Dal-Tex Optical Co., Inc.

DAL-TEX OPTICAL COMPANY, INC. 715 The bargaining unit is: All lithographic department employees employed by us at our Baltimore, Maryland, location, excluding all other employees, professional employees, guards, and supervisors as defined in the Act. THE LORD BALTIMORE PRESS, 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. Dal-Tex Optical Company, Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO Dal-Tex Optical Company, Inc. and Willie B. Green. Cases Nos. 16-CA-1359, 16-CA-1359-2, and 16-CA-1358. May 23, 1961 DECISION AND ORDER On December '29, 1960, Trial Examiner Leo F. Lightner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Members Rodgers, Leedom, 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 the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in these cases, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Dal-Tex Optical Company, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging or otherwise discriminating against employees because they have given testimony, or appeared for the purpose of giving testimony, under the Act. 1 No briefs were filed by any of the parties. 131 NLRB No. 94. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Interfering with, restraining, or coercing nonsupervisory em= ployees in the exercise of their statutory rights by discharging super- visory personnel because they have given testimony under the Act or refused to carry out an illegal course of conduct in violation of the provisions of Section 8 (a) (1) of the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights of self-organization, to form labor organizations, to join or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO,.or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Willie B. Green immediate and full reinstatement to his former or substantially equivalent position, and restore Jessie Whitaker and Billie Rodgers McNeely to the duties and positions formerly assigned to them, without prejudice to their seniority or other rights or privileges previously enjoyed, and make Willie B. Green, Willis McNeely, and Jessie Whitaker whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in the manner set forth in the section of the Intermediate Re- port entitled "The Remedy." (b) Revoke, rescind, and remove any record of the alleged "viola- tion notice" issued to Curtis Anderson in April 1960, without preju- dice to his seniority or other rights or privileges of employment. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze, compute, and determine the amount of backpay and rights of employment to which discriminatees herein may be entitled under the terms of this Order. (d) Post at its plant in Dallas, Texas, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after having been duly signed by the Respondent, be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive 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. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " - DAL-TEX OPTICAL COMPANY, INC. ,717 (e) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply therewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discharge or otherwise discriminate against em- ployees because they have given testimony under the Act, or appeared for the purpose of testifying in a hearing held under the terms of the Act. WE WILL NOT interfere with, restrain, or coerce nonsupervisory employees in the exercise of their statutory rights, by discharging supervisory personnel because they have given testimony under the Act or refused to carry out an illegal course of conduct in violation of the provisions of Section 8(a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in any other concerted activities for the purpose of collectively bargaining or mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to Willie B. Green immediate and full reinstate- ment to his former or substantially equivalent position, and restore Jessie Whitaker and Billie Rodgers McNeely to the duties and positions formerly assigned to them, without prejudice to their seniority or other rights or privileges previously enjoyed, and make Willie B. Green, Willis McNeely, and Jessie Whitaker whole for any loss of pay they may have suffered by reason of the discrimination against them. WE WILL revoke and rescind the "violation notice" issued in April 1960 to Curtis Anderson, without prejudice to his seniority or other rights and privileges of employment. DAL-TEX OPTICAL 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. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding was heard before the duly designated Trial Examiner in Dallas, Texas, on June 21 and 22, 1960, on the consolidated complaint of the General Counsel, as amended, and the answer of Dal-Tex Optical Company, Inc., herein- after referred to as the Respondent. The issues litigated were whether the Re- spondent engaged in unfair labor practices and thereby violated Section 8(a) (4) and (1) of the Labor Management Relations Act, 1947, as amended, 61 Stat. 136, herein called the Act. The parties waived oral argument and briefs filed by the General Counsel and Respondent have been carefully considered. During the hear- ing the Trial Examiner reserved rulings on several motions, including Respondent's motion to dismiss the complaint. These motions are disposed of in accordance with findings and conclusions herein set forth. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation, having its principal office and place of busi- ness at Dallas, Texas, engaging in the manufacture, sale, and distribution of whole- sale optical goods. During the 12-month period preceding the issuance of the complaint on May 2, 1960, a representative period, Respondent purchased products valued in excess of $50,000, of which more than $50,000 worth was shipped in interstate commerce to the plant of the Respondent from points outside, the State of Texas, in the course and conduct of its said business operations. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and sequence of events 1. The issues The principal issues raised by the pleadings and litigated at the hearing are whether the Respondent, on or about April 26, 1960: (1) Discharged Willie B. (Shaw) Green and Willis McNeely; (2) demoted to inferior working positions Jessie Whitaker and Billie Rodgers McNeely; and (3) changed the application of the -work rules of employees Samuel L. Whitaker i and Curtis Anderson or applied the existing work rules in a discriminatory manner as to these employees. Said conduct is alleged to have been for the reason that the named employees testified, or appeared to testify, under the Act and to constitute unfair labor prac- tices in violation bf Section 8(a)(4) and (1) of the Act. In addition, and in the alternative, the discharge of Willie B. Green is alleged to have been for the reason that he refused to carry out the illegal course of conduct prescribed by Respondent. Respondent, by answer, moved to dismiss the complaint in Case No. 16-CA-1358 alleging that Respondent discharged Shaw Green (Willie B. Green) because he gave testimony in Case No. 16-CA-1325, for the reason that since Shaw Green was a supervisor, Respondent could not violate Section 8(a)(1) and (4) of the Act as to him. Decision on this motion was reserved. Respondent admitted that it terminated the employment of Shaw Green, but denied that it terminated the employment of Willis McNeely, and further denied that it had engaged in conduct constituting unfair labor practices under the Act. 2. The background evidence a. Events preceding April1960 hearing It is undisputed that about August 1959 the Union began an organization cam- paign at Respondent's plant, that subsequently the Board ordered an election which 3 The names Jessie Whitaker and Samuel Longfellow Whitaker are both incorrectly spelled Whittaker in the transcript, which Is hereby corrected. DAL-TEX OPTICAL COMPANY, INC.7719 was held on October 30 , 1959, and that the election resulted in a tally of 96 votes against the Union and 88 votes in favor of the Union, with 5 ballots being chal- lenged. The Union filed objections and thereafter the Board ordered a hearing. In the interim, the Union filed charges alleging unfair labor practices within the meaning of Section 8(a) (1) of the Act, and after investigation a complaint was issued thereon . Subsequently, these matters were combined, being Cases Nos. 16-CA-1325 and 16-RC-2571 ( 130 NLRB 1313 ), and a hearing was held before a Trial Examiner on April 25 and 26, 1960. b. Events at April hearing Willie B. (Shaw) Green, Willis McNeely, Billie Rodgers McNeely, and Curtis Anderson, all alleged discriminatees herein, each appeared pursuant to subpena and testified on April 25, 1960. I find that their testimony was adverse to the Respond- ent.2 Jessie Whitaker appeared pursuant to subpena and an offer of proof was made relative to the testimony he, and others, would give. The offer was declined by the Trial Examiner on the ground that it would be cumulative and repetitious. Samuel Longfellow Whitaker, an alleged discriminatee herein, was under subpena to ap- pear at the hearing but was not called as a witness, and was not included in the offer of proof which was rejected. Respondent acknowledged knowledge of Samuel Whitaker's presence at the hearing. On the basis of the credited testimony of Samuel Whitaker, and limited corroboration by Felix Albert Roebuck, his super- visor, I find that Respondent knew on April 25, 1960, that he appeared at the hear- ing pursuant to a subpena. Respondent admits that Irving Greenberg, president of Respondent, was present throughout the hearing held on April 25 and 26. 3. The events of April 26 and 27, 1960 While the events herein considered occurred in close proximity in point of time, on April 26 and 27, 1960, each involves a separately identifiable alleged unfair labor practice. The evidence concerning each allegation is set forth under the name of the alleged discriminatee. a. Willis McNeely Willis McNeely credibly testified that on Monday, April 18, 1960, he notified his supervisor and brother-in-law, Shaw Green, that he had obtained other employ- ment and was giving Respondent a 2-week notice, effective Friday, April 29, 1960. Shaw Green was unable to recall the,date of the notice but credibly testified that it was a 2-week notice and that McNeely was to work until April 30.3 Green re- ported this event to Morris J. Stein (referred to in the record as Maury), assistant plant superintendent, and the following morning Green advised McNeely that he could work until Friday, April 29, that Stein "had okayed it." That Stein is a supervisor, within the meaning of the Act, is undisputed. Shaw Green returned to Respondent's plant following the close of the previous hearing, around 11 a.m., on April 26, 1960. He was called to the office of Stein about 1:15 p in., and advised by the latter that Green should tell Willis McNeely that the following day would be his last day, i.e., Wednesday, April 27. Green thereupon inquired why McNeely was being let out on Wednesday when his notice was turned in effective the 30th of the month. Stein advised him that the payroll week ended on Wednesday and that was the reason for McNeely's being let out at that time. Green then related this conversation to McNeely. On Wednesday, April 27, Stein called McNeely at 4:30 p.m., and told him it was his last day. McNeely then advised Stein that he was supposed to work until Friday. McNeely credibly testified that Stein told him "Mr. Greenberg said today is your last day." Stein identified a termination notice dated April 27 which he had signed on that date, which recites that McNeely gave him notice on Wednesday, April 13, that he was leaving Respondent's employ in 2 weeks. However, Stein's testimony was that II have taken official notice of the prior proceedings and have, pursuant to stipulation of the parties, reviewed the testimony of these witnesses. This review, except as to Willie B. Green, was limited to the sole purpose of determining whether the testimony of each witness, standing alone, was of a nature that. it could be characterized as "adverse" to the Respondent Respondent conceded that the testimony of Willie B. Green was adverse; the reason for its review is set forth infra. 8 April 29 was a Friday. The plant sometimes worked on Saturday. It is undisputed in this record that McNeely was scheduled to start on his new work on Monday, May 2, 1960, and had so advised Shaw-Green. " - 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was "approximately the 13th" that Green advised him of McNeely's leaving. I credit the testimony of McNeely that he did not even know about the new job on April 13, and that he gave the notice to Green on April 18 .4 Conclusions I have found above that Willis McNeely gave testimony at the previous hearing which, by its nature, was adverse to the Respondent. In response to a Board subpena he appeared and testified on April 25. He was advised on April 26 5 that his services were being terminated the following day, Wednesday, April 27. The evidence in this record establishes that on April 18, a Monday, McNeely gave notice that he would terminate his services at the end of business on Friday, April 29, a 2-week notice. The assertion of the Respondent that he was terminated because this was the end of the workweek is implausible since it was admitted that many employees terminate on days other than the end of the workweek. I shall, accordingly, find that the alleged reason for the sudden and precipitate termination was in fact a pretext, and that the real reason and motivation for ,the termination was the fact that said employee testified in a Board hearing. b. Jessie Whitaker Jessie Whitaker had been employed by Respondent about 71/ years at the time of the hearing. He credibly testified that he was made an "assistant supervisor" in shipping and packing and put on a straight salary about 21h years prior to the hear- ing herein.6 Whitaker appeared pursuant to subpena at the previous hearing on April 25, 1960, and, as I have found above, his testimony, which was rejected as cumulative, would have been adverse to the Respondent. Whitaker credibly testified herein that on April 27, 1960, between 2:30 and 3 p.m., President Greenberg called him to his office and, in the presence of Stein and Foreman Donald Wall, told him that he would no longer be on a salary, that he would just be an ordinary worker, and that when he was off he would be off on his own, i.e., he would not be paid for time which he took off, as he had been when he was on salary. Donald Wall had been foreman in charge of the finish department, and after the discharge of Willie B. Green, on April 26, discussed infra, that department was combined with the shipping, packing, and transferring department, which had been supervised by Green, and both departments were placed under Wall. While Whitaker first testified that Greenberg told him that he would no longer be an assistant supervisor or a leadman, he later testified that his duties were not changed in any way. It is undisputed that Greenberg assured Whitaker that he would continue to receive as a minimum the $67.50 per week he had been-receiving, provided he did not absent himself from work and provided further that he worked 49'/2 hours per week when work was available.? Whitaker was thereafter paid $1.25 an hour with overtime at time and a half after 40 hours or slightly more than $67.50 a week when he worked 491/2 hours. It is also undisputed in the record that Whitaker did not exercise any of the normal prerogatives of a foreman, except to the extent that he directed the work of others during Green's absences. President Greenberg acknowledged that Whitaker was a leadman and did the same work as other leadmen in the plant, i.e., took over direction of the work for a fore- man when he was absent. Greenberg insisted that Whitaker "would still be con- sidered as a leadman." Greenberg testified that if a salaried employee is absent because of illness or an emergency, Respondent normally pays for the time lost, pro- vided it is brought to Greenberg's attention and he approves it. When an employee is working on an hourly basis he is not paid for such time off. Greenberg acknowl- edged that Whitaker had lost 1 day in the week ending May 18 by reason of such an absence, and he was not paid for that day. 4 This credibility determination is predicated upon the demeanor of the witnesses, the manner of their response to questions , and the circumstances surrounding this event as reflected by the record as a whole. 5 All dates herein are 1960, except where otherwise noted. 6 It is clear from the record that the quoted job title is not accurate. Whitaker was in fact a leadman who replaced Willie B. Green whenever the latter was absent. At the time of such substitution Whitaker, and other leadmen under other foremen, would have re- sponsibility for seeing to it that the work of the others continued and would also do his own work. Whitaker's ineptness in not stating accurately the precise title does not detract from his testimony. 4 The work is seasonal and the plant may be closed as many as 20 Saturdays out. of 24 in the winter, but it is in operation substantially every Saturday from spring until fall. DAL-TEX OPTICAL COMPANY, INC. 721 Conclusions I have found above that Jessie Whitaker, pursuant to a Board subpena, appeared at the prior hearing on April 25 , 1960, for the purpose of testifying and that Respondent had knowledge of these facts . He did not testify because the Trial Examiner rejected an offer of proof relative to his testimony on the ground that it would be cumulative. President Greenberg was present throughout the previous hearing and had knowledge of the events occurring during it. It was President Greenberg who, 2 days later, effected the change in the method of payment of Whitaker. While Greenberg testified in this case he advanced no plaus- ible reason for modifying Whitaker's status from that of a salaried employee to that of an hourly employee, except to the extent that he explained that the two depart- ments had been combined under Wall. His testimony was, however , that Whitaker continued to be a leadman in the combined department . There is thus no explanation or justification by Respondent for the modification of Whitaker 's status. That the modification operated to the financial detriment of Whitaker cannot be disputed. The proximity in time of the discriminatory conduct of the Respondent to the identification of the employees available to the Board , for the purpose of providing testimony adverse to Respondent , is no mere coincidence. I am constrained to find, for the reasons stated , that Respondent's demotion of Whitaker , in terms of earnings, was discriminatorily motivated as retaliation because of his appearance as a potential witness. Such conduct is manifestly an effort to obstruct the orderly processes of the Board, in its discharge of the duties devolving upon it under the Act. c. Billie Rodgers McNeely I have found above that McNeely appeared pursuant to subpena and testified ad- versely to Respondent during the prior hearing on April 25. Respondent's president, Greenberg, was present and heard that testimony. McNeely returned to work at the close of the hearing on April 26 . The same morning President Greenberg came in and said to Assistant Plant Superintendent Stein, "I don't want him cleaning my office any more," referring to McNeely, at a time when McNeely was cleaning the windows in Greenberg's office. There was a further conversation between Greenberg and Stein which McNeely did not hear, but a few moments later Stein called Milton Pettis, supervisor of McNeely. Shortly thereafter, Pettis advised McNeely that he was being transferred to a different job and the transfer became immediately effective. McNeely was hired by Respondent about 23 months before the hearing in this case, and at all times pertinent herein was a porter . When the former supervisor of porters, identified only as Burdine, left Respondent 's employ, Milton Pettis was pro- moted to that position . At the time of his promotion Pettis was cleaning and doing porter work in the front office. McNeely credibly testified that Carl Avery had been promised the front office job because he had more seniority, however, he declined it and it was given to McNeely as he was the next in line in seniority . These events occurred some 6 or 8 months prior to April 1960 , and during the period thereafter McNeely was the porter in the front office. On April 26, 1960, McNeely was trans- ferred to the work being done by Carl Avery in the plant and Avery was transferred to the job previously held by McNeely. The record does not indicate that Avery was a witness in the prior hearing. It is undisputed that McNeely continued to draw the same pay and continues to do porter work. President Greenberg testified that there was no change in the status of McNeely, i.e., that he was shifted from doing porter work in the front of the building to a central part of the building , and his work was no harder and no different . Green- berg then explained his action by stating , "I felt that at the time after having heard the testimony at the previous hearing that , and being a rather untidy person at my desk I felt that I would rather have someone else clean my office than Mr . McNeely, so I merely made a change . There was no demotion in time, no demotion in pay, no demotion in his type of work." Greenberg testified relative to an implied incident of pilferage : "Yes, I heard that a desk had been pilfered and a so-called list had been found and, of course, I didn't want to take any particular chances in any way that my desk may be gone through." Greenberg then testified that he formed a personal opinion as to who might have caused the pilferage and included Willis McNeely among a "group of people" whom he would include as being among those about whom he had formed an opinion as to who might have pilfered the desk .8 8 There is testimony in this record that prior to the Board election a party was held at the home of a Vera Roberts, identified herein only as the employee of another optical 599198-62-vol 131-47 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While McNeely, in his testimony herein, became confused relative to the existence or nonexistence of a list of those attending or not attending the preelection party at Vera Roberts', examination of his testimony in the prior hearing reveals no reference to such a list or any activity on McNeely's part in connection with such a list. This record does not establish that such a list was in the possession of Vera Roberts or that such a list was ever pilfered from any desk . I so find. Conclusions This transfer was effected the morning of April 26, the day the prior hearing closed. It was effected almost simultaneously upon the return of McNeely from his attend- ance at the hearing, where he testified adversely to the Respondent , and the return of Greenberg from hearing that adverse testimony. No evidence of any pilferage of a list of employees attending the preelection party appears in this record. The effort of Respondent, by innuendo and implication , to justify the transfer of McNeely is accordingly without substance . This record as a whole reflects a studied and considered campaign of discrimination by Respondent's president against a number of the witnesses who appeared on behalf of General Counsel in the prior hearing. The evidence, considering the record as a whole, provides no other explanation. McNeely was but the first of those subjected to Respondent's discrimination. I find accordingly. d. Curtis Anderson I have found above that Curtis Anderson appeared pursuant to subpena and testified on behalf of General Counsel on April 25, that his testimony was adverse to the Respondent, and that Greenberg was present and heard that testimony. Anderson's job was that of a blocker, his duties being to prepare lens for grinding by placing it on a piece of metal and putting hot liquid , called pitch, on it. The lens is held in place by a clamp. Anderson credibly testified that sometimes the lens breaks because the glass is too thin, there is a flaw , or they get too hot while they are on the blocker. On April 27, 1960, Anderson was given a "violation notice" or warning slip, for "excessive breakage due to carelessness" (Respondent's Exhibit No. 2). The same notice stated, "This is to notify you that any further violation of this nature may lead to your suspension or discharge." The notice was given to Anderson by his foreman, Felix Albert Roebuck . General Counsel contends that the giving of the notice constituted a change in the application of work rules or in the alternative, the application of existing work rules in a discriminatory manner, motivated by reason of this employee's testimony, in the previous hearing, 2 days before the issuance of the notice. It was Anderson's testimony that sometimes he breaks one, two, or three lenses a week, sometimes none in a week, but the breakage mostly occurs when the glass is too thin or there is a flaw in the glass. He explained that sometimes they get too hot and this causes the breakage, this being the situation which existed on the day in question. When a blocker breaks a lens he puts his initials on it and it then comes to the attention of the foreman, Roebuck, or one of his two leadmen. It was Anderson's testimony that Roebuck did not say anything to him about the breakage but handed him the violation slip for unnecessary breakage. Anderson testified that two other lenses were broken behind him and five on one side of him, and that the other blockers were not given violation slips for these breakages, all of which occurred the same day. Anderson admitted that he had received a "violation notice" on November 23, 1959 (Respondent's Exhibit No. 3), for the stated reason of "unnecessary conversa- tion, wasting company time, unsatisfactory work." This was his first violation slip and it was given to him just after the election , after he had attended a union meeting. Anderson also received a "violation notice" for the assigned reason of "continued bad work due to carelessness after warning " on December 1, 1959 (Respondent's Exhibit No. 4), and at that time was suspended for 2i days. General Counsel does not contend that these earlier notices constituted disparate treatment or discrimina- tory application of work rules. company located on the same premises as Respondent Her desk was in Respondent's warehouse Vera Roberts, shortly before the election held by the Board, had a party at her home for the colored employees of the Respondent. An unspecified number of these employees did not attend and it appears that Shaw Green reported to some of the em- ployees that Mr. Stein had a list of the employees who did not attend, discussed further infra. DAL-TEX OPTICAL COMPANY, INC. 723 Anderson credibly testified that he broke one of the lenses before noon and the other one after noon, and that he did not receive the violation notice until 4:25 p.m., on April 27. He attempted to explain the reason for the breakages to Roebuck and was advised by the latter, "I don't want to hear about it," after which Anderson returned to his work position. Willie L. Armstrong has been employed by the Respondent for 61/2 years. He is also a blocker and does most of the blocking of the regrind lenses. It was his testimony that on April 27, 1960, he broke either two or three lenses. He ascribed the cause as being the fact that hot pitch is poured on the lenses and sometimes they are too thin and the heat causes them to break. He estimated his breakage at about four each week on an average. He testified that he had never received a violation slip for careless breakage. Foreman Roebuck testified that he is foreman of the surface, cylinder, and gen- erator department. There are 35 employees in his department, including 4 blockers. Roebuck has two leadmen, one in the generator department and one in the cylinder department. The work of Anderson is in the generator department. Roebuck and his two leadmen keep a record of breakage of lens by number and by days. Roebuck testified that on the day in question after Anderson had broken two lenses Roebuck told him to be more careful because he had broken two special order blanks and they were expensive, that it was after Anderson broke the fourth lens that day that Roebuck went to the chief optician, Shelton, and told him that he wanted to suspend Anderson. Shelton advised Roebuck, according to the latter, not to suspend Anderson but to give him a violation notice. It was Roebuck's testimony that these were the only lenses broken that day and that only seven lenses were broken in that week by all four blockers. Roebuck described the lens in question as having been crushed as the result of placing the rubber tip, which holds it in place, with too much pressure causing the breakage in all four instances. Roebuck did not have any record of Armstrong having broken lenses on the same day. Roebuck admitted his records reflect only total daily breakage by all blockers, without identification as to the individual responsible. He corroborated Arm- strong's testimony that Armstrong had never received a violation notice for breakage. Roebuck acknowledged that he was not watching Anderson at the time he broke the lenses in question, but asserted that he could determine from his own experi- ence that Anderson was not careful and that this caused the breakage of the lens. Roebuck estimated that the daily average of lenses which are broken in his depart- ment as between 40 and 50, and the weekly average as 230 to 250. He was then asked approximately how many of that total were "broken through carelessness" and asserted that it would be approximately one-half of them, i.e., 115 to 125 a week, among 35 employees. Roebuck was unable to recall if he had given violation slips for careless breakage to any other employee in the week which included April 27. He could not recall whether he had issued any violation slips in the 3 weeks prior to this hearing, when he issued the last violation slip, or to whom it was issued. It was Roebuck's testimony that Anderson formerly worked in the special shop and as a result he was doing the blocking of all special lenses. Roebuck's testimony was that he could determine the cause of breakage of the four lenses because they were crushed in the center and the pitch held the crushed portions together. He then testified that although something on the order of 115 to 120 lenses are broken each week due to carelessness he has given few violation slips for breakage due to carelessness because if a man breaks a lens every day due to carelessness he does not think it grounds for a violation notice, but when he breaks 4 or 5 on the same day that is a different story. Conclusions Roebuck was unable to recall anyone to whom he gave a warning slip other than Anderson, but testified that he could recall the particular incident because they were special order blanks and expensive blanks and "I remember going to my superior at the time because I wanted to suspend him until he could settle down and put his mind to his work." Roebuck knew that Anderson had been subpenaed to testify in the previous hearing, acknowledging that Anderson had so notified him. These events took place the day after the prior hearing concluded. Roebuck admitted that he did not watch Anderson and did not see him break the lens in question. In view of Armstrong's testimony that he broke two of the lenses that were broken on April 27, and Anderson's testimony that he broke only two, I do not credit Roebuck's testimony that Anderson broke all four of the recorded breakages. Roebuck was unable to recall if he had issued any warning slips either I week, 2 weeks, or 3 weeks preceding the hearing on June 22, but would have it believed that he could recall accurately the events of April 27 and his reasons for issuing the "violation 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice" to Anderson. In view of Roebuck's testimony that the average breakage is on the order of 230 to 250 a week, of which approximately half are due to careless breakage, I am constrained to find that breakage of two lenses by Anderson did not constitute the unusual event warranting a violation notice described by Roebuck. The timing of this event, 2 days after Anderson appeared as a witness; the other evidence of Respondent's discriminatory conduct contained in this record; and the unconvincing character of Roebuck's testimony, which I do not credit, persuade me that the issuance of the violation notice was based upon a pretext and that Respond- ent's conduct was in fact a discriminatory act motivated by Anderson's appearance as a witness. e. Samuel Longfellow Whitaker Samuel Longfellow Whitaker has been employed by Respondent for about 4 years. He was subpenaed to appear at the previous hearing, and was present on both days of the hearing. Respondent knew he was present, and I find that Respondent knew that he was under subpena. Whitaker advised Felix Roebuck that he had been sub- penaed to appear at the hearing and exhibited the subpena to the latter. However, Whitaker did not testify and was not included in the offer of proof made by General Counsel, and rejected by the Trial Examiner as set forth above. On the afternoon of April 26, upon completion of his work, Whitaker punched out on the timeclock, then walked to the shipping room and was talking to Willis McNeely. President Greenberg asked him if he was still on the clock and was advised by Whitaker that he had punched out. Greenberg then advised him, "Well, if you aren't on the clock I don't want you milling around the place. I want you off the property." Whitaker works in the surface department and finishes work prior to the time McNeely, who works in the mailing department, is finished. Whitaker acknowledged that there was a sign on the bulletin board which read "no loitering in this area, shipping department." He acknowledged that he knew they were company rules, but testified that he had not seen them. It was his testimony that he had gone to the shipping room on a number of occasions prior to this time, "practically every evening," and no one had ever said anything to him about it before. President Greenberg testified that plant rules were adopted in 1958, at that time they were distributed to every employee and posted on the bulletin board, and as new employees were hired they were given a copy and instructed to read them. Rule C-1 states "No employee shall be in the plant or loiter in the building except 15 minutes before his starting work hours. After work, employees may wait in lobby for rides or appointments." Greenberg acknowledged that a Miss Williams, whose work ends at 5 p.m., went to the mailroom to pick up her ride home; however, all work at the factory finishes at 5 p.m. Conclusions There is no dispute that the Company had a plant rule to prevent loitering and interference with the work of others by employees who had finished work. General Counsel has not established by evidence that this rule was honored by its breach, or that it was discriminatorily applied. While the time of this event may cause it to be suspect, suspicion is not a substitute for evidence of the discriminatory appli- cation of the quoted rule. I shall recommend dismissal of this portion of the complaint. f. Willie B. (Shaw) Green Willie B. Green testified in the previous hearing on April 25 in response to a subpena issued by the Board. It is undisputed that he was a supervisor, within the meaning of the Act, at all times pertinent herein. He was discharged by President Greenberg on April 26. General Counsel contends that he was discharged because he had given testimony under the Act, and, in the alternative, because he refused to carry out the illegal course of conduct prescribed, by Respondent. Respondent contends that Green was not discharged because he testified, but because of what his testimony revealed. Green was first employed by Irving Greenberg about 14 years ago, prior to the incorporation of Respondent. He has been employed by Respondent for approxi- mately 7 years and during substantially all of that time he was the supervisor of the shipping department. Green is 29 years of age and finished 10 years of school. Greenberg testified that prior to April 25 he considered Green a very good em- ployee and also described him as "a well trusted employee." I have set forth supra that about 1:15 p.m., on April 26, 1960, Stein advised Green that Willis McNeely was being terminated the following day. Green then DAL-TEX OPTICAL COMPANY, INC. 725 returned to his work and at 4:55 p .m. Greenberg asked him to come to his office and advised him: "Shaw , I am firing you. I am not firing you for what you did. I don't need a man that is not for me all of the way. I am also paying you for 51/2 days. You were down at the trial for the Labor Board, you wasn't down there for me. I will have some papers for you , you have some profits coming and you come by tomorrow and get those papers. I don 't want you on my damn premises again." On cross-examination Green was asked if Greenberg had not told him that he was not firing him because he gave testimony but was firing him because he was a disloyal employee and a first-class liar. Green responded, "No, he didn't. He told me he was firing me because he didn 't need a man that wasn't for him all of the way." Greenberg testified and neither denied nor disputed this testimony of Green. I, accordingly, find the same credible. Greenberg testified that when the prior hearing ended he had not made up his mind relative to the discharge of Green . He then testified that the reasons for the discharge of Green "grew out of what was revealed to me in those hearings." He was asked by Respondent's counsel: Q. Will you tell the Examiner exactly why you fired him? A. In simple words I felt I couldn 't have a Judas in my midst. I had, as I explained previously, listened to his testimony that afternoon and learned from that at that time that he was completely double-crossing me, as the saying may go, and was not in the least interested in the Company . Therefore I had no alternative but to fire him. Q. What did you feel with reference to his truth and veracity? A. I felt he had certainly not told the truth because from his affidavit from the last trial they didn't even correspond and certainly didn't correspond to the affidavit which we filed, so within a period of 2 or 3 months he had made sev- eral affidavits, none of which corresponded to the other, so certainly his word was no good. Q. Now, did you fire him, state whether or not you discharged him because he testified before the National Labor Relations Board? A. Certainly not, and I told him I did not fire him for that. When I called him into my office I told him it was not for the testimony that I was firfng him, it was finding out in my midst here was a man, a supervisor, one of management personnel, that had completely double-crossed the factory, double-crossed me, and I couldn't confide in him as a supervisor anymore . Therefore I didn't want him. In order to understand the events and evidence herein it is essential to review the testimony of Shaw Green in the prior hearing, and certain statements given by him to the Board and the Respondent , introduced as exhibits in the other case and in this case (Respondent's Exhibits Nos. la, lb, and 1c). These events are accord- ingly summarized in the footnote without resolving any conflicts therein.9 0 On November 17, 1959, Shaw Green executed an affidavit at the request of a field examiner of the Board . ( Respondent's Exhibit No. lb.) He stated therein that, about October 27 , during election week , Mr. Pearle (vice president of Respondent ), called Green into his office and told him there were certain employees about whom he was doubtful and that he wanted Green to work on them any way he could They are identified as Jessie Whitaker, Samuel Whitaker, Billie Rodgers McNeely , Willis McNeely, Carl Ara, and K D. Farris. Green stated that Pearle told him to tell them that everyone else was on our side, that they were the key to this whole election, that if we did not win the election he was going to get rid of them one way or another even if the Union were in, and he would make some kind of excuse to fire all of them, even if it were only for throwing paper on the floor Pearle advised Green he could talk to them as a friend and not a boss. Pearle also pointed out to Green that there was not another plant in Texas where there was a Negro supervisor, and went on to say that if the Union got in they would be sepa- rated from the other people and would not use the same toilets and drinking fountain. Green went to these men and told them what the Company had said , he also added, "Your best out is to vote for the Union. They are trying to scare you If they win, more than likely you will lose your job anyway More likely there wouldn 't be anyone around here but me, and sooner or later , the Company would get rid of me " Pearle held several meetings of the employees between October 7 and 30 and said the plant would never be closed and would never be union . On October 28, right after one meeting, Green called an employee into his office and told him that the Company thought the employee was for the Union Green told him he was going to talk loud when talking for the Company and talk low when talking about the Union and told him that he would be a fool not to vote for the Union . Green then told another employee the same thing . He interviewed these 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Green, in the instant case, acknowledged having given the two statements to the Board and the one statement to the Company, set forth in the footnote. Green testified that prior to his testimony in the prior hearing no one in the Com- pany, so far as he knew, had any knowledge that he had given a statement to the Board or that he would be called to testify against the Company. two employees because he had been told by Mr. Pearle and Mr. Stein to talk to them. Green stated that he was told at several supervisory meetings to sell the Company to the employees by pointing out to them how good the Company had been to them in the way of pension and profit sharing, and giving small loans Green concluded the state- ment with the following : "I would tell the Company that I was for them, and then tell the Union that I was for them. I want to stay in good with everyone " The Board election was held on October 30, 1959. On November 5, 1959, the petitioner filed timely objections The above statement was apparently obtained in connection with the investigation of those objections On December 11, 1959, the Regional Director recom- mended that the election be set aside on grounds stated in his report, which includes the following In -view of the widespread conduct of the individual interviews in administrative offices apart from the employees normal work places, it Is concluded that this conduct is sufficient to warrant setting the election aside, and the conduct of a new election The report concludes : It is concluded that this election should be set aside on the additional ground that the employer interfered with the election by threatening employees with the loss of their jobs and with the loss of benefits, if they didn't vote against the Union Green testified that he was called to the office of President Greenberg (apparently in December 1959) and told to read a prepared statement and sign it While the statement Is in affidavit form , and signed by some 15 supervisory personnel , Green testified, in the instant case, that no notary public was present and he did not take an oath when he signed it. Milton Pettis, who signed this statement at the same time Green signed it, was not called as a witness This statement of December 16, 1959 (Respondent's Exhibit No la), is purportedly signed by all of the foremen of Respondent, Including Shaw Green The statement recites that on August 14, 1959, and numerous times thereafter each Individual was told by Lester I Pearle and Irving Greenberg that Respondent was responsible for the state- ments of the foremen, that they must not discourage membership in the Union, promise an employee a benefit if he did not join the Union, or conversely threaten the employee if he did join; must not threaten to close the plant; and must not fire an employee because of his union activities The foremen were told that an employee has the right to join or not to join the Union, to vote as he saw fit, and no matter how the election came out no one would be discharged before or after the election because of his union activities These facts were emphasized in speeches made by the president and vice president. Each foreman affirms that he was careful to follow these Instructions The statement then sets forth the plant practice of having individual employees discuss instructions with foremen, foremen admistering discipline and discussing problems. However, the subjects of the Union 'and the election were excluded from these discussions It is stated that in none of these discussions , nor at any other time , did the individual foreman threaten any employee with the loss of his job and with the loss of his benefits if he did not vote against the Union The statement then concludes with the following I have been advised that it is claimed that an employee stated that Mr. Pearle had told a supervisor, "that even if the Union won, something might happen to the men like losing their jobs ; that if the Union got in, Pearle wouldn't be able to do the little things for them that he had been doing." I never told any employee anything of this kind, and this statement is false On December 18, 1959, Respondent filed exceptions to the Regional Director's report Thereafter, on January 26 and February 4, 1960, the Union filed unfair labor practice charges In Case No 16-CA-1325 On February 18, 1960, Shaw Green gave an affidavit to a field examiner of the Board (Respondent's Exhibit No. Ic ) In this affidavit he reaffirmed the truth of his statement of November 17, 1959 He further stated that his supervisor, Maury Stein, on October 30, 1959, at 8 am (the day of the election), told Green to talk to Curtis Anderson and Joe Smith and tell them that he knew that they both went to the union meeting the night before, to tell Anderson that Stein knew that Smith came by to take Anderson to the meeting, and that if Respondent lost, even if the Union came in, Anderson would not have a job because the Company would get rid of him one way or the other. Shaw quoted Stein as having said that the Company was going to get rid of Smith because they knew DAL-TEX OPTICAL COMPANY, INC. 727 It was the testimony of President Greenberg that because of the mention of Shaw Green in the complaint in the prior case, issued March 7, 1960, that Shaw Green was called into his office on April 21 or 22, 1960, at which time Respondent's counsel was also present. Greenberg quoted a question he asked Green as follows: Q. ,Shaw, is there anything in here that you don't, that you think is wrong, we are going to trial and they are going to ask you whether this is true? Greenberg quoted Green as answering : "No, sir, nothing is here." Greenberg then related that Green stated that nothing was wrong with the Company and that he hoped someday his boy would work with the Company. Greenberg testified that he did not know that Green had given statements to the Board until they were produced at the prior hearing and that Green never advised him that he was to testify for the Board. I credit this testimony of Greenberg. Greenberg identified Pearle as executive vice president of Respondent, immediately under Greenberg in the supervisory chain. It is undisputed that Pearle did not he had been for the Union all along . Stein also advised Green that the Company was surprised to learn that Anderson was for the Union. Green then stated that he had re- examined the three-page affidavit which he had signed for Respondent on December 16 and that the affidavit contained some statements which were not true, that he knew the statements were untrue when he signed them but he was afraid he would lose his job if he did not sign On December 16, Green was called on the loudspeaker to go to the office and there met Milton Pettis, foreman of maintenance , and another unidentified foreman Either Greenberg or Pearle told Pettis and Green, as he handed each a copy of the state- ment, to read and sign the affidavit, which Green then read and signed. Besides the two foremen, only Greenberg or Pearle was present when Green signed the statement. On March 7, 1960, the Regional Director issued a complaint in Case No. 16-CA-1325 alleging, among other things, that Respondent, from on or about October 27, 1959, to date, did, through Shaw Green , a supervisor of Respondent Company, threaten employees with the loss of employment because of union activity . Connie Banks is the only other supervisor named in the complaint On April 25, 1960, a hearing was held on the objections to the election on the complaint Shaw Green , called as a witness on behalf of General Counsel , gave testimony as follows Q. Shaw, did any of your supervisors ever tell you to tell your employees anything, either tell them or question them about the Union? A No, sir They didn't Q Shaw, did you ever tell any of your employees anything about the Union9 A. I didn't tell them anything one way or the other. . Green then testified, in substance , to the instructions he received from Pearle, about October 27, set forth in his statement of November 17, 1959, relative to Willis McNeely, Billie McNeely, Jessie Whitaker, and Samuel Whitaker. Green also related the circum- stances under which he signed the statement of December 16, 1959. He was asked if he signed this voluntarily and responded : Well, yes, in a way, and in a way I didn't. Q. Would you explain what you mean' A Well, I was called in the office . I was told to read it, and after I read it they asked me would I sign it. He didn't force me or anything . He just asked me would I sign it, so I read it and signed it Green then testified to the instructions he received from Stein on October 30, 1959, substantially as set forth in Green's statement of February 18, 1960. Green acknowledged advising Respondent's counsel on the Friday prior to the April hearing, when asked if he had threatened any of the employees with loss of employment because of union activities , that he could not remember that far back , and did not remem- ber threatening employees Green acknowledged that, in a joint meeting with other foremen, Pearle instructed all of them not to make any threats or promises, as outlined in detail in the December 16 statement. However, Green testified , Pearle called him into the office separately and told him about his employees , in substance he related the in- structions he allegedly received from Mr. Pearle set forth in his statement of November 17, 1959 Green testified that he was representing to management that he was on its side and to the employees that he was on their side. He admitted telling the employees the best thing for them to do was to vote for the Union, that Pearle had told Green things to tell the employees but not to pay any attention to it but to go ahead and vote for the Union Green also acknowledged telling the employees that the threat of the Company about firing them did not mean anything that they would probably get fired whether the Union won or lost the election 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appear -in the prior hearing and Green's testimony relative to the instructions he received from Pearle was not otherwise refuted. Likewise, Stein was not called as a witness. Greenberg was closely questioned by General Counsel as to when and why he decided to discharge Green. The following colloquy appears: Q. Now, when did you become terribly disappointed in Shaw Green when you first heard that testimony that he was telling about Mr. Pearle telling him to go out and tell the-employees that they had better not join the Union or they would get fired? A. I would say that when he gave that particular type of testimony I became, I didn't believe it because it leads back again to the filing that the-I don't know whether it was the Union or the National Labor Relations Board that filed against us which they said this thing that one of our supervisors was doing which, of course, Mr. Green read in my office and he said, "Nothing doing," that he wasn't the one. It disturbed me then to feel that one of my supervisors some- place down the line was knifing me in the back. When I found out it was Shaw Green I was certainly disappointed. That was the time. Q. Was it at that time you decided to discharge him? A. I sat there and listened to the testimony for two days. Q. I am sure you did. This record shows he wasn't fired until after the hear- ing was over. Was it at the point when you first heard his testimony about Mr. Pearle that you first decided to discharge him? A. Mr. Davis, I don't make snap decisions. Q. When did you decide to discharge him? A. I don't make snap decisions, so I certainly make my decision at that one moment. [sic] Q. Now, Mr. Greenberg, you are aware of the fact that there is testimony on the part of Mr. Green in the previous hearing that he went beyond what he says Mr. Pearle told him to tell the employees and told them something else? A. That's right. Q. Now, we understand each other, don't we, without characterizing that testimony or reaching any conclusions. Do you now know whether Mr. Green at the same time testified about both of these things, first, the instructions from Mr. Pearle and, second, what he told the employees on his own initiative? A. I know there were several occasions during the testimony this was brought out and I would assume to the best of my memory that both things were men- tioned during the hearing. Q. Did you resent the fact that he (Green) on his own initiative, assuming it is true he did, told the employees these things in addition to what -Mr. Pearle told him to tell the employees? A. Mr. Davis, I didn't resent what he told them. That was his own business. He has explained what the law is in the election and he was explained as to what he should and should not do. I wasn't particularly disturbed as to what he told them. I was disturbed over the fact that my supervisor, a part of management, had actually double-crossed me. This was brought out at the hearing. We have had the hearing. The hearing is over. We cannot change the record .. . Conclusions The General Counsel contends that Shaw Green was discharged for a combination of reasons, his refusal to conform to the illegal course of conduct and his testimony to this effect. The Respondent, in its brief, states that the Employer not only had the legal right to discharge Shaw Green but that Shaw Green forced such discharge upon the Employer, and that Shaw Green not only from the evidence deceived, lied, and double-crossed the Employer but was a disloyal employee and agitated for the Union. This statement is an enlargement upon the evidence given by President Greenberg who described Green as a "well-trusted employee" prior to April 25, 1960, and who ascribed the discharge of Green to the fact that "he was completely doublecrossing me-and was not in the least interested in the Company. Therefore I had no alternative but to fire him." This latter statement of Greenberg is not at variance with Green's version that he was told by Greenberg, "I don't need a man that is not for me all of the way." Greenberg was not explicit as to which portion of the testimony of Green it was, if it was a portion as distinguished from the whole, that caused him to arrive at the conclusion that Green was "double-crossing me" or as otherwise stated by Greenberg "it disturbed me then to feel that one of my supervisors someplace down the line was DAL-TEX OPTICAL COMPANY, INC. 7729 knifing me in the back. When I found out it was Shaw Green, I was certainly disap- pointed." It is thus left to speculation whether the term "double-cross" applies singly or collectively to: (1) Green's modification of the instructions he received from Pearle, testified to by Green and other witnesses, by injecting his own views relative to the Union in his conversations with the employees; or (2) by revealing Pearle's instructions to the Board agent as set forth in his statement of November 17, 1959; or (3) by revealing to a Board agent the instructions he received from Stein relative to Anderson and Smith, as set forth in his statement to the Board on February 18, 1960; or (4) by failing to reveal the existence of these statements to Greenberg during the pretrial conference about April 21 or 22, 1960; or (5) by his testimony on April 25, 1960, at a Board hearing in which he recounted the instructions he had received from Pearle and Stein and the action he took in connection therewith. In any event, I find that General Counsel has presented prima facie evidence that Green was discharged because he testified or because he failed to carry out an illegal course of conduct as directed by the Respondent. It was therefore incumbent upon Respondent to present evidence to rebut the consequent presumption. Respondent has placed much of the focus on this case on the fact that there is a variance in the statements and testimony of Willie B. Green. No explanation has been offered as to why Stein was not called as a witness in the prior hearing, if in fact he did not instruct Green to apprise Anderson and Smith of Respondent's knowledge of their attendance at the union meeting on October 30, 1959, and to advise Anderson that even if the Union came in, he would not have a job. See footnote 9, supra, and Respondent's Exhibit No. lc. Stein testified, in the instant case, that he was a supervisor in charge of dispatch and mailing, and that he was Shaw Green's superior. Stein was not questioned herein relative to whether he did or did not instruct Shaw Green to interrogate and threaten Curtis Anderson. d have found above his testimony relative to when he received notice that Willis McNeely was leaving Respondent's employment was not credible. In the prior hearing Respondent requested an adjournment purportedly to enable it to obtain the testimony of Pearle. The Trial Examiner did not grant the request. Respondent, in this case, made no reference to the production of Pearle as a witness, nor did it make any effort to explain its failure to produce him. Accordingly, I find no denial by either Pearle or Stein of the testimony of Green relative to the unlawful course of conduct they instructed him to undertake. I do not credit Greenberg's denial that he fired Green because of the latter's having given testimony under this Act. On the contrary, I find that Green's having given testimony was a substantial factor in, and the proximate cause of, the motivation of the Respondent to discharge him. In so finding, I am not unmindful that, as found above, Respondent engaged in other discriminatory conduct, on April 26 and 27, against other witnesses who testified adversely to Respondent. The ability of the Board to carry out its responsibilities is measurable by the availability of unfettered and uncoerced witnesses who need not fear retaliatory conduct. I also find that the discharge of Green was motivated, in part, by the disclosure of his failure to follow the instructions of Pearle and Stein to carry out an illegal course of conduct. B. Concluding findings 1. Discrimination involving Willis McNeely, Jessie Whitaker, Billie Rodgers McNeely, and Curtis Anderson I have found above that Respondent terminated Willis McNeely precipitately on April 27 because he testified in a Board hearing. Respondent's effort to establish that it was given a 2-week notice of severance on April 13, 1960, was patently false in view of McNeely's credited testimony that he obtained his new job on April 16. Absent adequate explanation, Respondent's precipitate action must be related to McNeely's appearance at the hearing. I have found above that Jessie Whitaker appeared at the prior hearing pursuant to a Board subpena, but did not testify solely because his testimony would have been cumulative. On April 27 Respondent demoted Whitaker from a salaried employee to an hourly employee and I have found that such action was discriminatorily motivated as retaliation because of his appearance as a potential witness. President Greenberg admitted there was no change in Whitaker's duties, and provided no reason for the discriminatory action. Whitaker, as a result, has suffered a loss of earnings. I have found that Billie Rodgers McNeely was transferred from the iob he had held for some 8 or 10 months, to a less desirable job, on April 26, and that said transfer was motivated by McNeely's appearance as a witness in the prior hearing. It is undisputed that Pettis was promoted to supervisor- from the porter iob in the front office. McNeely, on the basis of seniority, then succeeded Pettis. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The transfer, accordingly, was a demotion. No justification, therefor, has been presented by Respondent. I have found that Curtis Anderson was given a "viola- tion notice" for "excessive breakage due to carelessness" on April 27, 1960, and that such act was motivated by Anderson's appearance as a witness at the prior hearing. Since suspension or severance from employment, under company rules, can result from these violation notices tenure of employment is directly involved. While Respondent admitted careless breakage of 115 to 125 lenses per week among 35 employees, the foreman was unable to identify any other employee who was given a violation notice. Careful analysis of the reasons advanced by the Respondent for these actions, upon consideration of all of the evidence in the record, requires the conclusion that such alleged reasons are implausible. Section 8(a)(4) of the Act provides that it is an unfair labor practice "to dis- charge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act." Section 8(a) (1) provides that it is an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." The Board and courts have uniformly held that it is a violation of Section 8(a)(4) and (1) to discriminate against an employee because he gave testimony under the Act.10 These witnesses testified, or appeared to testify, at the hearing which was held on April 25 and 26, 1960, and the ensuing actions by the Respondent were taken on April 26 and 27. The timing of these actions, I find, was no coincidence. I will under the circumstances and for the rea- sons indicated find that Respondent in discriminating against the named employees, in the manner set forth above, has engaged in unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. Respondent has urged that the provisions of Section 8(a)(4) have no application with respect to a witness who did not actually testify. This contention is rejected. See Oregon Teamsters' Security Plan Office case, supra, footnote 10. 2. The discharge of Green Respondent contends that the discharge of Shaw Green did not constitute a viola- tion of Section 8(a)(4) and (1) of the Act because Shaw Green is a supervisor. We are not here concerned with an employer who sought to maintain neutrality, or to combat the union's organizing efforts within the spirit and letter of the Act, who discharged a supervisor for failure to follow proper legal instructions. Neither would the evidence herein support a finding ,that the discharge was motivated by a supervisor improperly engaging in union activities, within the meaning of that ter- minology as reflected in Board decisions. Rather, Respondent unquestionably ascribes a "double-cross" or "knifing in the back" as the sole motivation which resulted in the discharge. The characterization of "double-cross," it must be remem- bered, occurred in an atmosphere charged with Respondent's avowed antipathy toward the organization of its employees. Respondent urges that the intent of Congress in adopting the 1947 amendments was to remove foremen and other supervisory personnel from the protection of the Act and the placing of them in the category of management, restoring to employers the right and power to insist upon undivided loyalty by their supervisory personnel. Respondent then urges that the only circumstances under which the discharge of a supervisor constitutes a violation of Section 8(a)(1) is where the discharge has resulted from the refusal of the supervisor to engage in acts of restraint or inter- ference with the union activities of subordinate employees. The Board has drawn the line of distinction as reflected in its decision in the Talladega Cotton case.ll In that case the Board said: The Respondent contends, however, that as supervisors are not employees under the amendments to the Act, it was privileged to discharge (supervisors). Al- though it is true that under the amendments the Act no longer protects super- visors discharged for union activities, we find, for the reasons discussed in the majority opinion in Intercity Advertising, that the amendments did not change the law heretofore applied in cases comparable to the present one, where the discharge of supervisory employees constituted an invasion of the self-organiza- tional rights of rank-and-file employees. I have found that the giving of testimony by Green was a substantial factor in the motivation of Respondent to discharge him, and that said discharge was motivated 10 See Carolina Mirror Corporation, 123 NLRB 1712; Cosco Products Company, 123 NLRB 766 ; Oregon Teamsters' Security Plan Office, et al. 119 NLRB 207; E V Prentice Machine Works, Inc., 120 NLRB 1691 11 Talladega Cotton Factory, Inc., 106 NLRB 295, 297. DAL-TEX OPTICAL COMPANY, INC. 731 in part by Green's disclosure of his failure, or modification, of the instructions of Pearle and Stein to carry out an illegal course of conduct. Since a number of em- ployees were in attendance at the hearing during the time Green was in attendance and testified, it may reasonably be inferred that the fact of Green's testimony is well known among the employees of the Respondent. The discharge of Green, coupled with the other acts of discrimination against other employees who likewise testified adverse to the interests of the Respondent in an earlier Board proceeding constituted spondent of the consequences the Respondent would inflict, in the future, under similar circumstances. The Board has found that the discharge of a supervisor because he gave testimony adverse to the interests of the Respondent in an earlier Board proceeding constituted conduct which interfered with, restrained, and coerced rank-and-file employees in the exercise of their self-organizational rights within the meaning of Section 8 (a) (1) of the Act. The Board said: In our opinion, the net effect of (the supervisor's) discharge was to cause non- supervisory employees reasonably to fear that the Respondent would take the same action against them if they testified against the Respondent in a Board proceeding to enforce their guaranteed rights under the Act. Clearly inherent in the employees' statutory rights is the right to seek their vindication in Board proceedings. Moreover, by the same token, rank-and-file employees are en- titled to vindicate these rights through the testimony of supervisors who have knowledge of the facts without the supervisors risking discharge or other penalty for giving testimony under the Act adverse to their employer. The Board also found that as the remedy would be the same, it was unnecessary to consider whether the discharge also violated Section 8(a) (4) of the Act. Better Monkey Grip Company, 115 NLRB 1170. See also Modern Linen & Laundry Service, Inc., 116 NLRB 1974. I find, therefore, that the discharge of Green under these circumstances justifies a finding that Respondent by its conduct interfered with and coerced its employees in violation of Section 8(a) (1) of the Act. The Board has found in the Better Monkey Grip case, supra, and in other cases, that since the remedy upon a finding of a vio- lation of Section 8(a) (1) of the Act would be the same, it was unnecessary to con- sider whether the discharge also violated Section 8(a) (4) of the Act. Consistent with these decisions I, likewise, find it unnecessary to consider whether the discharge of Green also violated Section 8(a) (4) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discharged Willis McNeely on April 27, because he testified in a Board hearing, and in view of the fact that McNeely's services with the Respond= ent would have been terminated by reason of his notice of termination, on April 29, 1960, I recommend that Respondent make him whole for any loss of salary or pay he may have suffered by reason of Respondent's discrimination against him by a pay- ment to him of a sum of money equal to that which he normally would have earned from the date of said discharge to the date when he would have terminated his serv- ices with the Respondent, less his net earnings during said period. Respondent having interfered with, restrained, and coerced nonsupervisory em- ployees in the exercise of their statutory rights by the discharge of Willie B. Green, in order to restore these employees to their full freedom to exercise these rights, and thus to effectuate the policies of the Act, I recommend that Respondent offer Willie B. Green immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of salary or pay he may have suffered by reason of Respond- ent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the date of said discharge to the date of said reinstatement, less his net earnings during said period. Said backpay should be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent having discriminated against Jessie Whitaker by demoting him from a salaried employee to an hourly employee because of his appearance at the hearing for the purpose of testifying, I recommend that Respondent restore him to his salaried position without prejudice to his seniority and other rights and privileges of employ- ment and make him whole for any loss of pay suffered by reason of the discrimination against him by the payment of a sum of money equal to the amount of salary he would normally have earned from the date on which he was removed from his salaried position, to the date he is restored thereto, less his earnings as an hourly employee, to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Respondent having engaged in discrimination against Billie Rodgers McNeely by removing him from the position of -porter assigned to cleaning the front offices by reason of his appearance as a witness at the prior hearing, I recommend that Re- spondent reinstate Billie Rodgers McNeely to his former position without prejudice to his seniority and other rights and privileges of employment. Respondent having engaged in discrimination against Curtis Anderson because of his appearance as a witness at the prior hearing, I recommend that Respondent forth- with void and destroy the alleged "violation notice" issued to said employee by reason of alleged carelessness, and all records concerning this notice, without prejudice to his seniority and other rights and privileges of employment. It is also recommended that the Respondent be ordered to make available to the Board, upon request, payroll and other records to facilitate checking of the amount of earnings due in the above matters related to Willis McNeely, Willie B. Green, and Jessie Whitaker. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices reasonably may be anticipated. I shall, therefore, recommend that the Respondent be ordered to cease and desist from in any manner infringing upon rights guaranteed to its employees by Section 7 of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating with respect to the hire and tenure of employment and the terms and conditions of employment of Willis McNeely, Jessie Whitaker, Billie Rodgers McNeely, and Curtis Anderson because they had appeared and given testi- mony under the Act, or appeared for the purpose of giving testimony under the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (4) and (1) of the Act. 4. By discriminating with respect to the hire and tenure of employment of Willie B. Green, thereby discouraging nonsupervisory employees in the free exercise of their statutory rights, guaranteed by Section 7 of the Act, and discouraging membership in and activities for the above-named organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Valley Candle Mfg. Co., Inc. and Local 485, International Union of Electrical, Radio and Machine Workers, AFL-CIO Valley Candle Mfg. Co., Inc. and Juan R. Gerena. Cases Nos. 2-CA-6787 and 2-CA-6923. May 2!1, 1961 DECISION AND ORDER On November 16, 1960, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, find- 131 NLRB No. 92.