Standard Packaging Corp.

628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Standard Packaging Corporation , Royal Lace Paper Division and General Independent Union. Case No. -13-CA-46415. Jam,- ary 16, 1963 DECISION AND ORDER On October 9, 1962, Trial Examiner Wellington A. Gillis issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed excep- tions to the Intermediate Report and a supporting brief, and the Re- spondent filed a brief in support of the Intermediate Report. 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent with our decision herein. We agree with the Trial Examiner that the Respondent did not en- gage in conduct proscribed by Section 8(a) (1), (3), and (4) of the Act, as alleged in the complaint, when it refused to grant employees Paul Murray and Charles Storms advance permission to absent them- selves from work for purpose of attending a Board representation proceeding and thereafter discharged these employees when, in dis- regard of Respondent's directions, they absented themselves from work to attend the hearing. On November 15, 1961, Philip Kuhn, an employee-leader of the movement seeking to decertify the incumbent union, Local 492, and to install the Charging Union in its place, filed a decertification peti- tion with the Board. The Board set a hearing for November 30, and notified the interested parties. On the morning of November 29, Kuhn sought out Arthur Wolff, Respondent's plant manager, to dis- cuss with hint the number of employees who might be needed to testify at the hearing on the following clay, and to request leave of absence from work on behalf of such employees. Kuhn told WTolfat this time that, although he had been asked by the employee decertification com- mittee to take five employees with him, he believed that three, in addi- tion to himself, would be enough, and mentioned employees Thora Ray, Charles Storms, and Paul Murray. Wolff recognized the need for Kuhn's presence, but questioned whether it was necessary that 140 NLRB No 65. STANDARD PACKAGING CORP. , ROYAL LACE PAPER DIV. 629 Ray, Storms , and Murray attend. However, Wolff stated that he would make a check of production schedules with his division man- ager, and would advise Kuhn on the matter later in the day . During this discussion, Kuhn indicated that he could have "his" attorney 1 subpena the three employees . Wolff replied , in substance, that Kuhn did not need to obtain subpenas, as Wolff would be willing to give these employees leave to go to the Board hearing if their presence was required. Kuhn again met with Wolff later the same afternoon . Wolff indi- cated, in effect, that, after discussing the work schedules with his di- vision manager and in light of the fact that, so far as he was aware, only Kuhn had been "requested" to attend the hearing, he did not "see fit" to grant anyone but Kuhn leave of absence from work at that time.' Kuhn protested Wolff's decision . Wolff then agreed that Kuhn could take one other employee, whichever one Kuhn chose. Kuhn agreed and stated he would notify Wolff in the morning of the em- ployee of his choice. Meanwhile, Murray and Storms had joined the discussion, and they sought to obtain Wolff's consent for their attend- ance. Wolff told them that only one other employee had permission to go with Kuhn and cautioned each that , unless he were the one chosen, he had better report to work. Wolff again made it clear, how- ever, that , if he were officially notified of the need for additional em- ployees' appearance at the hearing , he would excuse not only these individuals but "the whole plant." Kuhn telephoned Respondent's plant the next morning and left word that he had chosen Thora Ray as the employee he would take to the hearing. Nevertheless, Storms and Murray also decided to absent themselves from work and attend the hearing, at which they did not testify. Wolff saw them at the hearing and , on the following day, advised both of them that they were discharged for insubordination. As posed by the General Counsel, the issue in this case "presents a problem of accommodating the rights of employees in exercising rights guaranteed by the Act . . . with the rights of an employer to regulate his production requirements and maintain discipline over his em- ployees." While not contending that an employer must always grant a request to permit time off by his employees to attend a representation hearing, the General Counsel nevertheless argues that "under all the facts and circumstances of this case ," Respondent's denial was un- lawful. 1 Kuhn apparently referred to Donald Strutz, the attorney for the Charging Union and for the decertification committee composed of employees who had espoused the decertifica- tion movement 2 So far as appears from the record , none of the parties contacted the Board's Regional Director for purposes of notifying him that certain employees might be needed at the hearing other than those whose names appeared on the formal documents . Also, there is no evidence that the attorney for the Charging Union made any contact with Wolff or any other agent of Respondent for purposes of arranging the attendance of proposed witnesses at the hearing. 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The circumstances attending the discharges to one side, there is no evidence in the record which indicates any hostility on the part of Respondent toward the collective activity of its employees, whether for or against any of the labor organizations involved. So far as the events leading to the discharges in issue are concerned, Storms and Murray were under no subpena to appear at the decertification hear- ing. Nor was any real need for their appearance at the hearing other- wise demonstrated to Respondent at the time their release was re- quested or at any later date before their discharge. When Kuhn asked for their release, he declared that the group represented by him be- lieved that five employees should accompany him to the hearing, whereas he thought that three others would be sufficient-all of which scarcely demonstrated to Wolff the need even for three. Significantly, however, Wolff did not immediately reject Kuhn's request; he asked for time to check production schedules with his division manager. After making such check, Wolff's position was, in substance, that Kuhn could take one other employee with him and that any other employees needed at the hearing would be released.3 Despite Wolff's admonition to Storms and Murray that each report to work on the next day unless chosen by Kuhn to accompany him, both absented themselves from work to attend the hearing. In the circumstances, we cannot find that Respondent's refusal to release Storms and Murray was motivated by any desire to interfere with the Board's processes or with such rights as the complainants may have had to attend the Board proceed- ing as prospective witnesses.' Nor can we say that the position taken by Respondent would, had Storms and Murray accepted it, have oc- casioned an interference with the proceeding or precluded the com- plainants from attending the hearing upon a reasonable showing that their attendance was necessary. It is our belief that this record ade- quately supports the Respondent's asserted reliance upon its work schedule as the reason for its unwillingness, in advance of the hearing, to release more than two employees to attend the hearing. And we are persuaded that the subsequent disciplinary action taken against Storms and Murray was not in reprisal for any protected activity on their part, but was motivated solely by the complainants' absence from the plant in disregard of orders. Accordingly, upon all of the fore- going considerations, we conclude, as the Trial Examiner did, that Respondent did not violate the Act as alleged in the complaint.5 We shall therefore dismiss the complaint. [The Board dismissed the complaint.] Any employee could have been made available at the hearing within 25 minutes of a telephone request for such person. ' In so concluding, we have taken into account Respondent's liberal policy of excusing employees on account of sickness or for "personal" reasons. 5 Cf. Pearson Corporation, 138 NLRB 910. STANDARD PACKAGING CORP., ROYAL LACE PAPER DIV. 631 INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge filed on January 15 and 19, 1962, respec- tively, by General Independent Union, hereinafter referred to as G.I.U. or the Union, the General Counsel for the National Labor Relations Board issued a com- plaint and an amended complaint on February 19 and March 29, 1962, respectively, against Standard Packaging Corporation, Royal Lace Paper Division, hereinafter referred to as the Company or the Respondent, the latter alleging violations of Section 8(a) (1), (3), and (4) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act. The Respondent thereafter filed an answer to the amended complaint denying the commission of any unfair labor practices. On April 17 and 18, 1962, pursuant to notice, a hearing was held in Fort Wayne, Indiana, before Trial Examiner Wellington A. Gillis, at which all parties were rep- resented by counsel.' All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to submit argument. Timely briefs were subsequently filed by counsel for the General Counsel and the Respondent. Upon the entire record in this case, and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "con- sidered along with the consistency and inherent probability of testimony" (Universal Camera Corporation v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 2 1. THE BUSINESS OF THE RESPONDENT Standard Packaging Corporation is a Virginia corporation maintaining plants in a number of States. Its Royal Lace Paper Division, located in Fort Wayne, Indiana, is engaged in the manufacture of paper and other related products. During the calendar year 1961 the Respondent shipped from its Fort Wayne plant products valued in excess of $1,000,000 directly to points located outside the State of Indiana, and, during the same period, purchased materials valued in excess of $1,000,000, which were transported to its Fort Wayne plant from points outside the State of Indiana. The parties agree, and I find, that Standard Packaging Corporation, Royal Lace Paper Division, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties agree, and I find, that at all times material to this proceeding, General Independent Union was a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The issue Whether, under all of the circumstances, the Respondent committed a violation of the Act in refusing to grant Charles Storms and Paul Murray permission to attend a Board decertification hearing and subsequently discharging them after they attended the hearing. B. The facts Shortly after the Company opened its plant in Fort Wayne, Indiana, on October 12, 1959, Printing Specialties and Paper Products Union, Local 492, was selected as the bargaining representative for the Respondent's production and maintenance em- ployees, and, on March 3, 1960, a 2-year collective-bargaining contract was executed by the parties, which agreement was still in existence at all times material to this proceeding. Beginning in October and continuing at least through November 1961,3 a movement to decertify Local 492 was in progress among some of the Respondent's i At the hearing Robert Jurtsen, International representative of International Printing Pressmen and Assistants' Union of North America, who was subpenaed by the Respondent, appeared on behalf of Printing Specialties and Paper Products Union, Local 492 Local 492, although not a party to this proceeding, was at all times herein material , party to a contract with the Respondent. 2 To the extent that the record discloses any testimony at variance with these findings, it is regarded as being of insufficient weight to be controlling or unworthy of belief. 8 Unless otherwise indicated, all dates refer to 1961. 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, during which time, prompted by numerous employee meetings and based upon the solicitation of authorization cards on behalf of General Independent Union, the latter came into prominence within the Respondent's plant. As a result of this activity, a petition for decertification,4 supported by more than 30 percent of the approximately 195 employees then in the unit, was filed with the Board on Novem- ber 15 by Philip Kuhn, who had presided over the organizational meetings of the Union and had been designated by his fellow employees as their spokesman and rep- resentative in the decertification movement. Thereafter, a hearing on the decertifica- tion petition was scheduled for 10 a.m. on November 30, notification of which was received by the parties on or about November 24. During the noon hour on Wednesday, November 29, pursuant to Kuhn's request of the night before for an appointment, Arthur Wolff, the Respondent's plant manager, contacted Kuhn, who told Wolff that he had been asked by the decertification com- mittee to take five people with him to the decertification hearing, but that, as he thought that five were too many, he would like to take three in addition to himself. Kuhn told Wolff that he would like to take Charles Storms, because of the latter's long attendance and participation at plant grievance meetings, and Paul Murray and Thora Ray as representatives of the hourly workers and female workers, respec- tively. Wolff replied that he knew that Kuhn, who had signed the decertification petition, had to go, but that he wanted to check the work schedule with his division manager and would let Kuhn know later that afternoon. Kuhn, in requesting an answer as soon as possible, told Wolff that if permission were denied he would probably try to have them subpenaed, or at least would talk to his attorney about it, to which Wolff replied that he realized that Kuhn could have them subpenaed, but "rather than do that he would rather let them go." 5 Later in the afternoon, about 4:30 p.m., Wolff called Kuhn out of the clock-out line, and told him that, after talking over the work schedule with his division manager, "we just can't see fit .to let any more than yourself go tomorrow. You're the only one that's been requested and you're the only one we're going to let go." When Kuhn protested Wolff's decision by reiterating the above reasons for his wanting to take the three named employees he had requested, Wolff agreed to permit Kuhn to take with him one additional person, and that he could pick anybody in the shop. At that point in the conversation, Storms and Murray, the two alleged discriminatees, joined them, and Kuhn told Wolff that he would notify him in the morning as to which person he chose. Storms, upon joining the group, asked Wolff whether he was going to be permitted to go to the hearing, and, according to the credited testimony of Wolff, the latter replied by stating to Storms and Murray that "unless you are the one who is chosen by Phil to attend this hearing with him you had better be on those machines tomorrow morning." 6 Although there are five slightly different versions of a second question posed by Storms, as well as the answer supplied 'by Wolff, I find that at this point Storms asked Wolff, hypothetically, whether this meant that, if he were to call in the next morning and say that he were sick or had personal business to attend to, he would not be permitted to take time off, to which Wolff replied by indicating in effect that, because the Company normally a Case No 13-RD-477 (not published in NLRB volumes) 6 Although there appears to be little variance between the testimony of Kuhn and Wolff as to the substance of this noon conversation, the above findings are based upon the credited testimony of Kuhn, from which the quotation is taken In the absence of a denial by Kuhn, however, I credit Wolff's testimony to the effect that Kuhn also made it known that he wanted to take these people for the purpose of being ready to testify in the event that they were needed. The only material variance between the testimony of Wolff and Kuhn as to this conversation is that Wolff testified that he told Kuhn that "rather than have these people subpenaed, if the hearing officer deems that their presence and testimony was necessary for him to reach a conclusion we would be more than happy to call these people out of the plant " As Kuhn, when confronted with this, testified that he did not recall Wolff making this statement "at that time," I find that it was not made during the noon conversation, but that, in substance , it was made later that day 6 Notwithstanding that the testimony of Storms and of Dale Duncan, another employee who had also joined the group, did not advert to the qualification " unless you are the one who is chosen," the testimony of both Kuhn and Murray, at one point or another, cor- roborates Wolff on this point. Accordingly, there is no question but that during this conversation Wolff made it clear, and from that point on it was understood by all con- cerned that the Respondent was granting permission for Kuhn and one other to be chosen by Kuhn to attend the hearing, and that neither Storms nor Murray was to attend the decertification hearing the next day unless he were the one chosen by Kuhn to accompany him. STANDARD PACKAGING CORP., ROYAL LACE PAPER DIV. 633 accepts as bona fide an employee's reason for making such a request, permission for the reason advanced would undoubtedly be granted. I further find, based in part upon the testimony of Duncan and Wolff, from whose testimony the following quotation is taken, that Wolff at this point, in the presence of Murray, cautioned Storms by making it known that if Storms were not the one chosen by Kuhn and he were to make such a request the following morning, using it as an excuse in order to attend the hearing, "I will see you (at the hearing) and thereby destroy your excuse." Finally, at some point during this 4:30 p.m. conversation, apparently at a time when only Kuhn and Wolff were present, Kuhn, according to Wolff, told Wolff that these people were needed at the hearing because they might be called to testify, and Kuhn, according to his own testimony, attempted, without success, to prevail upon Wolff to let him take the people he wanted, limiting their time off to the length of the hearing only. After Kuhn had indicated indifference as to Wolff's registered concern as to the possibility of other unions requesting time off for employees to attend the decertification hearing, according to Kuhn, and corrobora- tive of Wolff's testimony concerning the hearing officer's desires, Wolff stated that "if the Trial Examiner [sic] wanted people up there that he'd let the whole plant go." That evening commencing around 7:30 p.m., a meeting called by Kuhn was held at the home of Murray, and attended by Kuhn, Storms, Murray, and Ervin Swygart and Jess Allison, nonemployee president and secretary-treasurer, respectively, of the Union, the purpose of which was to select the person to accompany Kuhn to the hearing. Early in the meeting Kuhn decided upon Thora Ray as his choice and so advised her by telephone. Thereafter, Murray, having first made an attempt to contact Wolff, called Donald Strutz, the attorney representing the Union, and, based upon Wolff's decision to limit the number permitted to attend the hearing to Kuhn and one other, who had then been chosen, told Strutz that he was being denied the right to go to the hearing. Strutz indicated to Murray that he had the right to go to the hearing if Strutz requested him to be there as a witness and that Strutz would attempt to contact Wolff. Whether or not Strutz made an attempt to get in touch with Wolff is not known, but there is no evidence that Strutz did so or, at any time prior to the hearing, either apprised Wolff that Murray, or Storms for that matter, was needed as a witness or requested of Wolff that he be permitted to attend the hearing.? Before the meeting broke up, Storms and Murray informed Kuhn that they were going to go to the hearing, to which Kuhn replied that in doing so they were on their own. The following morning, November 30, after taking his wife to work at the plant, Murray, about 7:45 a.m. while seated in his automobile in the plant parking lot, apprised his foreman, Andy Consolvo, that, although it was "going to make Wolff pretty mad," he was 21 years old and that he was going to the hearing that morning. Murray then drove to Strutz' office, where he remained for about an hour before going to the hearing. Storms, before going to the hearing, called his foreman, Eddie Cochrane, and, in the latter's temporary absence, told his secretary that, as he had some personal business to attend to, he would not be in that morning.8 The hearing on the decertification petition filed by Kuhn on behalf of the Union, conducted by a Board hearing officer, commenced shortly after 10 a m. and closed prior to 12 o'clock noon. In addition to Murray and Storms, present at the hearing were Kuhn, Thora Ray, Allison, Swygart. Strutz of G.1 U., Robert Jurtsen of Local 492, three Teamster officials, Wolff. and Jim Castner, director of industrial relations for the Company. No employees were called upon to testify, and the only testimony elicited was that of Swygart, which was confined to matters relating to the status of the Union as a labor organization.9 Immediately following the close of the hearing, Kuhn approached Wolff, who, having witnessed the presence of the three employees with Kuhn at the hearing, In view of Murray's testimony as to this telephone conversation, I disbelieve and find without substance, Storms' testimony, which in any event constitutes hearsay, that Strutz had told Murray on the telephone "for both of us to be at the hearing" 8 Respondent's Exhibit No. 4, captioned "Grievance Adjustment Record," discloses that Murray, in filing a grievance concerning his subsequent discharge on December 1, 1961, stated as a defense to the Company's action that prior to his reporting time on Novem- ber 30, he also told his foreman that he "would not be to work today Thurs Nov 30, 1961, that I have personal business that had to be taken care of" Similarly, Respondent's Exhibit No 5 reveals that Storms told his foreman's secretary that he "would be unable 11 to work this day (Thurs. Nov. 30th) . . . . 9 As it result of this proceeding, and pursuant to a subsequent election, Teamsters Local 414 replaced Local 492 as the certified bargaining representative for the Respondent's production and maintenance employees. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was aware that two of the three had attended contrary to his specific instructions, and told him that Thora Ray had been his choice , that he had so notified officials at the plant that morning prior to the hearing, and that, because "the people had felt that we needed this representation up here," Murray and Storms "had decided to come anyway " Murray and Storms then went up to Wolff, and in reply to their question of whether they would be permitted to return to work that day, were in- formed by Wolff, who because he had not received notification prior to the hearing as to Kuhn's choice, had, before leaving the plant, instructed his foreman that none of the employees who attended the hearing , including Kuhn, was to work that day, that they could not return to work, and that he would see them in the morning. Wolff, who explained to Murray and Storms that "we had closed the gap behind' them as best we could and it would not be necessary for them to go back," also told them that their return to work would disrupt production and cause a disturbance. Storms then informed Wolff that he would go see about his taxes and Murray indicated he would go see about his car that he had ordered . Before departing from the hearing room , Strutz, who was aware of the fact that Murray and Storms had attended the hearing in disregard of Wolff's orders that only one person should accompany Kuhn, told Wolff that he had asked Murray and Storms to attend the hearing to testify and , in asking Wolff not to punish them for their action, requested that Wolff place the blame on him After the hearing, Kuhn, Storms , Murray, and Thora Ray drove back to the Respondent's plant, and , while the others remained in the automobile , Thora Ray went inside and was told by the plant superintendent , who had just received a telephone call from Wolff, that Wolff had advised him that no one was to be permitted to return to work that day. Upon so advising Kuhn, Murray, and Storms, she returned to the plant to wait for her ride home at the end of the work shift while the others went their separate ways.'() Wolff, having been made aware by Kuhn at the conclusion of the hearing that Thora Ray had been the latter's choice and thus that Murray and Storms had dis- regarded his orders, decided about 1 p.m. that disciplinary action against them was warranted However, it was not until about 4 p m. that afternoon , after having conferred at length with his superior Castner as to whether disciplinary action in the matter could lawfully be taken without running afoul of the unfair labor practice proscriptions of the Act, that Wolff, the question having been resolved in the affirma- tive, decided that the conduct of Murray and Storms in refusing to report for work after having been denied permission to be absent constituted insubordination war- ranting their discharge . Thereafter, Wolff instructed the respective foremen of Murray and Storms not to permit them to go to work the following morning The next morning, upon reporting for work, Murray and Storms were escorted by their foremen into Wolff's office where, in the presence of Chief Shop Steward Herschel Byrd whom Wolff had called in, and pursuant to Wolff 's decision of the day before, they were discharged with the comment by Wolff , directed separately to Storms and Murray, that from that time on they would have 8 hours a day to take care of their personal business. Analysis and Conclusions The General Counsel alleges that ( 1) the Respondent threatened Murray and Storms with discharge if they attended the hearing and subsequently discharged them for having attended the hearing, and that both the threat and the discharge consti- tutes a violation of Section 8(a)(1); and (2) the Respondent refused to permit Murray and Storms to attend the hearing and thereafter discharged them for at- tending said hearing for the purpose of testifying and that both the refusal and the discharge constitutes a violation of Section 8(a)(3) and (4) Although as further explicated by counsel at the start of the hearing and treated hereinafter , the General Counsel advances several grounds upon which an unfair labor practice finding is required , the main position of the General Counsel appears to be that , based upon the union activities of Murray and Storms on behalf of the Union the Respondent was unlawfully motivated in denying Murray and Storm, permission to attend the decertification hearing, and when they disregarded Wolff's orders , the Respondent used this as a pretext to justify an otherwise unlawful discharge.ii 10 At no time was any disciplinary action contemplated against Kuhn and the person whom he chose Accordingly , Thora Rav and presumably Kuhn were subsequently paid for the afternoon during which they were not permitted to work 11 In stating his position prior to putting on his case counsel for the General Counsel indicated that "if these people had not been engaged in those particular activities the- Company probably would not have fired them for attending this particular hearing" STANDARD PACKAGING CORP., ROYAL LACE PAPER DIV. 635 In denying generally the complaint allegations , and in particular the unlawful motivation imputed to it concerning the discharge of Murray and Storms, the Re- spondent asserts that , in limiting the number of employees who were permitted to attend the decertification hearing, it was governed by plant production factors and the absence of a showing that their attendance was necessary for the purpose of rendering testimony, and that Murray and Storms were subsequently discharged for their insubordination in having willfully disobeyed Wolff's orders and fabricating reasons for not reporting to work. Unless Murray and Storms had an unqualified right to attend the hearing, herein- after discussed, a determination of the overall issue of whether, under all of the circumstances, the Respondent committed a violation of the Act in refusing to grant Storms and Murray permission to attend the hearing and subsequently discharging them after they attended the hearing, requires a preliminary resolution as to whether, on the record evidence, the Respondent was discriminatorily motivated in denying permission for Murray and Storms to attend the hearing For if, as contended by the General Counsel, the Respondent in fact unlawfully limited the number of em- ployees who could attend and thus denied Murray and Storms such permission be- cause of their union activities on behalf of the Union, it necessarily follows that Respondent's conduct in unlawfully refusing to grant permission, in itself a violation of Section 8(a)(1) and (3), renders unlawful the subsequent discharges, notwith- standing their insubordination which, but for the discriminatory denial, might other- wise justify the Respondent's action.12 As noted above, the tenor of the General Counsel's argument rests upon the assertion that the Respondent favored the continued existence of Local 492, was opposed to the decertification activity and the G.I.U., and that, therefore, the active support by Murray and Storms of the decertification movement and the G.I.U., a fact known to the Respondent, formed the basis of the Respondent's motivation. The evidence reveals that Murray and Storms, both of whom had been employed by the Company for approximately 2 years prior to their discharge, were active in union activities, first with Local 492, and later with the Charging Union. Thus, under Local 492, in addition to Murray's having served as a member of the bargaining committee, both Murray and Storms had served as members of the grievance com- mittee, and, until their discharge on December 1, as shop stewards in their respective departments. With the advent of the G.I.U. in the Respondent's plant during October 1961, but while still members and officials of the contracting Local 492, Murray and Storms both became active in the former's initial growth, Murray by securing names on authorization cards and on the petition supporting the decertifica- tion attempt and in using his home as a meeting place on a number of occasions, and Storms by attending all but 1 of some 15 meetings held during the 5-week period immediately prior to the decertification hearing on November 30. That the Re- spondent, through its managerial hierarchy headed by Wolff, was aware of general employee interest in the decertification movement and of the fact that Murray and Storms, as well as Kuhn, were most active in their support thereof and of the G.I.U., is well-supported by the evidence. While the Respondent's knowledge of these activities is beyond question and in fact freely admitted by the Respondent, with perhaps one or two exceptions the factors relied upon by the General Counsel, as set forth in its brief, to establish its basic premise that the Respondent favored Local 492 and was opposed to the G.I.U., are inferential in nature and, in my opinion, even when considered in their totality, do not warrant the emphasis accorded them by the General Counsel. Thus, in this regard, it is asserted that the Respondent's action in denying Kuhn's request to take more than one additional employee to the hearing is inconsistent with its past lenient policy in (a) willingly permitting employee members of Local 492's bargaining committee and grievance committee , as well as the shop stewards, in- cluding Murray and Storms, to spend many working hours on union matters on be- half of Local 492, and (b) permitting employees to take time off for sickness or to attend to personal business , in many instances based solely upon a telephone call apprising their foreman or Wolff of their request. As to (a), I find no analogy be- tween the Respondent's denial of Kuhn's request and the fact that during the period of contractual relations with Local 492, including an all-day grievance session on November 28, 1961, attended by Kuhn and Storms, the Company cooperated fully under its contract by allowing officials of Local 492 to carry out their respective func- tions during working hours . As to (b), unless union affairs be equated to personal business, for which there does not appear to have been any precedent under the Respondent's practice, I do not agree that such denial necessarily establishes in- ' 2 N L R B . v Superior Company, Inc , 199 F 2d 39 (C A 6). 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consistency where the Respondent's policy appears to have been predicated upon the assumption that employee time-off requests have been made for emergency or other reasons relating to the affairs of the home. In any event, assuming an incon- sistency, neither factor in itself, in my opinion, warrants the inference suggested by the General Counsel. In further support of its position on this point, the General Counsel argues that a notice sent to departmental stewards shortly after the decertification activity became known to Wolff purporting to restrict the conduct of union business on company time was not applied to Local 492, nor, as reflected on its face, intended to restrict activities promoting the interest of Local 492 13 I find this argument on both counts completely untenable. The record discloses that the preparation and distribution of this notice by the Respondent was prompted by a complaint received from Kuhn, the leading advocate of G.I U , who had requested that Chief Plant Steward Herschel Byrd be prohibited from utilizing his official position for purposes of campaigning on company time for the rival Teamsters Union. The sole basis for the General Counsel's contention that the notice was not applied to Local 492 is the fact that, pursuant to the request of its contracting union, Local 492, the Respondent scheduled a grievance committee meeting on short notice which was held on November 28. Contrary to the interpretation placed upon its terminology by the General Counsel, a reading of the notice clearly indicates that its purpose was intended to achieve only that of which Kuhn had complained, namely, the prohibition of using company time for the carrying on of "private" union business, and was not intended to limit or foreclose officials of the contracting union from performing their functions in processing grievances or otherwise exercising their "privilege" to conduct "Union business " The record is void of any evidence disclosing that the Respondent permitted employees to engage in union activities on behalf of, or designed to perpet- uate the continued existence of, Local 492 If anything, the evidence relating to the point raised by the General Counsel, rather than revealing a company preference for Local 492 over the G.I.U., tends to bear out Respondent's assertion that, upon becoming aware of the existence of employee interest in other unions, it maintained a policy of complete neutrality. That such appears to have been the case is in part borne out by Kuhn's testimony corroborating that of Wolff, which I credit, to the effect that, upon registering his complaint with the Company against Herschel Byrd's activities on behalf of the Teamsters Union, the situation was rectified, that he was aware of no other complaints having been made to the Company concerning its attitude toward unions, and that, insofar as he was concerned, the Company was completely neutral.14 As to other evidence upon which it is asserted that the Respondent, through its Plant Manager Wolff, disclosed animus toward G I U., or "concern" over the decerti- fication activity in early or mid-November the record reveals that (a) notwithstanding an attempt by counsel for the General Counsel during examination to attribute to Wolff during a mid-November conversation with Kuhn an inquiry concerning a large employees' meeting at Murray's house, Kuhn's testimony reveals that it was Kuhn who volunteered to Wolff the information that about 40 people attended such a meet- ing, and that, upon being apprised of this, Wolff did not "appear to be showing undue interest in it"; and (b) a conflict in testimony exists as to the substance of an earlier conversation between Wolff and Storms around the first of November during which, according to Storms, after the latter volunteered the fact that he was behind the 1S This notice, dated November 16, 1961 , from Plant Superintendent R H. Henschen, read as follows: SUBJECT: CONDUCT OF UNION BUSINESS ON COMPANY TIME It has come to my attention that the Union organization within the plant is plan- ning to change its affiliation I have also heard that certain Union officials within the Plant have taken advantage of their privilege to conduct Union business on Company time by using Company time to make contacts with employees for "promoting" plans for future affiliation. This is to advise you that the Company will not permit use of Company time to carry on the private business of the Union . In line with the specifications contained in our Shop Rules, please consider this a warning against any further practices of using Company time in this manner The results could be strict limitation on use of Company time for any Union activity or , In the case of specific Instances related to an individual , It can mean termination 1s While the record reflects some minor discrepancies In the testimony of several of the witnesses , including Wolff and Storms, the one witness who impressed me immeasurably with his candor and demeanor on the witness stand is Philip Kuhn, whose testimony I credit throughout STANDARD PACKAGING CORP., ROYAL LACE PAPER DIV. 637 G.I.U., Wolff told hum that "You'd better go to the police department and sheriff's department and check those boys' records out." 15 Wolff, in denying the statement attributed to him, but admitting that Storms mentioned the names of G.I.U.'s outside officers, testified that Storms had come to him for advice and his opinion as to the decertification activity and that he told Storms that he could not answer his questions as the Company must remain neutral. In view of Kuhn's testimony concerning the Respondent's policy of neutrality, coupled with Storms' testimonial admission that in reply to the latter's question as to "what union would he think would make it best for us," Wolff had replied, "That's for you to decide," I am convinced that Wolff did in fact maintain an air of neutrality throughout and, accordingly, do not credit Storms' testimony to the extent that it would warrant a contrary inference. Thus, having found no substantial evidence upon which to conclude that the Re- spondent favored Local 492 or was opposed to the G.I.U., the question remains as to whether, notwithstanding a lack of union animus attributable to the Respondent, other evidence relating directly to the decertification hearing warrants the inference that the Respondent was otherwise unlawfully motivated in taking the 'action here involved The General Counsel argues that, in a plant of 195 employees, a request that 4 employees be permitted to be absent from work for ^a 2-hour period is a reason- able request, that the burden of explaining its denial of permitting but 2 employees time off rests upon the Respondent, and that, as a "substantial production problem" was neither anticipated nor created by the absence of the 2 'additional employees on the hearing day,is it should be inferred that the Respondent, having thus failed to meet its burden in this regard, was motivated by a desire to obstruct the decertifi- cation activities of its employees. However, in the absence of a prima facie case already having been made out, the burden of going forward with the evidence does not shift to the Respondent, and the reasonableness of the latter's action is but one factor to be weighed in resolving the question of motivation. Under all of the circumstances, including Wolff's statements to Kuhn at the time of the Matter's request, I am convinced that, after consulting with his division man- ager, Wolff's decision to limit the number of employees permitted to attend the hear- ing was based upon an honest appraisal of normal production requirements as against the necessity of the Union having additional employees in attendance at the hearing for purposes other than rendering testimony. Thus, Wolff made it quite clear at noon on November 29, when first apprised of Kuhn's request but before giving him his decision, that in the event the Union deemed it necessary to have additional employees at the hearing for the purpose of testifying,17 he would permit additional employees to be absent for that purpose rather than putting the Union to the task of subpenaing them. Then, later in the afternoon, after Wolff told Kuhn that he could take one other person of his choice with him, Wolff again made it known to Kuhn that if additional employees were needed for the purpose of testi- fying he would be happy to release them. A further factor indicating the back of discriminatory motive on the part of the Respondent is that, after Wolff had been apprised by Kuhn of the names of the three employees he would like to take with him, namely, Murray and Storms, both of whom were known by Wolff to have been supporters of the G.I U., and Thora Ray, who, as far as the record shows, had not been active on behalf of the G.T U , or in the decertification movement, Wolff gave Kuhn his choice of taking any one of the three. Thus, the fact that Kuhn had permission to take either Murray or Storms as his choice had he so desired, coupled with Wolff's offer to let other employees attend if, by signifying its intention to seek the issuance of subpenas, the Union deemed their presence necessary for the purpose of testifying, is inconsistent with the assertion that permission was denied to Murray and Storms because of their 15The full testimony of Storms pertaining to this occurrence is as follows: We was talking about getting another union in the place I told him that the one we had in wasn't representing us right ; and he asked me what union I would like to get in : and I asked him what union would he think would make it best for us, and he said, "That's for you to decide " And I said, "Well, I'm behind General Inde- pendent Union " So he told me, he said, "You'd better go to the police department and sheriff's department and check those boys' records out " 10The record not only bears out the assertion that the absence of Murray and Storms did not create a substantial production problem, but also reveals that it was never claimed by the Respondent that Wolff's decision was based upon an anticipation that such would follow 17 The issuance of a subpena requires the attendance of a person at a hearing for the purpose of testifying as a witness , and its process is not available to a party for the limited purpose of securing mere attendance 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having engaged in union activities on behalf of the G.I.U. That the Union, through Kuhn, who had filed the decertification petition, or its Attorney Strutz, thereafter apparently decided that the testimony of Murray and Storms was not needed, is borne out by the fact that at no time after Thora Ray had been chosen (and thus, Murray and Storms had both been denied permission), and continuing through the hearing, did Kuhn or Strutz make any effort to secure the proper attendance of Murray and Storms, either by requesting subpenas 18 or advising Wolff that they were going to do so. Under all of the circumstances, and particularly the fact that credible record evidence fails to establish that the Respondent was possessed with animus toward union activity generally, toward the G:I.U., or toward Murray or Storms individually because of their union activities or that the Respondent was in any way opposed to the decertification activity, I find no basis upon which to infer that Murray or Storms were denied permission to attend the hearing because of their union activities or that the Respondent was otherwise discriminatorily motivated in limiting the num- ber of employees permitted to attend. That employees attending a Board hearing, regardless of the purpose for which they are present, are engaged in a protected activity under Section 7 of the Act,19 is well settled, and any action taken by an employer which prevents employees from engaging in a protected activity or which discipline them for having engaged in a protected activity, if the reason or a reason for taking the action is based upon, or in any way is motivated by, the employer's desire to interfere with their union or concerted ac- tivity, is unlawful under Section 8 (a) (1) of the Act,20 and may, depending upon the type action taken, violate Section 8(a)(3) of the Act.21 On the other hand, manage- ment also has certain rights which, in any given situation involving its employees, may come into conflict with those guaranteed its employees under Section 7, one of which is the prerogative to determine the conditions of employment of its employees, which normally includes the exercise of discretion as to the granting of employee time off from work. Thus, merely because employees wish to engage in, or have engaged in, activity that is protected, they are not insulated from employer action affecting their employment tenure where the situation is one in which, initially, it is discre- tionary with the employer as to permitting the employees to take time off, and, where, in the exercise of that discretion, the employer is in no way unlawfully motivated. Thus, absent an unlawful motive on the part of the Respondent in limiting the number of employees permitted to attend the decertification hearing, which resulted in denying to Storms and Murray permission to attend, it follows, that the action of Storms and Murray in willfully disobeying the orders of Wolff, a fact well estab- lished by the evidence and acknowledged by the two employees, constitutes insub- ordination, for which the Respondent was justified in taking disciplinary action 22 Having determined, as I have, that, in discharging Murray and Storms, the Re- spondent's action was based solely upon their willful disobedience in refusing to abide by Wolff's orders and was in no way related to, or motivated by, their union activity or the fact that, apart from their insubordination, they attended the decertification 1s As provided for under Section 102.66 of the Board's Rules and Regulations, a party to a Board proceeding may, at any time prior to, or during the course of, a hearing, file an application for a subpena, which shall be granted, requiring the attendance of a person for the purpose of testifying. to Section 7, setting forth the right of employees, reads as follows: Employees shall have the right to self-organization to form, join, or assist labor organizations, 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, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in section 8(a) (3) 21 Section 8(a) (1) declares it to be an unfair labor practice for an employer "to inter- fere with, restrain, or coerce employees in the exercise of the rights guaranteed in section. .11 21 Section 8(a) (3) provides in pertinent part that it shall be an unfair labor practice for an employer "by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . . 22 Nor does the fact that the Respondent decided upon effectuating their discharge, rather than imposing a 'lesser penalty, a decision which is discretionary with the Respond- ent under the company rules as adopted pursuant to the existing contract, render the discharge other than proper. STANDARD PACKAGING CORP., ROYAL LACE PAPER DIV. 639 hearing as adherents of the G.I.U., I find that the Respondent did not violate Section 8 (a) (3), or, in this respect, Section 8 (a) (1) of the Act. A final question posed is whether, notwithstanding a lack of discriminatory motiva- tion, the Respondent was otherwise precluded under the Act, specifically, Section 8(a) (4),23 from taking the action with respect to Murray and Storms. In this regard, it is well established that where the protected activity engaged in consists of attend- ing a Board hearing, and the evidence discloses that the presence of certain employees is needed for the purpose of appearing as witnesses to give testimony, the situation is one in which the employer does not have discretion in deciding whether the employees should be released for that purpose. Thus, an employee has the right, an absolute right, to appear at a Board hearing as a witness to give testimony, and, where record evidence discloses that an employee has been discharged or otherwise discriminated against because he appeared as a witness and gave testimony, either voluntarily or pursuant to a subpena, a finding of a per se violation of Section (8) (4) is compelled.24 Similarly, where record evidence reveals that an employee would have appeared as a witness and given testimony, either voluntarily or pursuant to a subpena, but for the fact that his employer precluded him from so doing, such conduct by the employer constitutes a per se violation of Section 8(a) (4). That neither of these principles ap- plies here, however, is readily apparent, for Murray and Storms, who attended the hearing but not pursuant to a subpena, were not witnesses and did not testify.25 Accordingly, no basis exists for finding a per se violation of Section 8(a) (4) of the Act. Nor do the facts otherwise support the Section 8(a)(4) complaint allegation, for, assuming the existence of a possibility that either Murray or Storms might have been needed to give testimony, the fact remains that (a) no subpenas were requested, (b) no necessity for the issuance of subpenas was shown, for, notwithstanding the Re- spondent's offer to release employees in the event that the Union felt their presence necessary for giving testimony, no request was made upon the Respondent to release Murray or Storms in lieu of procuring subpenas, and (c) as subsequently revealed, the attendance of Murray and Storms was not needed for the purpose of appearing as a witness and giving testimony. Under these circumstances, coupled with the additional fact that no discriminatory motive for the Respondent's action has been established, I find that, although by properly exercising its discretion in limiting the number of employees permitted to go to the hearing the Respondent prevented Mur- ray and Storms from "attending," the Respondent did not preclude them from testifying.26 Finally, in a situation such as here, where no subpenas were issued and there is no showing that the respondent was in any way unlawfully motivated in preventing employees from attending a Board hearing or in adversely affecting their employ- ment tenure after they had attended, there is no Board or court precedent of which I am aware which renders the Respondent guilty of having violated the provisions of the Act 27 In those instances where the Board has had occasion to find illegal employer conduct which related to employee appearances at Board proceedings, including those cases cited by the General Counsel in support of one or more of its contentions bearing upon the issues in this proceeding, the facts are at variance with those of the instant case. In such cases an employer's conduct reflected a disregard for the Board's subpena process 28 and/or the evidence established the existence of independent unlawful employer conduct from which a discriminatory motivation 23 Section 8(a) (4) provides in pertinent part that "It shall be an unfair labor practice for an employer-to discharge or otherwise discriminate against an employee because he has . . . given testimony under this Act." 21 It is well settled , also, that where an employee appears at a hearing pursuant to the issuance of a subpena , the same finding is required whether or not he actually testifies ze Nor does the record disclose that either one aided in the presentation of the Union's case or in any way participated in the proceeding. 20 That any employee , including Murray and Storms , could have been made available for the purpose of testifying at the hearing within 25 minutes of the making of a telephone call to the plant, coupled with Wolff's offer to permit them to attend for testimonial pur- poses without the necessity of procuring subpenas , not only supports this finding, but nullifies the General Counsel's contention that the Respondent was responsible for the Union's failure to request subpenas. ZT See N.L R.B. v. Superior Company, Inc., supra 28 See Duratste Co., Inc, 128 NLRB 648 , principally relied upon by the General Counsel. where a Section 8(a) (1) violation was predicated upon the fact that the employer's con- duct in threatening certain of his employees with discharge was prompted by the knowledge that the employees had been subpenaed to testify in a Board proceeding 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was supplied as to the Section 8 (a)( 1 ) and (4) violation , or was, in itself, such as to compel the inference of unlawful motivation.29 For the above reasons, and upon the entire record considered as a whole, I find that the General Counsel has not sustained the burden of proving by a preponderance of the credible evidence the -allegations of the complaint , and thus conclude that the Respondent has not engaged in conduct violative of Section 8(a)(1), (3 ), and (4) of the Act 30 Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Standard Packaging Corporation, Royal Lace Paper Division , is engaged in commerce within the meaning of Section 2(6) of the Act. 2. At all times material to this proceeding , General Independent Union was a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in any unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is hereby recommended that .the complaint be dismissed in its entirety. 29 See Thomas J. Aycock, Jr., an individual, d/b/a Vita Foods , 135 NLRB 1357; Dal- Tex Optical Company, Inc., 131 NLRB 715; Pacemaker Corporation, 120 NLRB 987: Chautauqua Hardware Corporation, 103 NLRB 723; Stratford Furniture Corporation, 96 NLRB 1031 ; Reliance Manufacturing Co., 60 NLRB 946. See also, Fulton Bag and Cotton Mills, 79 NLRB 939 , enfd . in 180 F. 2d 68 (C.A. 10). N In view of my finding that Murray and Storms were discharged for reasons other than those proscribed by the At, I deem it unnecessary as well as beyond the scope of my function to pass upon the Respondent's assertion , set forth as an affirmative defense, that, as the question of the Respondent's discharge of Murray and Storms was submitted to arbitration pursuant to the grievance machinery provided by the existing contract, the arbitrator's award, finding that both were discharged for cause, rendered after a hearing had been conducted which conformed to the standards enunciated by the Board in Spielberg Manufacturing Company, 112 NLRB 1080, should he accorded recognition and accepted by the Board. Birmingham Fabricating Company and International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, Local 583. Case No. 10-CA-5037. Janu- ary 17, 1963 DECISION AND ORDER On October 18, 1962, Trial Examiner Owsley Vose issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Intermediate Report. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 140 NLRB No. 64.