testified that she had assured Clasquin that so long as there was work to be done she would stay at her desk and do it, but added that this is just what she had done in the past. She denied that it had been 586439-61-vo1. 129-28 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD necessary in the period preceding her discharge for the office manager to summon her to return to her work. Regarding Denny, Clasquin testified that she had worked under a Mr. Hill. Be- cause Denny had fallen behind in her work, a former employee, Joyce White, had been reemployed on a part-time basis to assist her. On the morning of December 10, 1959, Hill had informed Clasquin that Denny's work was delinquent, and in consequence purchase orders for raw material were not being placed timely. Clas- quin had discussed with Hill the failure of raw material to reach the plant on time because of the delay in sending orders to the supplier. There had been an incident reported to Clasquin by Major about the improper placement of an order which resulted in an unspecified monetary loss to the Respondent, and this had been Denny's fault. Clasquin had also been advised that Denny had not been getting out certain "floor covering reports" on time. There had also been a circumstance, of which Clasquin was cognizant, when Denny had "raised Cain" over a delay in receiving her paycheck from Kansas City. She had also criticized the Respondent's business methods. This prompted Clasquin to characterize her as belligerent. With these circumstances in mind, Clasquin had told Hill, on December 10, that he would have to choose between Denny and White, and suggested that unless Bogart and Major objected White should be retained and Denny discharged. Apparently there was no objection from them, for, according to Clasquin, this accounted for Denny's termination. As to Wells' discharge, Clasquin testified he did not make the decision to let her go. According to Clasquin, Office Manager Cook decided to discharge her and he, Clasquin, approved Cook's request for this action. Clasquin nevertheless testified that during Wells' service on the accounts payable desk four men and a supervisor had several times been assigned the task of assembling certain paper records which accumulated at the desk so that the Respondent's Kansas City office could pay its suppliers. He recalled a particular occasion when, as he was informed, these men worked late into the evening but made little progress toward putting the papers in good order. This, Clasquin reasoned, reflected fault in the handling of these papers. For 1 month a factory employee who had been Wells' predecessor on her job worked evenings in an effort to straighten out the papers at the desk. Cook had also spent a week, apparently before he became office manager, processing the papers to get them in good shape. As a result of the paper backlog on Wells' desk, for which Clasquin blamed her, the Respondent lost discounts through failure to pay its bills timely. Apparently all these considerations entered Clasquin's mind when he assented to Cook's request for authority to discharge Wells Analysis and Findings Interference, Restraint, and Coercion Tallant's undenied testimony, which I have credited, establishes that on December 7, 1959, she was asked by Major to reveal what she heard about the Union, and that the same day, according to Wells' undenied and credited testimony, Clasquin asked employee Veeda Hancock whether she "knew who signed" which apparently was an inquiry to obtain the names of those who had signed union membership cards. Such solicitation and questioning of employees by the Respondent's top officials to secure knowledge of employee union activities and identification of union adherents, particularly in the context of this entire case, constitutes interference, restraint, and coercion of employees in the exercise of rights guaranteed by Section 7 of the Act and is violative of Section 8(a)(1) of the Act.' The allegation in the complaint that the Respondent had threatened to discharge employees for engaging in union activities was dismissed at the hearing for lack of evidence. Discrimination The record firmly convinces me that the Respondent discharged Perry, Tallant, and Godbey for their activities in behalf of the Union. On the other hand, despite doubts that Denny and Wells were discharged for the justifiable reasons asserted by the Respondent, I am persuaded that the record does not permit a finding that they were unlawfully discharged. The Respondent has admitted knowledge of Perry's union activities before her discharge. While there is no direct proof that the Respondent knew of Tallant's and Godbey's union activities before their discharges, there are circumstances from which 'Alterman Transport Lines, Inc., 127 NLRB 803 COOK PAINT & VARNISH COMPANY 435 I infer such knowledge. The pro and con discussions among the girls in their small office, the knowledge of the Respondent's supervisors and officials of the organiza- tional activities among the girls coupled with their concern about these activities, their inquisitiveness concerning these activities, particularly about the identity of those girls who had signed cards for the Union, and the apparent effectiveness of the office grapevine which quickly revealed Perry's solicitations to Bogart, satisfy me that the Respondent's supervisors, especially Bogart, Major, and Clasquin, knew that Tallant and Godbey were supporters of the Union. The Respondent's opposition to unionization of its office personnel is clearly re- vealed by Major's remark to Tallant that he did not want to fool with the Union. Bogart's explanation to Perry that her discharge was caused by the fact that she had been "behind" the Union or had been "pushing" it is further evidence of the Respondent's opposition to unionization of its office force. In finding that the Respondent was opposed to organization of its office employees by the Union, I am mindful of Clasquin's testimony concerning his past dealings with other labor organizations, the Respondent's claimed neutrality in the union affairs of its em- ployees, and its collective-bargaining relations with a local of the Painters and Decorators Union, AFL-CIO, which represents the production workers at Houston. The fact is that the Respondent by its deeds did not in this case abide by its neutrality policy. That the Respondent cordially bargains with one labor organization for its employees does not rule out the possibility that it does not relish the activities of another rival organization which could unsettle its stable relations, and for this reason alone would oppose the intrusion in any part of its plant by the rival organization. When there is added to the Respondent's knowledge of union activities and its opposition there to the abruptness of the discharges, the total absence of warnings of disciplinary action of any kind or for any reason, the extraordinary occurrence of so many discharges contrary to the Respondent's past employment history directly after the start of the Union's campaign, and the uncertain and evasive explanations given for the discharges, especially to Perry and Tallant, there emerges a strong prima facie case of discrimination regarding the discharges of Perry, Tallant, and Godbey. The Respondent's explanation for these discharges fails to overcome the General Counsel's prima facie case. As I have previously noted, the Respondent's brief appears to rely solely in its defense to Perry's discharge upon the contention that she was discharged because she solicited for the Union during working hours. The Respondent argues that such conduct is not an activity protected by Section 7 of the Act and a discharge therefor is not statutorily sanctionable. The short answer to this argument is that Perry was not discharged for this reason but because she was the leader of the union movement. This was virtually admitted to her by Bogart when he told Perry that she had been discharged for "pushing" the Union, or because she had been "behind" it. Moreover, the Respondent had no rule forbidding solicitation during working time for any reason. In fact solicitation during working time in the relaxed atmosphere of the office was permitted for baseball and football pools, and talking between the office workers about personal matters was not uncommon. Indeed, two of the employees from whom Perry briefly inquired about their union intentions were engaged in a personal conversation when she approached them and it is evident that Perry did not cause them to deviate from their work or that she took time out from her own. The proposition relied upon by the Respondent that working time is for work, is not arguable.2 Had the Respondent promulgated a rule forbidding neglect of duty to engage in private discussions, including solicitation for the Union, Perry's violation of such rule would have legally entitled the Respondent to discharge her. Even without the rule, but in circumstances where employees knew they were not supposed to talk during working time, discipline for breach of such undeclared rule by taking time out from work to talk about the Union is legally permissible.3 But such clearly was not the case here. Not only was there no rule to prohibit talking during working hours, but the employees did talk with the knowledge of their supervisors, they were not warned by them, nor were they disciplined. The sudden discharge of Perry for talking about the Union can mean only that the Respondent was disparately con- cerned with curbing only those conversations between employees which involved union solicitation. In these circumstances it is plain that the Respondent's explana- tion for Perry's discharge is merely a technical contrivance to cloak its real reason, namely, its desire to get rid of Perry because of her leadership in the Union and her advocacy of the union movement. 2 See the explicit enunciation of this doctrine by the Board in Peyton Packing Company, Inc., 49 NLRB 828; see also Olin Industries, Inc., etc. v. N.L.R.B., 191 F. 2d 613 (C.A. 5). 3 Underwood Machinery Company, 74 NLRB 641, 648. 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the record stands, Perry was discharged by Bogart because of her union activities and for no other reason. Her discharge for this reason was plainly a violation by the Respondent of Section 8(a)(3) of the Act. In so finding I deem it immaterial that Clasquin in authorizing Bogart to discharge her may have been mindful only of her asserted shortcomings in the performance of her duties, for it was not Clasquin but Bogart who discharged Perry for his unlawful reasons. In any event, I would on this record find no support for any implication in Clasqum's testimony that Perry had failed to satisfy the Respondent with her job performance and that her discharge resulted therefrom. Certainly, Bogart, who was in a better position than Clasquin .to observe Perry, was not dissatisfied with her work, for he had promised her a raise a week before her discharge and conceded to her that her discharge was not attributable to fault with her work. Whatever criticisms of Perry's work are implicit in the remarks Clasquin claims to have made to Bogart when he authorized her discharge are not founded upon Clasqum's direct knowledge but upon hearsay which may not be accepted as proof that Perry had not performed her job to the Respondent's satisfaction. To the contrary, the probative evidence in the record upon which I rely shows that she was favorably regarded by the Respondent. There is no basis in this record to support any contention, if it is still seriously advanced, that Perry was discharged for reasons other than her union activities. Respondent's explanation for Tallant's discharge is wholly unconvincing. Here again, the Respondent has failed to produce testimony from the persons who had the best knowledge of her claimed inadequacies. Instead, the Respondent relied upon the testimony of Clasquin whose knowledge of Tallant's alleged faults are based essentially upon hearsay reports. In the absence of refutation from Major, the official who was best able to pass judgment on her work, I find, in accord with Tallant's testimony, that he had enthusiastically placed his stamp of approval on her by declaring that she was the best secretary that he had ever had. This compli- mentary expression genuinely reflected Major' s estimate of Tallant's services, for when Tallant had in good conscience offered to resign about 2 months before her discharge because she feared that medical treatments would deprive Major of her full-time services, he urged delay and then, after it appeared that the radical medical treatment which Perry had anticipated would not be required, he told her to forget about her resignation. Neither Major, Bogart, nor any other official had ever com- plained to Tallant about her absences from her job, late reporting, or failure to get her work done on time. How, in the face of these hard facts, can credence be given to the impression which Clasquin by his testimony sought to create that Tallant in the 2 months before her discharge had chronically failed to keep up with her work because of her absences, so that her failure on December 10 to complete the typing of a report was in effect the straw that broke the camel's back? Actually, Tallant's absences were not particularly significant. In the 2-month period before her discharge she had been absent only 1 day. Clasquin was obviously exaggerating when he testified that Tallant had been absent so much during the last 2 months of her employment that "we had talked about her absences and we felt she was a hypochondriac." Assuredly, Clasquin had not, in November 1959, about a month before Tallant's discharge, taken such a dim view of her suitability for he had then authorized the granting of a loan by the credit union of the Respondent's em- ployees. In approving Tallant's application for a loan at that time Clasquin had been required to consider whether she would continue her employment with the Respond- ent sufficiently long to assure repayment. He was satisfied that she was a good risk from this standpoint and approved her application. Obviously, he had not con- sidered her job in jeopardy or he would not have noted his approval, particularly, as he was by his own concession mindful that "losses to the Credit Union in the Texas division were a lot greater than those in other sections of the Company." I am, accordingly, convinced that Tallant's alleged absences from work had nothing to do with the Respondent's reasons for her discharge. Nor do 1 believe that Tallant's tardiness in reporting for work contributed to her discharge. I appreciate that an employer who strictly requires his employees to observe official starting times could become sufficiently irritated by the repeated tardiness of an employee to discharge her But the Respondent was not such a strict employer and tolerated the late arrivals not only of Tallant but of many other girls in the office In fact, during the period preceding the discharge of Tallant, Clasquin's own secretary had a greater late reporting rate than Tallant. Others also frequently reported after the 8 a.m. starting time. There is no evidence that Tallant, or any of the others, was ever reprimanded or told to change her habits. Tallant's late arrivals for the most part involved an insignificant few minutes which resulted in no loss of working time as her checkout times were frequently after the 5 p.m. quitting time. It was not shown by the Respondent, nor do I believe it could have been, that her COOK PAINT & VARNISH COMPANY 437 tardiness affected her productiveness. Moreover, Clasquin's asserted reason for her discharge was her failure to produce due to numerous absences , not because of tardiness. As to the untyped report which allegedly precipitated Tallant's discharge, it must be considered that however irritated Clasquin may have been over this circumstance it is not claimed by him that this alone was the cause of the discharge. The essential reason, as presented by Clasquin, was Tallant's past failure to get out her work. I have found there is no factual support for this claim of past delinquency. It follows that the whole explanation is without basis and, in my opinion , is a mere invention to provide cover for the real reason for the discharge. Tallant's discharge like Perry's and Godbey's, which I shall next discuss, sprang from the Respondent's opposition to unionization of the office employees. The con- cern which the Respondent's officials registered about this event has already been related. The particular interest in Tallant's union activities by these officials has also been described. It may reasonably be inferred that the realization that they had been mistaken in their assumption that Tallant had not signed a card for the Union produced resentment sufficient to impel her discharge. In sum, I find that the General Counsel's prima facie case of discrimination against Tallant has not been overcome by the Respondent's unsatisfactory explanation. By discharging her for her union activities the Respondent violated Section 8(a)(3) of the Act. As with Perry and Tallant, the Respondent's unconvincing explanation for God- bey's discharge is insufficient to overcome the General Counsel's prima facie case of discrimination. Although Godbey's discharge, as explained by Clasquin, was pre- cipitated by Bogart's complaints, Bogart was not called by the Respondent as a wit- ness to substantiate them. Instead, the Respondent elicited only Clasquin's recital of what Bogart told him concerning Godbey. I have credited Godbey's denial of the derelictions ascribed to her by Bogart, as related by Clasquin, and find that in the period preceding her discharge she had not neglected her work by leaving her desk, that it had not been necessary for Bogart to summon her to return to her desk to perform her duties, and that her attitude toward Bogart m this period had not differed from what it had previously been. In making this finding I have considered Clas- quin's version of the interview with Godbey at the time of her rehire, and credit her testimony that she had not agreed with Clasquin's remarks at the time to the effect that there had been fault with her work or attitude before her discharge. Godbey impressed me as an exceedingly frank witness who was concerned with telling only the truth regardless of the consequences. Clasquin did not impress me as equally forthright. Thus, there is no evidence in the entire record which I credit to support a claim that Godbey had been derelict in her work before her discharge. Clasquin's testimony about the delay in the preparation of sales reports by a team of employees of which Godbey was a member was limited to the period of 11/z weeks before her discharge, and the claim by Clasquin that she failed in this period to remain at her desk appears also to be based on hearsay reports he received from Bogart. I have found that Bogart had no basis for such complaint to Clasquin. I deem it unlikely that Bogart made such an unfounded report to Clasquin unless he had an ulterior motive for getting rid of Godbey and was improvising a pretext for her discharge I have already found that Perry was discharged for an undisguised antiunion motive which Bogart expressed to her. It may reasonably be assumed that Bogart was disposed to get rid of Godbey because she had signed a card for the Union. Whether it was Bogart alone who was responsible for Godbey's discharge because of this activity or whether Clasquin was equally involved in getting rid of her for this reason, is immaterial to a finding that she was discharged by the Respond- ent because of her union activities, for Bogart as well as Clasquin was the Respond- ent's agent for whose conduct it is responsible in this proceeding I find that by dis- charging Godbey for her union activities the Respondent violated Section 8(a) (3) of the Act. Unlike Tallant and Godbey with whom she was simultaneously discharged, Denny had not signed a union card, nor is there evidence that she had in any other way revealed sympathy or support for the Union. To compensate for the lack of this essential ingredient in Denny's prima facie case, the General Counsel relied upon proof that at work Denny was a close friend of Tallant and that they were frequently together during their nonworking time. The General Counsel reasons that as Tallant was a known adherent of the Union, the Respondent formed a belief that Denny, through friendship and association with her, was also an adherent. While the Re- spondent may have indulged in such theorizing, I cannot in the circumstances of this case accept it as a fact. I have inferred the Respondent's knowledge of Tallant's and Godbey's union activities from the several circumstances which I delineated including the office grapevine. I believe it more likely that this same avenue of information 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD revealed to the Respondent that Denny before her discharge had not signed a union card rather than the opposite. In this circumstance I may not find that the Respond- ent discharged Denny for belief that she had engaged in union activities. In determining that Wells' discharge was not caused by her openly declared union adherence, I have accorded great weight to the absence of the timing factor which was ,present in the case of the others whose discharges I found were discriminatory. While it may be argued that the Respondent did not act precipitately in discharging Wells for her union activities directly after they were revealed in order to avert sus- picion, this reasoning impresses me in the circumstanoes as too speculative to warrant acceptance. In the first place at least one other employee, Joyce White, had dis- closed her union activities without suffering reprisal. Furthermore, the Respondent's explanation for Wells' discharge seems plausible. Although in her case, as in the others, the Respondent's justification is weakened by the failure of the supervisor who discharged her to testify concerning his reason for this action, the reason given by him to Wells is amply supported by Clasquin's testimony as to her inadequacies concerning which he had personal knowledge. I am satisfied that his explanation is sufficient to overcome the General Counsel's prima facie case. Because I do not believe that the record preponderates in favor of a finding that Denny and Wells were discharged for their union activities, I shall recommend dis- missal of the allegations in the complaint that by their discharges the Respondent violated 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 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 burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Re- spondent on December 7, 1959, discriminatorily discharged employee Lynne Perry, and on December 10, 1959, discharged employee Jeanette D. Tallant, and has since refused to reinstate these employees. It has further been found that the Respondent on December 10, 1959, discriminatorily discharged employee Emma D. Godbey but that it has since reemployed this employee. It will therefore be recommended that the Respondent be ordered to offer Perry and Tallant immediate and full reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges. Although Godbey is now employed by the Respondent it is not determinable from this record whether her reemployment provided full reinstatement without prejudice to seniority or other rights and privi- leges formerly enjoyed by her. It is recommended that the Respondent be ordered immediately to restore her to her former status with respect to these conditions. It shall also be recommended that the Respondent make whole these employees for any loss they may have suffered because of the discrimination against them by payment to them of sums of money equal to the amounts they normally would have earned as wages from the date of the discrimination to the date of the offer of reinstatement, with backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Because the Respondent's unfair labor practices go to the heart of the Act, the commission of similar and of other unfair labor practices may reasonably be an- ticipated. It will therefore be recommended that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed its em- ployees by 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. Cook Paint & Varnish Company is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 50, United Mine Workers of America, 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 Lynne Perry, Jeanette D. Tallant, and Emma D. Godbey, the Respondent has engaged in ARGENTUM MINING COMPANY OF NEVADA 439 and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 4. By soliciting employees to reveal information concerning union activities of their fellow employees and to reveal the identity of employees who have engaged in activities in behalf of the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The allegations of the complaint with respect to unlawful discrimination against Peggy J. Denny and Roma J. Wells have not been sustained. [Recommendations omitted from publication.] Argentum Mining Company of Nevada and Hod Carriers, Labor- ers, Miners, Maintenance and Production Workers, Local Union No. 169, International Union of Hod Carriers and Com- mon Laborers, AFL-CIO, and International Union of Operat- ing Engineers, Local Union No. 12, AFL-CIO, Jointly. Case No. 20-CA-1693. October 25, 1960 DECISION AND ORDER On February 11, 1960, Trial Examiner Eugene K. Kennedy issued his Intermediate 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 Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, insofar as they are consistent with our decision herein. The essential facts are as follows : For approximately 2 years prior to the instant hearing, the Re- spondent was engaged in the mill processing of silver from ore at its mining location near Mina, Nevada. The ore that was processed originated mainly from a large stockpile located on the premises near the mill. I Inasmuch as the record , exceptions , and brief adequately present the issues and posi- tions of the parties, the Respondent's request for oral argument is denied. 129 NLRB No. 53.