Carroll Egg Co., Inc.

CARROLL EGG COMPANY, INC. 1045 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union set forth in section III, above, occurring in connection with the operations of the Company set forth in section I, above, have a close, in- timate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent International and its local, Respondent Local 899, have each of them engaged in and are engaging in unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It has been found that the Respondent International and its Local 899 violated Section 8(b)(2) and (1) (A) of the Act by requesting and demanding that the Company discharge the employees listed in the complaint because they had paid dues to the Union. I shall therefore recommend that the Union cease and desist from making such requests and demands. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents, International Union, United Automobile, Aircraft, Agri- cultural Implement Workers of America, AFL-CIO, and its Local 899, are each labor organizations within the meaning of Section 2(5) of the Act. 2. By attempting to cause John I. Paulding, Inc , to discriminate against em- ployees in regard to their hire and tenure of employment in violation of Section 8(a)(3) of the Act, the Respondents International Union and its Local 899 have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b) (2) of the Act. 3. By restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent International Union and its Local 899 have engaged in and are engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Reconunendations omitted from publication.] the strike. There is some evidence to indicate that the employees cashed the checks believing it was for strike duty which they had performed the previous week. In any event, I do not consider this evidence as substantial proof that they intended to remain as members of the Union. Their consistent failure and refusal to pay dues to the Union during the entire period following their abandonment of the strike indicates that they had a real desire to withdraw their membership from the Union when they abandoned the strike. The cashing of a check for strike duty which they in fact had not performed might be proof of their unlawful detention of union moneys but it can hardly be con- sidered as proof, in the circumstances here involved , of their intention to thereafter , remain members of the Union. ,Carroll Egg Company, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 18-CA-1076. March 2, 1961 DECISION AND ORDER On September 9, 1960, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above-entitled proceeding, finding that the 'Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached 130 NLRB No. 100. 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hereto. Thereafter, the General Counsel 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 [Members Rodgers, Jenkins, and Fanning]. 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 briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Carroll Egg Company, Inc., Carroll, Iowa, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or in any other labor organization of its employees, by discharging, laying off, transferring to less desirable work locations, refusing to recall, or in any other manner discriminating against its employees in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with a-shutdown of the plant, loss of their jobs, or disbarment from further employment, if the above- named Union organized the plant or if the employees assisted or sup- ported it; engaging in surveillance of employees' union and other con- certed activities. 1 We find that the Trial Examiner erred in permitting Delmar L. Chipman , over objec- tion, to. testify only as to the authenticity of his signature on his inspection report to the Respondent, and in not permitting the General Counsel to cross-examine, while at -the same time giving weight to Chipman's testimony . See Bricklayers and Masons Union No. 24, etc. (Booth and Finn Company ), 129 NLRB 867. We therefore do not rely In any manner on Chipman's testimony. On the remainder of the evidence in the record, how- ever, and particularly Randolph's testimony concerning Chipman's inspection report and Respondent's reliance thereon , we find that the Trial Examiner's findings are supported. 2 We do not adopt the Trial Examiner's finding in effect that Foley, Mitchell , Broich, and Wenck had "deliberately misgraded" eggs. It is sufficient in our opinion that, as found by the Trial Examiner, the unusually low grading percentages of these four em- ployees in the circumstances provided economic justification for the Respondent 's action In the temporary layoffs as a disciplinary measure. The Trial Examiner found that the discharge on April 24, 1960 , by Respondent of a group of employees who had applied for unemployment compensation "further evidenced Respondent's antiunion animus and Its propensity to use measures proscribed by the Act to thwart the Union's campaign." This Incident was not alleged and is not properly an issue in the case before us. We do not adopt or rely upon such finding in any way. How- ever, our exclusion of this element of the Intermediate Report does not affect or alter our ultimate findings and conclusions in the case. 8 No exceptions were filed to the Trial Examiner 's recommended dismissal as to Helen Wenck. CARROLL EGG COMPANY, INC. 1047 (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights enumerated in, and guaran- teed to them by, Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Joan Mitchell immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make Joan Mitchell and Marcella Foley whole for any loss of pay they may have 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 se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its plant in Carroll, Iowa, copies of the notice attached to the Intermediate Report marked "Appendix." 4 Copies of said no-- tice, to be furnished by the Regional Director for the Eighteenth Region, shall, after having been duly signed by the Respondent; be posted by 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 such notices are not altered, defaced,. or covered by any other material. (d) Notify the Regional Director for the Eighteenth,'Region, in writing, within 10 days from the date of this Decision and Order, what steps it has taken to comply therewith. "This ,notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the-words "A Decision and Order." 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 Appealq, Enforcing an Order."• INTERMEDIATE REPORT STATEMENT OF THE CASE This case, with all parties represented, was heard before the duly designated Trial Examiner in Carroll, Iowa; on January 27, 28, and 29, 1960, on a complaint issued by the General Counsel of the Board on November 13, 1959, and an answer filed by Respondent Carroll" Egg Company, Inc.,' denying the commission of any unfair labor practices. The issues litigated were whether (1) at various times in 1959, Respondent reduced the hours of work, laid off, discharged, and refused to recall or reinstate certain employees who were union adherents, because of their concerted activities and adherence to Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, in violation of Section 8(a) (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, and (2) in the same period coerced employees by various threats and other 1 Both pleadings were amended at the hearing as noted hereafter. 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities in violation of Section 8(a)(1) of the Act. General Counsel and Re- spondent waived oral argument but have filed briefs with the Trial Examiner which have been carefully considered. On May 4, 1960, General Counsel and Respondent filed a stipulation for correction of the transcript. The stipulated corrections are hereby made, and the stipulation is entered in the record as General Counsel's Exhibit No. 9. On the entire record in the case, and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is an Iowa corporation which operates a plant at Carroll, Iowa, where it sells eggs at wholesale. In the 12-month period ending November 1, 1959, Respondent shipped products valued in excess of $295,000 from said plant directly to points outside the State of Iowa. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The above-named Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The union campaign and Respondent's reaction to it The Union began an organizing campaign at Respondent's plant on or about May 19, 1959, when Union Organizers Luverne E. Noon and W. J. Patty held an initial meeting with some laid-off employees, including Helen Wenck, at a motel in Carroll. These employees signed union authorization cards and advised Noon to contact employee Marcella Foley 2 as the "key" employee to work for the Union. In the next 2 days the union representatives solicited and signed up other employees. On May 20, the union agents tried to contact Foley at her home without success .3 On May 21, 1959, at the afternoon rest period Plant Manager Wayne Webber made a speech to day-shift employees (15 to 20 all told) in a group in the plant. He said most of the employees knew the unionmen were in town, and that it did not harm to listen to them, but he knew that the employees needed to work and wanted to keep their jobs, and that if they joined the Union and "if we get a union in here, Mr. Randolph 4 will close the doors," and they would lose their jobs. Employee Iris Webber, wife of the manager, who was standing at one side , called out to her husband that "if the girls sign union papers, they will get the same as those girls who were trying to draw unemployment compensation," to which Webber replied, "that is right," adding that any employee who joined the Union would be "bonded" or "barred" from the plant for 20 years. Foley spoke up, telling Webber she thought a union was all right. He replied, "Yes, if you get a local of a good union, I agree with you," and then said, "But I do know that if we get this place unionized, I am sure that Randolph will close the doors." He then sent the employees back to work.5 About 5 p.m. that day, Foley mentioned to Webber at the plant that the unionmen were in town, and asked him what he thought about it. He said that the Union was "alright," and that if she wanted to listen to them, she should "go right ahead and listen, but don't sign anything." He also said, "But you know that Mr. Randolph would never stand for a union in any one of his plants, he will close the doors if we get a union in." That night the union agents met with Foley and about eight other employees, including Dorothy Broich, John Mitchell, and Helen Wenck, at Foley's home in Carroll, Iowa. While they were conferring in .the living room or kitchen. Iris Webber came to the front door and was met by Foley. On seeing the group, Mrs. Webber remarked that Foley had "company." Foley said, "Yes," and invited her to join the group, saying that the meeting was quite interesting, that she should call her husband z Foley was known at the plant and desciHbed in the record as "Sally" Foley. 3 The above facts are based on credited and uncontradicted testimony of Noon, Wenck, and Foley. * He referred to Howard Randolph, owner and president of Respondent. rs The facts as to the speech are based on credited testimony of Foley and Dorothy Broich, as corroborated by admissions of Wayne and Iris Webber. Testimony of the latter witnesses in conflict therewith are not credited. CARROLL EGG COMPANY, INC. 1049 and ask him to come over, that they would find out a lot. Mrs. Webber declined, saying that there was nothing there to interest her, and warned Foley, "You better play it cool and not sign any papers." She then said that she had come to pick up a coat she had left on a previous visit. Mrs. Webber got her coat and left to go with her husband to a restaurant.6 On May 22, the union agents conferred at the plant with Webber, and requested him to begin bargaining negotiations for a contract covering the employees. Webber told them that was not his business, that it would have to be discussed with President Randolph. Webber was abrupt and short in his replies to the union agents, and Noon asked him why he was "being so nasty." Webber replied, "You would be with all the trouble you're causing me." Noon asked what trouble and Webber replied, "You brought the goddamn union into this plant." Noon said the workers had decided to organize themselves into a union , and that he was sure the Union and Webber could work out an amicable agreement. Webber replied, "That will be the day, when you tell me how this plant is going to be run." Webber also said that Randolph would close the plant and that it would never be "operated union." Noon said that he did not believe this because he had already negotiated with Randolph in Des Moines, Iowa, about another plant which was not closed and he saw no reason why Randolph should close Respondent down. Webber replied that Randolph did not own Respondent, that there were 12 or 14 different dealers who owned the plant and brought in their eggs to be processed there, and that they would never bring in their eggs if it was a union plant.7 Webber admitted in his testimony that there was no secret about the union organization at the plant, though he is vague about the precise date he learned of it. However, Randolph and Webber admitted that in the early spring of 1959, Randolph rescinded Webber's normal authority to discharge employees, Randolph explaining that he usually did this in all plants when there are "problems of a union coming in." It is also a legitimate inference that Mrs. Webber promptly told her husband whom she saw at the meeting at Foley's home on May 21. I find and conclude from the above facts and testimony that: (1) Respondent knew of the union campaign as early as May 20, 1959, and learned on May 21, 1959, that Foley, Broich, Mitchell, and Wenck were interested in the Union. (2) On May 21, Respondent, through Webber, displayed open hostility to union organization of the plant , and tried to dissuade its employees from joining or assisting the Union by threats to close the plant if the Union organized it. These threats were clearly a violation of Section 8 (a) (1) of the Act. (3) On May 21, Respondent further violated Section 8(a)(1) of the Act by Webber's coercive threat that employees who signed up with the Union, either indi- vidually or in concert,8 would be discharged and barred from further employment with Respondent. (4) Respondent violated Section 8(a) (1) of the Act by engaging in actual surveil- lance of the employees' meeting with union agents at Foley's home on May 21, by means of Iris Webber's visit there. While the record shows that Mrs. Webber ostensibly appeared to pick up a coat left there on a previous visit and she testified that she had no idea a meeting was going on when she visited Foley, she does not explain when she left the coat there or why she could not have picked it up at some other time. Hence, her appearance at the precise moment of the meeting, viewed in the light of her remarks that afternoon at the plant meeting which prompted her husband's coercive threat of discharge, and her own private warning to Foley that night to "play it cool" and not sign any papers , convinces me that she came there O These findings are based on credited and mutually corroborative testimony of Noon, Foley, Iris Webber, and admissions of Wayne Webber. 7The above findings are based on credited testimony of Noon and Webber. Testimony of the latter in conflict therewith is not credited. 8 The threat of discharge for concerted activity was emphasized by Webber's com- parison of the threatened action to the recent termination of a group of employees who, according to uncontradicted testimony in the record, were warned of discharge, and then actually discharged , when they made application in a group for partial unemployment compensation from the State of Iowa, after they had been put on short hours. The group was apparently laid off April 22 or 23, 1959 , applied for compensation on the 23d and were discharged on the 24th, the same day that Respondent advertised for female help. The legality or illegality of their discharge is not an issue herein, but their concerted application for compensation was a form of concerted activity protected by the Act (see Salt River Valley Water Users Association , 99 NLRB 849, enfd. 206 F. 2d 325 (C.A. 9) ), and the- discharge for such activity is further evidence of Respondent's antiunion animus and its propensity to use measures proscribed by the Act to thwart the Union 's campaign. 1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to secure information about the meeting for her husband and Respondent, and that recovery of her coat was merely a convenient excuse to cover up her real motive? On May 29, 1959, the Union filed a petition with the Board in Case No. 18-RC- 3999 (not published in NLRB volumes), for certification as the statutory bargain- ing representative of the employees. An election was held on July 9, 1959, in which the Union received a majority of the votes cast, and on July 22, 1959, it was certi- fied as bargaining representative of all production and maintenance employees at the plant. B. The first layoff of Foley Foley, an egg grader of 111/2 years' experience, began to work for Respondent as an egg grader in July 1958, about a week after the plant opened. She signed a union authorization card on May 21, 1959, when she first met Noon. At that time he appointed her temporary union shop steward for the plant, which job became permanent by choice of union members at a meeting sometime in June. She con- tinued in that capacity after her final discharge on July 24, 1959, and up to the time of the hearings. She was also an official observer for the Union at the elec- tion. As found above, Webber became aware of Foley's prounion sentiments on May 21. The same day, on orders of President Randolph, he began to keep daily notes on her activities in the plant, particularly the extent to which she left her work- place "more than usual." On Friday, May 22, as Foley walked to her workplace from the restroom about 11 a.m., Webber stopped her and told her that she was there to "grade eggs and not talk," and that she should go home for the rest of the week and "think it over." She went home and did not report back to work' until Monday, May 25. These findings are based on credited testimony of. Webber and Foley. Foley testified that Webber's last remark was "think over the union deal," and on the basis thereof, General Counsel claims that her 2-day layoff was discriminatory. Her version, together with Respondent's antiunion animus, knowl- edge of Foley's union adherence, and Webber's warning to her to avoid union affiliation under pain of discharge through a plant shutdown, presents a strong prima facie case of discrimination. Webber testified that on Friday morning, he observed Foley visiting the restroom three times between 8 a.m. and 10:30 a.m., in addition to the regular 15-minute rest period, that she had been talking to the graders up and down the line, and that he told her about this when he stopped her and sent her home. I credit his testimony and accept his version of his final admonition to her, and discredit that of Foley, because I find from a preponderance of credible testimony of Wayne Webber, Iris Webber, Cecelia Wutschke, Ruth Nair, Marlene Bellinghausen, Zolla Damm, and Doris Berning, that Respondent had a rule against workers talking to others on the line while they worked, and that Foley violated the rule repeatedly by leaving her workplace and walking along the line several times a day, engaging other employees in idle conversation, which disturbed some of them while they concentrated on egg candling.10 Webber repeatedly saw Foley talking to girls on the line, and whenever she saw him coming along, she would stop talking and go back to her'light. While Foley says she does not "remember" any complaint by Webber to her about excessive rest periods or talking (aside-from the admonition on May 22), she admits she wrote a not to the other-graders. which Webber inter- cepted as it was passed along the grading line, saying that '`weak kidneys and an open bladder is my reason for spending any- time in the rest room," and that she wrote it because of complaints about her going to the "dressing room." The fact that -she circulated such a note shows that she felt impelled by the very trequency of her absence from the line to justify her actions to the other employees. While these facts, standing alone, indicate that Foley was laid off as a disciplinary measure because of excessive talking and absences from her workplace, their force is weakened by other circumstances, particularly the rapidity with which Respondent reacted against the union campaign and Foley in particular. The Union began its 9In its brief, Respondent admits that it is "very unfortunate" that Mrs. Webber hap- pened to visit Foley at the time of a union meeting, and that there is "perhaps circum- stantial evidence at least of surveillance." 10 Egg graders "candle" eggs by passing them rapidly in front of a strong beam of light, called a ".candle," and observing them for color, shell spots. size of air cell, position of egg yolk, etc., on the basis of which they judge them as "A," "B," "C," "dirty," and "check," and package or otherwise dispose of them on such decision. The work requires constant use of hands and eyes to pick up eggs, pass them rapidly in front of the light for observation, and then placement of them in cartons, flats, or other receptacles. Normal production for an egg grader is about 75 dozen, or 900 eggs, per hour. CARROLL EGG COMPANY, INC. 1051 campaign about the 19th, and requested bargaining on the 22d, at which time Webber indicated open hostility to the Union. The day before, he displayed hostility by illegal threats of a shutdown and possible loss of jobs. That night his. wife actively spied upon the first union meeting at Foley's home, and Respondent thus learned that she was a prime mover in the campaign . The same day Respon- dent had already begun to keep a detailed record of Foley's action and absences from her workplace. After little more than a day of such observation, Webber moved swiftly to discipline her for such conduct, although by his own admission he had seen her walking away from the grading line many times before, yet there is no substantial proof that he had ever done anything to stop it by discipline or other- wise previously, other than by general admonitions to all the graders. While Foley made many more trips to the restroom than other employees, her note indicates that it was for physical reasons. According to Webber, there was no plant rule which restricted the number of restroom trips. There is no substantial proof that Foley's talking or trips to the restroom at this time or previously had affected her work or that of others, to an extent which presented a natural reason for discipline. Hence I am convinced by the close sequence of events and all other pertinent facts noted above that the hasty layoff of Foley on May 22 was a deliberate attempt by Respondent to discourage the union activity at the outset by punishing the chief em- ployee proponent for the Union, using as a pretext her daily conduct which Re- spondent had chosen to ignore in the past. I therefore find and conclude that Re- spondent laid off Foley on May 22, 1959, not for the reasons given her at the time, but because she had joined and assisted the Union in its campaign. By this layoff, which was calculated to discourage membership in and activity on behalf of the Union, Respondent violated Section 8 (a) (3) of the Act. C. Alleged surveillance of the June 25 meeting The Union held a mass meeting for employees about 8 p.m., on June 25, 1959, at a cafe on a main highway on the outskirts of Carroll. As employees arrived at the meeting place between 7:45 and 8 p.m., many of them saw Wayne Webber standing on the far side of his car, on the premises of a gasoline service station lo- cated about 150 to 200 feet diagonally across the highway from the cafe. Mrs. Webber was standing with him. Webber stayed there until about 8:10 or 8:15 p.m., and during part of the time he was looking toward the cafe, apparently watching the employees enter through the front door. At this time it was dusk but light enough to see persons clearly across the road, as Mrs. Webber recognized another .employee driving by in a car and told her husband about it." Webber testified that while he was at the station he paid no attention to those who went into the cafe, that he already knew who would be here, as "it was no secret around the plant who the union members were." In view of his prior hos- tility to the Union and illegal activity found above, I discredit his statement that he was indifferent to those who attended the meeting. While it may be true, as the Webbers testified, that they stopped at this paricular service station to have a tail- light repaired on their automobile, Webber admitted that he also patronized several, other service stations in other parts of the town, but he gives no convincing reason why he found it necessary to have his car repaired on this evening at this particular station instead of the others. I am satisfied he was not there by coincidence for that purpose by deliberately for the purpose of observing the meeting. I find on all the pertinent facts that Respondent on June 25 engaged in actual surveillance of the concerted activities. of the employees, in further violation of Section 8(a)(1)* of the Act. D. The July 15 layoff As noted above, the Board election was held at the plant on July 9, 1959, and the Union was certified as bargaining representative on July 22, 1959. A week or so before the election, Forelady Marcella Stangle told employees Foley, Dorothy Broich, and Joan Mitchell in the dressing room that "if you know what is good for you, you will play it cool. You know that Webber knows that you are the troublemakers, and if you don't watch out, and quit fooling with the union, all three of you will find yourselves without a job." 12 On its face Stangle's remarks n These facts are based upon credible testimony of Noon, Foley, Mitchell, and Broich and admissions of the Webbers. v These facts are based. upon credited and mutually corroborative testimony of Foley; Broicb, and Mitchell. I do not credit Stangle's general denial that she ever talked about the Union to any of them, because she is vague about whether she ever spoke to these three employees at one time. 1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount to a clear coercive threat of discharge for union activity in violation of Section 8(a)(1) of the Act. The only question is whether her remarks are attrib- utable to Respondent because she was a supervisor or otherwise acting for Re- spondent. It is clear from the record, and General Counsel admits, that Stangle had none of the usual attributes of supervisory status specifically stated in the Act. General Counsel claims, however, that she gave orders to the employees for Webber and enforced those orders, and otherwise worked closely with management, to such an extent as to identify her with management in the eyes of the employees and give them reasonable cause to believe that she was acting and speaking for management. Stangle was one of the oldest employees in the plant, with long experience as an egg grader. During the period covered by this report, she spent most of her time in the plant office, checking the grades on the grader's tickets with grades given to dealers' eggs in prior weeks, to find out if there was any substantial variances.13 When she found such variance she would ask the grader involved to check her record, and if there was some mistake she would change the grading on the ticket; if there were further questions about the grading, she might ask the inspector from the U.S. Department of Agriculture 14 to check the eggs of a particular dealer more closely. When not engaged in this work Stangle occasionally graded on the line. At times she would show a new girl how to grade eggs at the request of Webber. She was also one of three experienced employees designated by Webber to answer any questions of the girls about the method of grading eggs or grading of specific eggs; Zolla Damm and Mary Seidl were the other two. In June and July 1959, Seidl was assigned to teach new girls how to grade, with the title of "forelady," but continued to receive $1 an hour like Damm and other graders. At times Stangle relayed orders of Webber to the girls, such as when to take or return from breaks. 'Stangle received $1.10 an hour, as against $1 an hour for the egg graders. I am satisfied that none of Stangle's duties involved responsible. direction of employees such as to make her a supervisor. At most, her instruction of new employees and resolution of their questions about grading were the type of routine duties which would normally be assigned to a more experienced grader. However, in checking the grading by various graders of the eggs of a particular dealer from week to week, tracing down the reasons for variations, and consulting both graders and the USDA inspector about it, Stangle was performing work which in the final analysis occasionally resulted in the change of grades on eggs candled by a particular grader, or her method of grading. This was apparently done without intervention of Webber or any other management official for the final decision. In addition, at the preelection conference of the parties with the Board agent regarding eligibility of employees, the Union claimed that Stangle, Damm, and Seidl were ineligible to vote, being supervisors.. Randolph announced that Stangle was his only supervisor and conceded that she should not vote. Stangle did not vote, although Damm and Seidl did without objection from the Union. On all of the above facts I find that Stangle had been placed in a position which was calculated to identify her with management in the eyes of the employees to such an extent that they were justified in believing that she was acting and speaking for management. In such circum- stances her remarks found above are attributable to Respondent. Southern Wire and Iron, Inc., 118 NLRB 820,;Armstrong Tire and Rubber Company, Tire Test Fleet Branch, 111 NLRB 708, 717, enfd. 228 F. 2d 159 (C.A. 5); Harrison Sheet Steel Company, 94 NLRB 81, enfd. 194 F. 2d 407 (C.A.. 7). On the morning of July 15, 1959, Randolph summoned Helen Wenck, Foley, and Mitchell to the plant office. Allen Headlee, a supplier of eggs to Respondent whose status will be discussed more fully below, was also present. Randolph told the girls that he was having trouble with eggs at destination, that customers had been com- plaining to him about their quality. He told them he had been checking the grad- ing reports of the graders and that the three girls and Dorothy Broich had been causing the trouble, as their poor grading had been pulling down the percentage. As he spoke to the girls, Randolph had in his hands reports of the USDA inspector showing the quality of grading of the four girls from July 10 onward for several days, and he read off her grades rapidly to each of the girls, telling all that he was ashamed of their work, and that the reports were unsatisfactory, because-he felt that they could do much better than that since he had heard that they were all good graders. As he read off the grades, each girl looked over his shoulder and checked the report as he read from it. Foley objected to his charge, saying that she had been a good grader for 111/2 years, and that they were not being penalized for their is She did this when a dealer complained that his eggs were being undergraded, so that he received lower prices for his products. u Hereafter abbreviated to "USDA." CARROLL EGG COMPANY, IN C. 1053 grades, but for union activity. Randolph said that had nothing to do with it, that there was too much "goofing," that they were not grading properly, and that they were "working against Webber." Wenck disagreed, saying that Webber was work- ing against them. -Randolph finally said that he felt that he should not discharge them because of these grading reports, but that he was going to penalize them for misgrading eggs by laying them off for 2 weeks, and that they should go home, think about it, and practice up on their grading, and that they could return at the end of 2 weeks. He told them to leave the plant at 11 : 30 a.m., saying that he would pay them for 11 hours' work up until 1 p.m., as he did not want them disturbing other girls on the line. The three girls then gathered up their belongings and left the plant. During the discussion, none of the girls asked to see their grading reports or asked questions about the grades ; Foley only asked Randolph to bring Webber and Chipman into the room, but he did not do so. At one point Mitchell asked Ran- dolph if they were the only girls who were pulling down the grades , and he replied, "That is beside the point, it is you girls I am,talking to." 15 Dorothy Broich was on the afternoon shift that day. About 11 a.m. Randolph called her on the telephone and asked if she could come down to the plant then, although she was not due to report for work until 1 p.m. She said she could not because she had other plans. He then told her that he was having trouble with eggs, that she and the other three girls named above were pulling down the per- centage, and that he was penalizing all four by laying them off for 2 weeks. She replied that she did not see why he chose her, as she had been grading the same way ever since she started at the plant , her grading had been good, and she wanted to know why it was not good at that time. She asked him to read off her grades, which he did. She asked when the girls should report back to work, and he said that he would let her know. Broich did not report for work that day in accordance with his orders. The issue here is whether the four girls were laid off for misgrading eggs as con- tended by Respondent, or for their prior union activity as claimed by General Counsel. Respondent's antiunion animus and propensity for discriminatory action against union -adherents is established by the facts noted above. Foley had been discrimi- natorily laid off for 2 days in May because of her union activity. The other three girls had signed up with the Union on or before May 21, 1959, and attended the meeting at Foley's home that night, and the June 25 meeting, which Respondent had kept under surveillance. Foley had been the union observer at the election. On election day Broich handed out union propaganda leaflets outside the plant, as Webber watched her a few feet away . Wenck had also been involved in the group discharge of the employees on April 22 , 1959, which occurred under circumstances amounting to discrimination in violation of the Act . On these facts I find that on July 15 Respondent was well aware of the union activities and, sympathies of all four girls. Hence, all of these factors present a prima facie case of discrimination which required Respondent to go forward with evidence to show that the reason for their layoff was misgrading of eggs, to an extent sufficient to rebut the prima facie case. In support of Respondent's position Randolph and Webber testified credibly and I find that: In the spring of 1959 Randolph began to get complaints from various customers about receipt of eggs of inferior quality at destination. Respondent had been packing A grade eggs in cartons for The Great Atlantic and Pacific Tea Com- pany (herein called A & P), one of his best accounts , which complained that it was receiving too many B grade eggs in cartons, and it threatened to and actually did cancel its account with Respondent in June. Similar complaints from customers for "bulk" (or case-lot) eggs resulted in financial loss to Respondent. When Randolph began to lose business , he told Webber about it , warning him that he would lose the A & P• business unless the plant improved its grading on carton eggs. However, Webber's attempts to improve the situation were ineffectual, and about June 1959 Randolph realized that steps were necessary to improve the grading. He decided to call in outside help to assist Webber in solving the problem. Respondent had not had a full -time USDA inspector at the plant since February; after he left, Respondent used such an inspector to grade eggs and make reports thereon only as and when a customer demanded it. Randolph requested the USDA to send a full-time resident inspector to the plant again . On July 6, 1959 , Delmar L. Chipman reported for work as such inspector . When he arrived , Randolph told him to run special grade tests on every grader in the plant , without letting them know .he was doing it or discussing his findings with them if be could avoid it . To that 15 These findings are based upon credited and mutually corroborative testimony of Foley, Wenck, Mitchell , and Randolph. 1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD end, he suggested Chipman select sample eggs from the conveyor belt at a "turn- table" located beyond the No. 15 grading light at the end of the grading line, so that no grader would know when he was inspecting her eggs. He asked Chipman to check eggs from both ends of the cases handled by each grader, to allow for possi- bility of different grades of eggs in some cases. Chipman inspected the eggs in accordance with these instructions, and recorded his findings on official USDA forms which will be described below. About July 1, 1959, Randolph also asked Allen Headlee, an egg dealer from Coon Rapids anda lifelong friend, to work at the plant in his spare time as an assistant to Webber, with authority to inspect all opera- tions in the plant, including the grading of the eggs, in order to find out how and why eggs were being misgraded and who was doing it, so that he could take steps to im- prove the operations. When Headlee reported at the plant shortly after July 1, Randolph introduced him to the employees, saying that he would be around the plant for a while to check the eggs and try to improve the operation of the plant. From then on Headlee was at the plant almost every other day checking its operations. At this point the egg grading practice and requirements at the plant should be noted. In general Respondent grades and packs eggs for two types of customers. The first group includes food chains and similar retail outlets, like A & P, which require eggs packed in cartons of 12 each for sale directly to the consumer at desti- nation. Carton eggs must have a grade of 90 percent or better at destination. A 90 percent grade means that 90 or more eggs out of every 100 graded or checked at random must be A quality eggs. The second group consists of the dealers or wholesalers who take eggs "in bulk," or cases of 36 dozen each. This is a "com- mercial" pack, and these eggs must grade 80 percent or better at destination. The witnesses for the General Counsel generally agreed, and I find, that a grade of 90 percent at the plant was considered a high grade, 80 percent was passing, and any- thing below that was not passing. "Consumer" pack is a stricter type of grading which requires slower and more careful observation of the eggs by the grader. It is done only at the upstairs line, as distinguished from the basement, where the "wholesale" or "commercial" pack of eggs is normally performed. In the week before July 15, Randolph checked all the inspector's reports on all graders, going back at least as far as the reports of July 10, and discovered that Foley, Wenck, Mitchell, and Broich had unsatisfactory grades as follows: 16 Foley- July 10-70-29-1 loss 17 64-33-2 Average 67-31=1-1 loss July 13-70-25-2 64-30-4 Average 67-27V2-3 July 13-65-32-3 73-24-2 Average 69-28-2.5 Dorothy Broich- July 10-50-39-9 dirty-1 check-1 loss 45-37-6C-7 dirty-3 checks-2 loss Average 47.5-38-3C-8 dirties-2 checks-1.5 loss July. 10-50-50-1 check 58-41-1 check Average 54-45.5-.5 checks July 11-63-35-2 loss' 58-39-1 check-2 loss Average. 60.5-37-.5 checks-2 loss Helen Wenck- . July 1.3-60-37-3 checks 48-47-4 checks Average 54-42-3.5 checks July 11-61-33-6 checks - 89-10-1 check Average 75-21.5-3.5 checks 10In recording the grades, the inspector examined 100 eggs from each end of a case, or 200 eggs per case in all. His report-on each 100 records mainly the number of "A," "B," and "checks," "C's," "dirties" and "losses" are also recorded. The number of "A's" determines the percentage grade. 17 The grades .hereafter show "A's," "B's," and "checks," except where otherwise noted. CARROLL EGG COMPANY, INC. 1055 Joan Mitchell= July 10-72-26-2 checks 66-30-1 check Average 69-28-1.5 checks July 11-78-20-2 checks 80-19-1 check Average 79-19.5-1.5 checks July 10-70-26-3C-1 check 65-27-4C-3 checks Average 67.5-26.5-3.5C's-2 checks Judging by the standards noted above, and admissions of the four employees, these grades were poor, most were far below average, and none were acceptable for carton or "consumer" pack. The four, especially Sally Foley, were experienced egg graders; two of them (Wenck and Broich) also had Iowa State licenses as egg graders. Ran- dolph had been advised they were all good egg graders. The wide variance between their grades and those of other employees working on the same line with them on the same days, and presumably handling the same run of eggs, is not explained by any of the four or otherwise in the record. Credible testimony of Randolph and Webber indicates that when a grader has learned the knack of grading and is ex- perienced, the quality of her grading remains the same, regardless of external or even subjective conditions, and that if the general quality of the eggs is running good, it is not possible for a good grader to make careless mistakes resulting in the type of poor grades shown by the four graders in question. Hence, Randolph concluded that their grades could only have been made through deliberate misgrading. In the light of the wide variance between their grades and those of others shown by the records, I am of opinion that he had a sound basis for his conclusion . On this point, it is also significant that when the four graders heard their grades read to them and three saw the grading reports, they did not question strenuously the figures or their validity, or offer any explanation for the low grades thereon; their only answer was to charge, through Foley, that their layoff was due to union activity. The admitted inferior grading of the four, in the light of the serious complaints Respondent had received from customers about the quality of eggs at destination, and the loss in- curred by Respondent as a result thereof, affords powerful support for Respondent's contention that it suspended these employees for unsatisfactory work, and not be- cause of their known union activity. This conclusion is,also supported by the fact that, while their derelictions were apparently serious, Randolph made it clear that he knew that they were good workers and capable of much better work than the reports showed, hence he was not discharging them but merely laying them off for 2 weeks as a disciplinary measure. The clear inference is, that he was not trying to get rid of competent employees who happened to be union adherents, but merely to discipline them for bad work. General Counsel recognized the force of these records, for he spent much time at the hearing trying to show they were not reliable or ,perhaps even falsified, and he strenuously argues that they ,are inadmissible either as business records or as official government documents. He also claims that, even if admissible on either theory, they have no probative value because Respondent did not by testimony eliminate all possibility or probability that the operations in the plant were deliberately changed or "rigged," so to speak, to assure that normal inspection would produce the results shown on the reports. It is clear from the circumstances under which Chipman came to the plant that his inspection and the records in question were initiated by Respondent specially in order to get to the root of a grading problem which had been plaguing Respondent. The inspection was not requested by a customer. of Respondent, nor did the inspector issue the customary certificate as to quality of.eggs at the request of a customer. His findings on inspection specified the quality of work done by each grader, which was not normally recorded for purposes of issuing a customer 's certificate. On this basis General Counsel argues that the records were made by the inspector acting as an agent and employee of the Respondent for a particular purpose, they were paid for by Respondent , and the inspection process was completely within the con- trol of Respondent, hence any presumption of accuracy which accompanies a docu- ment made in the ordinary course of business was completely lacking. However, I find other facts which indicate the reliability of the records.. The records were made by a USDA inspector who is a Government employee. He was assigned to the plant by USDA at the request of Respondent under authority given USDA by the Agricultural Marketing Act of 1946 (60 Stat. 1087, 7 USC 1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1621, et seq.), as amended . 18 He was paid directly by USDA which, in turn, billed Respondent monthly for the amount of his compensation plus certain fixed per- centages for overhead and administrative costs, in accordance with the statute. He apparently worked there on a "resident grading basis," rendering "continuous grading service," as provided by USDA regulations governing the grading and inspection of shell eggs.19 As a "resident" inspector, he worked a normal 40-hour week, plus overtime as needed, like other employees, used facilities provided by Respondent to carry out his inspections, and cooperated with management, as requested, by per- formance of tasks incidental to his inspection work. He made his inspections at one end of the upstairs grading line, taking eggs at random from the conveyor belt on which graders placed flats or cartons of eggs, each identified by the ticket num- ber of the grader (from 1 to 15). He conducted a random inspection from July 10 onward, inspecting 100 eggs from each end of a case or group of cases, as graded and filled by each grader. Thus, he inspected at least 200 eggs per day from the work of each grader, and in some instances as many as 400 or 600. He recorded the results upon an "Official Egg Grader's Memorandum," Form PY-216, Poultry Division, Agricultural Marketing Service, USDA. He made two copies of the memorandums, one going to Respondent for its files and the other to_ the Des Moines, Iowa, office of USDA. At Randolph's request, he made his inspection as quietly as possible, without discussing grades with the graders; when they asked about their grades, he told some in general, noncommittal fashion that they were doing "fine," but admitted to one or two that he could not tell them their grades. Aside from Randolph's request that he conduct a special, but quiet, check on the work of all graders, there is no proof that Respondent told him to conduct either a "loose" or "tight" inspection, or that it desired a certain result with respect to any particular graders.20 Instead, it appears that, as a resident USDA inspector rendering continuous grading service, Chipman was required to inspect and grade eggs in accordance with USDA regulations, sections 56.4(a) of which provided in pertinent part that "Grading service with respect to the determination of the quality of products shall be on the basis of the `United States Standards, Grades and Weight Classes' as contained in subpart C" of the regulations, and section 56.4(b) of which states that "Unless otherwise approved by the area supervisor continuous grading service in an official plant may be rendered only when a majority of the grader's time each month is utilized in performing grading for quality on the basis of the United States Standards set forth in Subpart C of this part." Absent clear proof to the contrary, I must presume that Chipman was grading and inspecting in ac- cordance with these regulations, and accurately recording the results on the official memorandum forms cited above.21 From all of these facts I am satisfied and find that, although Respondent reimbursed USDA for the cost of Chipman's services, and in some respects he was acting under the general supervision of Respondent, he remained a Government employee and followed USDA regulations in making his inspections and recording the results. On this basis, I consider the records in question as prima facie admissible as official Government documents.22 In that ie The statute requires the Secretary of Agriculture to develop and improve standards of quality, condition , and grading of agricultural products (section 1622c ), and to inspect, certify, and identify the class, quality, and condition of such products when shipped or received in interstate commerce under proper rules and regulations , and to collect reason- able fees for the cost of such service , so that consumers may obtain quality products (section 1622h). 10 Section 56.21 (b), 7 CFR, Part 56. I take judicial notice of the statute noted above, and of the regulations promulgated by the Secretary of Agriculture thereunder. 20 "Loose grading" means that the grader will resolve any doubt as to the quality of an egg by placing it in the A category rather than B. "Tight grading" means that the grader will do the reverse, placing a doubtful egg in a B category rather than A. Inspec- tion can be characterized in the same way, for the inspector in effect is regrading the eggs according to the standards that he applies in order to find out whether the grader is conforming to those standards. 21 These forms apparently come within the definition of "Official memorandum" In section 56.2(b) of the regulations which reads- (b) "Official memorandum" means any initial record of findings made by an author- ized person in the process of grading, inspecting , or sampling pursuant to this part, any processing or plant-operation report made by an authorized person in connection with grading, inspecting or sampling under this part, and any report made by an authorized person of services performed pursuant to this part. 211 recognize that the memorandums are not "official certificates " as defined by the regulations which, under the statute , must be received by all officers and courts of the CARROLL EGG COMPANY, INC. 1057 posture, I think it was the duty of General Counsel to show' by affirmative, sub- stantial proof that the records had been in fact falsified, or that the normal procedure in handling eggs had been altered in such fashion as to indicate that the inspector's findings were not a true representation of the graders' work, or that poor quality eggs had been deliberately fed to the four employees, or tagged as their work, in order to insure the findings of poor grading by them. General Counsel produces no substantial proof to this effect.23 To the contrary, credible testimony of Ran- dolph and Webber indicates that normal plant procedures were being followed as to prompt grading of "raw" eggs, and proper treatment and storage of eggs to pre- vent deterioration, well within USDA requirements. The only circumstances which might throw some doubt on the records 24 are that prior to the advent of the in- spector, the graders at times received conflicting instructions from Foreladies Stangle and Webber on how to grade, and in fact to grade "tight" or "loose" at times. While these facts indicate that some variations in grading standards may have occurred before Chipman's arrival, credible testimony of Mary Seidl and admissions of Wenck and Foley show that, after he arrived, he resolved all questions about the grading and on at least one occasion overruled the more liberal judgment of Stangle about grading of certain eggs. From this, it is inferrable that after July 6, 1959, a uniform system of grading according to USDA standards was in effect.25 Webber also testified credibly that while there can always be a difference of opinion on the grading of one or more eggs, if the eggs as a whole are running good quality, this will appear in the average grades over a period of time on the inspector's reports. In this respect, I note that while the grades of the four employees on the records in ques- tion was unusually low, those of most other employees on the same days were nor- mally well above 80 percent, which is an indication that in the crucial period the eggs were running high in quality, and that the grades of those employees who were grading properly reflected that fact. Finally, I note that section 1622(h) of the Marketing Act, as amended in 1955,26 provides criminal penalties for anyone found guilty of making, or being a party to the making of, any false certificates or memo- randums provided for by the statute, and in view of those sanctions it cannot lightly be assumed or inferred that either Respondent, as the applicant for the grading service, or the USDA inspector who rendered it under the statute, would engage in or be party to the manipulation of plant operations or products in order to produce spurious official grading memorandums for a venal purpose. In the light of all these circumstances, the prima facie probative force of the evidence in these records is not diminished.27 After careful consideration of all the facts and circumstances, and arguments of the parties, on the issue, I am of the opinion that Respondent has sustained the United States as prima facie evidence of the truth of the statements therein contained. However, as "official memoranda," they are also recognized by USDA as official "initial record of findings" by a USDA inspector (regulations, section 56.2(b)) from which official certificates may be made, and I consider that, absent clear proof to the contrary, they carry the same indicia of accuracy and reliability as the certificates. 22 While Randolph's request for a "secret" Inspection, and his reliance on records thereof made after July 10, the day the Union won the election, are suspicious circumstances, they are not substantial evidence of discrimination, in the light of the general grading problem existing in the plant, and the obvious desire of Randolph to find the source of the trouble through the use of an impartial Government inspector, especially where be had just lost an important customer in June because of inferior grading. If he suspected some graders of deliberate sabotage, as he indicated in testimony, he was justified in making an investi- gation without undue publicity, in order not to forewarn those responsible for it. 24 Based on credible testimony of Webber, Stangle, Damm, Foley, and Wenck. 25 Although Webber admitted at one point that he might have directed graders to change their grades contrary to the strict standards applied by a prior USDA inspector in early 1959, there is no proof that he did this in June or July 1959. ze Act of August 9, 1955, P.L. 272, 84th Congress. 27 Other arguments of General Counsel based on the vagueness of Webber's testimony about the exact nature of Chipman's operations, and the "possibilities" of manipulation of the eggs in various ways before inspection so as to affect quality, amount to mere speculations, which do not warrant rejection of the records. Regarding Foley's performance generally, General Counsel points to an admission of Forelady Seidl that Foley's name frequently appeared as a top volume producer on daily production sheets posted in the plant. While this is an indication that Foley was a fast grader, it does not prove that her grading was automatically top quality, particularly in July 1959. 597254-61-vol. 180-68 1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD burden of going forward with probative evidence that it suspended Foley, Mitchell, Broich, and Wenck on July 15 as a disciplinary measure because of their misgrading of eggs, which is sufficient to rebut the prima facie case of discriminatory suspension made by General Counsel, and that on the entire record General Counsel has not sustained the ultimate burden of proving that Respondent acted against them from discriminatory motives. I therefore grant Respondent's motion to dismiss paragraph, 6(b) of the amended complaint. E. The discharge of Foley On July 24, 1959, the union agents and a union committee consisting of Foley, Broich, Wenck, and Mitchell met with Randolph at his office in Guthrie Center, Iowa, to 'ask Respondent to begin contract negotiations, and to request reinstatement of the above employees. At the outset after the employees were introduced to Randolph he told Foley that she was discharged, that he had heard she had called his assistant manager, Allen Headlee, an "S.O.B.," and that no one could say that and "get away with it." The four employees denied that they knew Headlee was an assistant manager; Foley said she knew him only as an egg dealer, denied that she sad called him any name, and demanded that Randolph prove that she had said that about Headlee. At this, Randolph became angry, shook his finger at Foley, and said that he would believe Headlee's word any day, as a life-long friend. He insisted that Foley should leave the room because she was no longer his employee. Union Agent Noon argued that Foley had a right to remain as the union shop steward and a representative of the Union, and that Randolph had no right to choose the union representatives. Randolph replied that he did not care what she was, that she was no longer his employee, he would having nothing to do with her, and there would be no discussion as long as she remained. He said that the other three employees, who were under suspension, could return to work on July 30. He then refused to talk further to the union group while Foley was in the room. The union agents finally requested Foley to leave the room, whereupon the parties began a discussion of the contract, but made no progress along that line because Randolph became angry and upset, when, during the discussion, Noon asked Randolph whether he knew that his manager, Webber, was cheating and stealing from him and that Webber's wife had plant employees doing personal work for her on company time. He also mentioned that he had reports of alleged immoral conduct by Webber with Forelady Stangle at the plant. Randolph angrily told Noon that he would look after his manager and Noon should look after the employees.28 Randolph testified that he discharged Foley because between the date of her suspension and that meeting, he had heard that she had made remarks openly about company employees, that she had called Webber an "S:O.B.," Chipman, the inspector, a "crooked :S.O.B.," and had stated that she did not know how many crooked inspec- tors it took to get records like Randolph had shown her in the office. In support of Randolph, Iris Webber testified that on the day of Foley's "dismissal," 29 as Foley walked along the line to her station, she remarked in Iris' hearing that Chipman had been a "good fellow" and she thought he was doing some good at the plant, but after he put out a report "on me like that, he is a crooked S.O.B. just like the rest of them." Mrs. Webber was off that afternoon, and took her husband home to lunch and then back to the plant. While out, Foley called her at home, and when Mrs. Webber returned, she returned the call. After requesting Mrs. Webber to 'return a bag she had borrowed, Foley asked if she knew what kind of man her husband was and what he was doing at the plant, that she had thought a lot of him, but now he was an "S.O.B." and she was going to show him that he could not run the plant right alone, that she had never been in the Union, but from then on she would "put the Union in and they would show him -how to run the plant." Mrs. Webber replied that she had nothing to do with her trouble at the plant, and there was no reason why they could not remain friends. Foley then said she had been "stepped on just once too much," and she was going to see Randolph and ask him to come to the plant more and see how his manager ran things. She also called Headlee an "S.O.B.," said he knew nothing about grading eggs, and she was not "going to be told by him," when she had graded eggs for 11 years. Mrs. Webber shortly reported these conversations to her husband and, considering Webber's prior dis- missal of Foley and his conferences with Randolph before her suspension, I infer that he promptly told Randolph about them. Foley'denied that she had these con- versations with Mrs. Webber. However, I do not credit her denials for several 21 The above facts are based upon credited and mutually corroborated testimony of Noon, the four employees mentioned above, and Randolph. 20 She did not recall the exact date , but she obviously meant the day of her suspension. CARROLL EGG COMPANY, INC. 1059 reasons. Although she is a promanagemeht witness, Mrs. Webber impressed me as telling a straightforward, honest story to the best of her ability, even with respect to the details of the Webbers' surveillance of the June 25 meeting. The credibility of her account of Foley's remarks is enhanced by credible testimony of six witnesses produced by Respondent 30 showing that Foley was very talkative in the plant and addicted to profanity in talking about and describing things and persons which irritated her; "S.O.B." was one of her "pet" expressions. From my own observation of her demeanor and attitude on the stand I am convinced that Foley is a loquacious and outspoken aggressive person, more inclined than not to argue and to be plain and blunt in her remarks. Hence, I consider it more likely than not that, after being suspended in an interview in which she argued with spirit against Randolph's accusations, she emerged from it in. an angry mood, incensed at Chipman who had prepared the reports on which Randolph had acted, and gave vent to her feelings about Chipman in the terms found above; when she met Mrs. Webber. For these same reasons, I credit Mrs. Webber's story of Foley's remarks about her husband and Headlee over the telephone and also because the union agents on July 24 made similar, but more detailed, disparaging remarks about Webber to Randolph, which Noon says he learned from "common gossip" in the plant. Moreover, Foley knew that Headlee had been brought in by Randolph to check on the low grading of eggs, and I am sure that she resented his review of her grading, as a slur upon her long experience as a grader, and probably felt that his inspection also had something to do with her suspension.31 General Counsel argues that the disparagement of Headlee was a hurriedly thought-up pretext for the discharge, because Headlee was not actually an assistant manager or known to the workers as such, that Randolph made no investigation to determine if Foley really villified him, but fired her abruptly without discussing the incident with her or questioning her about it. I consider these circumstances of little moment. Though not formally or openly known as "assistant manager," Headlee had been introduced to the graders by Randolph personally in one of his infrequent visits to the plant, and the purpose of his presence explained, and I am sure the workers knew that he was there at the behest of and representing management. There is no proof that he usually visited the plant, or that he had ever visited the plant before for a similar purpose. Hence Foley was disparaging one who must have appeared to her and other employees to be as much a part of management as Webber. The lack of formal investigation by Randolph, either before or at the discharge, is not significant. There is no proven company policy of formal and deliberate investigation of charges of misconduct in all instances, and I consider it unlikely that a plant as small as this would follow any formal and time- consuming disciplinary practices such as might be characteristic of a large enterprise employing hundreds or thousands of people. At any rate, detailed discussion of the charge with Foley would obviously have been fruitless, when she vehemently denied it in a hot argument. Moreover, it is clear that Randolph had already made up his mind before the meeting to discharge her for this conduct. This does not appear unusual, for Headlee was a close friend whom Randolph had brought to the plant as an emergency "trouble-shooter" to help him find out what was wrong with the grading and the source of it, and it was but natural that, when he heard about Foley's remarks from sources he obviously considered reliable, whether it be Webber, his wife, or Headlee himself, he should be incensed at the slur against his friend. The fact that Foley was a well-known and active union adherent, and had already been discriminated against, does not require her employer to follow any special investigatory or discharge procedure in disciplining her for misconduct. Her prominent union activity did not entitle her to any special consideration over other employees in this regard. Some circumstances throw suspicion on the alleged reason for discharge. While the record shows, and Randolph does not deny, that he told Foley the discharge was for calling Headlee a vulgar name, Randolph testified twice, and Respondent for= 80 Zolla Damm , Ruth Nair, Doris Berning, Marlene Bellinghausen , Cecelia Wutschke, and Seidl. ' In the light of the preponderant testimony showing Foley 's addiction to talking, pro- fanity, and name calling, the fact that Mrs. Webber was the only witness produced to testify as to Foley's remarks after suspension does not affect her credibility. One credible witness, supported by cogent circumstantial evidence , can establish the existence of a fact just as well as a whole array of witnesses, each repeating the same thing. The failure to call Headlee to testify about Foley's remarks raises no inference against Respondent, for Mrs. Webber's testimony Is that Foley was talking about him, not to film ; there is no proof that he was In the plant at the time ' and none of the suspended employees, nor Randolph , says that he charged Foley with calling Headlee an " S.O.B ." to his face. 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mally contended at the hearing, that it was based on information he received that she, had called both Webber and Chipman "S.O.B.'s," and made another comment about. "crooked inspectors" as stated by Mrs. Webber. He did not say that he cited these additional aspersions to Foley. While the record shows that Foley called each of the three "S.O.B." the same day, and Randolph acted on the 24th on one. aspersion, but testified that he acted on the other two. I consider the variance a suspicious but not conclusive circumstance, for the three vulgarities involved the. same generic misconduct, occurred the same day, and were all directed at persons in_ or apparently close to management. I am satisfied that Randolph probably had all these remarks in mind on the 24th, but what incensed him was the remark about Headlee. Hence, his failure to mention either of the other instances of mis- conduct on the 24th is not material. The salient fact is that Foley was guilty of coarse aspersions upon three persons in or close to management, and any one or more of her remarks was sufficient ground for discharge in itself, regardless of her union activity or Respondent's knowledge of it. Nor is this motivation discredited. by the fact that Respondent in its brief now mentions her misgrading as a ground for discharge. While it was not mentioned at the discharge, I am sure Randolph. had it in mind at the time but his failure to mention it, where Foley had already been disciplined for it, does not warrant a conclusion that the other reasons he gave then or in testimony are all pretexts. I am convinced by all the pertinent testi- mony that the uppermost fact in Randolph's mind on the 24th was Foley's use of- vulgar language about his close friend, who had been engaged in the investigation-. which brought to light Foley's misgrading, and that this motivated the discharge and,. in part, caused his great anger at the meeting. General Counsel also points out, and the record shows, that use of profanity among the employees was not un- common, that even Webber used it at times, and that management usually ignored it. While this circumstance throws some suspicion on Randolph's action, it is also true that there is no proof that he had ever before been confronted with a situation where an employee disparaged so many employees in or close to management at one time and under the circumstances or in the terms Foley used in talking to, Iris Webber; it was clearly not an instance of an occasional outburst of intemperate language by an employee of the type which Respondent usually ignored. Con- sidering all Foley's remarks that day, I cannot assume, absent clear evidence of the fact, that this type of conduct would be tolerated and not result in immediate discharge, if the employee were not a union adherent. The inference that this. conduct, and not her union activity, caused the discharge is also supported by the fact that, although Foley was a known union adherent and had been warned by Forelady Stangle that Webber considered her, and others, "trouble-makers," Webber nevertheless hired her daughter, Coleen Beidler, at Foley's request about July 1, well knowing he might be hiring "another union vote." Beidler worked on a trial' basis for 3 weeks, but her grading varied so widely that Webber concluded she would never learn how to grade, and dismissed her sometime after July 10. There is no charge that Beidler's termination was discriminatory. Furthermore, after her discharge Foley's husband,- Ed, her son, Kenneth, and daughters-in-law. Irene and' Marilyn Foley, all continued to work at the plant. Although Respondent had already discriminated against Foley for union activity, and may well have been looking for a good opportunity to get rid of her, neither her prominent union activities nor Respondent's attitude toward the Union afforded her immunity, from discipline or gave her privileges greater than those of other employees. Therefore, . when he got reports, which he was entitled to believe and which were based on fact, that she had openly disparaged his close friend, he had a. right to discharge her for that conduct. The issue is close , on the facts, but I am of the opinion that Respondent has sustained the burden of going forward with evidence showing that this misconduct was the immediate, intervening reason and motivation for her discharge, which is strong enough to rebut the prima facie case of discrimination adduced by General Counsel. I conclude and find that General Counsel has not sustained the ultimate burden of proving by a preponderance of credible evidence on the record as a whole that Randolph discharged Foley on July 24 because of her union activity. I therefore grant Respondent's motion to' dismiss the complaint insofar as it alleges that her discharge was discriminatory and I shall recommend that paragraph numbered 6 of the amended complaint be dis- missed in this respect.32 sa See Republic Cotton Mills, 101 NLRB 1475, 1480; National Shirt Shops of Delaware, Inc., et al., 123 NLRB 1213, 1223. On the question of an intervening, nondiscriminatory cause, see Coats and Clark, Inc. ( Clarkdale Plant), 113 NLRB 237, and Thomas Winters, et al., d/b/a Keystone Ship Engineering Company, 113 NLRB 596. CARROLL EGG COMPANY, INC. 1061 F. The alleged discharge of Helen Wenck Wenck started work for Respondent in September 1958 as an egg grader and worked until April 22, 1959, when she and a group of employees applied for Iowa State partial unemployment benefits, for which they were discriminatorily discharged by Respondent as found above. Her subsequent union activity with Foley and other -employees has been set forth above and was well known to Respondent. She was recalled to work by Respondent on June 8, 1959. She was also in the disciplinary layoff of July 15 which I have found to be nondiscriminatory. When Wenck, Broich, and Mitchell reported for work on July 30, at the end of their disciplinary layoff; Webber sent them to work in the basement, as the 15 reg- ular grading lights upstairs were already occupied. There were six grading lights set up in the basement, but only two were vacant, and Broich and Mitchell took them. Webber had another grading light installed for Wenck in the "cooler room" (also known as the "dungeon" by the employees). Wenck worked at this location on July 30 and 31, but on Saturday, August 1, she sent word to Webber through Broich that she would not be in because she was ill. She has never returned or applied for work at the plant since July 31, nor has she ever been recalled by Respondent. General Counsel claims that Respondent deliberately assigned Wenck to work in the "dungeon" for the purpose of making her work under such dirty and distasteful conditions as to compel her to quit, and that such conduct amounted to a constructive discharge for discriminatory reasons. This charge requires a detailed description of the "dungeon." This room is a portion of the basement of the plant which had been walled off in the past to form a cooler room in which perishable foods had been stored. It has the same basic construction as the remainder of the basement, except that its walls are insulated; one wall is lined with large refrigeration piping (which was not in use during 1959), and the only access to the room is through a large insulated refrigerator door. The room has no outside light or ventilation. The only source of light is an electric outlet on an overhead beam a few feet away from. the door. Wenck's candling light was plugged into this outlet and her workbench was placed directly under it, 3 or 5 feet from the door. When she started to work there, Wenck found the room a little more damp than the rest of the basement, but "no noticeable dampness." She found a few spiders in it, but did not check its condition otherwise. Broich testified that the basement proper was different from working upstairs, in that the basement was damp, chilly, and had a musty odor. Wenck says the "dungeon" had a sweet, pungent odor which irritated her nose after 2 days of work there. Mitchell, who worked there in early August as noted hereafter, said the room was "filthy," with mice droppings all over the grading bench and elsewhere, that it was damp, musty, and so hard to breathe there that it made her sick and aggravated her sinus condition. Webber admitted that in the middle of 1959 he received some complaints from the Iowa Department of Health about the condition of the basement, and was relieved of making some changes there only when he assured the State inspectors that he was finished with use of the basement for grading. Doris Berning, a witness for Respondent, also admitted that,.while she worked in the basement without complaint, other workers had complained about working there and preferred locations upstairs. I find from this testimony that the basement, and particularly the cooler room, was not considered by employees as desirable a place to work as the upstairs lights. General Counsel relies on this fact, and the following circumstances, to support his contention:. (1) The basement was so large that Webber could easily have set up a seventh grading station for Wenck in the basement proper, without using the "dungeon," because he admitted that when he used the basement in 1958 he had more than six grading stations operating in the open basement at one - time, and that the six graders' lights with benches in June 1959 occupied only a 'small portion of the whole basement; (2) the lack of credible proof that Respondent had generally assigned graders to work in the basement; and (3) Webber's weak explana- tion that he did not set up a seventh grading position for Wenck in the basement because a grading bench was already in place in the "dungeon," although he could not recall where it came from. In the light of Respondent' s antiunion animus and its prior unfair labor practices against Foley, the above facts and circumstances, if true, tend to present a prima facie case of discrimination against Wenck. Respondent says that it did not assign Wenck to the cooler room for discriminatory reasons, but because in the normal course of events that was the only place left for her to work at that time. The record shows that during July and August the plant was working only one shift upstairs, and when the volume of work required more employees than the .15-place line upstairs would accommodate, the. "overflow" em- ployees were put to work in the basement. This condition existed for about 6 weeks 11062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the summer of 1959. In July those working in the basement were grading eggs into cases for "commercial" or "bulk" pack, which was the normal procedure 33 I find nothing indicative of discrimination in assignment of Wenck to work in the basement with other employees at this time.34 As to the necessity of assignment to the cooler room, Wenck's own testimony shows that she apparently was the last of the three returning workers to go down to the basement, so that Broich and Mitchell had already taken the only vacant lights ahead of her. Hence, according to Webber, he had to set up a seventh light for her, or he would have no place for her to work; and as there was a grading bench already in the cooler, with a light outlet above it, he had a light installed there and put her to work. It is inferable that if Wenck had gone downstairs ahead of the other two, she would have taken a basement light, and Webber would have sent one of the others into the cooler room. Apparently, as between upstairs and basement workplaces, Respondent assigns on a "first come, first served" basis, with those reporting earliest going to the upstairs lights until they are filled, and later arrivals going to the basement. This all militates against an inference of deliberate discrimination against Wenck.35 Webber also testified credibly that he could not set up a seventh light in the open basement because the remainder of the basement was used for storage of raw eggs which came in daily and had to be un- loaded near an elevator in the middle of the building so that they could be quickly transferred to the cooler room or upstairs for grading. I find nothing inherently improbable in this explanation which would require me to reject his testimony. Neither the Trial Examiner nor the Board can substitute their judgment for that of management in how it runs its business or uses its property. Regarding the extent of'assignniesit of workers'to'the basement, Webber could not recall specifically who, besides Wenck and Mitchell; had been assigned to it, but could only say all employees had worked there at one time or another. This is credible, for one could hardly expect a busy plant manager to recall from day to day exactly where specific workers were assigned. At any rate, his general testimony is supported by that of Zolla Damm and Doris Berning who testified credibly that during August 1959, Damm worked in the cooler room for about a week while Berning worked in the basement proper, and Damm declined to exchange places. with Berning in that period, preferring to work in the cooler room. Moreover, credible testimony of Foley, Iris Webber, and Mitchell shows that both experienced and in- experienced girls worked from time to time in the basement. All of this convinces me that assignment of graders to the basement and at times the cooler room occurred only as the volume of work required it, and neither location was used as a punish- ment for employees, as General Counsel contends. While it is clear that the basement, and a fortiori the cooler room, were not as desirable workplaces as upstairs, I am convinced by other testimony that 2 days of work in the cooler room did not have the extreme detrimental effect on Wenck which would support a claim that she was thereby forced to quit. Although Wenck did not like the basement or the cooler room, she did not complain about assignment there. On the contrary, she admitted the cooler room was darker than grading positions upstairs, which made it easier for her to candle eggs . Webber testified without con- tradiction, and I find, that on July 31 Wenck told him she could see her eggs better there than anywhere-else, in the plant. She also admitted that after her first day there, her grading reached 94 percent; .based on the inspector's check of her output. This was an unusually high grading for "bulk" pack of eggs, where only 80 percent or better was required. Hence, from the point of view of production, the cooler room was as good, if not a better, place than an upstairs light. My own view of the cooler room, with its isolation from the grading line upstairs, where up to 15 graders worked fairly close .to each other in one long line, supports this conclusion. Hence, it is clear that Wenck's assignment to the cooler room did not affect her production at all. The only detriment was the alleged aggravation of her sinus condition. Her testimony about this, of course, is purely subjective; there is no proof that she com- plained to Respondent then or later about the aggravation, nor that she was required to see a doctor to alleviate that condition after she became ill on August 1. Nor is as In grading into cases in the cooler room, Wenck moved full 54-pound cases of eggs to her bench, graded the eggs. Into another case, removed the empty cases , and moved full cases of graded eggs to a point near the door. There is no claim that "bulk" grading was more difficult than "carton" grading, or that this was a facet of the discriminatory treatment alleged. 84 While Broich found the basement less desirable as a workplace than upstairs, there is no charge that her assignment there, nor that of Mitchell, on July 30, was discriminatory. 85 The complaint does not allege that the three union adherents were assigned to base- ment positions in the hope that they would all quit. CARROLL EGG COMPANY, INC. 1063 there substantial proof that management knew of her sinus condition. In this con- nection, I must consider that, as will appear below, Respondent shortly relieved Mitchell from work in the cooler room upon her protest and arranged to have her work upstairs, because of her sinus condition. Since she was a known union adher- ent like Wenck, it is a reasonable inference that if Wenck had protested on July 30 or 31 or August 1 against assignment to the cooler room for the same reason, man- agement would have taken similar steps to comply with her complaint. Her silence on the subject, and the lack of proof about her. condition and the necessity- of its treatment after August 1, in the light of her comment to Webber that she preferred the cooler room to an upstairs light for working purposes, are potent indications that her work there was not as distaseful or as detrimental to her as she now claims, and did not in fact compel her to quit. I can draw no unfavorable inference, as sug- gested by General Counsel, about the cooler room from Webber's talks with the State health authorities, for there is no substantial proof that they found specific unhealthy conditions in the cooler room or even in the basement; their only concern, according to Webber, was the reopening and use of another basement door for fire safety purposes, which apparently had nothing to do with cooler room as such. The record further shows that, although Wenck reported ill on Saturday, August 1, she took a trip to California with her husband during the next 2 weeks. She admits that in that period she did not wish to return to work. It is inferable from this that she absented herself, not for illness, but to take a 1,200-mile trip, and that she was well enough for that. There is no proof that she left word with Respondent that she would be unavailable for work for either reason during those 2 weeks. This was contrary to Respondent's rule requiring advance notice of absence from employees so that it, could, -arrange-for. replacements to insure continuous handling of eggs. On August 12, 1959, in the middle of :the second week, Respondent sent her a notice of separation, stating that she quit voluntarily "without good cause attributable to the employer." At a meeting of the union representatives and Randolph on September 4, Respond- ent agreed to reinstate on September 8 all employees that had previously been termi- nated in April after drawing unemployment insurance, including Wenck. When Shop Stewardess Foley contacted Wenck about returning to work in accordance with this agreement, Wenck refused to return. She never applied for State unemployment compensation after her August 12 notice of separation, as she had done at the time of the April layoff. Randolph testified that Respondent would take her back on application, if it had work for her. Even if I rule out the testimony of Zolla Damm and Doris Berning about Damm's experience in the cooler room, as coming from prejudiced promanagement witnesses, I think all the above facts and testimony adduced by Respondent clearly show than Wenck left Respondent's employ on August 1, not for illness induced by work in the cooler room, but for personal reasons, and thereafter absented herself from the plant without notice for personal reasons, and in this respect they are sufficient to rebut the prima facie case outlined by General Counsel. Considering all of the circum- stances, pro and con, I conclude that the record relating to Wenck's assignment to the cooler room raises at most a strong suspicion that the assignment was discrimina- tory, but since suspicion is not proof, I am compelled to conclude and find that 'General Counsel has not sustained the requisite burden of proving that Respondent assigned Wenck to the cooler room on July 30 to induce her to quit her employment and thereby constructively discharged her for discriminatory reasons, in violation of the Act.36 I therefore grant Respondent's motion to dismiss paragraph numbered 6(e) of the complaint as amended, relating to Helen Wenck, and shall recommend that the complaint be dismissed in this respect. G. The alleged discrimination against Joan Mitchell - Mitchell was employed by Respondent in March 1959 as an egg grader. She joined the Union on May 21, 1959, attended the union meeting that night, engaged in solicitation for the Union thereafter, and was on the union committee which held bargaining conferences with Respondent on July 24 and September 3. Webber ad- mits that he began to keep a detailed record of her activities in the plant, including her attendance record, from May 21 onward. Prior to this time there had been no complaint about Mitchell's work at the plant, -and once in the week ending May 29 ' In reaching the above conclusion I have also considered the fact that although Wenck was apparently discriminated against in April 1959, Respondent recalled her to work on June 8, which was a month before the election but while the Union's application for an election was still pending. This fact militates against any inference of continuing discriminatory animus against her. 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Webber told her that she was a. good , fast egg grader, the type of person they wanted for egg grading, and they would hate to lose her. At this time Respondent was well aware of her union activity and, through Stangle, had warned her that , as one of the three "trouble-makers," she might be without a job if she didn 't quit her union activity. On May 21 and 25 Mitchell was absent for illness and reported that fact to the plant each time by telephone . On the second occasion, Webber told her that he would call her back to work when he needed her. Notwithstanding , she reported for work on the 26th , at which time Webber asked her if she did not get his message. She admitted she did, but said she had been told to report for work anyway. He did not put her to work that day. The complaint does not allege that the order of May 25 to stay home was discriminatory , but General Counsel claims it is evidential of Respondent's antipathy toward union adherents. Webber admits this was his busy season, and gives no explanation for his order to her to await a call to return, or his failure to recall her later that week. The above facts raise a strong suspicion that the layoff may have been discriminatory , but it is also inferable from Webber's remarks to her on the 25th and 26th that his lines were full and that he did not need her at the moment. I consider the testimony on this point equivocal , hence I make no finding that Respondent's actions toward Mitchell on the 21st , 25th , or 26th were discriminatory. After her disciplinary layoff of July 15 with Foley, Wenck, and Broich, Mitchell reported for work with Wenck and Broich on July 30 and was assigned to work in the basement as found above . She worked at a basement light without complaint through Saturday , August 1. On Monday, August 3, she started work at the same basement light, but Webber assigned her to work at the cooler room light, when Wenck failed to report for work that day. On Tuesday, August 4, Mitchell started to work at the same basement light as the day before, but Webber told her to go into the cooler room again . She refused, saying she could not breathe in there. He told her she would work where he told her to, or could go home. She replied that she would go home , and did so. She immediately called Randloph, who said that he would come to Carroll to clear up the matter. He spoke to her in the plant office on Wednesday, August 5, with Web- ber present . She complained to Randolph that the cooler room was not a fit place for anyone to work . Webber argued with her over whether she had told some other person otherwise , but Randolph told him to keep quiet and then took her down into the basement, where he told her, among other things , that he considered her a good, fast grader, and that he•did not hold against .her the fact that . her recent work had been slow, as she had just come back from a 2-week layoff . He suggested that she "humor" Webber whenever he lost his temper , and then told her to return to work the next day or the following Monday, as she wished , and he would see that she did not work in the basement. She started work the same day at an upstairs light and continued to work upstairs until August 20 when she was absent for •illness. She was operated on for a sinus condition on August 21, and was released from the hospital on August 22 , but her doctor told her to work short hours thereafter. She reported the doctor's orders to Webber, and asked him if she could return to work on August 31 and work half days. He agreed, saying she should take it easy, and that she could come and go as she pleased . She worked a half day on August 31. On September 1, she told Webber that she felt all right and worked a full day that day and on the 2d at his request . On September 2, she openly distributed in the plant on her own time notices of a union meeting to be held that night . The same day she ar- ranged with Webber to be absent on the 3d for a trip to her home in Omaha, Nebraska. However, her husband could not get time off for the trip , so she called Webber on the 3d and asked if he wanted her to come in. He said that she should take the day off, so that day she attended a meeting of -the union representatives and Respondent as a member of the union negotiating committee . Webber was present at the meeting. On Friday , September 4, Mitchell came to work at the usual time, and went to the restroom door to wait for assignment, since it had been Webber's custom to assign her to a different grading light each day. However, Webber said nothing to her and apparently passed her by, assigning other girls to upstairs lights and then taking six employees to the basement to assign them to lights there. While he was down there Mitchell looked for him in the office and , not finding him, opened the basement door and called down , stating that the upstairs line was full, and ask- ing where he wanted her to work that morning. He told her that the only place he had for her was in the basement. She told him, "You know I can't work down there," but he never answered her. Mitchell then left the plant and went home. She reported the incident to the Union at once. That evening , Mitchell and her husband visited Webber, at his, home arid :told:hi n:cthat..she,could . not:work in'.the .basement,, CARROLL EGG COMPANY, INC. 1066 because of her sinus condition. Webber said he understood that, and assured them he would not put Mitchell in the basement again.37 Mitchell was in a group of employees scheduled for reinstatement on Tuesday, September 8, in accordance with an agreement of September 4 between the Union and Respondent. She reported for work on the 8th with Patricia Addison, Coleen Beidler, and Tena Wenck. They waited in the restroom as usual for assignment, but when Webber made no move to assign them at the change of shifts, they went to their former locations to work. Webber then came out of the office and asked Mitchell if she did not get a letter in the mail. She said she did not. He told her that she should look for it, that she was fired. At the same time he advised Beidler that she had been fired once and was "still fired." He told Addison to report for work at 1 o'clock, but as the four girls were going out of the plant, he told Tena Wenck and Addison they should go to work in the basement. They-did so. Beidler and Mitchell went home. Respondent's main defenses are that Mitchell was discharged on September 5 and not recalled because of (1) her irregular attendance record and troubles that ap- peared to arise between her and Webber, and (2) her careless or deliberate mis- grading of eggs to the detriment of Respondent. The first reason was given by Randolph in testimony; the second was stated by counsel at the close of the hearing. In support of the first, Randolph testified that: Prior to September 5, Webber had complained to Randolph about his retention of 'Mitchell as an employee, stating that she was "so irregular," that she came and went as she pleased, and that she would not obey orders. On Saturday, September 5, Randolph discussed the problem with Webber after checking Mitchell's work file at the plant. Webber told him that he would not let Mitchell come back, that he felt Randolph was too tolerant with her, but since Randolph had the right of decision, he would keep her if Randolph required him to. Randolph replied that if Webber felt that strongly about her he would discharge her, and the same day he sent her a termination notice advising her that "your absenteeism and conduct is such that we are terminating your employment in the Carroll Egg Company as of today," and enclosing a final paycheck. Webber admitted that he would not take Mitchell back to work unless Randolph ordered it, that he had often tried to persuade Randolph to discharge her. Randolph admitted that he knew Mitchell and Webber had some working arrangement about her hours of work but testified that what bothered Webber so much was her "coming in and walking out on Friday morning." To support the discharge Randolph points in his testimony to her record of a half day of work on August 31 and no work on September 3 or 4. In addition Respondent relies in its brief upon her failure to report for work on May 21 and 25, her failure to report at noon on June 12 , likewise on June 29, her leaving work about 2 p.m. on July 12, a full day's absence on August 15 and 20, and her long absence from August 21 through 30 due to illness and convalescence. However, it is clear from testimony of Webber and -Mitchell that-on seven of these eight occasions her absence was due to illness of herself or, one of her family, and on each occasion that she failed to report in the morning she sent word in that she was ill; on June 12, she reported beforehand that she could not work because she could not get a babysitter. It is clear from these facts that all the absences were legitimate and that Mitchell was never absent without prior notice, and Respondent does not claim otherwise. Nevertheless, Randolph argued in his testimony that poor attendance by a grader is undesirable because it is a bad ex- ample for others, that repeated absence (or tardiness) may cause eggs to be carried over to another day without prompt grading so that deterioration may set in with consequent complaint from the producer if his eggs are not graded high, and that when a grader is absent or tardy on the day shift her grading light usually stays vacant because Respondent cannot go out and get a replacement instantly; hence, the volume of grading suffers. While all this is undoubtedly true, and of great concern to Respondent, $he weakness of Randolph's argument is that Respondent produces no evidence indicating that Mitchell's two absences in May, two in June, one in July, and three in August, in any way affected its ability to turn out production. On the contrary, from the fact that all the absences were by prearrangement with, or on prior notice to, Respondent, it can reasonably be inferred that Webber in each instance had ample time to get a replacement for Mitchell and thus avoid possible disruption of production. Moreover. Randolph admitted that his manger was lenient about absences, despite orders to enforce the rule against absenteeism strictly. The short workday of August 31 was approved by Webber, and cannot be held against her. Her absence of September 3 was also prearranged with Webber, and even 87 The above findings are based on credited testimony of Mitchell , Webber, and Berning. Testimony of Webber at variance therewith is not credited. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD though the original purpose of it fell through, and Mitchell was ready to work, Webber nevertheless gave her the day off; that day was then her own, and the fact that she used it to attend the union meeting cannot be held against her. Randolph admits that, before discharging Mitchell on the 5th, he made no attempt by discussion with her or otherwise to discover the reasons for her recent absences. I must con- clude from all of these facts that Mitchell's absences were neither detrimental to Respondent, nor of any concern to it when they occurred, which impels the conclu- sion that they were not the true motive for her discharge.38 Randolph finally claims that he discharged Mitchell largely because of Webber's complaint that Mitchell would not obey orders, and walked out of the plant on September 4. I consider this defense without merit. In the first place, her only proven failure to "obey orders" on August 4 was due to her objection to working in the cooler room for reasons of health, which Randolph readily accepted as a legitimate objection when he promised she would not work in the basement again. Secondly, it is significant that Webber's failure to assign her to an upstairs light on September 4, which caused her to walk out that day, was a violation of that promise, and of Webber's own arrangement with her following her sinus operation; and he readily admitted his error to her the same evening. Clearly, he knew of her sinus trouble, and the fact that work in the basement aggravated that condition. I am satisfied from the events of that morning that Webber knew that Mitchell was await- ing assignment, and that he deliberately refrained from assigning her to an upstairs light, ain the past, but waited until he had nothing to offer but a basement location, which he must have known she would refuse, in view of Randolph's prior arrange- ment with her. Hence, I must conclude that his refusal to assign her to an upstairs light was deliberate and designed to induce her to walk out. The maneuver was successful, inducing the walkout on which Respondent now relies. Considering her prior union activities, particularly those of September 2 and 3, Stangle's warning that, as a known "trouble-maker," she might lose her job if she persisted in union activity, the fact that Mitchell was scheduled for reinstatement with backpay under the company-union agreement of September 4, and the discharge of September 5 which directly violated that agreement, the fact that Respondent now relies on conduct in which it had acquiesced, and also resurrects misconduct for which she had already been punished,39 all in the light of its prior unfair labor practices, I must conclude and find that Respondent constructively discharged Mitchell on September 4, directly discharged her on the 5th, and refused to reinstate her on the 8th, not for the reasons stated 'at the hearing and in its brief, but because of her union activities, in violation of Section 8(a)(3) of the Act. H. The discrimination against Dorothy Broich Broich started working for Respondent as an egg grader in November 1958. She was active in the union campaign to substantially the same extent as Foley, Wenck, and Mitchell, and I am satisfied that Respondent knew from the outset that she was an active union adherent. She was one of the group of four employees laid off for disciplinary' reasons for a 2=week period between July 15 and 30 as -found • above. The complaint as amended at the hearing charges that Respondent discriminatorily reduced her hours of work between September 7 and 20, 1959. Prior to that, on election day, she had distributed union pamphlets in full view of Webber. After the election she was a member of the union bargaining committee which met with Respondent on July 24. When Broich returned to work on July 30, and after the 2-week layoff, she was assigned to work in the basement along with Mitchell and Wenck. She worked there 6 consecutive days and for substantial periods of time thereafter. During this time other experienced graders worked in the basement a day at a time, and one new girl'worked in the basement in the same period. While Broich also testified that there was a great difference between working upstairs and in the basement, there is no proof that she complained about her assignment to the basement during this period, nor is there any charge of violation of the Act based' thereon. IsMitchell's tardiness does not enter into the picture, for Respondent produced no credible proof as to her record in that respect, aside from her own admission on cross- examination that she was tardy only three or four times during her whole employment, for not more than 10 to 15 minutes each time, and two instances were due to traffic conditions beyond her control. She was never warned or criticized about it, nor did it affect Respondent's operations. '19 The second defense, misgrading of eggs, is an obvious pretext or afterthought, because Mitchell had already been substantially punished for that offense, and then allowed to re- turn to work, and there is no proof that she continued to misgrade eggs after her return. CARROLL EGG COMPANY, INC. 1067 During August Broich was on the first shift, working a 40-hour week with some overtime. On Tuesday, September 8, Respondent began a two-shift operation. Broich, Patricia Addison, and Tena Wenck, all experienced graders, were put on the second shift, with at least one relatively inexperienced new girl. Tena Wenck quit after 1 day 4° Broich worked 27 hours in the week of September 8 through 12; there was no work on September 7, Labor Day. In the next week, September 14 through 19, Addision, Broich, and four other inexperienced girls 41 worked 27 hours, while the day shift worked a full 40 hours, with many employees receiving over- time. On Tuesday, September 22, Broich was put back on a 40-hour week with overtime, and has continued to work on that basis ever since. General Counsel claims that the disparity in hours between the two shifts for the weeks of September 7 and 14, and the assignment of Broich to the second shift with Addison, denotes a deliberate discrimination against the two because they were experienced graders, Broich was an active union adherent, and Addison and Tena Wenck had been in the group of graders laid off under discriminatory circumstances in April, and that these circumstances require a conclusion that Broich and Addison were discriminated against. His theory is that the discrimination is the same as that applied at the April layoff. If there were no testimony or argument on this point by Respondent, I would be inclined to say that Respondent's prior unfair labor practices found above, including its apparently discriminatory layoff of Addison and Tena Wenck in April, might raise an inference that Respondent was still harboring a resentment against these employees, and possibly Broich, for their past concerned activities, especially in light of the fact that Randolph had agreed on September 4 to reinstate most of those in the April layoff, including Joan Mitchell , and had actually rein- stated several on September 8 but had discriminatorily refused to reinstate Mitchell. However, there is no proof or charge by General Counsel that Respondent started a second shift on September 8 for other than legitimate business reasons, and I must therefore assume the action was nondiscriminatory . Likewise, I can find nothing unusual or sinister in the staffing of a small second shift with two or three experi- enced graders and four inexperienced or new employees. It is inferable from testi- mony of Broich herself that she and the other experienced graders were assigned to guide and help the new girls whenever necessary . I must also consider that the second-shift assignment of Broich continued for only 2 weeks . There is no allega- tion in the complaint as amended that either Addison or Tena Wenck , who were in the April layoff, were discriminated against in their assignment to the short shift. General Counsel also argues that Broich's assignment to the basement for an ex- tended period in July and August, and certain unfounded accusations by Webber about her grading work , are evidence of a continuing discriminatory animus toward her, even as late as September. I consider these contentions without merit, because there is no allegation in the complaint that Broich's assignment to the basement was discriminatory , and I have found that Wenck's contemporaneous assignment there did not violate the Act . Broich's testimony about Webber's criticism of her work does not fix the date thereof, and an unfavorable inference therefrom or from her April layoff is offset by the fact that she was recalled to work June 8 , though a known union adherent, was disciplined but, not discharged for bad . grading on July 15 , and has continued to work for Respondent ever since , with her grades run-. ping average and no apparent criticism of her work by Respondent. Considering all of the circumstances on this point, pro and con, I conclude that the record raises at best a suspicion that the assignment of Broich to the short shift for 2 weeks may have been discriminatory , but suspicion is not proof, and on all the pertinent evidence I must conclude and find that the General Counsel has failed to sustain the ultimate burden of proving by a preponderance of credible and sub- stantial evidence in the record considered as a whole that Respondent discriminated against Broich by reducing her hours of work between September 7 and 20 . I there- fore grant Respondent's motion to dismiss the allegations of the amended complaint in this respect, particularly paragraph numbered 6(c) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE - The activities of Respondent in section III, above , occurring in connection with the operations of Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 40 There is no substantial proof of her reason for leaving , nor is there any allegation of discrimination against her. 41 lone Daisy, Flossy Lasher , Leota Reiff , and Betty Williams. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. As Respondent discharged Joan Mitchell constructively on September 4, and di- rectly on September 5, 1959, in violation of the Act, I shall recommend that it offer Mitchell immediate and full reinstatement to her former or substantially equivalent position without prejudice to her seniority and other rights and privileges. I shall also recommend that Respondent make Mitchell and Marcella Foley, who was dis- criminatorily laid off on May 22, 1959, whole for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which she would have earned as wages, absent the dis- crimination, from the date of such discrimination to the date of her reinstatement (May 25, 1959, in the case of Foley), or a proper offer of reinstatement (in the case of Mitchell), less her net earnings during such period, the backpay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. I will also recommend that Respondent preserve and, upon request, make available to the Board or its agents all pertinent records necessary to compute the manner of rein- statement and amount of backpay due under these recommendations. In view of the serious nature and variety of the unfair labor practices committed, I shall also recommend the issuance of a broad cease-and-desist order, requiring Respondent to cease and desist from infringing in any manner on employees' rights guaranteed 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. Amalgamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging, laying off, transferring to less desirable work locations, and refusing to recall employees, because of their union activities, to the extent found above, 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 above conduct, and by threats of discharge and other economic reprisals, and actual surveillance of union meetings and concerted activities of employees, thereby interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engag- ing 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. 5. 'Respondent has not violated the Act by its layoff of Marcella Foley, Joan Mitchell, Dorothy Broich, and Helen Wenck on July 15 through July 29, 1959, its discharge of Foley on July 24, 1959, and refusal thereafter to reinstate her, or its reduction of the hours of work of Dorothy Broich from September 7, through 19, 1959, nor did it constructively discharge Helen Wenck on or about August 1, 1959, by assigning her to work in the cooler room of the plant on July 30 and 31, 1959, or discriminate against her by refusing or failing thereafter to recall her to work. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organi- zation of our employees , by discharging , laying off, transferring to less desirable work locations , refusing to recall , or in any other manner discriminating against them in regard to their hire or tenure of employment or any 'term or con- dition of employment. WE WILL NOT threaten our employees with a shutdown of the plant , loss of their fobs, or disbarment from further employment , if the above-named Union organized the plant or they assisted or supported it. MOTEL, HOTEL & CLUB EMPLOYEES' UNION LOCAL 568 1069 WE WILL NOT engage in surveillance of the union or other concerted activi- ties of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization , to form labor organi- zations, to join or assist the above-named Union, or any other labor organi- zation, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose 'of collective bargain- ing or other mutual aid or protection, and to refrain from any or all such activities. WE WILL offer Joan Mitchell immediate and full reinstatement to her former or substantially equivalent position , without prejudice to her seniority or other rights and privileges previously enjoyed, and will make Joan Mitchell and Mar- cella Foley whole for any loss of pay suffered by them as the result of the discrimination against them. - All our employees are free to become or remain, and to refrain from becoming or remaining, members of the above-named or any other labor organization. CARROLL EGG COMPANY, INC., 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. Motel, Hotel & Club Employees' Union Local 568, AFL-CIO [Sheraton Corporation of America] and Emanuel Tirado. Case No. 4-CB-613. March 2, 1961 DECISION AND ORDER On November 15, 1960, Trial Examiner Sidney Sherman 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. The Respondent and the Gen- eral Counsel filed exceptions to the Intermediate Report, together .with supporting briefs. 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 briefs, and the entire record,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein 2 i We agree with the Trial Examiner's finding that possible unlawful hiring practices on the part of Respondent have not been adequately litigated in this proceeding , and are not here in issue, and we therefore find no merit in the General Counsel's exceptions relating to such practices . We also deny Respondent's motion to reopen the record, as evidence of settlement negotiations , and the other matters contained in Respondent 's motion are not relevant to this proceeding. Cf. Brown and Root, Inc ., et at., 99 NLRB 1031 , footnote 2, enfd . in part 203 F. 2d 139 (C.A. 8). 2 We adopt the Trial Examiner 's finding that Respondent violated Section 8 (b) (2) and (1) (A) in causing Tirado's discharge for discriminatory reasons. However, we note that Tirado's tender of dues, as found by the Trial Examiner and adopted herein, occurred 130 NLRB No. 115.