Wix Corp.

WIX CORPORATION 1059 Photographs disclose that a sign identical with that utilized on the automobile at Television City in Oakland was placed on the windshield of an automobile parked at the San Francisco location . Respondent concedes herein that it established pickets at both the San Francisco and Oakland locations of Packard Bell. This picketing activity was carried on for approximately 21/2 months until late in De- cember 1959. It is clear from the foregoing that Respondent had a primary dispute with Packard Bell and that it established a picket line pursuant thereto at the Packard Bell premises in San Francisco and Oakland . This was the location of the primary employer and indeed consisted of the very two locations at which the dispute had arisen and at which operations were being carried on with replacements or strike breakers. The requisites of the Moore Drydock decision , 92 NLRB 547, are met because Packard Bell was carrying on its normal business at the site , the pickets were close to the locus of the business and the signs were limited to the dispute . Furthermore, this was the location of the primary dispute and not a location removed therefrom. Brewery and Beverage Drivers and Workers Local Union No. 67, etc. ( Washington Coca-Cola Bottling Works, Inc.), 220 F. 2d 380 (C.A.-D.C.). In view of the fore- going considerations, I see no merit to this aspect of the case and recommend its dismissal. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connection with the operations of the company described in section 1 , above, have a close, inti- mate, 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. V. THE REMEDY Having found that 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. 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. Radio-TV Service Technicians Union Local 202, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By threatening, restraining, or coercing a person in an industry affecting com- merce with an object of forcing him to cease doing business with another person, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(b) (4) (ii) (B) of the Act. 3. The aforesaid unfair labor practice is an unfair labor practice affecting com- merce within the meaning of Section 2 ( 6) and (7) of the Act. 4. Respondent has not otherwise engaged in unfair labor practices within the meaning of Section 8 (b) (4) (ii) ( B) of the Act. [Recommendations omitted from publication.] Wix Corporation and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW, AFL-CIO. Case No. 11-CA-1627-2. August 17, 1961 DECISION AND ORDER On March 15, 1961, Trial Examiner Thomas F. Maher 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 132 NLRB No. 87. 614913-62-vol. 132-68 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint, and recommended that these particular allegations be dismissed. Thereafter, the Respondent, Wix Corporation, the Gen- eral Counsel, and the Charging Party, International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, AFL-CIO, filed exceptions to the Intermediate Report and sup- porting briefs. The Board 1 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 z conclusions, and recommen- dations of the Trial Examiner,' except as indicated below. 1. The Trial Examiner found, and we agree, that the Respondent independently violated Section 8(a) (1) of the Act by threats of dis- charge and reprisal, interrogation of employees, requests for surveil- lance, threats to close the plant, and undue restriction of employee movement about the plant, all of which were calculated to discourage union activity. Like the Trial Examiner, we find that the Respondent ditscharged C. Hoyle, S. Hoyle, Ross, Greene, Mayberry, and Buchanan because of their union activities in violation of Section 8(a) (3) of the Act. 3. We do not agree with the Trial Examiner's finding that Almond was discharged for insubordination. The record discloses that Al- mond's job as a painter was geared to the production line. While the line was broken down, thus shutting down his operation and leaving him temporarily idle, he left the paint room on several occasions in order to smoke. On one such occasion, his foreman, Wilkinson, ordered him not to leave the paint room except during official break periods, and further informed him that he, Wilkinson, had knowledge that Almond and others were attempting to organize, and that they '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, Fanning, and Brown] 2 In adopting the finding of the Trial Examiner as to the Respondent's knowledge of employee Jackson's activity in behalf of the Union, we do not rely upon the Trial Examiner's finding that on April 18, 1960, Foreman Ellis stated to Jackson at the plant that he. Ellis, had heard something about Jackson talking union and trying to get union cards signed, which were not appreciated The record shows, and the parties stipulated, that Ellis was ill at home between April 13 and 26, 1960. We therefore conclude that the statement was not made, and we do not rely upon it as proof of the Respondent's knowledge 3In adopting the Trial Examiner's finding that Taylor's discharge was not a violation of Section 8(a) (3) of the Act since the Respondent was not shown to have been aware of his union sentiments, and it therefore could not have discharged him for such senti- ments, we take cognizance also of the testimony of employee Louis Warren that, shortly prior to Taylor's discharge, he caught Taylor stretched out on a couch in the ladies' room during working hours, as indicating a discharge for cause. WIX CORPORATION - 1061 would lose their jobs if they did not do as they were told. Almond was discharged when, shortly thereafter, he again left the paint room to smoke while the production line was still down, but at a time other than an official break period. While we agree with the findings of the Trial Examiner that Wil- kinson's actions placed an undue restriction upon Almond, and that it was a deviation from the normal treatment of other employees, we cannot agree that such actions were proper and reasonable, or that Almond's attitude in leaving the paint room for the last time was one of deliberate defiance. We cannot view Almond's discharge in isolation, but find that it was part of a pattern of unlawful conduct engaged in by the Respondent, especially when viewed in the light of the similar discriminatory discharges of Greene and Buchanan. Greene, one of the union leaders among the employees and over whom Wilkinson had no basic authority, was ordered by Wilkinson to remain at,his desk, yet his job as timekeeper necessitated his move- ment about the plant. Greene, like Almond, continued to move about the plant in performing his work and was subsequently discharged for the alleged reason of inability to perform his work. Buchanan, also an active union adherent, was ordered by Wilkinson not to leave his machine except during official break periods. Bu- chanan credibly testified that prior to this suddenly imposed personal restriction, he was under instructions not to leave his machine while it was running. Several days later Buchanan, who was ahead in his work and despite Wilkinson's order, left his machine after shutting it down. Wilkinson then met Buchanan and admonished him because he ran 75 improper cuts on a machine that normally ran 2,000 to 3,000 cuts per hour. Wilkinson discharged Buchanan for the alleged rea- sons of leaving his machine and because of negligent work. The Trial Examiner found, and we agree for the reasons set forth in the Intermediate Report, that Greene and Buchanan were dis- charged not because they had not performed properly their respective jobs, or because of disobedience of a reasonable order, but for union activity. Almond's discharge was but another phase of this unwarranted course of conduct. While it is true that it is presumptively lawful for an employer to apply such penalties as it may desire for the breach of its working rules, this does not mean that the Respondent was free to disregard the statutory rights of its employees.' Thus, Wilkinson's tactics of singling out the leaders of the union movement and of dis- charging them under the pretext of violation of restrictions newly promulgated by him and applied only to the said union leaders were designed to accomplish this disregard of employee rights. * Walton Manufacturing Company, 126 NLRB 697; J. I Case Company v N.L R B , 321 U. S. 332, 337 (C A. 7). 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore, it would appear that the Respondent's real reason for discharging Almond was not his disobedience, but, rather, Respond- ent's desire to rid itself of another active participant in union activity. Moreover, even assuming Almond's disobedience offered a justifiable reason for his discharge, it is no defense where, as here, it was not the moving cause.' Viewing the case in its total aspect, we reject the Re- spondent's reliance on a naked right to discharge for alleged insubor- dination, based upon improper and unlawful motivation. Accord- ingly, we find that, contrary to the Trial Examiner, the Respondent violated Section 8(a) (3) of the Act by discriminatorily discharging Almond. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , Wix Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica, UAW, AFL-CIO, by discharging or in any other manner dis- criminating against employees in regard to hire and tenure of em- ployment or any term or condition of employment. (b) Threatening its employees with loss of employment if they join or discuss the Union , threatening to close its plant rather than deal with the Union, interrogating its employees concerning the union membership and activities of its other employees and requesting them to inform on their fellow employees in such respect, and unduly re- stricting the movement of its employees about its plant for the pur- pose of discouraging union activity. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : ( a) Offer to Michael Keith Greene, James Buchanan, Charles E. Ross, Hartwell C. Almond, Carl Hoyle, Shirley Hoyle , and Brent 6 Lester Brothers, Incorporated, 131 NLRB 1144, R E Smith, et at., a partnership, d/b/a Southern Dolomite, 131 NLRB 513; N.L.R B. v. C. & J. Camp, Inc., at at., d/b/a Kibler-Camp Phosphate Enterprise, 216 F. 2d 113, 115 (CA. 5) ; Wells, Incorporated v N.L R B, 162 F. 2d 457, 460 (C.A. 9) ; N.L R B v. Texas Independent Oil Company, Inc, 232 F. 2d 447, 450 (C.A. 9). WIX CORPORATION 1063 Mayberry immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each of the aforesaid employees whole for any loss he may have suffered by reason of the Respondent's discrimination against him in the manner set forth in that section of the Intermediate Report entitled "The Remedy." As the Trial Ex- aminer recominended dismissal of the complaint as to Almond, in computing the amount of backpay to which Almond is entitled, the period from the date of the Intermediate Report, March 15, 1961, to the date of the Order herein, August 17, 1961, is excluded. (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 un- der the terms of this Order. (c) Post at its plant at Gastonia, North Carolina, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof, and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for the Eleventh Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent violated Section 8 (a) (3) of the Act in the discharges of Robert Taylor, Ray H. Jack- son, and Mable Cates. 6In 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that : WE WILL NOT discourage membership in International Union, United Automobile, Aircraft and Agricultural Implement Work- ers of America, UAW, AFL-CIO, by discharging or in any other 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner discriminating against our employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with loss of employment if they join or discuss the Union, threaten to close our plant rather than deal with the Union, interrogate our employees con- cerning the union membership and activities of their fellow em- ployees and request them to inform on their fellow employees in such respects, nor will we unduly restrict the movement of our employees about our plant for the purpose of discouraging union activity. WE WILL offer the following named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any employee hired fol- lowing their discharges, and we will make each employee whole for any loss of pay he may have suffered by reason of our dis- crimination against him. Michael Keith Greene Carl Hoyle James Buchanan Shirley Hoyle Charles E. Ross Brent Mayberry Hartwell C. Almond WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WIx CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon charges filed on May 12 and June 16, 1960 , by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America , UAW, AFL- CIO, herein referred to as the Union , the Regional Director of the National Labor Relations Board for the Eleventh Region on June 27, 1960, issued his complaint against Wix Corporation, herein referred to as the Respondent, alleging violations of Section 8 (a) (1) and ( 3) of the National Labor Relations Act, as amended, herein called the Act. In its duly filed answer Respondent, while admitting certain allega- tions in the complaint, denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before Thomas F. Maher, the duly desig- nated Trial Examiner, at Charlotte, North Carolina, on August 8 through 11, 1960. WIX CORPORATION 1065 All-parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me: Parties waived oral argument and in lieu thereof the Charging Party there- after filed a brief with me. Upon consideration of the entire record and the brief of the Charging Party, and upon my observation of the witnesses,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Wix Corporation is a North Carolina corporation with its plant and principal office located at Gastonia, North Carolina, where it is engaged in the manufacture and sale of filters for internal combustion engines. While so engaged Respondent annually transports finished products valued in excess of $50,000 directly to points outside the State of North Carolina. Upon the foregoing facts stipulated at the hearing, I find that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. The unlawful character of Respondent's restriction of employee movement, threats to them, interrogation of them, and request of one of them to engage in surveillance. 2. The discriminatory character of Respondent's termination of six of its employees. 3. The absence of evidence of Respondent's knowledge of employee Taylor's union membership. 4. The justification for Respondent's discharge, of employees. Almond, Cate, and Jackson. IV. THE UNFAIR LABOR PRACTICES A. Introduction Employee interest in the Union first developed in late February and early March 1960 upon the arrival on the scene of Union Representative Jackson A. Crump, who sought out employees Carl Hoyle and Charles Ross and enlisted each of them, and others, to assist in the organization of the Respondent's employees. Both Ross and Hoyle signed cards authorizing the Union to act as their bargaining representative and volunteered to secure additional signatures and volunteer workers Ross enlisted the aid of employee Michael Keith Greene who signed a card and thereafter busied himself soliciting memberships among Respondent's employees. Meanwhile Hoyle secured a number of signatures as did a number of the other volunteers, including employees Mayberry, Jackson, Almond, and Buchanan. Company officials questioned, on. the subject disclaimed any awareness of the flurry of union activity among the employees. Indeed Industrial Relations Director Robert H. Smith, presumably sensitive to such matters, claims that his first awareness of the union activity among the Wix employees was on or about May 12, upon the receipt of a copy of a charge filed with the Board alleging that certain employees had been unlawfully discharged. Foreman David Junod dates his knowledge of the Union to the same time, claiming that Smith first mentioned it to him. Other supervisors claimed to have been equally unsuspecting; Foreman Charles Wilkinson, James Killian, and Bill Mauney 2 claimed they first learned of the Union after April 18, by which time three active union protagonists had been discharged; Foreman Cable insists he did not know of the activity until May 4 or later. A number of other super- visors, on the other hand, were never questioned on the subject of union activity among the employees. These were Second Shift Foreman Johnny Ellis, Quality i Unless specifically indicated to the contrary, any credibility evaluation I make of the testimony of any witness appearing before me is based, at least in part, upon his or her demeanor as I observed it at the time the testimony was given. 'Cf. Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I indicate hereafter that I reject in part or entirely the testimony of any given witness, it is my intent thereby to indicate that such part or whole of the testimony, as the case may be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, footnote 1. 'For reasons that I shall set forth in detail hereafter (infra, footnote 22), I find Mauney to be a supervisor within the meaning of the Act 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Control Foreman Jenks Dellinger and his assistant, Lewis E. McLaughlen, Foremen Kane, Cannon,3 Fry, and Johnson. It was for Foreman Hershal Welsh, whose testimony I credit, to fix a date of company awareness of union activities that most reasonably conforms with what I view to be the realities of the general situation. Thus Welsh testified that at some undetermined date in April, before or around the middle of the month, "sometime like that," he found out about the Union "just by word of mouth; hearing people talk; sometimes people ask questions about it-employees." This version of when Respondent, through its supervisors, learned of the organizing efforts of its employees most nearly conforms with the credited testimony respecting certain incidents to be considered in detail hereafter, and establishes Respondent's knowledge of the union activities as at least of early April, and I so find. In so finding I reject as unbelievable the testimony of supervisors who claim they knew nothing of what was happening in this respect, for to give credence to them on this matter of general plant interest would be to deny them a degree of intelligence and awareness, generally, which they amply displayed at the hearing.4 Furthermore, the fact that seven of the supervisors who testified for Respondent were not questioned on the matter, some of whose testimony I credit hereafter, is significant. Indeed Respondent's failure to question its supervisors in this respect warrants the inference that their answers would not have been favorable .5 Upon the foregoing circumstances as summarized above and as will be set forth in detail throughout this report, I find ample evidence to support a conclusion that "the Union activities were carried on in such a manner, or at times that in a normal course of events, Respondent must have noticed them." 6 B. Interference, restraint, and coercion 1. Threats of discharge and reprisal As the union campaign first got underway in late February, Foreman Charles Wilkinson and employee James Buchanan engaged in a conversation which was a portent of Wilkinson's later conduct. As Wilkinson was giving Buchanan his pay- check Buchanan volunteered the remark that the check would have been doubled if he belonged to a union. Whereupon Wilkinson replied, "I don't want to hear you say any more about the union, I will have to let you go if you say any more about it." Shortly thereafter Buchanan passed Wilkinson in the aisle and Wilkinson repeated his statement. When Buchanan expressed his right to give his own opinions Wilkinson replied, "No, you won't, not as long as you work for me." 't 3 Foreman Cannon, while not questioned about the Union generally, denied knowledge of one employee's, Mayberry's, union activity. 4In specifically rejecting Industrial Relations Director Smith's claim of lack of knowl- edge, and discrediting his testimony generally, I rely, among other things, upon his testimony related to the Cates discharge (infra). Thus Cates testified that she phoned Smith 2 weeks after her April 8 discharge and accused the Company of branding her as prounion, a characterization which she denied. Smith, in his testimony, acknowledged this conversation, stating "she phoned to inform me that at the Employment Office some- one had told her that she had been let go because she was a member of the Union." By this statement Smith has inadvertently conceded some knowledge of "the Union" 2 weeks after April 8, and thus contradicts his insistence that his first knowledge of the Union was on the May 4 arrival of the charge in this proceeding. A further example of Smith's equivocation in this respect is his testimony that there was union talk, to his knowledge, prior to the filing of charges but not talk about the UAW. 6 N L.R B. v. Homedale Tractor & Equipment Company, 211 F. 2d 309, 315 (C A. 9) ; Spartanburg Sportswear Company, 116 NLRB 1914, 1926. Foreman Fry, like Industrial Relations Director Smith (supra, footnote 4), testified that employee Cates came to him after her April 8 termination and told him she had been accused of being prounion When Fry testified that "up until her termination, I had no knowledge of her being connected with any union in any way," he implies, and I so find, that from then on, if not previously, he was conscious of the Union's presence. e Hadley Manufacturing Corporation, 108 NLRB 1641, 1650. Nor does the conclusion I have reached relate in any manner to the size either of the plant (1,000 employees) or of the city (Gastonia, North Carolina) In which it is located 7 The credited testimony of Buchanan, corroborated in part by employee Brown whom I also credit. Brown testified that he walked away as Wilkinson was telling Buchanan WIX CORPORATION 1067 Wilkinson again became involved in a discussion concerning the Union on April 13 at a time when he was imposing smoking restrictions upon employee Hartwell Almond, a painter, which restrictions resulted in his discharge (infra). When Almond ques- tioned Wilkinson's order restricting him and asked "what he had it in for me about," Wilkinson stated that it was the new rule and continued, in the words of Almond whom I credit: He said that he was wise to what we were doing and trying to organize a Union down here and said that a bunch of us guys was going to lose our jobs if we didn't do what we was told. Previously, in mid-March in another department of the plant, a number of women employees, including Shirley Hoyle, were heatedly discussing the Union when, accord- ing to Shirley Hoyle's credited account of the incident, Foreman Boyd Killian approached the group and said, "Do all you girls know that you can get fired for even mentioning the Union?" 8 Shortly before his discharge, an item to be discussed in detail hereafter, employee Carl Hoyle, an inspector, was approached at his desk by Foreman David Junod who told him, with a touch of vulgarity, that he was going to "get" him. When Hoyle asked for an explanation Junod stated, "Well, you know all this shakeup about the Union. You are up to no good. You haven't been married too long and I would hate to see you and your wife both out of a job, you have been out a few days, you know." 8 It is also alleged that Foreman Johnny Ellis threatened employees on or about April 4. This allegation, however, rests upon the testimony of employee Cates whom I do not credit. Furthermore, employee Shirley Crisp, a witness called by the General Counsel, was allegedly present when the conversation took place. While Crisp creditably admitted to the conversation she denied that she ever had been spoken to by supervisors. I shall accept Ellis' denial of the conduct attributed to him by Cates and make no finding with respect to the incident. 2. Interrogation of employees and request to engage in surveillance Several days following the April 15 discharge of employee Michael Keith Greene (infra), Supervisors Mauney and Wilkinson called employee Troy Slagle to the office. In the words of Slagle, whom I credit: [Wilkinson] asked me . . . if I knew anyone that belonged to the union or giving out any cards or anything like that, and he said he thought H. C. [Almond] and Keith (Greene] were in for the union and I told them that they were for it. They asked me if I knew of anyone on our group line or anyone else besides them, and they named a couple of names, Buchanan and Jim Hagen and couple more, I don't know right now that worked in there, if I knew anybody else that worked there that belonged to or had anything, any cards that belonged to the union they would like to know. * * * * * * * They told me if I found out anybody, why to let them know and not to come not to mention "this here again in this plant," and he did not hear the remainder of the conversation. I do not credit Wilkinson 's denial of this or other statements or conduct attributed to him, nor do I credit him generally except insofar as his testimony is corroborated by credible witnesses or constitutes an admission contrary to Respondent 's interest 8I do not credit Killian 's denial of this or other conduct attributed to him. Upon my observation of him at the hearing , and also upon consideration of his unbelievable denial that he was aware of the union activity prior to April 17, I will not credit his testimony except when otherwise corroborated by the testimony of credible witnesses. Shirley Hoyle's account of the union discussion was corroborated by two Respondent witnesses , employees Wallace and Pintoll, both presently employed at the plant. Both witnesses further testified , however, that Killian was not present. In accepting Shirley Hoyle's credible account I necessarily reject so much of the testimony of these two other witnesses as conflicts with it. 8 The credited testimony of Hoyle. I reject Junod's denial of this and other conduct and statements attributed to him. Junod testified that the first knowledge he had of the Union was when charges were filed against the Company, naming him. As previously noted (supra ) I deem such a statement unbelievable and will not credit Junod except as his testimony is corroborated by the testimony of credible witnesses or as an admission contrary to Respondent's interest. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD directly to them but to tell Mr. Mauney and he would tell Wilkinson, not to come straight to them.io It is also alleged that Supervisor Welsh had, on another occasion, engaged in similar conduct. I find no evidence in the record, credible or otherwise, of any interrogation of employees or request of them to engage in surveillance that could be attributable to this individual. Accordingly, I shall recommend that so much of the complaint as pertains to such conduct on the part of Welsh be dismissed. 3. Threat to close the plant As the union campaign was getting under way, in late February or early March, Carl Fry, a supervisor, had a conversation with employee Ross in which the Respond- ent's attitude toward the Union was clearly demonstrated Thus Fry stated "that the Company could not stand the union and that if the union got in, it would close the plant, could not stand it financially, I understand." 11 4. Restriction of employee movement about the plant The organization of the employees reached its height by mid-April and the leaders among them were actively soliciting memberships and discussing the Union through- out the plant. Respondent at this junctpre undertook to limit the movement of these leaders by imposing restrictions not previously known to the employees and which had no stated relation to production problems. Thus employee Hartwell Almond, a painter, credibly testified that on April 13, when he reported for work he found the assembly line broken down. His operation was a part of this line and consequently he could not work. From then until the line began to function, several hours later, Almond left the paintroom on numerous occasions and for a variety of reasons, including smoking which was prohibited in the paintroom. He visited with employees on the broken-down assembly line during this period, and twice assisted the mechanics, at their request, in getting the line back in operation. At the conclusion of the 12 o'clock "smoke break" Foreman Mauney, and,later on, Foreman Wilkinson, reprimanded Almond for leaving the paintroom. Almond described the incident thus: Yes sir, Bill Mauney came up to me just as the break ended and said he wanted to see me a minute, and he went walking up towards the end of the line up there, to the end of our department and I walked up and he said that it wasn't his idea, said Mr. Wilkinson told him and he had to pass it on that the painter was not to be out of the paintroom anymore when it wasn't break time, said I was supposed to stay there all the time when not on break time, and I asked him, if he would ask Mr. Wilkinson to come to the paintroom. Wilkinson came to see Almond, as requested. Almond described this encounter: I asked him what he had it in for me about and he said he didn't have it in for me, he said it was just something that they had started and it was for all painters and said all painters were going to have to stay in the paintroom when they weren't on break time. For reasons previously stated I do not credit either Wilkinson's or Mauney's account of this incident. I do, however, credit Foreman Welsh who corroborated Almond's account in one respect. Almond sought out Welsh to see if a new order restricting painters had really been issued and Welsh told him he knew of none. Welsh also testified that painters were required to stay in the paintroom except during official work breaks. This is a reasonable rule, not in dispute. Almond's absence occurred when the assembly line was not functioning, hence Welsh's explana- tion had no application here. Welsh further noted that "if there is a break down, then there is other work that needs to be done in the paintroom." This requirement 10In essence both Wilkinson and Mauney, whom I find to be supervisors (infra, foot- note 22), admit that this incident occurred. Thus Wilkinson concedes, "I just asked Slagle, came out and asked him, 'Troy, do you know of anything that is going on' " I do not, however, credit his statement that Slagle volunteered to find out for him. Similarly, Mauney admits that "we called Mr. Slagle up ,to ask what was all the whisper ing going on, if he knew anything about it." As in the case of Wilkinson I do not credit his testimony that Slagle volunteered to find out what further union activity had transpired. u The credited testimony of Ross Foreman Fry, whom I credit generally, was not, questioned concerning this incident WIX CORPORATION 1069 is equally inapplicable, for the restriction was not shown to have been imposed because Almond was failing to do work, but simply because "it was the rule," an explanation which I do not accept.13 On the same date Foreman Wilkinson issued a similar order to employee James Buchanan, a pleater operator , whom he had previously threatened to discharge if he said any more about the Union . Wilkinson had observed Buchanan talking with employee Greene earlier in the evening as they exchanged authorization cards. The essence of Wilkinson's subsequent instructions to Buchanan was that he was never to leave his machine to talk to anyone except at breaktime. Buchanan credibly testified that the instructions under which he had operated previous to this incident were that he was not to leave his machine when it was running. Until Wilkinson's order to him on this occasion he had never been restricted to the machine in this manner. A further instance of Respondent's restrictions upon the leaders of the Union was Foreman Ellis' April 11 order to employee Greene, a timekeeper, to remain at his desk unless his duties took him elsewhere. Ellis was inspired by Foreman Wilkin- son's report that Greene "had been roaming all over the plant." 13 Wilkinson's observation of Greene in this respect agrees with the credited testimony of such employees as Brown, Almond, Buchanan, and Ross, each of whom described nu- merous instances of Wilkinson's sudden appearance when several of the union leaders among the employees, particularly Greene, would be in conversation. 5. Analysis and conclusions Although the record is replete with descriptions of Greene's wanderings about the plant, and although it is clear that as a timekeeper he had business on all three floors of the plant, I cannot accept Respondent's explanation that Wilkinson's report of his roamings and his eventual restriction of Greene's movements were grounded upon considerations of efficiency, particularly when Greene's job was, by its very nature, one that took him about the plant. I conclude and find that this action, like the restrictions placed upon Buchanan and Almond, were for the purpose of interfering with, restraining, and coercing them and the other employees in their exercise of statutory right of self-organization , and I so find. In concluding as I have with respect to restrictions placed upon employees, I have given full consideration to my earlier findings with respect to Respondent's interrogation of its employees, its threats of discharge and reprisal and of closing the plant, and its request of employee Slagle to spy upon the union activities of fellow employees. Citation of authority is unnecessary to establish that such con- duct, singly as well as collectively, is the sort that has ever been found to interfere with employees in the exercise of their rights guaranteed them by the Act, as well as to restrain and coerce them in such respects. Accordingly, I find that the conduct, as detailed herein, is of like nature and violates Section 8(a) (1) of the Act. In so finding I am-not unmindful that Respondent too has certain rights in the conduct of its business and the control and disciplining of its employees. But when, as here, the enforcement of previously unenforced rules and the promulgation of new ones coincides with the peak of its employees' campaign of self-organization, a situation which it viewed with antipathy, it is reasonable for me to conclude, as I do, that Respondent's conduct was motivated not by sound economic considerations, but by its opposition to the Union as expressed by the statements and conduct of its re- sponsible supervisors. C. The discriminatory discharges 1. Carl Hoyle Employee Carl Hoyle, a setup inspector, was first employed in February 1947 and was discharged on April 18, 1960, allegedly for excessive absences. As previ- ously noted, Hoyle was among the first of the employees to become interested in 12 Almond testified that upon applying for State unemployment compensation a hearing was held and a question was raised as to the penalty that would be imposed because of the discharge involved At this hearing Supervisor Loggins appeared and stated that it was company policy for the painter to go outside and smoke when there was a breaktime or a breakdown on the line Because of this testimony Almond was not penalized. Loggins was not called to testify in contradiction to this statement attributed to him by Almond. 1s For reasons that I shall detail hereafter , I do not rely upon the testimony of em- ployee Greene ( infra, footnote 20). 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizing the plant and was thereafter singled out by Supervisor Junod as being marked for reprisal. Junod, in this encounter it will be recalled, linked Hoyle with the Union, told him he was "up to no good," and threatened to "see" Hoyle and his wife, Shirley, both out of a job. And by way of indicating the means he would use, continued, "you have been out a few days, you know." Hoyle's wife, Shirley, became ill over the April 9 weekend and reported in sick' on Monday, April 11. By April 14 her condition had worsened to the point that she was ordered to the hospital where she underwent surgery on the following day, Friday, April 15. Employee Hoyle was at work on April 11 and 12 but on the 13th he stayed at home because of his wife's illness and sent word of his absence to the plant through a fellow employee, Albert Shuler. Inasmuch as his supervisor, Junod, referred in his testimony to this absence and did not deny receiving Hoyle's message that he would be out, I must assume that Respondent was aware of Hoyle's excuse for the April 13 absence. Moreover, Junod's and Respondent's understand- ing in this respect are more firmly established by Junod's admission that he gave Hoyle 4 hours off on Friday, April 15, the day of Mrs. Hoyle's operation. When Hoyle returned to work on the following Monday, April 18, Junod informed him he was being discharged for excessive absences. It is Respondent's position, first that Hoyle, with 12 absences during 1960, had been frequently warned, and secondly, that he was specifically discharged for failing to work on the Saturday following his wife's operation. As to the latter contention the facts are vague. Stacy, a roving inspector operating as a communication link between Supervisor Junod and the other inspectors,14 "did not think" he authorized Hoyle to be off on Saturday the 16th. As it was Stacy who conveyed to Hoyle Junod's permission to be off for 4 hours on Friday, and as Stacy does not have a firm recollection of the Saturday permission, d credit as virtually uncontradicted Hoyle's statement that when he asked Stacy if he were to be in on Saturday, Stacy replied, "No it has already been covered, I will see you Monday." 15 As to the absences for which Hoyle had been allegedly warned, it is appropriate to note their cause. In addition to the time off because of Mrs. Hoyle's illness and the disputed absence of Saturday, April 16, Hoyle credibly testified that he absented himself from work when he was married in mid-February and again in March when members of his family were involved in an automobile accident in the western part of the State, which accident required his presence there. Respondent's contrasting policy respecting absences of other employees and its stated attitude in the handling of personal matters is equally revealing. Thus Super- visor Fry credibly testified that during the same 1960 period employee Frances Merideth incurred 19 absences. "During the time most of those absences occurred Mrs. Merideth sent [Fry] notes from the doctor that she was under the doctor's care." Hoyle, on the other hand, reported in on each of his absences, not merely "most of them," as in Merideth's case. Merideth, however, is still in Respondent's employ and testified at the hearing in Respondent's behalf on another matter. She was not questioned as to her excessive absences. As to Respondent's policy of issuing warnings such as Hoyle was allegedly given for his absences, Industrial Relations Director Smith stated that, We try to look into a man's. background and see if he's having difficulty, and maybe we would need not to warn him so much, we come and advise him and show him where he's having trouble and try to help him if we can. Sometimes if it is family trouble well we wouldn't consider that a warning as much as we consider it his counsel. There is nothing in the record to suggest that Smith or any of the supervisors dis- cussed with Hoyle the several personal problems that caused the absences for which it is claimed that he, unlike employee Merideth, was discharged. A review of the foregoing facts and circumstances surrounding Hoyle's discharge immediately suggests that it was for some reason other than excessive absence. By contrast, employee Merideth, with 50 percent more absences for a like period, is still employed. And regardless of her reasons, she was just as absent when it was excused for illness as she would have been were the absences for domestic or other personal reasons. Furthermore, the timing of Hoyle's discharge is significant, com- 11 Stacy's credited testimony. 15 Much evidence was offered to prove Stacy's lack of supervisory status. I find this unnecessary to resolve. Stacy, by his own admission, was something in the nature of a "straw boss," who operated as a channel of communication from management. Hoyle, therefore, had no reason to suspect that Stacy was deliberately or otherwise misrepre- senting management when he indicated that the Saturday assignments had been covered. WIX CORPORATION 1071 ing as it does at the peak of employee organization and following Foreman Junod's threat to get him and his wife, and his hint of the stratagem, absences, that he would use. Upon these considerations I have no alternative but to conclude that Hoyle's absences were but a convenient excuse to eliminate him as a known and "marked" union proponent. In so concluding one further observation would be pertinent-Respondent's attitude toward its employees. To accept Respondent's contention as to Hoyle and his wife (infra) would be to view the Company and its supervisors as calloused overlords in whom the milk of human kindness had turned to cheese. The record and my observation of these individuals belie such an esti- mate. On the contrary I accept at face value Smith's general statement of policy on personal problems as quoted above, and I note its application in employee Merideth's case of continuing to work despite her 19 absences. Respondent has not established on the record that it applies harsh employee relations policies, and that is demonstrated throughout this report by the treatment shown union proponents as contrasted with the demonstrated treatment to employees generally. What Re- spondent has demonstrated upon the facts found herein, and I so conclude, is that through its supervisors it was dedicated to an elimination of the Union, and to ac- complish this end discriminated against union adherents in the misapplication of otherwise reasonable rules. Insofar as Hoyle is concerned I have found that he, like others whom I will consider hereafter, suffered such discrimination by Respond- ent's discharge of him. Such conduct on the part of Respondent constitutes a clear violation of Section 8(a) (3) of the Act. 2. Shirley Hoyle Shirley Hoyle was employed in February 1960, and worked in P. C. packing de- partment until termination in April. While not active in the Union, her husband was. She was a member of the Union and was one of the group who was dis- cussing it when Supervisor Killian interrupted and told them they could be fired for talking Union (supra). Mrs. Hoyle last worked for Respondent on April 8 She became sick on the weekend following, and on Monday, April 11, she reported her illness to Supervisor Killian. As previously noted, her condition worsened dur- ing the week, she was ordered to the hospital on April 14, and underwent surgery on the following day. Respondent, and in particular her supervisor, Killian, were fully aware of Mrs. Hoyle's illness. Upon Mrs. Hoyle's return from the hospital she continued under the doctor's care and was under his instructions to remain at home for at least a week. At the end of the week she made several attempts to see the doctor and obtain his release. In the meantime on Wednesday, April 20, anticipating her release, she called Super- visor Killian and told him she would be back to work on Monday, April 25. She could not get an appointment with the doctor until Tuesday, April 26, at which time he released her. She immediately reported to Respondent's plant and presented her release slip to the nurse who told her to report to work that night. She then called Foreman Killian to advise him of her return. Killian, upon his own admission, told her that in view of her failure to report on the previous day, as she had earlier stated she would, he had terminated her and processed her termination papers.16 It is Respondent's position that Shirley Hoyle voluntarily quit her job. Super- visor Killian emphasized, however, that he discharged her for not appearing as ex- pected, and in a note in his own handwriting, sent to the personnel office when Mrs. Hoyle failed to appear (Respondent's Exhibit No. 6), Killian stated: Shirley called me last Wednesday (April 20) and said she would be in Monday 25th. I haven't seen or heard from her since if you heard from her let me know but as of now she's fired until we know something that might change our minds. Industrial Relations Director Smith, on the other hand, testified that Mrs. Hoyle was not discharged, but that her termination was classified as a "voluntarily quit." And in explanation he stated that they "have a rule if he doesn't report in within two days we consider them voluntarily quitting." I cannot believe that Respondent's supervisors conversant with the circumstances of Shirley Hoyle's illness are or were so insensitive to the minimums of human kind- ness as to discharge or otherwise terminate a recently hospitalized victim of surgery merely because, and for a good cause, she returned to work 1 day later than her 'The foregoing is the credited testimony of Shirley Hoyle. For reasons previously stated (supra, footnote 3), 1 do not credit Killian's testimony in this or other matters except when corroborated by the testimony of credible witnesses 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD estimate. Indeed a review of the, credited facts in Mrs. Hoyle's case demonstrates a degree of dispatch in terminating her that could hardly be equaled by the most efficient of personnel offices. Such eagerness to thus dispose of Mrs. Hoyle's case and terminate her suggests to me not that Respondent is as soulless in such matters as would appear, but rather that Killian was putting into effect the threat previously made to Mrs. Hoyle's husband that the both of them would lose their jobs for Mr. Hoyle's union allegiance. Such a conclusion is inescapable. Falarski Sausage Com- pany, 128 NLRB 506. Upon a consideration of the foregoing, therefore, I conclude and find that Shirley Hoyle was terminated not because of the technicality of a voluntary quit, but for reasons of her union membership and her husband' s union activity. Such a ter- mination clearly constitutes a discrimination by Respondent within the meaning of Section 8(a) (3) of the Act. 3. Charles E. Ross Employee Charles Ross was first employed by Respondent in January 1957 and when terminated on April 18, 1960, was engaged as a timekeeper on the second shift. His immediate supervisor was Lewis McLaughlen, assistant to Quality Con- trol Supervisor Jenks Dellinger. As previously noted, Ross and Carl Hoyle were the first two employees enlisted by Union Representative Crump to assist in the organization of the employees. Ross was instrumental in enlisting the support of numerous other employees in this venture, including employees Greene and Almond. Ross habitually carried a supply of blank union authorization cards with him and was in frequent conversation with fellow organizers and prospective members. That Respondent was aware of Ross' interest in and activity on behalf of the Union is evident from the interest which its supervisors showed in Ross' activities, and from Ross' undenied assertion that in a car pool conversation (supra) he stated to Supervisor Fry that he was in favor of the Union. On the evening of April 11, shortly before his discharge and immediately after he had signed up employee Greene, Ross asked Greene to see him at the next work break for some blank cards that Greene might want to use in soliciting new mem- bers. As directed, Greene came to Ross' work place and in the presence and hear- ing of Supervisor Kane, who was working with Ross on a broken adding machine, asked Ross for some cards. Ross went to a nearby coat hook and took the cards from his jacket pocket and returned to his desk where Greene was then tinkering with the adding machine in the company of Kane. Ross stuck the cards in Greene's pocket in full view of Kane and without any attempt to conceal the action.17 Thereafter on Thursday evening, April 14, Ross, in the company of employee Greene, encountered Supervisor Wilkinson. Ross credibly described the incident: One night it was after that, still about the middle of the month, I don't remember the exact date, Mr. Greene, I had loaned him my car, and he had started to leave work that afternoon, or that night, and he couldn't get it started, so he came to me and asked me if I would help him, and I went out, outside after I had finished up, him and myself and J. W. Bush, I believe, went out, and after a few minutes I got it started, and he started, and he got under the wheel, and I asked him to drive me back to the door to get my coat. I left my coat in the plant, and I was ready to go home also, and he drove me up to the door, and I got out, and after I got out of the car, I thought maybe he would have some cards, I was out at the time, and asked him if he had some extra cards, and he said that he did, and he reached in the glove compartment to get them, and he had them all mixed up, the signed cards with the unsigned cards, and he started to turn the light on, and the particular car didn't have a light on the inside, so we got out and walked around to the front side of the car, and he was separating them, getting the signed cards and the unsigned cards separated, and I looked up and seen Mr. Wilkinson on the platform, and I told him that I was, I told him that there was Charlie, and he turned around and seen him, and Charlie said, "What are you all doing down there?" and Greene said, "Well I am having car trouble, and also having card trouble," and Mr. Wilkinson walked back in the plant. Mr. Greene drove off, and I went on in the plant to get my coat, and as I came out, I met Mr. Wilkinson coming up the aisle there, and he asked me again what we were doing out there, and I told him I was getting some cards, and he said I have the cards in my shirt pocket, he had already seen them, and 17 The credited testimony of employee Ross I do not credit Dane's denial that he saw the cards being passed or that he heard any mention of them WIX CORPORATION 1073 so he said, "You know Keith is already in trouble, and you had better stay away from him if you like to work here," and I assured him that what we were doing was legal, and walked on out. Upon the foregoing credited evidence , I find and conclude that Respondent was well aware of Ross' union prominence and activity , and that it was equally aware of Greene's activity (infra). This being so, the action taken against Ross on the following workday, Monday, April 18, assumes aspects completely at variance with Respondent's detailed explanations. When Ross arrived at work Lewis McLaughlen, Supervisor Dellinger' s assistant,18 met him at the time clock and told him that he "had some bad news for him." When Ross inquired, McLaughlen replied, "Well they have been on me in my department to cut down, and the only thing I know to do is to lay you off." Whereupon Ross protested that Waters, the other timekeeper on the shift, had 2 years less seniority, but McLaughlen explained that Waters had made a better rating on the timekeeper test than had Ross. Ross testified, however, and without contradiction, that Waters had told him that he had not taken such a test. In support of its action Respondent not only relies upon the test score for its selection of Ross for layoff but it also asserts, through Industrial Relation Director Smith, that seniority is the least important criterion in cases of layoff or promotion. As justification of its determination to curtail the number of timekeepers, Respondent presented evidence, particularly through Smith, that two timekeepers were found to be doing the work of one. Smith 's explanation follows: Well, after a discussion we found out that we had two men that were time- keepers doing about one man's work and when we laid him off we didn't need to replace him. We have since, we have changed, our workload has changed but actually one man was able to do the work he was doing as well as his own.79 Consideration of the reasons Respondent assigned to Ross for his layoff, as further explained by Smith at the hearing , indicate a plausible excuse for the action taken. The timing of this action, however, is another matter. Here we have a personnel action directed against the leader of the employees' organizing campaign taken at the height of that campaign, during a period when Respondent was otherwise manifesting its antipathy to the employees' action (supra) and taken after it had observed Ross' activity on two occasions, the latter being on the previous workday. Under such circumstances , it is entirely reasonable for me to infer and conclude that business necessity was but an excuse upon which Respondent relied to effect this summary removal of the one of the men whose actions were most distasteful to it. Accordingly, I find that Charles Ross was terminated not for lack of work, as claimed, but for reasons of his union membership and activity. As such conduct on the part of the Respondent constitutes a discrimination against Ross in this respect I find that Respondent has violated Section 8(a)(1) and (3) of the Act by terminating him. 4. Michael Keith Greene Employee Michael Keith Greene, whose activities have been described at random heretofore, was first employed by the Company in September 1958 and when termi- nated on the afternoon of April 15, 1960, was employed as a timekeeper2e Upon consideration of the restrictions placed upon Greene's activities, which con- duct I have already found to constitute unlawful interference , restraint, and coercion, and in view of Greene's close association with employee Ross, particularly as described above (supra ), I have no doubt that Respondent was aware of Greene's union activity and in the words of Supervisor Wilkinson , as quoted by Ross, "Keith is already in trouble, you had better stay away from him if you like to work here." This warning to Ross occurred after Wilkinson had watched and inquired about the 18I reject Respondent's contention that McLaughlen was not a supervisor McLaughlen testified without contradiction that Ross' layoff was the result of his own decision. This meets the statutory requirement for supervisory status as required by the Act 10 Supervisor Dellinger, whose testimony I credit generally, was not questioned as to Ross' termination although he was the immediate superior of McLaughlen, who effected the termination 20I do not credit Greene's testimony except when corroborated by the credible testi- monv of other witnesses Upon my obseivation of him he impressed me as a voluble in- dividual whose testimony fluctuated constantly between fact and flights of imagination and theoretical discussion For these reasons, mainly his demeanor and the nature of his testimony, and for no other reason , I do not rely upon Greene and accordingly dis credit him with the qualification noted above 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union card swapping that was going on between Ross and Greene by the light of Ross' auto headlights. The trouble that Keith Greene was "already in" crystallized on the following afternoon after he reported to work. Until April 14 Greene was assigned as timekeeper on the third, or night shift, period. On April 14 Supervisor Dellinger transferred him to the second, or afternoon, shift, for lack of work on the third shift. But on the following morning (incidently several hours after Wilkin- son's observation of Ross and Greene in front of the auto headlights) Industrial Re- lation Director Smith called Dellinger to the office, informed him that he made a mistake in transferring Greene from one shift to the other, and that instead Smith thought they "should get rid of this man." 21 Greene was thereupon laid off. Ac- cording to Smith, who directed Foreman Dellinger to "get rid of" Greene, We found that his work was not satisfactory and we were replacing all time- keepers with girls. . . . He was studying on the job. He was going to school and he was temporary laborer so far as we were concerned. And we hired him because he was a student, and he wasn't able to perform the duties and keep up with his studies at the same time. He slept, and was known to have slept in his car and just generally speaking he was not a satisfactory employee. As I do not credit Smith I do not accept this evaluation of Greene. But I do quote it here for the purpose of judging Respondent's reason for the layoff, as explained by Smith. In my judgment it is a fabrication and I need only refer to the credited testimony of Supervisor Dellinger for support of my conclusion. Dellinger was Greene's immediate superior, presumably aware of Greene's abilities and shortcom- ings. Dellinger stated categorically that Smith, and not he, was responsible for Greene's termination, and that Smith did not tell him why they should "get rid of this man." Certainly if Smith knew all about Greene's shortcomings, Dellinger should have been equally informed. As I do not credit Smith's version, I must necessarily conclude that the reasons suggested by him, and not known to Greene's superior, Dellinger, were not, in fact, the reason for Greene's termination. On the contrary, and upon consideration of Greene's prominence in the organizing cam- paign, Respondent's knowledge of it, antipathy toward it, and its interference with it by restricting Greene's movements, I am clearly persuaded that the reasons as- signed for Greene's layoff and the Respondent's unwillingness to recall him were but pretexts for the true reason-Greene's union activity. As such conduct by Respond- ent constitutes an unlawful discrimination against Greene for reasons proscribed by statute, I find that it has violated Section 8(a)(3) of the Act. 5. Brent Mayberry Employee Brent Mayberry began with the Company in January 1960 as a stock- room attendant. Shortly after the organizing campaign got underway employee Keith Greene signed him up in the Union and thereafter Mayberry himself solicited other employees. In the course of this organizing activity he procured several ap- plications and on one occasion, as he was in the process of signing employee Cleon Diddicks, Supervisor Mauney 22 came into the restroom where this card signing was in progress and Mayberry, with several cards in his hand, stuck them in his pocket; but not before Mauney was well in the room.23 Upon the strength of this particular incident I find that Respondent was aware of Mayberry' s union activity, learning of it as it did through Supervisor Mauney, who appears frequently to have been close at hand when employee organizing efforts were taking place. Shortly thereafter, on April 21, Supervisor Cannon, in charge of inventory con- trol, called Mayberry at his home and told him that he was fired because of a mixup created by the substitution of packing cartons and the mispacking of filters. Filters manufactured in the plant are of several sizes and varieties and are dis- tributed under several trade names and for other wholesale customers There are, for example, Wix filters and Walker filters, slightly different in overall size and -i The credited testimony of Foreman Dellinger 22 Contrary to Respondent's position I find Mauney to be a supervisor Mauney's own description of his duties as a leadman indicates that he responsibly directs other em- ployees and is not merely a message relayer for his supervisor Other employees, in- cluding employee Warren, credibly testified that Mauney assigned them duties Mayberry testified that a third person whose identity he could not recall was in the room when Mauney came in Employee Buchanan testified to the same incident, thus, in effect substantiating Mayberry whom I credit. I do not credit Mauney's denial of the incident Diddicks was not called as a witness WIX CORPORATION 1075 therefore packed in slightly different size cartons. These cartons are distinguished by a code number imprinted on the side , and known to the packing and stock em- ployees, including Mayberry; the Wix carton being the slightly shorter of the two. When Mayberry arrived at the stockroom at the beginning of his shift on April 18, he found an order for cartons that had not been completely processed. The order called for Walker cartons, but the cartons that had already been procured and placed with the order sheet by someone in the stockroom on the previous shift were actually Wix cartons. Mayberry noted this discrepancy but assumed (and as it turned out, incorrectly) that the substitution of one type carton for another had been approved, as had substitutions on isolated previous occasions .24 Whereupon Mayberry physically corrected the order blank to show the substituted carton and left a note of what he had done for Supervisor Mauney. Because I credit neither Mauney nor Supervisor Cannon, who is ultimately responsible for this phase of production, I cannot determine as a fact whether or not Mayberry's warning was actually conveyed to Cannon, although Cannon did testify that he never discussed Mayberry with Mauney. If then, we were to accept Cannon's testimony it would suggest that Mauney either ignored Mayberry's notice of the carton substitution or approved it; but nevertheless permitted the error to be compounded by the faulty packaging which followed. In any event, when the error of packing was discovered (and it has not been shown in the record to have been discovered by information other than that supplied by Mayberry) the filters were repacked in their correct cartons at an estimated loss of $85 to the Company. Shortly thereafter Cannon called Mayberry at his home and told him that he was being discharged for the error he had committed. The circumstances under which Mayberry was discharged leave me no alternative but to infer that the substitution of packing cartons was but an excuse for Respondent to rid itself of a known union sympathizer. Mispacking is the sort of production error that is not unheard of in either Respondent's or any other plant. Indeed Supervisor Cannon conceded on cross-examination that orders have been torn down before, but because of errors in other departments, not his. Furthermore, it would appear that this error was not Mayberry's in the first instance, and nothing in the record would suggest that Respondent had investigated to find out who it was on the previous shift who had set up the order incorrectly, thereby laying the ground- work for Mayberry's failure to use proper judgment of rechecking it. Nor is there in the record anything to suggest what consideration had been shown Mayberry for the fact that he had transmitted the information which presumably caused Respond- ent to learn of the error the first thing on the following morning. On the contrary, Respondent's dominant theme in Mayberry's case is one of rigid application of stereotype regulation. Mayberry made an error-the error cost the Company $85-Mayberry had to go. Because I have observed among Respondent's officials and supervisors an intelligence that would not normally subscribe to this sort of personnel practice and because nothing in the record, apart from the discrimina- tory discharges considered herein, would suggest that Respondent terminates mem- bers of its work staff out of hand, I find and conclude that it did so here not for the reasons alleged but because Brent Mayberry was seen soliciting a union membership. As such action constitutes discrimination against him because of his union mem- bership and activity, I find that Respondent has thereby violated Section 8(a) (3) of the Act. 6. James Buchanan James Buchanan was employed by the Company in October 1958. At the time of his discharge and for 8 months previous he was a pleater operator-a pleater being a machine which processes heavy paper tape for use in air filters. The paper tape is first run through a heating oven and then into the machine which , as its name implies, pleats it and bunches the tape for insertion into the can filter. Buchanan, it will be recalled, was first threatened by Supervisor Wilkinson as he was passing out paychecks. Wilkinson at that time stated, "I don't want to hear you say any more about the Union. I will have to let you go if you say any more about it." Under circumstances which I have previously found to constitute unlawful 24 The credited testimony of Mayberry . Employee Frank Robinson , the stockroom clerk on the shift prior to Mayberry's, testified that he was familiar with the order but did not state who had initially made it up Because I find Robinson to have involved himself in contradictions which cast doubts upon his testimony I do not credit him. I do, however, note his testimony that carton substitution was permitted in certain respects, whereas Supervisor Cannon, who was responsible for Mayberry's discharge, testified that substitutions were never permitted 614913-62-vol 132-69 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interference, restraint, and coercion, Supervisor Wilkinson restricted employees Buchanan, Almond, and Greene in their movement about the plant (supra), Bu- chanan being told never to leave his machine except at break time. Upon the fore- going, therefore, it cannot be doubted that Respondent was not only aware of, but indeed opposed to Buchanan's union membership and activity. A week after the incidents recounted above, on the third shift of April 18, Bu- chanan set up his machine to run a supply of pleated paper that would keep him ahead of the line production. When he was sufficiently ahead he stopped the ma- chine and went outside for a smoke. Wilkinson followed him and told him that he had been running the machine with the wrong rollers-a condition that would result in pleating the wrong sized pleats. As a result of this error 75 "cuts" were run off and were of no use 25 Buchanan testified that his machine could produce two or three thousand "cuts" per hour, hence, except for the value of the paper which was of good quality, there appears to have been little time lost by this error. Buchanan continued to work throughout the shift, keeping ahead of production. When he had pleated enough for his own shift by 3:45 a.m. he set up the machine for the operator on the next shift. At this time Wilkinson told him to punch out at 5 a.m., the usual quitting time being 5:30. Thereafter Buchanan went to the rest- room, solicited a union membership from a fellow employee, Diddicks, in the company of Mayberry, and was observed in the act by Mauney. Earlier in the evening, Buchanan had taken several long breaks and had gone out on the front steps for smokes; these being periods when he had gotten so far ahead of production that it was necessary to shut his machine down to permit the line to "catch up." As it approached 4:30 a.m. Buchanan, with nothing to do, was biding his time to clock out and took several rides on the elevator to the upper floors. As he finally debarked from the elevator and walked to the timeclock he met Supervisor Wilkinson who then told him that they could not use him anymore. When asked why, Wilkinson told him it was for leaving his job and for neglecting his work.26 At this point Buchanan cursed Wilkinson and walked off. Thereafter, he returned and apologized for his conduct but as he did so it would appear that in the heated conversation which again followed he again cursed Wilkinson and left 27 It is my studied belief that restrictions placed upon Buchanan, and his fellows, and Respondent's deviation from the normal treatment of an employee whose own work rate is necessarily gauged by the rate of line production, are but a composite of Respondent's successful attempt to eliminate Buchanan as it threatened it would (supra) Accordingly, I deem the reasons supplied by Respondent and advanced at the hearing, leaving his machine and negligence, to be but a pretext of the Respond- ent's effort to rid itself of another union adherent. As a discharge in such context constitutes discrimination for reasons of union membership and activities, I conclude and find that Respondent has thereby violated Section 8-(a) (1) and (3) of the Act. 7. Hartwell C. Almond Employee Almond, a painter who began with the Company in August 1959, was the individual whose movements about the plant were restricted by Supervisor Wilkinson on the third shift of April 13, conduct which I have found constitutes a form of employee interference, restraint, and coercion proscribed by the statute. As an aftermath of Wilkinson's and Supervisor Mauney's several orders to Almond to remain in the paintroom, Almond specifically requested Wilkinson to give him an explanation for the restriction and Wilkinson, after stating that "all painters were going to have to stay in the paintroom when they weren't on break time," then told Almond that "he was wise to what we were doing in trying to organize a union down-' there and said that a bunch of us guys were going to lose our jobs if we didn't do what we was told." In spite of this order Almond went out for a smoke again at 12:30; whereupon, according to Almond: Mr. Wilkinson came out and said that he had told me to stay in the paintroom and said there I was out there smoking. I told him there was no smoking per- ?;' A "cut" is the amount of pleated paper necessary to accommodate one filter element. 2' The foregoing findings are based upon the credited testimony of employee Buchanan. In so finding I credit neither Wilkinson's, Mauney's, nor Smith's testimony respecting the details of the discharge nor do I credit Foreman Ellis' testimony that Buchanan admitted his work deficiencies in asking for his job back. -' I specifically reject any inference that may be drawn from the questions asked of this witness on cross-examination to the effect that he at any time drew a knife on Wilkinson or anyone else, or that he even had a knife in his possession. WIX CORPORATION 1077 milted in the paintroom and that was the only place I had to go to smoke, and the line was still down at that time, and he told me to hit the clock. I was fired. I have no doubt that the restrictive rule imposed upon employee Almond was motivated by antiunion considerations and not by a desire for efficiency or good order. This I have already found to constitute unlawful employee interference, restraint, and coercion. But to thus hold that such a restriction or rule was promul. gated as a pretext for such motive is quite different from saying that Almond's dis- charge for insubordination was a pretext for less worthy considerations, in view of Almond's own conduct at that time. The rule, on its face, was a proper and reason- able one and Supervisor Wilkinson's authority to impose it was, on its face, within his scope of authority. I know of no rule of law that would justify an employee's deliberate refusal to obey such a reasonable requirement (irrespective of its motiva- tion) ordered by a duly constituted supervisor. Almond, it would seem, has confused his rights as an employee to engage in concerted activity and to be free from employer interference on the one hand, with his obligation to do what he is told to do in line with the reasonable requirements of his occupation. Almond's refusal to return to his workplace is, in my estimation, on an entirely different footing from Buchanan's wandering, the discharge for which I viewed as a pretext (supra). True, both employees disregarded the undue restrictions placed upon them and both were ostensibly discharged for their action. But in Almond's case, unlike Buchanan's, there was an attitude of deliberate defiance of an order, a defiance of Wilkinson's threat to fire him if he did not obey, which he did not. Buchanan, on the other hand, was not faced with such a categorical directive, did not deliberately flout the directive he received, and was not ordered to comply under penalty of discharge. His, as we have seen, was an instruction to stay at his machine, an instruction he obviously misinterpreted, and was followed directly by the word that he was fired. Upon these distinctions I view Almond's attitude as damaging to his best interest. Having deliberately refused to obey his supervisor and remain at his workplace I am persuaded that his supervisor's basic reasons for telling him to remain there are of no comfort to him. Indeed he appears to have nullified the ill-motivated effects of the restrictions placed upon him, by, in effect, daring his immediate supervisor to enforce a company regulation (however motivated) against him Upon this dis- tinction and in view of this cavalier demonstration on his part, I find and conclude that Almond was discharged not for engaging in union activities or in discrimination for such reasons, but for outright insubordination 28 I shall recommend, therefore, that so much of the complaint as relates to Almond's discharge be dismissed. 8. Robert Taylor Robert Taylor had been employed by the Company as a cleanup man since October 1938. 'He joined the Union at the behest of employee Keith Greene on April 11. The circumstances of this event bear considerable significance to Respondent's claim that it had no knowledge of Taylor's membership. Greene gave Taylor an applica- tion card at break time in the middle of the night, while both of them were outside of the plant and in the rear of it. Taylor returned the signed card to Greene at a later break and according to Taylor no one else was present. Two days later Taylor and employee Greene engaged in a brief conversation concerning the Union. The two of them stood on a raised platform area where Greene was performing his time- keeping duties. Supervisor Wilkinson, who was standing below the platform 10 feet from the two employees, called to Taylor that a load of materials was ready for him to carry on the elevator According to Taylor the plant machinery and exhaust fans were running at this time and the public address system was turned on. Several days thereafter Taylor was discharged. It is disputed in the record whether Taylor was or was not sleeping on the job, the basis for his discharge. From the foregoing it appears that the only basis upon which it could be estab- lished that Respondent knew Taylor was a union member and had therefore dis- charged him for reasons of such membership was the fact that Supervisor Wilkinson saw, but did not overhear, Taylor in conversation with Greene, a known union adherent. To find company knowledge under such circumstances would be tanta- mount to building an inference, not upon another inference, but upon a bald sus- picion; the suspicion that mere conversation with a union advocate establishes that 28 Five Transportation Company, 126 NLRB 154 ; Superior Derrick Corporation, 126 NLRB 188. 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the person talking to him is also a member, or is interested in union membership or activity. Inferences so strained cease to be valid . Accordingly, I have no alterna- tive but to conclude that upon a complete absence of evidence to the contrary Respondent had no knowledge that Taylor had joined the Union 29 Accordingly, because the basic element of a discriminatory discharge is missing from General Counsel's case, I find it unnecessary to resolve the conflicting evidence as to why Taylor was discharged on April • 14. Suffice it to say that inasmuch as Respondent has not been shown to have been aware of his union sentiments, it cannot be said that it discharged him for such sentiments . Whatever, therefore, Taylor was dis- charged for it was a personnel action within its prerogative so far as the proscriptions of the Act are concerned . I shall therefore recommend that so much of the com- plaint as relates to Taylor's discharge be dismissed3° 9. Ray H. Jackson Employee Ray Jackson began with the Company in October 1959, and at the time of his discharge on May 4, 1960, operated a perforating machine. Jackson joined the Union on April 11 or 12, and was instrumental thereafter in procuring the member- ship of a number of other employees. On April 18, Jackson met a fellow employee, Doss, in the men's room and obtained his signature on a union application. In the process of this activity Foreman Welsh came into the room but made no comment 31 Later in the day Foreman Ellis approached Jackson and told him that he had heard something about him talking Union and trying to sign somebody up, and that "it is not appreciated." 32 On the basis of the foregoing credited testimony, it is clear that Respondent was aware that Jackson was active in the Union's behalf. On May 4, Jackson became involved in an incident that resulted in his discharge. He clocked in at 2:15 p.m., and immediately went to his workplace, picked up the chair that he used at work, and took it to the carpenter shop for repair. This chair, according to Jackson, was of a particular height to accommodate a spine injury from which he suffered and which bothered him when he was not in the proper sitting position.33 By Jackson's estimate he was in the carpenter shop for a total of 35 minutes, an estimate confirmed.by employee Miller who testified that Jackson was not at his workplace by 2:45 p.m., nor was he present when Miller was setting up Jackson's machine immediately thereafter. Jackson's visit to the carpenter shop was confirmed further by the carpenter himself, employee Seaton Wells, who testified credibly that Jackson was there from 45 minutes to an hour and appears to have done nothing but wait around for the job to be completed. As he left Wells' shop, Jackson thanked him and said, "I'd better get back, they are liable to fire me," a statement which Jackson concedes he made. True to his fear Jackson returned to his workplace to find himself the subject of an extensive search . After considerable conversation and explanation between Jackson and Supervisors Ellis and Cable, Ellis told Cable that "this man has got to be replaced." Whereupon , Cable took Jackson to the personnel office and processed his discharge , the reason being stated as "Leaving his job." Jackson's prominence in or activity in behalf of the Union affords him no special prerogatives in the performance of his regular duties 34 Accordingly, if he chose to wander away from his work for a period of a half hour or more without permission or notice , he is in no position to defend himself from punishment for such conduct by insisting that his discharge was otherwise motivated . Nor was this prolonged visit to the carpenter shop Jackson's first experience with unauthorized roaming. Thus by his own account of how Cecil Miller, a straw boss, followed him , we have the distinct impression that Jackson had had previous difficulties: Well not everybody is rough; just one particular man walks around finding out what people are doing , and he goes and reports them . And, in one particular -United States Air Conditioning Corporation, 128 NLRB 117. SO In any event , Taylor's discharge, allegedly for sleeping, was not part of a group action whereby discrimination to others in a group could be imputed as to Taylor. Cf Arnoldware, Inc, 129 NLRB 228; Englewood Lumber Company, 130 NLRB 394. 31 The credited testimony of Jackson Although I credit him generally I do not credit Welsh's denial of knowledge of this incident. sz I do not credit Ellis' denial of this conversation. 33I do not deem it significant that the Company 's records contain no reference to this physical defect. -%NL.RB v. Brady Aviation Corporation , 224 F 2d 23 , 25 (C.A. 5 )_;_N.L.R.B. v. Marion G . Denton, et al, d/b/a Marden Mfg Co, 217 F 2d 507, 571 ( CA. 5). WIX CORPORATION 1079 instance, if you will ask Mr. Cable, he will let you know that Cecil Miller followed me up to the men's room and two or three other places and went down and reported that I was not on my job, and when I went back and answered to Otis Cable, and explained to him that I was helping out one of the other foremen upstairs, trying to find out something about metal, and why I was gone for the time I was gone, it was all right then, there was no reprimand. Otis Cable told me not to help any other foremen from there on; it was not my job to do that; but, still and all, he didn't say nothing more about it; he just let me go back to my job and that was the end of it; but if this man don't follow you around and then run back and tell somebody about it, all the time, nobody would have missed me for five minutes. Under the circumstances attested to by Jackson himself and detailed above, I conclude and find that he was discharged for leaving his work, the reason assigned. Accordingly, I will recommend that so much of the complaint as relates to Ray Jackson be dismissed. 10. Mable Cates Employee Mable Cates began with the Company in October 1959 and when terminated on May 4, 1960, was a double seamer operator. She joined the Union but took no interest in it and, by her own admission, knew little of its activity about the plant. In early May it was decided that the employee complement in the P. C. packing department was to be reduced from 15 to 10. Some employees were selected for transfer to other departments, others for layoff. Mable Cates was among the latter and she was specifically so selected because of her inability to get along with her fellow employees 35 Upon her selection for layoff Mrs. Cates protested most vigorously to anyone, apparently, who would listen, including Industrial Rela- tions Director Smith, whose testimony I do not otherwise credit, and Foreman Fry. She insisted that she was being discharged because the Company thought she was connected with the Union. She underlined her protests by stating that she would. "sue somebody" for spreading rumors that she was being fired because of the Union.as To support Respondent's contention that Mrs. Cates could not get along with people and that she was selected for layoff for this reason there is her own reference to differences she had had with employees, including Frances Merideth, Mozelle Huffstetler, and Emma Freeman. In addition to these allusions to verbal unrest, employees Crisp, Merideth, and Hovis credibly attested to the fact that Mrs. Cates had frequent arguments with them and with others, and that she frequently un- nerved employee Hovis to the point of tears. A review of the testimony upon which the foregoing findings are based makes it abundantly clear that Mrs. Cates was a troublemaker whose departure from the plant was a source of satisfaction to those with whom and for whom she worked. As there is little if anything in the record to suggest that she was favorably dis- posed to the Union, little less actively working in its behalf, I am not disposed to view the signing of a union card in the privacy of her home as a curtailment of Respondent's right to terminate her for her inability to get along with the employees. Accordingly, I shall recommend that so much of the complaint as suggests that Mable Cates was terminated for union membership, interest, or activity be dismissed. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV above, occurring in con- nection with their business operations 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 commerce and the free flow of commerce. VI. THE REMEDY Since it has been found that Respondent, by discharging certain named employees, discriminated against them in violation of Section 8(a) (3) of the Act and has other- wise interfered with, restrained, and coerced its employees in violation of Section ae The credited testimony of Foreman Fry. 111 do not credit Mrs. Cates' testimony. Her equivocation concerning her union membership, her knowledge of the Union's activities, and her stated objection to alleged rumors about her union membership persuade me of her unreliability, generally, as a witness. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8 (a) (1) of the Act, I shall recommend that Respondent cease and desist therefrom and from infringing in any, other manner upon the rights of employees guaranteed in Section 7 of the Act.37 I shall recommend that the Respondent offer to the afore- mentioned employees immediate and full reinstatement to their former or substan- tially equivalent positions 38 without prejudice to their seniority or other rights and privileges. During the course of the hearing the Respondent maintained that one of the em- ployees involved in these proceedings and whose reinstatement I am recommending would not be entitled to reinstatement because evidence which Respondent intro- duced would suggest that the employee, and others, had purloined cigarettes from a vending machine in Respondent's plant, Respondent repeatedly urged on the record that this conduct was not in any sense being urged in defense of the discrimination alleged, but only for purposes of assessing credibility and remedy. Nothing in the record would indicate that this matter was ever reported to the local authorities or became the subject of civil or criminal action in any court of the State of North Carolina or the city of Gastonia. I am, therefore, not disposed to make any evaluation of this conduct based upon the quantum of proof applicable here to the prevention of unfair labor practices when it has not already been made in a more appropriate tribunal under more exacting standards of proof. In a word, I do not conceive the Board's remedial processes to be a substitute for purely local civil and criminal relief.39 I shall also recommend that Respondent make whole each of the aforementioned employees for any loss of earnings they may have suffered because of the discrimina- tion against them with backpay computed in the customary manner.40 I shall fur- ther recommend that the Board order Respondent to preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment. Since it has been found that the Respondent has committed certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondent occur in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of Michael Keith Greene, James Buchanan, Carl Hoyle, Shirley Hoyle, Charles Ross, and Brent May- berry, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 4. By the foregoing conduct, and by threatening its employees with loss of em- ployment if they joined or discussed the Union, by threatening that it would close its plant in preference to dealing with the Union, by interrogating one of its em- ployees concerning the union membership and activities of its other employees, and by asking said employee to report any such information to it, Respondent has inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed them by Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not violate Section 8(a)(3) or (1) of the Act, by .the discharge of Hartwell C. Almond, Robert Taylor, Ray H. Jackson, and Mable Cates. 7. Respondent did not violate Section 8(a) (1) by any conduct alleged in the com- plaint as attributable to Foreman Hershel Welsh. [Recommendations omitted from publication.] sr N L R B. v. Express Publishing Company, 312 U.S. 426, 437. 88 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. ° Cf. American Creosoting Corporation, et al., 130 NLRB 150. &O F. W. Woolworth Company, 90 NLRB 289.