A. P. Green Fire Brick Co.

A. P. GREEN FIRE BRICK CO. 1067 understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All the employees employed in our retail shops within the Pittsburgh city district, including assistant store managers, but excluding clerical em- ployees of the central agency, guards, professional employees, store man- agers, district manager, and all other supervisors as defined in the Act. SINGER SEWING MACHINE COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 2107 Clark Building, 701-17 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No. Grant 1-2977, if they have any question concerning this notice or compliance with its provisions. A. P. Green Fire Brick Co. and United Brick and Clay Workers Union of America. Case No. 14-CA-92738. February 5, 1963 DECISION AND ORDER On October 18, 1962, Trial Examiner Abraham H. Mailer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Inter- mediate Report. The Trial Examiner further found that the Re- spondent had not engaged in other alleged unfair labor practices and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report, together with supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, 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 thereto, the supporting briefs, and the entire record in this case i and, hereby adopts the Trial Examiner's findings, conclusions,2 and recommendations.' 1 The Respondent's request for oral argument Is hereby denied as, in our opinion, the record, exceptions, and briefs adequately present the Issues and the positions of the parties 2 The Trial Examiner concluded, from the fact that Respondent discussed the proposed discharge of employee Docekal with its attorney , that Respondent had knowledge of Docekal's union activities, for absent such knowledge there would have been no reason to consult with its attorney on this matter . In adopting the Intermediate Report and the conclusion that Respondent had knowledge of the discriminatee 's union activities, we do not rely upon the Trial Examiner 's Inference of such knowledge based on the fact that Respondent consulted its attorney on the discharge. 8 The Charging Party excepted to the Trial Examiner's failure to find that Foreman Stubblefield's Interrogation of Earl Docekal constituted interference , restraint, or co- 140 NLRB No. 101. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.4 ercion within the meaning of Section 8(a) (1) of the Act. We find it unnecessary to pass on the Charging Party's exceptions as, in any event, the scope of our Order would not be affected. The Trial Examiner found that Docekal, the dischargee, "at most . . . may have been negligent," and not guilty of dishonesty as claimed by the Respondent We find it un- necessary to pass on the validity of this finding for, in any event, however Docekal's conduct may be described, the record-particularly Respondent's disparate treatment of employees Hahn and Krum, who had also claimed credit for work which they had not performed, but received only a reprimand and a week's suspension plus a reprimand re- spectively-adequately supports the Trial Examiner's further conclusion, not dependent on the above-mentioned finding, that the real reason Respondent discharged Docekal was his union sympathies and activities. 4 For the reasons set forth in the dissent in Isis Plumbing & Heating Co, 138 NLRB 716, Member Rodgers would not grant interest on backpay. The Appendix attached to the Intermediate Report is hereby modified by adding the following immediately below the signature line at the bottom of the notice. NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon appli- cation in accordance with the Selective Service Act after discharge from the Armed Forces. The Appendix is further modified by deleting the words "60 days from the date hereof" In the next to the last sentence of said notice and inserting in its place the words "60 consecutive days from the date of posting . .. . INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge dated March 20, 1962, filed by United Brick and Clay Workers Union of America, herein referred to as the Union, the Regional Director for the Fourteenth Region of the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the Board on May 7, 1962, -against A. P. Green Fire Brick Co., herein called the Respondent, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In substance, the complaint alleged several instances of interference with, restraint, and coercion of Respondent's em- ployees in the exercise of rights guaranteed by Section 7 of the Act and the discrimina- tory discharge of employee Earl F. Docekal. In its duly filed answer, Respondent denied the commission of any unfair labor practice. Pursuant to notice a hearing was held before Trial Examiner Abraham H. Mailer at Mexico, Missouri, on June 12, 13, 14, 28, and 29, 1962. All parties were repre- sented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed by all parties. Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent operates a plant at Mexico , Missouri, at which it manu- factures refractory products as well as other items chiefly for the steel, glass, chemical, 1Unless 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 de- meanor as I observed it at the time the testimony was given Cf. Retest Clerks Inter- national Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I indicate that I do not rely upon or 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 Cf. Jackson Maintenance Corporation, 126 NLRB 115, 117, footnote 1, enfd. 283 F. 2d 569 (C.A. 2). A. P. GREEN FIRE BRICK CO. 1069 and oil industries. It is a sizeable plant with some 23 acres under roof and has about 650 hourly paid employees. During the past year the Respondent manufactured, sold, and shipped directly from its place of business in Mexico, Missouri, to customers located outside the State of Missouri, products valued in excess of $50,000. In view of the foregoing, I find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. II. THE LABOR ORGANIZATION INVOLVED United Brick and Clay Workers Union of America is a labor organization within .the meaning of Section 2 (5) of the Act. III. THE ISSUES 1. Whether the Respondent interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 2. Whether the Respondent discriminatorily discharged Earl F. Docekal in violation of Section 8 (a) (3) and (1) of the Act. IV. THE UNFAIR LABOR PRACTICES A. Background The Union's organizational campaign began in April 1961, when employee Earl F. Docekal got in touch with Edward McKay, an organizer for the Union. A meeting was called for April 14, 1961, and was held at the Union's hall on the second floor above Brown's Tavern in Mexico, Missouri. Docekal and 10 other employees of Respondent attended that meeting. Little was accomplished, as the employees be- lieved they were being watched by two of Respondent's supervisors. Docekal then told McKay to "forget about the meeting and give us the cards and we will go from house to house, canvas from house to house, and try to get them signed." Docekal signed up 190 employees of the Respondent? Pursuant to a petition filed by the Union on September 7, 1961, and a consent- election agreement, an election was held at the Respondent's Mexico, Missouri, facility on the dates of October 12 and 13, 1961. The vote was: For the Union-316, against the Union-317. There were five challenges. The Union filed objections to the Respondent's conduct affecting the election. Following an investigation of such objections, the Regional Director on December 7, 1961, issued a decision setting aside the election based on one of the objections. A new election was ordered and was held on December 20 and 21, 1961. The Union lost the second election by 29 votes. B. Interference, restraint, and coercion 1. George A. Pierce On the first day of the first election, Foreman Ralph Gallop 3 entered the shack under the kiln while employee George A. Pierce and others of Gallop's subordinates were eating and said that "they would know how we voted after the election because the ballots would be numbered and every man would have a number." After lunch, Gallop returned and announced that "he was almost right about the ballots, that it wouldbe our clock number." 4 2 The Respondent contends that it had no knowledge of Doeekal's union activities. Except as discussed mire, It is not Intended by the foregoing recital to charge the Re- spondent with knowledge of the facts therein stated. The foregoing recital is intended only as background 3 Respondent does not question the supervisory status of Foreman Gallop or of any of the persons referred to herein as foremen 4 The credited testimony of Pierce Foreman Gallop described the incident differently. He testified that approximately a week before the election, when the sample ballot was posted on the bulletin board, one of the men asked: "How would you know by this who went and voted? Maybe you could go up there and vote as many times as you wanted to. How would they know if you went through the line?" Gallop testified, "I told him that they have our name and also our clock number, and it will be checked as we go through." Based on my observation of the demeanor of these two witnesses as they testified, I credit Pierce's testimony and do not credit that of Gallop. Illustrative Is the fact that Pierce testified In a straightforward manner, conceding candidly that after 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foreman Gallop's conduct contained a suggestion that the voting would be under the surveillance of the Respondent, a fact which reasonably would tend to keep from voting those who favored the Union. As such, it constituted interference with the rights of the employees guaranteed by Section 7 of Act. On or about September 30, 1961 (approximately 2 weeks before the first election), Foreman Gallop approached Pierce in the shack under the kiln and told him that he had heard that Pierce was strong for the Union. He offered to bet $500 that the Union would lose the election. Pierce said, "No, I haven't got that kind of money." Gallop then said, "I will bet $50." Pierce responded, "I couldn't raise $50 either." Gallop then said, "If I bet with you it would have to be cash on the board, because after the election I would have trouble finding you to collect." Foreman Gallop admitted that the betting incident had occured and that he insisted that Pierce put up cash. He denied saying that, if the Union lost, Pierce would not be around. His explanation was that he was kidding Pierce and that the whole thing was just a joke. Pierce, however, did not feel that Foreman Gallop was joking. Thus, on cross-examination he testified: Q. In your conversation with Mr. Gallop, did you in any way feel this was a joking incident? A. It didn't sound like it to me. Q. Dead serious? A. Yes. I credit the testimony of Pierce and I do not credit the testimony of Foreman Gallop. That the incident occurred is not disputed. Whether Foreman Gallop was joking when he participated in the incident is not important, unless Pierce understood him to be joking. I find that Pierce believed that Foreman Gallop was serious when he uttered the threat .5 2. William Behan About 2 or 3 weeks before the first election in October 1961, Foreman Gallop had a conversation with William Behan, an employee under his supervision. According to Behan, Foreman Gallop said, "You think that we don't know that you signed a union card." Behan denied that he had signed one. Foreman Gallop then said, "By God, I know the guys who signed the cards, and I have got them right here in my pocket." Behan replied, "You show me my name on those cards and I will own up to it." Foreman Gallop then said, "I guess you realize if this union goes in your hours will be cut to 32 hours, and more than likely we will move some of our equipment to Arkansas and Albuquerque because we can get labor cheaper there. If this union get in, you will have to hunt up another daddy-in-law with a farm." a A few days later Gallop had another conversation with Behan. Foreman Gallop said, "About the other day, I want to clarify myself on that, that statement I made. I meant if the union got in that you would have to have another daddy-in-law with a farm to make up the difference of the 32 hours." To this Behan responded, "Maybe I misunderstood you." He testified that he thought the first time that Foreman Gallop meant "if things went union, the union got in, maybe I would lose my job or something." Foreman Gallop gave a different version of the conversation. He said it occurred some 6 weeks to 2 months before the election in October 1961. He testified that Behan made a remark one day about cards and "I said that I had a card, as far as that goes. I pulled out the cards I carry in my pocket, but there was no union card." He testified further that a group of employees in the shanty were talking about business. The Respondent was cutting down because it was ahead on production. He testified further that he was kidding with Behan and said that if business didn't President Lowe's speech on Respondent's neutrality, he felt free to vote according to his conscience. Gallop, on the other hand, was evasive even when asked to identify a statement which he had given to a field examiner for the Board Robert C. Clark, a leadman under Gallop, testified to an incident substantially as Gallop related However, Clark's testimony as to the incident was somewhat vague He did not recall whether Pierce was present. Conversely, Pierce in his testimony, offered before Clark testified, did not place Clark at the scene It is quite likely that Pierce and Clark were each testify- ing to different incidents. In sum, I do not consider that Clark's testimony contradicts that of Pierce 5 Henry Wright, called as a witness by the Respondent presumably to corroborate Fore- man Gallop, testified that he did not hear any discussion between Foreman Gallop and Pierce relative to a bet. G Behan lived on his father-in-law's farm outside Mexico A. P. GREEN FIRE BRICK CO. 1071 pick up Behan would have to get his father-in-law to get him another farm; that Behan laughed and clowned around and went out the door. A few days later he saw Behan and asked if Behan had misunderstood him that day; that Behan laughed and told him to forget it. He testified that the reason he went back to Behan was that Behan had made the remark to one of the boys that "if the Union went in, the kiln was going down and I wanted to clear myself with him." Foreman Gallop's explanation of the latter incidents leaves much to be desired. To say, as he does, that on these occasions he was kidding or joking with his sub- ordinates is a facile but wholly unconvincing explanation. Nor does it constitute a defense unless it appears that the employees to whom the threats were made under- stood that the threats were not made seriously. N.L.R.B. v. Marval Poultry Com- pany, Inc., 292 F. 2d 454 (C.A. 4), enfg. 129 NLRB 803. Compare Geo. Byers Sons, Inc., 111 NLRB 304, 306, footnote 4. But the remarks were not understood by the employees to be jocular in nature, nor were they of a humorous character. Cf. Fairmont Creamery Company, 73 NLRB 1380, enfd. 169 F. 2d 169, 170 (C.A. 10). Moreover, a threat can be just as effective when made in a bantering tone. Monarch Foundry Company,106 NLRB 377, 378. Gallop's explanation is not aided by his view that he did not think that anybody would move a plant which covers about 25 acres. On cross-examination, Foreman Gallop admitted that the Re- spondent had moved equipment from the Mexico plant to other facilities which it owned. This circumstance would lend credence to, and support, any threat by a supervisor that the plant would be moved in the event that the Union represented a majority of Respondent's employees. 3. Earl F. Docekal The complaint alleges, inter alia, that Finis L. Stubblefield, on or about October 10, 1961, interrogated an employee concerning his reasons for supporting the Union. In support of this allegation, Docekal testified that either on the day before the first election or on the day of the election he had a conversation with Foreman Finis L. Stubblefield. According to Docekal, he asked Foreman Stubblefield how he thought the election was going; that Foreman Stubblefield said to him, "What made you go for the Union?" To this, Docekal replied, "Mr. Flick gave Fred Hahn and I a cussing." Foreman Stubblefield then said, "You ain't hurting Flick, you are hurting everybody else."7 I conclude that Stubblefield's interrogation did not constitute interference with, restraint, or coercion of Docekal in the exercise of his rights under Section 7 of the Act. It was Docekal who initiated the conversation concerning the Union, which led to Stubblefield's inquiry. In this posture, a violation of the Act cannot be predicated upon Stubblefield's question. Mississippi Products, Inc., 103 NLRB 1388, 1393.8 4. Concluding findings as to interference, restraint, and coercion It is well settled that the determination whether Respondent through Foreman Gallop's conduct violated Section 8(a)(1) of the Act depends on whether "the reasonable tendency of such conduct [was] to interfere with the free exercise of the rights guaranteed to employees under the Act" (Chicopee Manufacturing Corpora- tion of Georgia, 85 NLRB 1439, 1441). That it had such reasonable tendency cannot be denied, and I so find. Respondent contends, however, that the effect of Gallop's statements and conduct was completely disavowed by President Lowe in this speeches to the employees prior to each election in which, although he expressed his opinion that the Union would not be beneficial to the employees, he assured them of the secrecy of the ballot; that "the law was very specific that manage- ment was not permitted to threaten, promise, or coerce in any nature and no mem- ber of management would be permitted to do so"; that it was their decision to make; and that there would be no discrimination regardless of the results. 7 Foreman Stubblefield denied engaging In the foregoing conversation , although he did corroborate Docekal to the extent of saying that at one time, Docekal had told him that Flick had given him a cussing. Stubblefield was unable to fix the date of this conversa- tion. According to Foreman Stubblefield, Docekal told him this In no particular context. For reasons discussed In part C, 3, infra, I have credited Docekal's testimony, and I do not credit that of Stubblefield. s While I find that Foreman Stubblefield's interrogation of Docekal in the circum- stances present does not constitute interference , restraint, or coercion , It is to be noted that, as more fully discussed infra, It does indicate knowledge on the part of the Re- spondent of Docekal 's membership In the Union. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The contention that President Lowe's speech had the effect of dissipating Fore- man Gallop's coercive conduct must be rejected. It is well settled that statements of" neutrality, couched in general language, without any specific reference to, or re- pudiation of, the prior unlawful conduct of the employee's supervisory personnel do not erase such prior unlawful conduct. See, e.g., Chicopee Manufacturing Corpora- tion of Georgia, supra; Salant & Salant, Incorporated, 92 NLRB 417, 445. Presi- dent Lowe's speeches did not make any specific reference to, or repudiate, any prior unlawful conduct. To the contrary, President Lowe's assurances looked toward the future: that no member of management "would be permitted" to threaten or coerce. As to Foreman Gallop's insinuation that Respondent would know how each man voted, it is noted that this occurred after President Lowe's speech. It purported to. be news as to how the election was actually being conducted and thereby cast doubt upon President Lowe's assurance that the ballot would be secret. Nor is Respondent's defense established by the fact that employees Pierce, Wright, and Clark testified that after hearing President Lowe, they felt free to vote as they did. These three were not the only employees who were present when the unfair labor practices occurred, and the record is silent as to what effect, if any, President Lowe's remarks had on the others. Accordingly, I find that Respondent through Foreman Gallop interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. As noted above, I have concluded that the interrogation of Docekal by Foreman Stubblefield does not support a finding of interference, coercion, or restraint. Ac- cordingly, paragraph VII-E of the complaint should be dismissed. C. The discharge of Earl F. Docekal Earl F. Docekal was discharged on March 5, 1962. The General Counsel and the Union contend that he was discharged because of his union membership and/or activities. The Respondent contends that he was discharged for cause. 1. Docekal's employment record Docekal had been employed by the Respondent since August 1941.9 At the time of his discharge Docekal was a lift-truck operator, a position that he had held for some 14 or 15 years. His performance record with the Respondent was good. He had never been subjected to disciplinary action. Respondent's President Lowe char- acterized Docekal as "what we would term a good worker." Foreman Francis, a witness for Respondent, testified that he could not recall any occasion to criticize Docekal during the 8 years that he had supervised him The following description of Docekal's duties will be helpful in evaluating the Respondent's defense that Docekal was discharged for cause. Docekal was one of several lift-truck operators. His truck, however, differed from the others in that it had a push-off attachment by which he was able to push off the load that his truck was carrying. Another employee, Fred Hahn, also engaged in pushoff operations. Although Hahn's truck was not equipped with a pushoff attachment, he could obtain the same effect as a pushoff by waxing the forks upon which the load rested. Certain of the products manufactured by the Respondent are packaged in large bags. Bags are then stacked on pallets or wooden platforms. There are two types of pallets used by the Respondent: shipping pallets and storage pallets (also called stock pallets and pushoff pallets). A shipping pallet is used when the customer requests it. The shipping pallet and the material on it are banded together and thus loaded into the boxcar by a lift truck. The use of a shipping pallet facilitates unloading by the customer. A storage pallet is used when the commodity is not to be shipped immediately, but is to be placed in stock or storage, awaiting future orders. When material which has been placed on a storage pallet is to be shipped out, it must first be pushed off from the storage pallet onto a shipping pallet and carried by the lift truck to a place known as a palletizing area where the shipping pallet and load are banded together. It is then moved into a boxcar. Respondent has two palletizing areas. One is under the supervision of Shift Fore- man Bert Francis; the other, under the supervision of Shift Foreman Darrel Flick. Docekal's immediate supervisor was Shift Foreman Flick; however, part of the time he was detailed to do pushoff work for Shift Foreman Francis. When pushoff work was required, either shift foreman would give Docekal a small card (referred to as a "work request") on which was written in words (not figures) the number of pallets to be pushed off, the trade name of the commodity involved, and the signature of the R Except for a 2-day period in 1944, when Docekal quit and was rehired. A. P. GREEN FIRE BRICK CO. 1073 foreman. At the end of the day, Docekal would turn these cards in to the time-- keeper who would use these cards in computing Docekal's earnings as hereinafter- described. In the latter part of February 1962, the work request was formalized as more fully discussed infra. Docekal was paid on a piecework basis for each load that he pushed off, the rate depending upon the particular commodity involved. However, if at the end of the day the amount earned by him on a piecework basis did not equal a guaranteed hourly rate, he was paid the hourly rate. He received the piecework rate (or a por- tion of it) only if the total of the piecework performed by him for that day exceeded the hourly guarantee. When directed to do so, Docekal also transported material which had been placed on shipping pallets in the first instance. For this work, he received only the hourly rate of pay. Docekal testified credibly that it is his practice to keep the work request tickets on his truck until 5 o'clock and then turn them in at the end of the day to the time- keeper. During a day, he may handle from 10 to 30 tickets. 2. Docekal's inability to read or write Docekal is a man of extremely limited education. He failed to be promoted at the end of the fourth grade and quit school. He can neither read nor write, although he can sign his name. When he received an order that he could not handle he would ask someone at the palletizing area, and they would tell him. Because of his in- ability to read and write, Docekal never changed any work request tickets . Instead, he would ask either his foreman or the timekeeper to make the necessary changes. Sometimes, his foreman would change the tickets without being asked to do so. To substantiate his statement that he could not read or write, Docekal testified that when it was necessary for him to fill out a form for Respondent's records as to whether he had moved, he would get Foreman Flick, Francis, or Stubblefield to fill out the form for him. Although Francis and Stubblefield testified for the Re- spondent, they did not contradict this testimony. Furthermore, Respondent's wit- ness General Foreman Fetterhoff admitted on cross-examination that in the latter part of the 1940's he offered Docekal a job as shed captain, but in discussing the matter with Docekal, found that Docekal's education was limited to the fourth or fifth grade-too inadequate to enable Docekal to handle the job. Foreman Francis, also a witness for Respondent, testified that he doubted whether Docekal, personally, had ever changed a work request ticket in the 8 years that he had been Docekal's supervisor. Similarly, Timekeeper Dermody, called as a witness for Respondent, admitted that he did not recall Docekal's ever changing any work requests.10 In an attempt to overcome Docekal's testimony, Respondent introduced into evidence an employment card that was filled out when Docekal first went to work for the Respondent. The card shows that Docekal had completed eight grades. However, the card is not in Docekal's handwriting, but was filled out by Robert Tribble, then plant employment manager. In view of the foregoing, the employment card is entitled to little if any weight.ii 3. Docekal's union activities and Respondent's knowledge thereof As previously noted, Docekal was active in the Union's organizational campaign at Respondent's Mexico plant. It was he who got in touch with a representative of the Union, attended the first organizational meeting, and signed up 190 em- ployees of the Respondent.12 While the Respondent may not have had knowledge 10 Timekeeper Dermody also testified to his belief that Docekal could read ; that he could not see how Docekal could load an export car which required the operator to stencil numbers on the sacks consecutively , unless he could read However, there is an obvious difference between a man's ability to read words as distinguished from reading and understanding figures In this connection, It Is significant, as previously noted, that the work request orders did not state the amount of pallets to be pushed off in numbers, but rather in words. 11 On cross-examination of Docekal, Respondent brought out the fact that he drives an automobile. However, Docekal testified that he did not have to take a test in order to get a driver's license ; that he drives by recognizing the hexagon shape of a stop sign and follows arrows He stated that he did not have any difficulty reading "Go" and "Slow." When he first started to drive, his wife showed him the difference between "stop" and "go." He testified further that he had not voted in any election 12 While neither the General Counsel nor the Union contends that Respondent had specific knowledge of this fact, they suggest that where so large a number of cards are procured by one man, it could be assumed that knowledge of his organizing role would 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the specific activities of Docekal as aforesaid, it is clear from the record and I find that Respondent had knowledge that Docekal was an active union member. On April 14, 1961, Docekal and 10 other employees of the Respondent met with the Union at the Union's hall above Brown's Tavern in Mexico, Missouri. Fore- men Jay Freeman and Homer Martin were observed standing across the street and looking up at the windows of the meeting place. The belief that they were under surveillance by Respondent's supervisory personnel so unnerved Respondent's em- ployees present at the meeting that little was accomplished at the meeting, and the men left the entrance slipping out behind other people who were walking by or turned into a nearby alley. That Foremen Freeman and Martin were standing at the curb across the street from the meeting place is not denied. Foreman Freeman, however, denied that he had the meeting under surveillance and testified that he was standing and waiting for his wife and son who were shopping, that Foreman Martin happened to come by and the two of them chatted for 3 or 4 minutes, and that Martin then left. He testified further that he has not aware that there was going to be a union meeting and that nobody had asked him or suggested to him that he watch a union meeting. According to Docekal's credited testimony, Foremen Freeman and Martin were there as long as the meeting lasted, 11/2 hours. Sometimes one of them walked across the street and then came back, and the other would then leave. Docekal's testimony was substantially corroborated by two officers of the Union, Lecil Barnes and George M. Brooks, both employees at the Kaiser Refractories. Both knew Foreman Freeman by sight.13 Barnes testified credibly that he saw Freeman with another man before the meeting. He did not go back to the window to look after that. Brooks testified that he looked out the window approximately five or six times and each time that he looked out he saw Freeman, that Freeman was there approximately an hour and the other fellow was there maybe a half hour or less. It is, of course, possible that Freeman's and Martin's presence was a mere coin- cidence. However, Freeman's testimony is uncorroborated. Foreman Martin was not called as a witness either to explain his part in the incident or to corroborate Freeman, and his absence from the witness stand was not explained. In this posture, I cannot disregard the credible testimony of Docekal, Barnes, and Brooks as to the length of time that Freeman and Martin were standing across the st"eet from the meeting and as to their conduct there. I am compelled to reach the conclusion that Freeman and Martin were present for the purpose of observing the union meet- ing to ascertain who attended, and that the Respondent thereby was aware of Doce- kal's union activities.14 The foregoing evidence of Respondent's surveillance of the union meeting is only one circumstance indicating Respondent's knowledge of Docekal's union activities. There are numerous others revealed by the record. Docekal testified credibly that before the election Foreman Flick asked him whether he was going to be union steward, and when Docekal replied in the negative, said, "You are kidding." This was corroborated by timekeeper Dermody, a witness for the Respondent. Moreover, Foreman Flick was not called as a witness.15 In the latter part of July 1961, Foreman Freeman approached William H. Powell, one of his subordinates, and said: "I have just heard that Earl Docekal was to get $3,000 if he could get and win an election." Freeman asked Powell whether he had heard it, and the latter answered that he had not.18 filter back to management. The suggestion has considerable merit ; however, it is not necessary to rely upon this assumption, as there is substantial credible evidence in the record that the Respondent was well aware that Docekal was an active union member. 13 On cross-examination, Barnes testified that Freeman was wearing a hat. In rebuttal, Freeman testified that he had not owned a hat for 3 years until January 1962 This minor detail does not discredit Barnes, as Freeman admittedly was standing where Barnes said he was. The detail as to whether Freeman wore a hat would be relevant only if Freeman had denied being present. 34 As the foregoing surveillance occurred more than 6 months before the filing of the charge, it is not alleged in the complaint as an unfair labor practice The finding herein that Respondent engaged in surveillance is made solely for the purpose of indicating Respondent's knowledge of Docekal's union affiliation 15 The foregoing incident was the basis of an objection to the first election, filed by the Union. The objection was overruled by the Regional Director Regardless of whether the incident had any effect on the election, the fact remains that it indicates Foreman Flick's knowledge of Docekal's union affiliation and activities 10 The credited testimony of Powell. Freeman denied that the incident occurred. I do not credit Freeman's denial. It is noted, in addition, that Freeman's statement quoted A. P. GREEN FIRE BRICK CO. 1075 As previously noted, Docekal testified credibly that before the first election he had a conversation with Unit Foreman Finis Stubblefield; that he asked Stubblefield how he thought the election was going and that Stubblefield replied, "What made you go for the Union?" Docekal answered, "Mr. Flick gave Fred Hahn and I a cussing." Stubblefield said, "You ain't hurting Flick, you are hurting everybody else." 17 Respondent's vice president, George R. Sullivan, who is also -director of Respond- ent's industrial relations, also knew of Docekal's union affiliation. Thus, he ad- mitted on cross-examination that he knew of an objection to the first election filed by the Union which was based on Flick's -asking Docekal whether he was going to be shop steward. While the Regional Director overruled the objection as affecting the election, it is apparent from the filing of the objection by the Union that Docekal must have reported the incident to the Union. Vice President Sullivan was there- fore aware of Docekal's affiliation with the Union. In addition, Vice President Sullivan admitted that he had heard rumors that Docekal was probably for the Union. As can be expected, there were numerous rumors concerning the membership in and the support of the Union by various employees. Thus, Respondent's President Lowe had heard that Docekal was active in the Union. Foreman Francis had heard that Docekal had supported the Union. Foreman Stubblefield testified that he heard rumors that Docekal was for the Union, and he judged that other people knew it also. General Foreman Fetterhoff testified that he had heard rumors that Docekal was active in the Union's organizational campaign. Employment Manager Robert J. Johnson also had heard a rumor that Docekal was for the Union. I therefore find that the Respondent knew that Docekal was an active union member.18 4. The discharge A few weeks before Docekal's discharge, Respondent began an unusual surveillance of his work. About 2 weeks before he was discharged, Docekal noticed a change in the attitude of his supervisor, Shift Foreman Flick. When Docekal would finish loading a boxcar, Foreman Flick would go in and check it, raise the sacks and lay them down, and Docekal would have to go back and redo the load. During that time he made Docekal change some of the work about a dozen times. In the past, Fore- man Flick would call Docekal back perhaps once a month if something was not right. On February 14, 1962, Shift Foreman Francis gave Docekal a card directing him to push off two pallets of Super-G and three pallets of Grog-O-Mix 20. Fore- man Francis later observed Docekal bringing in three pallets of Grog-O-Mix 20. These were on shipping pallets and they had pushed off from storage pallets.19 above comported generally with Flick's undisputed belief that Docekal would be union steward. 17 Foreman Stubblefield denied the foregoing conversation, but admitted that at one time Docekal had told him that Flick had given him a cussing. Foreman Stubblefield did not place this statement by Doeekal in any particular context and said merely that since he, Stubblefield, was Flick's superior, Docekal was reporting the incident to him. I find it rather unlikely that an employee would report to his foreman's superior that he had been "cussed" by his foreman, unless it was in context with some other matter. In this instance, it is reasonable to believe that Docekal made the statement in reply to Stubble- field's question as to why Docekal had gone for the Union. This would comport with Foreman Stubblefield's testimony that shortly before the second election, Docekal asked him how he was betting on the election and said that "If the Union goes in you can lay it on the foremen of the plant." However, it is unnecessary to speculate as to which version of the conversation is correct. Based on my observation of the demeanor of the witnesses when testifying, I credit the testimony of Docekal and do not credit that of Foreman Stubblefield. 18 Phis conclusion is not negated by the fact that, early in the Union's organizational campaign, Docekal tried to hide his union adherence by telling Superintendent Mundy that he did not believe a union was needed in the plant. Even If Superintendent Mundy was then misled by Docekal, certainly by February 1962, the critical time in relation to Docekal's discharge, his membership in the Union was well known to Respondent and must have been known to Mundy, as it was to Vice President Sullivan and others of Respond- ent's supervisory personnel. 19 A load which has been pushed off from a storage pallet to a shipping pallet is readily distinguishable from a load which has been placed on the shipping pallet in the first instance. When a load is placed on a storage pallet, a large cardboard is first placed on the pallet. This enables the lift truck to pick up the load from the storage pallet as a 681-492-63-vol. 140-69 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Foreman Francis then left the area and returned some time later. He observed that two pallets of Super-G had been brought in on shipping pallets without having been pushed off from storage pallets. Foreman Francis reported this to his supervisor, Unit Foreman Stubblefield.20 That evening, after quitting time, Foreman Stubble- field checked with the timekeeper to see if Docekal had turned in the work order for payment. Upon learning that he had, Foreman Stubblefield reported the matter to his superior, General Foreman Fetterhoff. The next day, Fetterhoff and Stubblefield discussed the matter with his superior, Production Control Manager Marvin Green. They decided to prepare a different work request form, since it did not look like the scraps of paper were "adequate." They thought they ought to have a form that would have more information on it and which would require the driver to sign after he had performed the operation. It was contemplated that this might discourage any dishonesty. It was also thought that it would help Respondent's inventory records.21 Later that morning Production Control Manager Green and General Foreman Fetterhoff went to the office of Plant Superintendent Mundy and discussed the incident with him. Superintendent Mundy asked them to make up a work request providing for the signature of the driver who performed the work. Superintendent Mundy testified that the effect of having the driver sign the work request when he had completed his work would be to discourage dishonesty. None of Docekal's superiors said anything to him about this incident. Neither Foreman Francis nor Foreman Stubblefield gave any reason why they did not discuss the matter in any way with Docekal.22 Later in the hearing, members of Respondent's higher echelon testified that it was Respondent's policy not to give an employee any warning when he was suspected of dishonesty. From a monetary viewpoint, Docekal received a piecework credit of 21.5 cents for each pallet of Super-G, or a total credit of 43 cents. On February 19, 1962, Foreman Francis directed Docekal to push off seven pallets of KS-4. Later when he returned to the palletizing area, he found two or three pallets there which did not have the cardboard between the material and the pallet. cohesive load. It is unnecessary to use the cardboard where the material is loaded on a shipping pallet in the first instance, since in that event the shipping pallet and the load are moved at the same time. 20 While at first blush Foreman Francis' action in reporting the matter to Unit Fore- man Stubblefield appears to have been an appropriate procedure, it becomes highly sus- picious in the light of surrounding circumstances and subsequent events. It indicates that Respondent was deliberately looking toward building a case to justify Docekal's intended discharge. Thus, when Foreman Francis noticed that two pallets had not been pushed off, he had no real reason to be disturbed. The pallets could have been brought in by another lift-truck operator, as was done by Shepard in the incident of February 28, discussed infra. This was described by Foreman Francis as "standard practice." More- over, at that point, Foreman Francis could not know that Docekal would not ask the timekeeper to change the work request ticket when he turned it in at the end of the day. To the contrary, Foreman Francis admitted that, during the 8 years that he had super- vised Docekal, he did not know of Docekal's ever having turned in work request tickets for work in excess of what he had actually performed. 21 Throughout its case, Respondent claimed that one of the reasons for formalizing the work request ticket was to give Respondent a better control of inventory. I find that this reason was merely a sham and that the real reason was to obtain Docekal's signa- ture attesting to his performance of the work called for in the ticket--an attempt to build what Respondent considered to be a foolproof case against him if he turned in a ticket for work which he did not fully perform. The only change in Respondent's procedures after the new work request ticket was- introduced was that it was turned in to the office after the timekeeper was finished with it, whereas previously the tickets were torn UT) by the timekeeper. If Respondent was really interested in inventory control, it could have required that the informal tickets be turned in instead of being destroyed. Furthermore, the tally sheet (which is an order form containing the name and address of the customer, a description of the commodities and amounts to be shipped, and shipping instructions) was returned to the office when the shipment was loaded. Since the tally sheet contained even more information than the work request ticket, it gave Respondent all the inventory information it needed. 22 Stubblefield testified that whether he would reprimand or correct an employee would depend on the seriousness of the matter; that he did not know whether the occurrence of February 14 could be considered to be "real serious." He did consider the next in- cident occurring on February 119 (discussed infra) to be "pretty serious," but did not talk to Docekal about it. He testified that here was no 'special reason for his failure to do so. A. P. GREEN FIRE BRICK CO. 1077 This indicated to him that they had not been pushed off from storage pallets. Fore- man Francis said nothing to Docekal. Instead, he told his supervisor, Foreman Stubblefield. After quitting time, Stubblefield checked with the timekeeper to see if the ticket had been turned in for payment and found that it had been. He also checked with Foreman Flick and Francis to see if they had been asked to change the ticket. They said that they had not. The next day, Foreman Stubblefield re- ported the matter to General Foreman Fetterhoff who, in turn, reported the matter to Production Control Manager Green. Fetterhoff and Green then went to Plant Superintendent Mundy's office and asked him what they should do about the matter. Superintendent Mundy advised that no action should be taken inasmuch as the new work request ticket was scheduled to be put into use that morning. From a monetary viewpoint, Docekal received piecework credit at the rate of 22 3 cents per pallet, or $1 56. However, since his piecework earnings that day totaled $17.40, whereas his guarantee was $16.99, he received a net payment of 41 cents over and above his hourly guarantee.23 On February 20, 1962. the Respondent introduced the use of a new work request ticket. This was a printed card entitled "Work Request." There was a place for the date, the order number, the job description, and the number of pallets and the item or items to be pushed off. A place was provided for the foreman's signature. At the bottom was printed "Request Accomplished Sign Driver," and a space was provided for the driver's signature. The new ticket was explained to Docekal and Hahn, the only two drivers to whom it applied. On February 28, 1962, Foreman Francis sent to Docekal a work request order for 20 pallets of MC-25 24 About 2 p.m., lift-truck operator Raymond Shepard, a member of Foreman Francis' crew, picked up a tally sheet at the palletizing area, calling for 20 pallets of MC-25 There was no work request ticket attached to the tally sheet. In accordance with his general instructions, Shepard began to bring shipping pallets of MC-25 to the palletizing area. Foreman Francis observed Shep- ard doing this, but said nothing to him. About 5 minutes later, he saw Docekal bringing in material that had been pushed off. Foreman Francis said nothing to him about the fact that Shepard was filling part of the order. Later, he returned to the area and saw that although 20 pallets of MC-25 had been brought into the area, only 10 of the pallets had been pushed off. He immediately reported the matter to his supervisor, Unit Foreman Stubblefield. On the next day, March 1, Foreman Stubblefield obtained the work request ticket and found that it had been turned in in its original condition, i.e., calling for 20 pallets to be pushed off 25 He reported the matter to General Foreman Fetterhoff who reported to Superintendent Mundy. A meeting was then held in the office of Vice President Sullivan. Present were Sullivan, Fetterhoff, Green, Mundy, Person- nel Manager Hawthorne, and Employment Manager Johnson. It was decided that Docekal should be suspended and that on the following Monday, March 5, he should be discharged if he could not come up with some satisfactory explanation for his acts. At 4 o'clock that afternoon (March 1), General Foreman Fetterhoff called Docekal to his office. Present was Foreman Francis. Foreman Fetterhoff referred to the work ticket for 20 pallets and told Docekal that he had pushed off only 10 Docekal said that it was Francis' place to take off the 10 pallets because he knew what the other driver had brought in. Francis replied that it was not his place to do it.26 Docekal 23 The foregoing discussion of the incidents of February 14 and 19 is necessarily based on the testimony of Respondent's supervisors involved in those incidents Docekal did not testify as to these specific incidents, but testified that it was his practice to have either the timekeeper or the foreman change the tickets when the work called for was not fully performed, that sometimes the foreman changed it without being asked. As previously indicated, these incidents were not called to Docekal's attention when they occurred The first notice he had was on March 5, when they were referred to generally in the meeting at which he was discharged It is significant that even though the work papers involved were on Employment Manager Johnson's desk during the meeting, they were not handed to him for inspection, to refresh his recollection, or for comment 24 At the time, Docekal was away from his work area, getting a heat treatment to his arm Foreman Francis left the work request ticket with Foreman Flick ^ The piecework rate for pushing off 10 pallets (which Docekal admittedly did not perform) totaled $2 69. 20 Contrary to his statement referred to above, Francis testified to the correctness of testimony given by him in an earlier hearing before the Division of Employment Security of the State of Missouri, in which he stated, "If he [the driver] did not change it on the card and I find out it isn't, I will look the driver up and have it changed But I made no effort to do it in this case ." Explaining the foregoing, Francis stated in the 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said, "You have done it," and Francis answered that he was not supposed to. Fetter- hoff then asked Docekal why he did not take off the 10 pallets. Docekal replied that he could not. Fetterhoff then said that Docekal should have taken the ticket to the timekeeper. Docekal admitted that he did not remember whether he had asked the timekeeper to change the ticket. Fetterhoff stated that there had been at least two other occasions in which there had been a discrepancy between the amount of the work done by Docekal and the tickets turned in by him. However, Fetterhoff did not show him the tickets. Fetterhoff then told Docekal to take off the balance of the week and to meet him the following Monday at 10 a.m. in the office of Employ- ment Manager Johnson. On Saturday, March 2, pursuant to a telephone call from the Respondent, its labor counsel, Robert J. Griffith of St. Louis, met with Vice President Sullivan, Superin- tendent Mundy, General Foreman Fetterhoff, and Employment Manager Johnson in Sullivan's office. Griffith advised the men present that unless Docekal could give a satisfactory explanation, the Respondent should follow its policy of discharging a man for dishonesty regardless of the amount involved. Superintendent Mundy testified that the reason for consulting Griffith was that after the second election, Griffith had told the Respondent that it should be extremely cautious about any disciplinary action of a serious nature requiring dismissal or a stiff penalty and that unless Respondent's action was based upon concrete firm information, it would probably end up in a National Labor Relations Board hearing or investigation 27 Early Monday morning, March 5, another meeting was held in the office of Vice President Sullivan. Present at that meeting were Sullivan, Mundy, Green, Fetterhoff, and Johnson. The circumstances of the case were again reviewed, and the people who would be meeting with Docekal that morning were instructed to give him every opportunity to explain why the acts had taken place and that, if he could not explain satisfactorily, he should be discharged. At 10 a.m. on March 5, Docekal appeared at the office of Employment Manager Johnson. Docekal was accompanied by Handley, an employee of the Respondent. He asked Handley to accompany him because he could not read or write and he wanted somebody to talk for him and to be a witness as to what was going on 28 Handley was not permitted to attend the meeting and Docekal went in alone. Pre- sent at this meeting, in addition to Mr. Johnson, were Foremen Francis, Stubble- field, and Fetterhoff. Docekal was asked about the incident of February 28. Docekal stated that it was customary for others to change the tickets. Francis said that he was not supposed to change them, that Docekal was supposed to change them or go to the timekeeper. Docekal then told them about one time when Foreman Francis came down to shed 5 and changed a ticket. Francis said, "I was just down there then and that is why I changed it." Docekal also said that he thought he told timekeeper Dermody to change the work request ticket 29 Employment Manager Johnson then said that the only thing he could recom- mend was a discharge. He looked over at the others and asked them if that is what they decided, and the others stated that they were in agreement Docekal then said that he wanted to see Mr. Lowe, Respondent's president. Employment Man- ager Johnson replied, "You can't do that You have to go through the rules and Ferris [Mundy] and Marvin Green." They then sent Docekal out of the room. About 15 minutes later, Docekal was called back into the office and was told by present hearing that "At that time I didn't know he had not changed the ticket " After recess, on redirect examination, Francis stated that what he meant by the foregoing testimony was that if the ticket was improperly written, it would be changed It is also interesting to note that in relation to a later incident involving Fred Hahn, which is discussed infra, Fetterhoff quoted Hahn as telling him and Francis that "he thought that Bert Francis was going to change the ticket" 27 Respondent's action in discussing the matter with its labor counsel, although appro- priate and lawful, is another circumstance demonstrating Respondent's knowledge of Docekal's union affiliation. For, unless Respondent had reason to believe that Docekal was a union adherent-contrary to Superintendent Mundy's testimony that he believed Docekal was opposed to the Union-there would have been no occasion to discuss whether the Respondent could justify the discharge as one for cause, rather than for union affiliation 2sDocekal was not an articulate witness, and it is understandable that he would want somebody with him to assist him at the meeting 29 Docekal did not say categorically at the meeting that he had told timekeeper Dermody to change the ticket-merely that he thought he had done so At the hearing, Docekal testified that it was his beat recollection that he had done so , but stated candidly that he was not sure. A. P. GREEN FIRE BRICK CO. 1079 Employment Manager Johnson that Green and Mundy had decided the same thing that they did and it was settled. Docekal replied, "I still want to see them." John- son picked up the telephone and made an appointment for him. Handley accompanied Docekal to Superintendent Mundy's office. Again Handley was excluded from the meeting. Docekal asked Mundy and Green whether there was anything that could be done and they replied in the negative, that they had heard the case and that was the best they could do. Docekal told them that he thought he got framed on account of his union activities. Superintendent Mundy answered, "We didn't know you were for the Union." Docekal then told them that he wanted to see Vice President Sullivan, and they called and made an appointment for him. Handley accompanied Docekal to Vice President Sullivan's office, but again was not permitted to participate in the interview. Docekal asked Vice President Sul- livan whether anything could be done and he answered, "No." Sullivan said that they had gone through the procedure and that is what they had decided. Docekal then asked to see President Lowe. Docekal saw President Lowe on the following Wednesday but did not succeed in reversing the decision as to his discharge. 4. Comparison of Respondent's handling of other cases involving claims for work not performed Respondent contends that Docekal was discharged for dishonesty and that it had a firm policy of discharging employees for dishonesty. Four instances, occurring over a span of some 11 or 12 years, were cited in support of this contention. How- ever, the record shows clearly that in two recent instances strikingly similar to those involving Docekal, the employees were not discharged. a. Fred Hahn After Docekal's discharge, Fred Hahn was assigned to operate Docekal's lift truck and to do the pushoff work. On April 2, 1962, Foreman Francis gave Hahn a push- off work request for 10 pallets of MC-22. After Hahn had delivered several pallets, he met Foreman Francis and told him that bags of MC-22 were being made up at that time and the operator in the specialty department was putting the material on shipping pallets. Hahn asked Francis if he could bring in some shipping pallets of that material. Francis told him, "Mr. Hahn, bring in the push-off type pallets and push them off on shipping pallets. The material they are making is being made for another order and I would leave it alone." Hahn pushed off only six pallets and brought in four pallets on shipping pallets. When Foreman Francis observed that four of the pallets had not been pushed off, he reported the matter to Foreman Stubblefield. Later that day, Hahn was called to Fetterhoff's office. Present in addition to Fetterhoff were Foremen Stubblefield and Francis. Foreman Fetterhoff asked Hahn why he deliberately brought in shipping pallets instead of pushing off the pallets as requested. Hahn replied, "Well, there weren't too many pallets of MC-22 on push-off and I thought maybe that sometime later during the day I might need them to go into a boxcar loose, so I saw the driver for the specialty department and had him send me down three or four pallets and I brought them in." Foreman Fetterhoff told Hahn that there had been several instances where he had disobeyed direct orders, had been disciplined for it, and slips had been placed in his personnel folder for that. Hahn was then told to go back to his job. After the shift was over, it was noted that Hahn had turned in the slip in its original form indicating that he had performed the work of pushing off 10 pallets. Foreman Fetterhoff requested that the ticket be held up so that he could question Hahn later. The incident was reported to Production Control Manager Green, Superintendent Mundy, and Vice President Sullivan. Mundy and Sullivan accepted the recommendation of Stubblefield, Fetterhoff, and Green that a reprimand should be placed in Hahn's personnel file. The next morning, Hahn was called to Fetterhoff's office where Francis was also present Foreman Fetterhoff showed Hahn the ticket and directed him to change it. Hahn did so. He was told that a reprimand would be put into his personnel folder 30 30 The parties to the meeting differed as to what was said, although they all agreed as to what was done. Hahn did not testify as to the precise conversation According to Francis, General Foreman Fetterhoff said, "Mr Hahn, this is the work request that you turned in yesterday Do you want to change it, change the amount on A W Hahn answered, "Yes, I will change it right now I meant to change that yesterday evening, but forgot it," According to Fetterhoff, Hahn "stated that he thought that Bert Francis 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In their testimony, Green, Francis, and Fetterhoff minimized the seriousness of Hahn's conduct by characterizing it as a "misunderstanding." Nevertheless, Fetter- hoff conceded that a reprimand notation could have been a rather severe penalty for something that was caused by a misunderstanding. Superintendent Mundy, how- ever, considered it a case of disregard of orders and stated that he would not have considered a reprimand to be appropriate if he thought it was a case of misunder- standing of orders. Vice President Sullivan also considered it a case of disregard- ing an order. Despite his characterization of the incident as a misunderstanding, Foreman Francis conceded that the incident involving Hahn was the same as the incidents involving Docekal on February 14 and 19. Finally, it should be noted that Hahn's record was far inferior to Docekal's. In numerous occasions he had failed to ring out his timecard and had been warned about it. In 1961 he was sus- pended for 3 days for not ringing out his timecard. b. Elwood D. Crum Elwood D. Crum, an employee of the Respondent, had been employed in the burn- ing department during 1961. His job there was that of a transfer operator: he pulled hot cars from the kiln and put them on the unloading dock. He received an hourly rate, but received piecework for each car he pulled over and above the hourly rate. Crum had a dispute with employees on the previous shift who were failing to pull back cars, thus imposing a greater burden on him. He called this to the attention of his supervisor, Foreman Garvin Guy. Believing the situation to be unfair, he attempted to retaliate by turning in tickets showing cars to have been pulled by him, when actually he had not pulled them. This was discovered by Foreman Guy who called Crum into his office. Guy told him that it looked as if Crum had put in tickets for cars that he had not pulled. Crum admitted that this was true. Foreman Guy then said that he would have to suspend him for 1 week and put a reprimand in his personnel file. Crum said that he did not mind the week off, but he had never gotten a black mark before and would like to keep that off his record. Fore- man Guy said that the matter had gone too far and that he could not do that; that Crum's action was like stealing money from the Company. Foreman Guy's recommendation was approved by Plant Employment Manager Johnson, who testified that he did not believe that the case was one involving dis- honesty, but rather a failure to follow instructions Johnson's appraisal of the offense is entitled to little weight, if any, as it admittedly was based on what Fore- man Guy had told him in a telephone conversation. Foreman Guy, the only per- son who might have controverted Crum's testimony, did not testify. In this posture, Crum's testimony stands uncontroverted. I find no substantial difference between the Hahn and Crum incidents, on the one hand, and Docekal's conduct, on the other 31 If a reprimand or a week's suspension was an appropriate penalty for Hahn's or Crum's conduct, a discharge in the case of Docekal was discriminatory and could be motivated only by his union membership and activities, and I so find 5 Concluding findings as to Docekal's discharge It is not clear whether Respondent relies upon the incident of February 28, or upon all three incidents, as the basis of Docekal's discharge. In either event, it is immaterial, as I find that none of the incidents were the true reason for the discharge; that the true reason therefor was Respondent's desire to rid itself of an active union adherent. Docekal was a good worker with a clean record over a span of more than 20 years in Respondent's employ He had never been suspected of dishonesty until after his union membership and activities became known to Respondent. He can neither read nor write. He never changed a work request ticket but relied upon his foremen and the timekeeper to change them when they were not fully performed At most. he may have been negligent in failing to ask timekeeper Dermody to change the tickets. But he was not discharged for negligence-Re- spondent's stated reason was dishonesty. The amounts involved in this alleged dishonesty were insignificant, and I cannot believe that Docekal, believing himself to be under surveillance, would deliberately was going to change the ticket" Insofar as the Hahn incident is concerned it makes no difference which version is correct The net effect is the same and is not in dispute ' If anything, Crum's offense could be considered more serious, as it admittedly was deliberate. A. P. GREEN FIRE BRICK CO. 1081 risk discharge or other penalty for the sake of $4 68, the total amount involved in the three incidents. Of course, if Docekal had been guilty of dishonesty and the Respondent had a firm policy, as it claims, of discharging for dishonesty , the insignificance of the amount would not be a factor to be considered . But in view of Respondent 's disparate treat- ment of employees Crum and Hahn vis-a-vis Docekal , I find that this was not a firm policy of the Respondent . Rather, I find that the stated reason for Docekal's dis- charge was merely a pretense-a shield for the motivating cause which was his union membership and activity. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth an section IV, above, occurring in connection with the operations of the Respondent described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) and ( 1) of the Act, 1 shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Since I have found that on March 5, 1962, the Respondent discriminatorily dis- charged Earl F. Docekal, I shall recommend that the Respondent be required to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights , and make him whole for any loss of earnings he may have suffered because of the discrimination against him with backpay computed in the customary manner32 I shall further recommend that the Board order the Respondent to preserve and make available to the Board, or its agents , on request, payroll and other records to facilitate the computation of the backpay due and the right of employment. As the unfair labor practices committed by the Respondent are of a character strik- ing at the root of employee rights safeguarded by the Act , I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed in Sec- tion 7 of the Act. 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. 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 discriminatorily discharging Earl F. Docekal , Respondent has engaged in and is engaging in an unfair labor practice within the meaning of Section 8(a) (3) and (1 ) of the Act. 4. By the foregoing conduct and by telling its employees that if the Union won an election their hours of employment would be curtailed, they would be unem- ployed , and that the plant might be moved , and by suggesting to the employees that the Respondent would know how they voted in the election, Respondent has inter- fered with, restrained, and coerced its employees in the exercise of their rights guar- anteed 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)(1) 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) (1) of the Act by the interrogation of Earl F. Docekal by Finis L. Stubblefield. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, Respondent , A. P. Green Fire Brick Co., its officers, agents, successors , and assigns, shall: 32F W. Woolworth Co, 90 NLRB 289; Isis Plumbing & Heating Co, 138 NLRB 716 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership in the United Brick and Clay Workers Union of America, or in any other labor organization of its employees , by discharging or in any other manner discriminating against employees in regard to hire and tenure of employment or any term or condition of employment , except as permitted by the proviso to Section 8 (a) (3) of the Act. (b) Threatening its employees with curtailing their working hours, moving its plant, or loss of employment if the Union wins an election , and insinuating to its employees that the Respondent would know how they voted in any such election. (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 purposes of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Earl F . Docekal immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges, and make him whole for any loss he may have suffered by reason of the Respondent's discrimination against him in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary for the determination of the amount of backpay due. (c) Post at its plant at Mexico , Missouri, copies of the attached notice marked "Appendix ." 33 Copies of such notice, to be furnished by the Regional Director for the Fourteenth Region, shall , after being duly signed by an authorized representative of the Respondent , be posted by the Respondent immediately upon receipt thereof in conspicuous places, including all places where notices to employees are customarily posted, and maintained by it for a period of 60 consecutive days. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report, as to what steps the Respondent has taken to comply herewith.34 It is further recommended that so much of the complaint as alleges a violation of the Act with respect to interrogation by Finis L . Stubblefield be dismissed. 13 If this Recommended Order is adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the srbstltution of the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" for the words "Pursuant to a Decision and Order." 31 If this Recommended Order is adopted by the Board . this provision shall be modified to read, "Notify the Regional Director for the Fourteenth Regi on , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in United Brick and Clav Workers Union of America, or in any other labor organization of our employees, by discharging or in any other manner discriminating against our employees in regard to hire or tenure of employment or any term or condition of employ- ment, except as permitted by the proviso to Section 8 (a) (3) of the Act. WE WILL NOT threaten our employees with curtailing their hours , loss of employment, or moving the plant if the Union wins an election , nor will we insinuate that their votes will be subject to our surveillance 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 a labor NEWPORT FURNITURE MFG. CORP. 1083 organization , to join or assist any labor organization , to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities, except to the extent that such right may be affected by the proviso to Section 8(a) (3) of the Act. WE WILL offer Earl F. Docekal immediate and full reinstatement to ,his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. A. P. GREEN FIRE BRICK Co., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 4459 Federal Building, 1520 Market Street, St . Louis, Missouri, Telephone No. Main 1-8100, Extension 2142, if they have any question concerning this notice or com- pliance with its provisions. Newport Furniture Mfg. Corp. and Truck Drivers' Union, Local #170, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America . Case No. 1-CA-3862. February 5, 1963 DECISION AND ORDER On November 27, 1962, Trial Examiner Alba B. Martin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of such allegations. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a reply brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom 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 Inter- mediate Report and the entire record in the case, including the Gen- eral Counsel's exceptions, and the briefs, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner, with the following modification. The Trial Examiner recommended, inter alia, that the Respondent be ordered to cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. As we are not persuaded that the Respondent's conduct reveals an attitude 140 NLRB No. 102.