Cornwell Co., Inc.

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the evidence of the female employees nor of Peterson was cause for discharge or reinstatement." In deciding whether to reinstate Lazaro, Gervase and Bjornson confined their investigation to Penzo (the only employee interrogated by Bjornson), Peterson, Bluis, and possibly one other, most of them employees of long standing and all of them known to be antiunion . None of them was closely associated with Lazaro in the performance of his work or otherwise . I am convinced that their testimony, like the testimony of the female employee, was tailored to fit what they believed to be the wishes of Respondent's representatives In addition to Paul and Miguel Rodriguez, whose testimony has been related above, the Union called Santos Diaz, who worked in the same area as Lazaro and ate lunch with him and had a locker next to him , James Owens, and Jafus Jackson, whose locker was near Lazaro's. They testified that they had never seen Lazaro with a knife or gun , or heard from any employee that he had been seen with either. Paul Rodriquez and Jackson testified that Lazaro did carry a black bible . Jackson on one occasion discussed the text which Lazaro had preached one Sunday. Lazaro denied while testifying all of the testimony of Respondent's witnesses on the relevant matters. He never possessed a gun or knife , other than a scraper or knife he used in his work , furnished by Respondent. He made no threats of any kind to anyone . He did not threaten to shoot the bosses. He possessed no book of black magic or any book of names of those opposed to the Union, or say to any- one that he did. He testified that he never talked with Bluis , Penzo, or Jacquot about the Union because it was well known that they were in the confidence of Respondent. Lazaro is an ordained minister. He left Cuba because he believed the govern- ment to be hostile to his religion . He now preaches in this country . A letter from James Lambert Kidd , pastor of the Wellington Avenue Congregational Church in Chicago, received in evidence without objection , states that Lazaro is an active mem- ber of his congregation whose employment by Respondent was secured by his church, that the charge that he threatened anyone with a gun is incredible as being utterly foreign to his nature. I credit Lazaro 's denials in their entirety. There is no credible evidence in the record that he threatened anyone with either a knife or gun, or made threats of any other kind to any employee. RECOMMENDED ORDER I renew my recommendation that Lazaro de Lazaro be reinstated with backpay. s it is difficult to understand why this testimony should have been adduced , in view of President Gervase's view of the matter. Cornwell Company, Inc. and Maynard N. Whitney and United Furniture Workers of America, AFL-CIO. Cases 25-CA-1912, 1952, 2106, and 2185. June 10, 1966 DECISION AND ORDER On March 15, 1966, Trial Examiner Eugene F. Frey issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, <and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examin- er's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after, the General Counsel and Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs. 159 NLRB No. 21. CORNWELL COMPANY, INC. 43 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 Trial Examiner's Decision and the entire record in the cases, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner' s Recommended Order.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The issues in this case are whether Respondent , Cornwell Company , Inc. (1) in late 1964, and 1965 , interrogated and threatened employees , and discharged and laid off certain employees , because of their activities on behalf of the. above-named Union, in violation of Section 8(a)(3) and ( 1) of the National Labor Relations Act, as amended, 20 U.S.C. et seq. (herein called the Act ), and (2) whether such conduct violated a settlement agreement executed on July 8, 1964, in Cases 25-CA- 1912 and 25-CA-1952 by Respondent, so as to warrant withdrawal of approval of that agreement by the Regional Director for Region 25 in March 1965, and (3) assuming the withdrawal was proper, whether Respondent had violated the Act by similar conduct toward employees in 1963 and up to July 1964. The issues arise on complaints filed on various dates in 1964 and 1965 by General Counsel of the Board acting through said Regional Director , and amended at the hearing,' and answers duly filed by Respondent admitting jurisdiction but denying the commission of any unfair labor practices.2 A hearing on the issues was held on due notice before Trial Examiner Eugene F. Frey at Paoli and French Lick, Indiana, on various dates between July 19 and October 30, 1965, in which all parties participated fully through counsel . All parties waived oral argument, but General Counsel and Respondent have filed written briefs which have been carefully considered in preparation of this Decision. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent is an Indiana corporation with its principal office and place of business in Paoli, Indiana, where it makes, sells, and distributes wood products. During the year 1964 and since, Respondent in course of its business has had both direct outflow and inflow of products and materials annually between its plant and points outside the State of Indiana valued in excess of $50,000 for each type of flow. Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. - H. THE LABOR ORGANIZATION The Union above named is a labor organization within the meaning of Section 2(5) of the Act. 1 The complaints issued after Board investigation of charges filed as follows: in Case 25-CA-1912 by Maynard N. Whitney on February ' 25, 1964 ; 'in Case -25-CA-1952 by the Union on April 28 , May 6, 'and 21 , 1964 ;,In Case 25-CA-2106 by the Union on' January 18, 1965; and in Case 25-CA-2185 by the Union on April 5, 1965. 2 All complaints were consolidated for hearing by the Regional Director on May 17, 1965. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's campaign and workers' activities The Union began its campaign at Respondent's plant when its organizers met with a few employees of Respondent on August 13, 1963, at the home of employee (Ernest) Dale Edwards in 'Hardinsburg, Indiana, which is about 14 miles away from Paoli and Respondent's plant. The union men attended at the request of Edwards and his brother, Clarence, also an employee, who had set up, and invited others to, the meeting. The same workers and a few others attended another meeting with Union at the same place on August 22. Sometime late in 1963, some workers created the,Cornell Organizing Committee consisting of at least 10 employees, including Dale Edwards, Franklin S. Tillett, Robert H. Collins, Joy Longest, and June Hopper. Members of the Committee attended weekly union meetings in 1964 and actively assisted the union agents in getting authorization cards signed by employees both in and out of the plant. Edwards, Collins, and Tillett also participated openly in distributions of union leaflets at the plant entrances at various times in 1964 before the first election of March 27, 1964, in the following months up to the second election of July 31, 1964, and thereafter. After the Union lost the first election, the Board on June 15, 1964, issued its complaint in Cases 25-CA-1912 and 1952, charging Respondent with various viola- tions of Section 8(a)(1) and (3) of the Act. On July 8, 1964, Respondent, Whit- ney, and the Union executed an agreement which settled the issues raised by the charges of Whitney and the Union in those cases, and provided that the first elec- tion be set aside and a new one held pursuant to a consent agreement of the parties. The Regional Director approved the settlement July 10, 1964, the new election, was held July 31, 1964, and on September 17, 1964, the Regional Director closed both cases on the finding that Respondent had complied with the terms of the settlement, but conditioned the closing on continued observance of those terms. Thereafter, on investigation of charges filed by the Union in Case 25-CA- 2106, the Regional Director on March 10, 1965, rescinded his approval of the settlement agreement, and on March 11, 1965, issued a consolidated complaint in Cases 25-CA-1912, 1952, and 2106, charging Respondent with various violations of Section 8(a)(1) and (3), covering conduct before and after the settlement. The, Union continued the distribution of 'leaflets at the plant through December 1964, and in February 1965, conducted another short drive for authorization cards from February 10 through 14, 1965. B. Respondent's knowledge of the employees' activities, and reactions thereto 3 A few minutes before the initial workers' meeting with the Union at 7:30 p.m. on August 13, 1963, while Dale Edwards was standing in his front yard, Respond- ent's personnel director, John Luckett, drove slowly past Edwards' house in a company buck. Seeing Edwards in the yard, he waved to him, and Edwards waved back. Some minutes later, Luckett drove the truck slowly back in the other direc- tion past the house, and 2 or 3 minutes later other workers saw him pass the house slowly in the original direction. The next day, as Edwards was coming in to work, he overheard Luckett ask employee Edward Gorlo "if you had a nice meeting last night?" Gorlo's reply does not appear, and Luckett said nothing more .4 Maynard Whitney had attended the,second union meeting on August 22, 1963, at Edwards' home, and a third on Sunday, August 25, at the home of Junior Lee Estes. On Monday morning Luckett asked Whitney at the plant if he knew any- 8 At the outset of the hearing , I restricted General Counsel in his case-in-chief to proof relating to allegations of unlawful conduct by Respondent after the date of the settlement agreement, and allowed him to present proof on presettlement conduct only after conclud- ing that he had adduced proof of a prima facie case on postsettlement unlawful conduct which tended to indicate prima facie that Respondent had breached the agreement by such conduct which justified the abrogation of the agreement by the Regional Director. Hence after hearing all proof of General Counsel on post- and pre-settlement conduct, and all Respondent's proof in support of its defenses thereto, I am considering all presettlement conduct of Respondent, not only on its merits, but also as background evidence which bears on Respondent's motives in Its postsettlement conduct. See Lock Joint Pipe Company, 141 NLRB 943, 944, and Northern California District Council of Hodcarriers (Joseph's Landscaping Service), 154 NLRB 1384. 4I find these facts on credible testimony of Edwards , Junior Lee Estes, and Charles Hammonds. CORNWELL COMPANY, INC. 45 thing about a, meeting at Estes' home on Sunday. Whitney said, "no," that he had visited a relative that afternoon. Luckett told Whitney to tell Estes to "keep his nose clean" and "stay away from those meetings." 8 Bayless Fancher, an elderly man of 65 who had worked for Respondent since at least 1955, was injured at the plant August 15, 1963, and confined to bed in his trailer home from August 16 onward. On the 16th, Luckett visited him there, in accordance with his usual practice where employees were out with illness or injury, and talked with Fancher about the injury, the necessity of X-rays, and tried to comfort him by saying he was covered by plant insurance and need not worry about compensation, and that Luckett would get him whatever he needed. In the discussion, Luckett asked Fancher if he knew anything about the union activities. Faucher replied, "not that amounts to anything." Luckett then told him to "listen and keep your ears open," and if he found out anything, to let Luckett know. Thereafter, while confined to his home with the injury, Fancher allowed workers to hold several union meetings in his home, but never made any reports on them to Luckett. After Fancher was able to leave his home, though not yet well enough to return to work, he visited the plant office periodically to pick up his insurance checks. On one such visit in November 1963, Luckett asked him whether he had been holding union meetings in his trailer. Fancher said he had. Luckett then said he wanted to tell Cornwell about it, so' he left the office and came back with Cornwell, who asked Faucher the same thing and got the same reply, with Fancher explaining that Luckett had wanted him to find out about union activities, and saying "how better would you find out than having a meeting in your own home?" Cornwell asked Fancher who had attended the meetings, and Fancher replied that he knew their faces, but not their names.6 On an unidentified date in late October or early November 1963, shortly after Whitney had solicited an employee in the plant to sign a union card, Luckett came past Whitney's workplace and asked him if he knew anything about the Union. Whitney said no. Nothing further was said. On an unidentified date in the week ending November 17 or 24, 1963, some employees held a union meeting about 7 p.m. at-the Hill Top restaurant, a truck stop on the main highway about 7 miles outside Paoli. The meeting was sched- uled for the restaurant, but so many workers showed up that it was moved to a bunkhouse directly across the road. Shortly after the meeting convened, Luckett and one Vick Warher, a restaurant proprietor who ran a food concession at the plant, drove up and parked alongside the bunkhouse in Warner's car, to have a drink. While parked there, workers in the meeting noticed the car and saw Luckett apparently looking toward the restaurant, where some of the employees had their cars parked. After parking about 5 minutes Warner drove the car up the road a short distance, turned around and came back, parking at one end of the restaurant, where workers noticed Luckett pointing toward some of the parked cars. At no time did Luckett look towa l or appear to be watching the bunkhouse, and there is no proof that he actually saw any employees either at the restaurant or bunkhouse. On an unidentified date in November, Luckett approached employee Charles Hammonds in front of a tavern in Paoli, and asked him what he knew about "this union." Hammonds said he did not know much. Luckett replied "You ought to." On an unidentified date in November or December 1963, Dale Edwards met Luckett in a tavern in Paoli, where they bought each other beer and talked, as 6I find these facts from credited testimony of Whitney, which is not specifically denied by Luckett. 61 find these facts on credited testimony of Faucher, as corroborated in large part by admissions of Luckett and Cornwell as to both incidents. As to the November talk, I note particularly Cornwell' s admission that, while vague about details, he probably asked Faucher "why are you having union meeting?" which I think induced Faucher's reply about Duckett's prior request to engage in surveillance. This clearly indicates Cornwell had more than a passing Interest in the worker's union activities, particularly since he readily came to talk to Faucher when Luckett indicated he thought Faucher had something "important" to say. While I have no doubt that Faucher was an old, garrulous worker who often had engaged Cornwell in talk on many things over the years, I cannot accept Luckett's and Cornwell' s claims that everything Faucher said about the union and worker activities was volunteered, In light of the above admissions. Cornwell also admitted that, as a result of his many talks with Faucher, some about the Union, he never could figure out whether Faucher was "for me or for the opposition," meaning the Union. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they had often done in the past. During the conversation, Luckett asked Edwards "why in hell did you start this union?" Edwards denied that he had, and Luckett asked him if he would tell that to Gene Cornwell. Edwards said he would. Luckett said Cornwell was not available at that moment, but he would bring Cornwell to Edwards' house that night to talk about it. Neither official appeared at Edwards' home that ,evening? On an unidentified data "in `January 1964, Luckett called employee Arvel Skidmore to his office, then-took him out to the Coke machine, and on the way asked Skidmore if he knew anything about the Union, and could tell Luckett anything about it. Skidmore said; no, to both questions. Luckett then asked if he rode to work with Estes and Hammonds. Skidmore admitted he did. Luckett asked if they ever talked about the Union, and Skidmore said, no. They walked back to the office, and as they parted at the office door, Luckett said, "let's _ keep this small union talk to ourselves." Skidmore replied it was "damn small union talk." On an unidentified date in February 1964, Luckett asked Skidmore at his workplace how he and the Union were "getting on." Skidmore answered that he did not know much about it, as he had not attended a meeting in 3 or 4 weeks. Luckett replied, "That's a boy, we have been d- good to you," to which Skidmore admitted "yes, you have." On February 14, 1964, Luckett visited Skidmore's home where his wife said he was out shopping. Luckett asked her with whom Skidmore rode to work. She replied, Charles Hammonds. He then asked if her husband had said anything to her about the Union. She replied no. Luckett then said "tell Arvel I hope he keeps working," and left. Mrs. Skidmore related this talk to her husband. This visit was unusual in that Luckett had never visited their present home before, although he had at times visited them at their former home, both socially, to aid them with loans and to buy squirrels from them.8 On February 6, 1964, the Union scheduled a meeting at 7:30 p.m. for employees at the Mineral Springs Hotel, on the square in Paoli. Dale Edwards attended the meeting and, a few minutes before it started, met Gene Cornwell in the hotel lobby when the latter came in to buy a newspaper, Edwards came over to Cornwell who said, "I see you are having a meeting." Edwards admitted it, and invited him to come into the meeting. Cornwell declined, saying to Edwards "Dale, don't you know you are a dead duck" Edwards asked what he meant by that, Cornwell said he would tell him later, and walked out. About 10 minutes later, while the meeting was in progress, Cornwell walked in the lobby again, bought cigars at the desk, looked around, and then walked out 9 During the evening of February 11, 1964, Edwards and Union Organizer Charles McCormick had been traveling around West Baden, a few miles from Paoli, to solicit employees living in that area. Shortly after they went to a local restaurant for dinner, Luckett and Carl Flanigan, an officer of Respondent, and their wives came in for dinner. Luckett srv Edwards and McCormick and came over and sat at their table, asking if they were "electioneering" among employees in the town, saying that if they were, he would give them the names and addresses of all the employees they wanted. Edwards admitted they were soliciting employees, and said they did not need names and addresses. He started to introduce McCormick to Luckett, but the latter said "I know who he is, he's the union man." Luckett asked Edwards why he wanted' a union in the plant, reminding Edwards "Hasn't the Company treated you right, loaned you money and done you good?" Edwards replied that it had. Luckett asked "what is it then?" Edwards replied that the cost of living "did not compare with our paychecks." Luckett asked McCormick why they were "picking -din" Respondent. McCormick denied he was "picking on" anyone. Luckett then mentioned a plant in another town which had lost business , reduced its" work 7 The above findings are based on credited testimony of Whitney , Estates, Charles Ham; monds, Edwards, and Faucher , as corroborated by admissions of Luckett. Testimony of Luckett in conflict therewith is not credited , for reasons noted below.. s The talks with the Skidmores are found on credited testimony of husband and wife, as corroborated in part by admissions of Luckett. His categorical denials of some of the talks, and other testimony , in conflict 'with -the findings, is not credited for reasons noted below. G These facts are found on credited testimony of Edwards, as corroborated in part by that of Charles McCormick and admissions of Cornwell . Testimony df any of these witnesses in conflict 'therewith is not credited." I CORNWELL COMPANY, INC. 47 'force, and gone out of business after it was unionized. McCormick argued that this was different from what Luckett had been telling employees about that plant. Luckett then asked McCormick what the union dues would be, and McCormick replied $3 or $3.50 a month. Luckett then said "Let's make that $7 a month, and the Company and the Union can split it and both make some money out of it." Edwards objected, saying "wait a minute, where does that leave me and the employees?" After further talk about the Union's dues at other plants, Luckett left them to put in his order for food at his own table, then returned, and asked Edwards again what "we have done to you?" Edwards replied that he had nothing against the Company, it had been good to him, but the workers needed a union to get more wages. Luckett reminded him that the Company had got him out of jail and fed his children when they were hungry. Edwards admitted this. Luckett then said he could not understand why "you do -this to us." McCormick said at this point that Edwards had a right by law to do what he was doing, and he was doing what he thought was right. At this point Flanigan came over, told Luckett his dinner was served, that he should eat because Flanigan did not think Luckett could change their minds, "those people's minds are already made up." Sometime the next day, Luckett approached Edwards at work, and apologized for his remarks, saying he meant nothing by them, they-had been caused by his having a few drinks.10 On February 18, 1964, Foreman Harold C. Lamp approached employee Edna Morris at her workplace and said that if the Union came into the plant, she would have to pay her own insurance. She replied that she knew something about the Union as she had worked with the "head union." Lamb asked if that was "the same AFL-CIO" as was trying to get into the plant. This talk was in the presence of another worker. On March 25, in the presence of the same worker, Lamb suggested to Morris "vote for Goldwater." She asked "Why Gold- water?" and he pointed to himself and said "Me." She replied "My husband won't vote anything but yes," to which he rejoined "you better change your mind." On March 27 just before Morris went to vote, Lamb reminded her at her work station, and others nearby, that they should go to vote, and told Morris she had "better vote no." She replied she would 'not vote anything but yes. Lamb then said that if she did not waht to work, he would have to let somebody work who did not want a union. She replied she had been working there too long to walk out. He then said that if she voted for the Union, "you vote your- self out of a job," that she would have to pay her own insurance, and the Union could not hold her job, could not get her any more money than what the Com- pany would pay. After Morris had voted Lamb came to her again and, in the presence of another worker, said "you better get all your sows bred." it In January and February 1964, and up to the first election, union agents fre- quently distributed union leaflets at the main plant entrances with the assistance of various employees, including Edwards, Longest, Collins, and Hopper. Luckett received at least six of the leaflets, given out in this period, which named specific employees and their union activities, and I find that Respondent learned through the open, distribution of leaflets about the general, progress of the union campaign as disclosed therein. In addition, various employees active in the campaign, like Edwards, openly wore blue-white union buttons on their clothing in the plant, which stated the name of the Union, as well as "Vote UFWA" in distinctive white lettering on a dark blue background. On March 4, 1964, 12 employees, including Estes, Longest, Hammonds, Dale Edwards, Charles Richardson, and James-R. Haley, signed and sent Respondent a letter stating that they had joined together as the "Cornwell Organizing Com- mittee" of the Union, that many workers had, signed union cards, that the 12 were "leading this campaign" and intended to solicit employees to join the Union, and to engage in lawful and protected union activities, and in effect asked the Company not to, interfere "with our self-organization effort in any way that is contrary to natioal labor-management policy." Respondent received the let- ter March 5, and shortly thereafter Foreman Harold Lambdin, supervisor of Longest, after a short talk with Luckett near Longest's workplace, came to her, 10 The above facts are found on credited testimony,of Edwards and McCormick.. Luckett did not specifically deny this incident,•and Flanigan did not testify at all. .-, "These findings are l based on credited testimony of Morris , which is mostly 'uncon- tradicted. Testimony of-Lamb denying portions of'the March 25 talk and the making of any threat of job loss, in general terms, is not credited., 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said Respondent had received a' letter, and he had "granted my rights back." Longest did not understand what Lambdin meant by this, and he never explained.12 When the Union lost the first election, the results became known at once to workers and management. On Monday, March 30, Foreman Lloyd Gilliatt asked Richardson, within hearing of employees Hammonds and Haley, where his union badge was. Richardson said he threw his away. Gilliatt commented "you put them away too late, didn't you?" 13 During April 1964, Board agents were apparently taking statements from employees in and around Paoli in course of investigating the charge in Case 25-CA-1912. On an unidentified date in April, after Arvel Skidmore had given a statement to them, Luckett and Warner, the restaurant man, had a talk with Skidmore at his home about picking wild mushrooms, and in course of the talk, Luckett asked Skidmore if he had "ever withdrawn those statements." Skidmore said he had not. Luckett commented that "there was nothing but a bunch of damn lies, that were told on me." Skidmore replied that he had not told any lies, but did not know about anyone else. On May 18, 1964, Skidmore gave a Board agent another statement in Paoli, then went to a tavern in town where he saw Luckett and Edwards dunking beer. As Skidmore joined them, Luckett said, "I see they have got you up there, too, Arvel!" Skidmore did not answer Luckett then asked "Have you ever withdrawn those statements you made'?" Skidmore did not reply. After Luckett left the tavern, both employees went to the Board agent to give him additional statements.14 From all of the above facts it is clear beyond question that Respondent got wind of the organizing campaign almost at the outset, and that management, particularly Luckett, the key personnel official, made deliberate and constant efforts to discover the nature and extent of the employees' union sympathies and activities in talks with employees, particularly the leading union adherents, and that Respondent thereby displayed a far from casual interest in that subject, which is a realm of worker activity protected by the Act and in which the employer normally can have no legitimate interest under the Act. I also find that the var- ious remarks by Luckett and others to employees found above also show Respond- ent's definite union animus . While there is nothing unlawful per se in such employer interest and union animus, Board experience over the years shows that such interest and animus may often be translated into coercive and discrimina- tory action toward employees because of their union or concerted activities. With this in mind I turn to an appraisal of C. Respondent's postsettlement conduct 1. Alleged interrogation, threats, etc. In the 4 months between the first and second election, the Union continued its campaign by continued attempts to get authorization cards signed, and distribu- tion of a few leaflets outside the plant by union adherents, including Tillett and others. In addition some union adherents, including Collins, Hopper, and Troy Kennedy, and committee members Kennedy, Tillett, Longest, and Edwards, openly displayed their union affiliation during working hours in the plant in the last 4 "These facts are based on uncontradicted testimony of Longest and documentary proof 13 This talk is found on credited testimony of Haley and Hammonds . Conflicting testi- mony of Gilliatt is not credited . Richardson, who still works for Respondent, was not called to support Gilliatt's denials. 14 Except where I have noted a finding is based on uncontradicted testimony , the findings above are made on credited testimony of the employees involved, as corroborated in large part by admissions of Luckett, Cornwell, and other company officials involved. I do not credit categorical denials by Luckett of remarks attributed to him by employees as above because in many instances Luckett admitted he did not even recall conversations, while admitting the existence of the circumstances thereof, and made only general denials based largely on his claim that he never even broached the subject of the Union to employees on the advice of counsel. The general denials are not credited , either, because of the un- usual number of times he appeared on the scene , without satisfactory explanation, when employees were holding meetings or engaged in other union activities , his prominence in questioning workers and arguing with them about the Union, all of which demonstrated a far more than casual interest in the Union and the workers ' Interest in it. For the same reason , I do not credit denials by various supervisors and foremen of remarks attributed to them, as found above, or their knowledge of the existence of union buttons in the plant. CORNWELL COMPANY, INC. 49 weeks before the second election, by wearing one or more union badges such as described above, which were quite noticeable and easily readable from a distance of a few feet. I find that Respondent was well aware of this activity, for at least one occasion in the 2 weeks just before the second election, Luckett noticed Tillett wearing one badge when Tillett came into the office, saw that it was one he had not seen before, so asked Tillett if he could look at it. When Tillett said, yes, Luckett examined it closely, asking if it was a new badge and commenting that it was different from those he had seen before. In the period before and between the two elections, Luckett had noticed workers wearing three or four different badges, one of them a green pro-Cornwell badge and the others pro- union.15 Since the badges were worn openly so that they could be noticed and read by anyone in the plant, including plant officials, I find nothing coercive or unlawful in Luckett's examination and limited comment about Tillett's new badge, which contained no coercive or antiunion statements, direct or implied. About a week after the second election, which the Union lost, Collins and Chief Inspector Don Wilson were drinking Cokes at lunch hour at a Texaco service sta- tion across the street from the plant As they walked back to the plant together, Wilson asked Collins where his union buttons were. Collins said they were in his pocket. Wilson then said, "you had better throw them away or you will get fired." Wilson corroborates Collins' story of this incident, denying only the last remark attributed to him, but I do not credit this denial, for while both witnesses admitted that they met often at the station with other .workers, to eat lunch or drink Cokes at lunch or rest periods, and the two often joked with each other (Collins did not work under Wilson), Wilson admitted that there was no joking or laughing during this interchange, hence I conclude that both the inquiry and ensuing suggestion and warning of discharge were reasonably calculated to restrain Collins in his active union adherence. Though they were made in a short, appar- ently casual, talk, I find that Respondent thereby violated Section 8(a)(1) of the Act. I find from uncontradicted testimony of June Hopper that on August 3, the Monday following the second election, Wilson came up to Hopper at work and said, "They will be doing you like they did me, kicking you down over the hill." While the record contains no explanation of what "they" had done to Wilson, the latter phrase was a plain warning of discharge, in a colloquial form often used among working people, that some detriment might come to Hopper, and since it came right after the second election to a worker whose union activities were open and well known to Respondent, she could reasonably interpret Wilson's remark as a threat of reprisal such as discharge for her union activities . I find that Respondent thereby violated Section 8(a)(1) of the Act.16 I find from credited testimony of Collins and Luckett that shortly before the presidential election of November 1964, Luckett met Collins in the Texaco sta- tion aforesaid, saw him wearing a large "LBJ" pin, and commented that that pin looked better "than those pins you wore all summer.", Luckett was wearing an LBJ pin himself (he was working actively for the Democratic Party in Paoli), and Collins looked at it, grinned, and complimented him on wearing it. Luckett's comparison of the political pin with the union badges was clearly an opinion which at most indicated his continuing awareness of Collins' prounion sympathies and Respondent's dislike of the Union, but in the context I find nothing coercive or threatening in the remarks which indicates any violation of the Act. On an unidentified date in February 1965, Troy Kennedy solicited_, another employee, Jerry King, in the plant at break time to sign a union card, in the presence of two other employees. While talking to King, Kennedy was holding several union cards openly in his hand, and King had one in his hand. While thus engaged, their foreman, William Brinson, walked up and said to them, ,Don't you guys know you can get fired for doing this?" 17 Respondent's only defense to this is an intimation in its brief that Brinson may have been warning the employees about possible violation of a well-known company rule prohibiting soli- 11 These facts are based on credited testimony of the employees above-named, docu- mentary evidence, and admissions of Luckett. 19 For reasons noted in discussion of Tillett's discharge, I make no finding of violation of the Act from a- discussion of Cornwell and Clovi.Apple in October at the latter's Texaco station while both employees were on the premises. 111 find these facts. on credited testimony of Kennedy, and do not credit Brinson's bare denial of the incident, in view of my finding of Respondent 's deliberate interest in and awareness of the union activity, and its hostility to the Union as found above. 243-084-67-vol. 159-5 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD citation and distribution' of literature by employees in the plant during working time, and during nonworking time in work areas. Assuming the validity of the rule, the defense still appears untenable because Brinson apparently did not men- tion the rule to the workers nor explain to them that the solicitation was going on • in a working area, though at a break period. In the circumstances, Brinson's remarks would reasonably tend to warn the workers that mere solicitation for the Union could lead to discharge, and were thus violative of Section.8(a) (1) of the Act. The threat of discharge to Collins, Hopper, and Kennedy found above, occur- ring after execution of the settlement, were violations of the Act which clearly breached the obligations placed on Respondent by the settlement agreement and warranted the Regional Director: in rescinding his approval of it. This opens up for review Respondent's presettlement conduct found above, and I now find that such- conduct violated Section 8 (a) (1) of the Act as follows: 18 (1) Luckett's apparent surveillance of the union meeting at Edward's home on August 13, 1963. While Luckett denied that he knew a union meeting was in prog- ress at Edward's house, or that he saw any workers congregated there, he claims that he often used this particular road 25 to 50 times a year just to "go' for a drive in the country" with his wife in their car or otherwise in the company truck. However, he gives no credible explanation why he usually found this particular road attractive for an evening drive, where it was unpaved and graveled and about 15 miles away from Paoli and his own home. While testimony of other witnesses indicates that all other employees present were inside the house and not visible from the road, Luckett does not specifically deny that he passed the house three times within a short space of time on this evening. These circumstances, combined with his query of Gorlo the next day,19 satisfy me that Luckett repeatedly passed the house on this occasion in an effort to find out who was at the meeting, and that his patrolling of the road in this way was well calculated to exert a restraining influence on the concerted activities of the workers who saw it, and thus consti- tuted an unlawful attempt at surveillance of such activities, in violation of Section 8(a)(1) of the Act. The prompt-interrogation of another employee about the meeting the next morning was likewise coercive and violated the Act.20 (2) Luckett's interrogation of Whitney on August 26, 1963, about a meeting of the 25th, with a warning that Estes "keep his nose clean" and "stay away from those meetings," which was a coercive warning that they avoid union activity under pain of Respondent's displeasure. (3) Luckett's interrogation of Fancher on August 16, 1963, with his suggestion that Fancher engage in surveillance of union activities, and report thereon to Respondent. - (4) Luckett's and Cornwell's interrogation of Faucher in November 1963, about holding union meetings and identity of workers who attended them. (5) Luckett's interrogation of Whitney in October or November 1963. (6) Luckett's apparent surveillance of a workers' meeting at Hill Top Tavern late in November 1963. (7) Luckett's interrogation of Hammonds and Edwards in a Paoli tavern in November and December 1963. (8) Luckett's interrogation of Skidmore in January and February 1964, with an implied promise of continued favors if he refrained from attending union meetings, and the interrogation of Skidmore's wife in February 21 (9) Cornwell's surveillance of a union meeting at the Mineral Springs Hotel, Paoli, on February 6, 1964, with his thinly veiled threat of reprisal in his remark to Edwards, "don't you know you are a dead duck?" is Hermann Equipment Manufacturing Company, Inc , 156 NLRB 716 ; Bangor Plastics, Inc., 156 NLRB 1165. 19 Luckett categorically denied the query of,Gorlo, but Gorlo was not called by Respond- ent to support his denial. 21 While uncontradicted testimony of Edwards and others show that they saw a com- pany truck pass his house the night of the next meeting, August 22, there is no credible proof that Luckett or any other company official or worker was driving it, and in the face of Luckett's denial of surveillance of union meetings, the record would only support a speculation that Luckett or some other company official drove the truck, but this is not substantial proof, hence I cannot find unlawful surveillance on August 22. 111 find no violation from Luckett 's equivocal remark "tell Arvel I hope he keeps work- ing" following his query of Mrs Skidmore about her husband's remarks about the Union. CORNWELL COMPANY, INC. 51 (10) Luckett's interrogation of Edwards in West Baden, on February 11, 1964. (11) Lamb's interrogation of Morris on February 18, 1964, and his thinly veiled threat on March 27, 1964, of loss of work and benefits if she voted for the Union. (12) Luckett's interrogation of Skidmore in April and May 1964; about his giv- ing of statements to the Board and withdrawal thereof.22 - , 2. The Williams-Clark incident Dorothy E. Williams worked for Respondent from August 1964, until March 16, 1965, when she quit. Her father, Virgil Clark, had' worked for the Respondent since about 1957. On May 20, 1965, the Union filed a charge in Case 25-CA- 2232 alleging that she was unlawfully discharged'by Respondent, and Respondent got notice of the charge in due course. - Her husband, Harold Williams, had worked for Respondent from 1957 until January 9, 1965, when he went on sick leave due to an injury. On May 26, 1965, while visiting the plant during sick leave to pick up an insurance check, Harold asked Cornwell at his office for a personal loan. In the discussion, the subject of the above charge against Respond- ent was brought up and Cornwell asked what Mrs. Williams could charge against the Company after quitting her job, commenting that he thought it "ridiculous" that she should make any charge after quitting. He also said to Williams "I wish you would talk to your wife and see if she would drop the charges." Williams denied his wife had quit, saying she was dismissed. Cornwell asked Williams how many relatives he had working in the plant. Williams replied, two brothers-in-law and his father-in-law, Virgil Clark. Cornwell asked what his wife was doing, and Williams said she was working in another plant in Salem, Indiana. For some time before May 26 Clark had been absent from the plant on sick leave. On Saturday, June 12, Luckett met Clark and his wife in a store in Paoli, asked Clark how he was feeling and Clark replied that he was being released by his doctor. Luckett asked if he had a written release, and Clark said, yes. Luckett then told Clark to come in to the plant Monday. Clark also mentioned that his daughter, Mrs. Williams, wanted to see Luckett. Luckett said he would talk to her any time. On Monday, the 14th, Luckett saw Clark in Paoli and gave him a ride to the plant As they drove up, Cornwell also arrived, and the three walked into the office together, where Clark handed Luckett a note dated June 13 and signed by Mrs. Williams, in which she wrote "John, I'm going to drop all the charges I've got against Cornwell Co because I didn't want to do anyway. I just wanted to find out why I couldn't draw my checks take care of Dad and give his job to him. My unemployment (sic) checks is all I wanted in the first place, and no hard feel- ings." Luckett told Clark this was a "nice gesture" by Dorothy, and asked him if she was willing to sign a letter to that effect, and where they could find Dorothy. Luckett had his secretary type two letters to be signed by her and Clark. Clark then showed Luckett a release from the doctor, in which the latter recommended that Clark should do only light work, 23 and Luckett said he would see about find- ing light work for him. Clark said he did not care what he did, even if it was cleanup work. Luckett told Clark to come in the next day, and he would give him a grasscutting and raking job. Luckett and Clark then drove in a company truck to Clark's home, where Mrs. Clark said Mr. and Mrs. Williams had gone to the home of Arvel Skidmore. - Luckett verified this by telephone, and then he and Clark drove to the Skidmores where they met Dorothy. Luckett told her he had some papers for her to sign, that "we got it fixed up so you won't have to go to court, the charges against the Company will be dropped, and your daddy will come back to work." Dorothy then signed one letter purporting to state the circumstances and reasons for her quitting her job on March 17, and that the only reason she was "involved" in an unfair labor practice against Respondent was because she had been told a charge must be filed before she could get unemployment compensation. The letter was also signed by Clark and her husband, as witnesses . At the same time, Clark signed the other letter, which corroborated the statements in Dorothy's letter, and both Williams' signed it as witnesses.24 Luckett told Clark to come to the plant the next day to go to work. At the same time he asked Harold Williams 211 find no violations of the Act in other remarks of company officials or supervisors to employees found above , because such remarks are either equivocal or legitimate expressions of opinion or otherwise noncoercive, whether considered alone or in context, as the case may be. av Clark had previously done heavy work in the plant lumberyard. a* Luckett had Mrs. Clark sign both letters as witness later that day. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD how he was, and said that, if he had his release from the doctor, his job was still open and he should come back to work . As Luckett and Clark were leaving, Mrs. Williams asked Luckett for a loan of $1 to buy gas and groceries . Luckett said sure, he would loan her $2, if she needed it, and then he handed her $2. Clark returned to work June 15.25 The letters were sent by Respondent 's counsel to the Board's Regional Office on June 15, and on June 23 the Regional Director approved a withdrawal of the charge involving Mrs. Williams. Dorothy Williams also testified that in her talk with Luckett , she read the letter he gave her, and said it was "not right," and that he then made the remark found above. Harold Williams corroborated his wife's story , adding that after Luckett said her daddy would go back to work, his wife said "how do I know you will put him back to work," to which Luckett replied "I have always taken care of him." General Counsel argues that these added remarks , together with those found above, amount to a coercive promise of recall of Clark and Harold Williams only if Mrs. Williams would drop the pending charges, thus compelling her pro tan to abandon- ment of adherence to the Union . It is also claimed , conversely , that these remarks were a coercive threat to refuse to recall both men if she did not sign a release of the charge , which is apparently based on testimony of Mrs. Williams of a private talk on the 13th with her father , in which she got the impression from her father that Luckett had told him previously that he had no job for him, but that he would be put back to work only if his daughter dropped the charge, and that on this report she wrote the longhand note which Clark gave Luckett . I struck Dorothy Williams' testimony of her talk with her father as pure hearsay and patently self- serving testimony , particularly since General Counsel indicated he had interviewed Clark but would not call him to testify. Clark's testimony was vital not only to support his daughter's story and her alleged reasons for writing the note of the 13th and signing the letter of the 14th , but also to counter Luckett's testimony of his prior talk with Clark on the 12th which purports to show an existing offer on that date of work to Clark upon release by his doctor , and his flat denial of any remarks either on the 12th or 14th making withdrawal of the charge a condition precedent to recall of Clark or Williams. Hence, the failure to call Clark war- rants the inference that he could not truthfully support his daughter and son-in-law, or truthfully deny Luckett's version of his June 12 offer of recall . In addition, I note that Dorothy testified that her father had quoted Luckett as telling him that he had no work for him "right now," and then says that "daddy said that if I would write a note to John saying I would drop the charges then he would put him back to work," but this is far from having her father quote the suggestion about the note as coming from Luckett ; at most it indicates that she was repeating only her father's own idea or suggestion about the need for the note, and that idea was not definitely , linked with. Luckett's prior talk by any testimony from Clark. Further, I note that when Harold Williams testified about the talk of the 14th, he did not place the incriminating remarks in Luckett's mouth until after some prompt- ing from General Counsel, and did not repeat them when asked on cross- examination to restate the whole conversation between Luckett and his wife. This gives further credence to Luckett's denials of any remarks on the 12th or 14th which would condition the recall of Clark or Williams or, both upon Mrs. Williams' and Clark's signature of the letters. In addition, Harold Williams does not claim that in his May 26 talk with Luckett about his wife's charge Luckett mentioned either his own or Clark's future employment in relation to the pending charge. In view of these inadequacies in the General Counsel's proof , the alleged connec- tion between withdrawal of the charge and receipt of unemployment compensation, mentioned by Dorothy both in the' note and letter , looms large as ,the real reason why she signed both, and the single statement "take care of Dad and give his job to him" in the note warrants an inference of a daughter's natural concern for the welfare of her elderly father, just as much as an inference that she was asking for his recall in return for her withdrawal of the charge . Further, I note that . in her alleged protest to Luckett that the letter was "not right," she did not explain , either to Luckett or in her testimony , in what respect it was "not right," which further weakens her testimony about the alleged quid pro quo. In all the circumstances I must conclude that, even in light of Respondent 's clear union animus and coercive and unlawful remarks and conduct of company officials found above, the pertinent proofs raise at most a strong suspicion that Respondent coerced Mrs . Williams into signing the, letter with an offer of recall to her father 23 These facts are based on credited testimony of both Williams, Luckett, and Skidmore, which is mutually corroborative in large part. - CORNWELL COMPANY, INC. 53 and husband if she did, and threat of no recall if he did not, but General Counsel has failed to establish by a preponderance of credible proof that Respondent vio- lated the Act through Luckett's remarks and conduct on June 14, 1965, and I shall recommend that the amended complaint be dismissed in this respect. 3. The discharge of Tillett Franklin S. Tillett worked for Respondent from 1960 to March 1963, when he was discharged for unexcused absence. He was rehired in July 1963, and worked until his discharge on September 18, 1964. In his last employment, he was a lacquer sprayer in the finish department under the overall supervision of Supervisor Forrest Kerby, and direct supervision of Foreman William Brinson. Tillett signed a union card about November 23, 1963, in the plant, and thereafter solicited others in the finishing department to sign cards. helped in open distribu- tion of two handbills at the plant, and also wore two different union buttons on his clothes continuously in the plant before the second election, in which period Luckett once took particular note of the, smaller button on his shirt, as found above. I find that Respondent was aware of his union activity from and after some point before March 27, 1964.26 Tillett was absent from work without notice or prior permission on September 17, 1964, and when he reported for work on the 18th, he found a red "absentee" card in place of his timecard in the rack. When Trllett took the red card to Super- visor Kerby, the latter sent him to the office of Plant Superintendent Richard Gehl, who asked Tillett why he was absent the day before. Tillett replied that he had been sick, did not feel like coming to work Gehl asked why he did not call in, and Tillett said he had no telephone. Gehl said that was no excuse, that he should have come in or let Gehl know "or something." Tillett replied that if he felt like coming down, he would have come to work Gehl said that was no excuse, that Tillett had been missing too much work, and,he'would have to let him go Tillett argued that he had not missed too much, and when he had missed work he had been sick Gehl also reminded Tillett that Luckett and Cornwell had previously found him in a tavern in Orleans when he should have been working. Tillett replied that he had good reason to be there, that he had been off sick that day and had gone to town to' buy aspirin, and had seen a' friend's car at the tavern, so had gone in to collect a debt from him. Gehl also said that Tillett's wages had been gar- nished, and that he had been sent home for smoking. Tillett,replied that he had taken care of the garnishment, that he had already been punished for the smoking violation and he did not think this was reason to fire him. Gehl made no reply to these explanations. Tillett pleaded for his job, saying he needed it badly to take care of his family. Gehl finally said that if Tillett had no better excuse about his last absence, and in view of his past record, he would have to let him go on that account. Tillett then left the plant, and Gehl put the final "absentee" red card in Tillett's file, though without statement or explanation of the final action on it, or signature of Tillett or,Gehl. Tillett was never recalled. Respondent claims the discharge was caused solely by Tillett's long record of absenteeism and tardiness which culminated in the absence of September 17, and that he had been warned repeatedly about these deficiencies but had not corrected them. General Counsel aigues this reason was merely a pretext to cover a dis- criminatory discharge, relying on various circumstances including Respondent's lenient treatment of other absentees in the past, the unusual discharge by a high plant official and other factors. At the outset, credible testimony of Kerby and Brinson, plant'records and admis- sions of Tillett show plainly that throughout 1964 and before he had a record of rather frequent absence without permission and tardiness 27 He had been lawfully discharged on March 13, 1963, for absence without permission.' In August 1963, Respondent was in desperate need of lacquer sprayers, and since Tillett had some previous experience at that work, Luckett rehired him on July 25, 1963, to work under Brinson as the first-coat lacquer sprayer, but at, that time both Kerby and Luckett admonished him that he would have to cut' down on his 'absenteeism, as 211 find the above facts on credited testimony of Tillett, McCormick, Edwards, and Luckett. 27 Under established company policy, employees are required to call in or give Respond- ent notice in some way in advance of any absence, and failure to do so subjects the employee to warning's and, if he continues to violate the policy, eventual discharge. The manner of Respondent's enforcement of this policy will be discussed hereafter 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they could not operate a finish line if a lacquer sprayer was absent 'as much as Tillett had been.28 Tillett assured Kerby that he would not have to worry about his attendance. Thereafter in 1963, Tillett was absent from work on October 5 and 23, and November 23; in early 1964, he was absent January 11, February 1, 2, 8, and 22, and March 7 and 14. Nine of these ten dates were Saturday workdays. In this period, Tillett was also frequently late for work, and Brinson warned him at least three times in 1963 to improve and get in on time, that Brinson could not start and run his line with a man short. Tillett improved on tardiness for awhile, but in 1964 was often tardy as much as two to four times a week, which compelled Brinson to complain to Luckett about it. In April 1964, Respondent installed a new system of recording absences on special red cards, mainly for the purpose of reducing the rising volume of absenteeism without notice or permission.29 From April onward, Tillett had unexcused absences on April 20 and 29 (the second for illness ), and one on Saturday, June 1.3. On July 14, sprayers from various depart- ments were absent at the start of work, but a few came in late. When others including Tillett failed to report that afternoon, Luckett and Cornwell made the rounds of their homes to find out the reasons for their, absences. At Tillett's home in Orleans, his wife told then he was sick and went into town for medicine. The officials went into town and walked into a tavern where they saw Tillett drink- ing beer with another boy. The next morning, as Tillett came in to work, he met Luckett and asked him if his timecard was in the rack, or if he was fired. Luckett said, no, his card was in the rack. Tillett said "I was sure I was fired for that, I'll not do that again" and went to work 30 Tillett was 'absent 5 hours on July 31 and all day August 5, for personal illness. In this period, Tillett was also tardy at times several times a week for periods varying from a few minutes to as much as an hour, so that Brinson complained to Luckett about his absences and tardiness, ask- ing what could be done to get Tillett to come in on time. One of Kerby's duties was to check his workers at the timeclock as they punch in each morning, to make sure that a full complement for each line was on hand so that the lines could start promptly, and to make necessary adjustments by transfer of workers from other locations, or otherwise, when line workers were tardy or failed to report. While at the clock, Kerby would verbally warn or reprimand workers including Tillett when they came in late, and also talk to workers about absences when they brought their red cards to him for completion. In this manner, he talked to Tillett about his absences several times in 1964, and also warned him on various occasions about his tardiness. In the talks about absence, he warned him specifically several times that continued absences could not be tolerated and might result in dismissal if con- tinued, because he had to have a lacquer sprayer in that position on the line when it started. Most of these were verbal, on-the-spot warnings, not recorded on the 28 Cabinets went through a highly automated assembly line in the finishing department, with the items moving along it slowly on pallets . Every operation on the.line began as soon as a starting button was pushed to make the conveyor belt move, and each worker on the line had to move along with the pallet and do his or her job on the cabinets as the items moved through that work station . During 1964, Tillett was the only first-coat lacquer sprayer on the finish line, that being the 11th in 14 necessary successive operations on that line . Hence, if Tillett was absent, items on the line could not be completely finished until his spot was filled , and if no one was readily available to do that work, or the job could not be quickly filled by transfer of a man from another department, the line could not start or resume production , as the case might be, until a sprayer was procured 51 Under this system , when a worker is absent , a red "absentee" card is put in his slot In the timecard rack, and the timecard pulled out. When he reports to work, he' takes the card to his foreman or division supervisor ( in case of finishing room personnel, to Supervisor Kerby), who gets the reason for the absence from the workers, writes it in the card, which is then signed by both worker and supervisor . The card is kept by the super- visor until the end of that week, and then goes to the office of the plant superintendent. Richard Gehl , who keeps files of the red cards and reviews them regularly to keep track of each worker's absences, as well as the trend of absences in any period of any department. After signing the red card, the worker is given his' regular timecard to place in the rack, and goes -to work 10I find the July 14 incident on credited testimony of Luckett and admissions of Tillett, which is further supported by his remarks on this incident to Gehl at time of discharge, as found above The only red card in Tillett's 'file for this date has the notation "uu mfe to hospital" and is signed by Tillett and Kerby, but Tillett does not explain why he gave this excuse, which is clearly false if his testimony is the truth '" " ' CORNWELL COMPANY, INC. 55 red cards. From his observations and talks with Tillett .during 1964, Kerby noticed that the frequency of his absence and tardiness was substantially greater than that of other workers . His observations were confirmed by a report from Gehl some time before the discharge about the frequency of red cards in Tillett's file. In the week ending September 19, 1964, Tillett was absent on the 17th without notice, and was discharged on the 18th by Gehl in the discussion found above.si Although Respondent's union animus, prior unlawful conduct , and knowledge of Tillett's union activity present the type of situation in which employers have often taken discriminatory action against union adherents under the cloak of lawful disci- plinary motives, which requires a close analysis of the claimed lawful motive, the above facts provide potent support for the claim that Tillett was discharged solely for repeated absences and constant tardiness . General Counsel points to various circumstances to counterbalance these facts: (1) Before the first election Tillett asked for and received a raise, which brought him in line with other sprayers , and in the month before his discharge, Kerby praised his work highly when he asked for another raise, but said he could not give it to him solely because wages were frozen , all without criticism of his alleged absences or tardiness. If the discharge had been for poor work performance, these facts would weigh heavily against that defense, but I consider them of no signifi- cance where Respondent was bothered not by his performance while at work, but his repeated absences and apparent inability or lack of desire to get to work on time, which were constant irritants to his supervisors , as well as disruptive of pro- duction on his line. The best worker in the world is of little use to an employer if he is not available on required days and times to do his work. (2) The record shows that foremen or department supervisors directly respon- sible for production usually make discharges for cause , instead of higher manage- ment officials , hence the fact that Plant Superintendent Gehl, a higher official who has no direct control of workers or their production , handled Tillett's discharge would normally be a suspicious circumstance . However, it is also clear that Gehl had the specific duty of maintaining the red card record and files on absenteeism, reviewing them and alerting foremen and supervisors to excessive absenteeism of individuals or departments, and that while Kerby handled the actual mechanics of filling out the cards and at the same time attempted to get the offenders to reduce absenteeism (as well as tardiness ) by on-the-spot suggestions and admonitions, he had no control of the cards , and did not review or refer to them for any purpose, once they were filled out and left in his office . Hence, I do not consider it sus- picious, but only natural , that a discharge based on delinquencies shown by the red cards should be handled directly by the official charged with the maintenance of that system and the overall responsibility for its use in the reduction of absentee- ism, for it is inferable that he alone would have the best knowledge of the details of absenteeism of the particular worker to be discharged, hence his handling of the discharge interview would be most efficient, as well as relieving the foreman or supervisor of the need of spending time away from production to review the rec- ords and handle the discharge . In these circumstances , the exact position of Gehl in the upper management hierarchy is likewise of no material significance. 91 In addition to his absence and tardiness, Tillett had been caught by Brinson smoking in the restroom in violation of company rules on August 26, 1964, and had been given a 1-day disciplinary layoff under normal company practice . In June, Respondent had been served with , garnishment papers based on a local court judgment against Tillett, and after a warning that he must settle the matter or suffer discharge under company rules and policy, Tillett paid the debt. These were the 'incidents mentioned by Gehl at the discharge The findings on Tillett's delinquencies andf Respondent 's reactions thereto are based on credible testimony of Luckett, Kerby, and Brinson, documentary evidence, and admissions of Tillett. I do not discredit 'testimony ' of the three plant officials , as suggested by Gen- eral Counsel , just because they were at'times vague and general in their recollections about Tillett, and could not pinpoint with computer-like accuracy every dereliction ' of Tillett, particularly his many instances of , tardiness of variing length , and they did not com- pletely corroborate each other about every talk they had over a year and a half about Tillett's conduct. If they had parroted each other on all these discussions and details thereof, and had been able to pinpoint every tardiness of Tillett (though no red card record was required for such delinquencies ), their stories might well have been open to the claim that the three were telling fabricated and well -memorized ' stories, or that they had been closely watching a'union adherent in an abnormal and suspicious manner . Instead, the very lack''of the suggested! ,characteris $cs lends 'support to their credibility. ' ` I 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3) Gehl and Kerby admitted that Respondent had a policy of giving an employee three warnings about misconduct before discharge, however none of the warnings given by Kerby. to Tillett about absenteeism appeared on his red cards. In addition, Kerby was rather vague about the number of times he had given Tillet verbal warnings of discipline, giving answers ranging from one to six times, and being unable to pinpoint the time of any instance. The failure to record these warnings on any of the seven red cards in Tillett's file in 1964 (including the final discharge card but excluding' those recording his smoking violation and warning about a garnishment), especially after he had been rehired despite a known bad record on absenteeism and had been warned about that on rehire, raises a strong probability that Kerby did not in fact verbally warn Tillett as many times as he states, and probably not as many as three. This conclusion is further supported by Gehl's testimony that the three-warning policy was not rigid, but flexible, depend- ing upon the period over which the absences occurred. On this point, Kerby testi- fied that he did not always apply the three-warning policy, but would mete out discipline after one or two warnings, depending on the circumstances. Since Respondent's proof tends to show Tillett was a chronic absentee as early as 1963 and continued to be such after rehire in 1964, it might be argued that Respondent was condoning his chronic derelictions when it failed sternly to apply the three- time rule against him by recording three definite warnings of dismissal on one or more of the six absentee cards in 1.964 (particularly that of July 14), before final discharge. This omission is pointed up to some extent by the record of William Vice who worked in the same department- After seven unexcused absences between August and the end of 1964, Vice received a warning for an absence of January 5, 1965, which was recorded on a red card, which must have had a salutary effect, for he had no similar absences until two in May and one in June; notwithstanding these later incidents, he was never warned or discharged later; 32 assuming that Vice worked on an automated line in a key position like Tillett, so that his absences created a similar production problem, it would appear that Respondent felt the single warning after seven delinquencies served its purpose, making other warnings or dismissal unnecessary, even after three later unexcused absences. Tillett's'rec- ord is similar in that after he was found outside the plant on'4uly 14, 1964, under circumstances indicating he was not really sick and unable to work, as his wife and he claimed, he was absent single days in July, August, and September; and while there is no proof on his red card of July 14 or otherwise of a reprimand by any official for the absence of that date, his remark to Liickett the next day shows he knew he had been caught "red handed," so to speak, and expected dismissal for' that absence, so that it can be inferred that the whole incident indicated to management that it had the same effect as a stern warning would have had; the contrast is that, following the third of three scattered absences after the narrow escape and reprieve of July 14, he was finally discharged on the basis of the last incident and his whole past record. However, the disparate and apparent harsh treatment of a discharge does not tend to discredit Respondent's defense, because (1) Vice was a known union adherent, who wore union buttons on and off in the same room and period as Tillett, so that Respondent must have known of his union adherence, but (2) there is no proof that Vice was a keyman on the line like Tillett, which would tend to make his supervisors more conscious of and concerned about his absences, and (3) Gehl considered Tillett's whole record of derelictions, including absences, tardi- ness, a recent wage garnishment, and the smoking violation, the last three of which do not appear in Vice's record. Robert Farmer, another open union adherent who wore buttons like Vice, had eight unexcused absences between September 1964 and July 1965, without any recorded warnings or dismissal, and there is the same Pack of proof that he was in a key or.unique position in production, or that his variety of derelictions were as great, as those of Tillett, or that he abused the absentee pol- icy like Tillett.33 With the same factor of, open' union adherence existing for the three, the fact of Tillett's key,position and his greater delinquencies are. differences which afford a reasonable explanation for his discharge, as against the lack of dis- charge (or even warning in Farmer's case) for the others, and further supports, the conclusion that Respondent, judged ..and treated the three union adherents on the I do not consider two afternoon absences, one each in 1964 and 1965, which were apparently with prior permission. - 13 The fact that ' Vice and Farmer may have worn ; their union , badges only sporadically, and not continuously like Tillett, is insufficient to warrant an inference that. Respondent on that basis distinguished them from Tillett, and treated the latter more harshly. CORNWELL COMPANY, INC. 57 basis of their attendance record, not their union activities or the amount or lack of it.34 A lack of proof of union or nonunion sentiment, tardiness, or other derelic- tions,, and importance of job or work, also makes the absenteeism of 51 other employees shown in the record of little value for comparison with Tillett, even though 39 or more of them had 7 or more absences in the same period, with only 2 or 3 recorded instances of warnings or reprimands and no discharges. The lack of, strict application of the warning and dismissal policy to them loses further sig- nificance in light of testimony of Kerby and some foremen that in the press of their regular duties some foremen were lax in general enforcement of the disciplinary policy on absences and the recording of admonitions and warnings on the red cards. Again, none of the red cards shown in the record indicates the type of serious abuse of the absentee policy shown by Tillett's conduct on July 14 35 (4) Testimony of Tillett, Robert H. Collins, and Cornwell shows that on a Sun- day sometime after Tillett's discharge, Tillett and Collins were working part time at the Texaco station across from the plant, when Cornwell brought his car in for lubrication. Collins serviced it, while Tillett stood nearby within earshot of Corn- well as he talked to Clovi Apple, the station owner. Tillett testified that Cornwell talked to Apple about him (Tillett) and then turned and looked and pointed at Collins, saying "there's the next one we are going to get." General Counsel relies on this" to raise the inference that Cornwell was telling Apple about Tillett's dis- charge and indicating Respondent intended to discharge Collins, another union adherent, in the same way. However, Tillett could not recall what Cornwell said about him, and on cross-examination became so"unsure as to who made the above remark, that he admitted he could not "swear" it was one or the other, Cornwell or Apple. Although Collins was close by, he did not. support Tillett's testimony about the alleged remarks or actions of Cornwell. Apple did not testify, but Cornwell flatly denied making any of the above remarks about either boy, or point- ing at Collins. Hence, I find a lack of substantial proof that Cornwell made the remarks, and do not consider this incident as substantial proof of discriminatory motive toward Tillett ex post facto, or similar motive toward Collins who was discharged later. I - In all the circumstances, the factors noted by General Counsel tend to raise at most a strong suspicion that Respondent used the red card record and his continued absenteeism as the pretext for termination' of this union adherent, but this is not enough to cancel out the cogent proof inherent in his long record of derelictions, particularly where there is no proof that Respondent had, directly or indirectly, evinced any special interest in his open union activities or was watching him and his work and attendance more closely than other employees, for the purpose of find- ing a pretext to discharge him.36 The issue here is a close one, but for the reasons set forth above, I conclude that General Counsel has not sustained the ultimate burden of proving by a preponderance of credible and substantial testimony that Respondent discharged Tillett for discriminatory reasons. I grant Respondent's motion to dismiss as to him and will recommend that the complaints be dismissed in that respect. 4. Alleged termination of June Hopper and refusal of recall June Hopper worked about 6 months in 1958 for Respondent 'in the finishing room, and quit early in 1959. She was rehired in August 1962, and worked steadily in the same department until May 1, .1964, when she went on sick leave 341 note also, in this connection, that before discharge Tillett's union activities, while known to Respondent, were minimal, like that of Vice and Farmer, and not such-.as to mark him as a prominent 'union leader, like Dale Edwards and other committee-members discussed below. - 351 attach no significance to the fact that Foreman Brinson did not appear to warn Tillett about his absences or tardiness, because Kerby , the supervisor who checked workers in daily, was in the best position to do it, as lie; observed the tardiness and extent of it, when it occurred , and also had • 'to make' out the ,red cards. ° Tillett did not become a member of the workers ' organizing committee until Septem- ber 24, 1964, after his discharge, and Respondent did not get notice of his membership until about October 6 or 7. Farmer and Vice notified the Board by letter of December 17, 1964, of their open union adherence , and Respondent 'presumably got a copy of that letter shortly after that date, yet there is no proof that Respondent took any discriminatory action against either of them on that basis. .•* i 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a month until June 1, with prior permission of Respondent, based on a writ- ten request from,her physician, Dr. P. T. Hodgin. On^ her return, she worked in finishing, until transferred July 23 into the packing department under, Foreman David Bruner, where she worked until her employment ended October 1 under, cir- cumstances' discussed below. Hopper signed a union card January 30, 1964, and openly wore the smaller of two blue and white union badges on her clothing continuously in the plant for about a month before the second election. She was the only one of about 10 women in packing who wore the union button, the others wearing a green procom- pany badge, stating "Vote for Cornwell." I find that Respondent was 'aware from July onward of the union adherence. I have found above that she received a coercive warning of discharge on August 3 from Chief Inspector Don Wilson, who was not her supervisor. After her long leave of absence, Hopper was out ill on July 6 and 7, August 28 and 31. On the latter date she visited her doctor who gave her medication and a written request for medical leave of absence until October. 1. Mrs. Hopper did not return to work August 31 but still went to the plant where she told Luckett she would have to have another leave of absence, as she had visited her doctor who would like her to take a little time off. Luckett told her she had been on leave for a month in May, and that "we cannot grant a leave of absence every other month." She did not mention or give Luckett the doctor's request for leave. I find this much of the talk from uncontradicted testimony of Luckett. He also testified that after his last remark, Hopper said "I quit" and he then marked her employment record accordingly. She denied making the last remark. Respondent relies upon Luckett's version of this talk for its defense that she quit at that time, after her request for a second long leave, was denied. The testimony of June and Raymond Hopper is to the effect that: As soon as Mrs. Hopper got the leave- request, she gave it to Raymond, her husband, who gave it on September. -17 to Supervisor Kerby. A few days after this, Kerby advised Raymond Hopper 'that he intended to promote him to a better job in the :finishing room, and asked how it would affect him if there was "no place for your wife." 37 Hopper said it would not. Kerby denied that he got the slip from Hopper, and I credit, this for several reasons: (1) Foreman Bruner testified credibly that on August 31 (apparently after he knew June Hopper had gone to' the doctor for ill- ness) he asked Raymond at a rest period if she was able to come back to work (for he-needed help and did not know at that time that she had quit). Raymond replied, no, that she had quit. Bruner testified that he knew at this time that she wanted a 30-day layoff, which he could not grant without approval from the "front office." It is inferable from this that he must have sent her to Luckett for that approval, so his testimony is consistent with and supports Luckett's version of Mrs. Hopper's talk with him and request for leave that day. Since Mrs. Hopper does not deny this talk, with .Luckett and his rejection of her request for leave (except for the'remark "I quit,") it is inferable that her husband learned of it the same day, which is consistent with his confirmation of the quitting in his talk with Bruner, and throws doubt on his testimony that he gave the leave request, despite its rejec- tion, to Kerby, and makes more credible Kerby's denial of that fact. I am satisfied from the story of the Hoppers that Mrs. Hopper "sounded out" Luckett on the 31st (probably after referral by Bruner) about the possibility of another 30-day leave and, when it was rejected, did not bother to give him'the leave request that day, but quit, and that husband and wife in mutual self-support thereafter prepared the tale they, now tell, in order to make it appear that her request was actually accepted (by Kerby) on September 1, but a decision not to recall for discriminatory reasons was made shortly thereafter and put, into effect when she reported for work on October 1 .38 I find from credible testimony of Mrs. Hopper and her doctor that she visited him on September 27 for examination and treatment, at which time he gave her another slip dated September 28, stating that she was able to return to work on October 1. I find from her testimony and that of Luckett that on Octo- ber 1,-she told Luckett at the plant that she had a doctor's release and was ready to return to work, and Luckett replied that she was not on leave of absence, Respond- s7 Kerby admitted this talk, but his version of the question was "would it make any difference to you in your new job if your wife is not recalled?" aI reach this conclusion also from the circumstance that Mrs. Hopper did not try to leave the doctor's request with Lockett on August 31, and her vague and self-contradictory testimony about the handling of that document which is at some points contrary to her husband's story. CORNWELL COMPANY, INC. 59 ent did not need help then, and he had no place for her. Luckett testified credibly, and I find, that at the same time Hopper left on his desk the two slips from the doctor, folded together, and that this was the first time he had seen the August 31 Sl1p.39 In November Hopper again applied to Luckett for work, and received the same reply. On a Friday, late in November, she sent word to Foreman Bruner through her husband that she was ready to return to work. Bruner said he could use her, but had to see Luckett first before he could take her back. Later that day, Bruner told Raymond Hopper that Luckett said she had quit and he had no intention of taking her back. Shortly after, Mr. Hopper asked Luckett himself about taking her back, and the latter said he was not taking on any women, that "I got too damn many here now." Hopper again applied for work at the plant in April or May 1965, at which time Luckett said he had hired several men, but did not need any women. Hopper has never since been recalled for work40 General Counsel apparently takes a dual position on Hopper. Although the complaint alleges a discharge in the October 1 refusal of recall, he argues in effect that Respondent for ulterior reasons denied her a leave of absence and marked her as a "quit" on September 1, while accepting the doctor's request for leave. He tries to support this, in part, by contrasting other 15 to 30 days sick leaves granted by Respondent in the past. But this misses the point, for while the records show that Respondent had granted other sick leaves 2 weeks or more in length, with which Hopper's first leave of 30 days is consistent, there is no proof that Respondent was in the habit of granting a second 30-day leave shortly after the first 41 Hence, the refusal of Hopper's. unusual second request is not suspicious, but on the contrary appears all the more natural in light of Bruner's testimony indi- cating that in this period he was in need of help and wanted her back. It is infer- able from this that Respondent wanted her to try to stay at work, despite the doctor's request. 42 I am satisfied, and find, that in all the circumstances Mrs. Hopper quit her job, probably in a huff, on August 31-because Luckett denied her second request for extended sick leave, and that Respondent thereafter was not required to consider her as an employee on leave of, absence who could normally expect recall and reinstatement after she was well. In this posture, Respondent had a clear right to decide immediately on her quitting that it would not take her back under any circumstances, and on that basis I find nothing discriminatory in Kerby's indication to Raymond Hopper shortly after her.quitting that Respondent might not take her back. Luckett's treatment of Hopper on October .1-and after presents a somewhat dif- ferent picture. While Luckett properly treated her on that date as a nonemployee, not one on leave of absence, and gave an apparently sound economic reason for not rehiring her, the record shows that in November Bruner needed help and would have welcomed Hopper back if Luckett would take her, and in this period Respond- ent hired one new girl for packing that fall and transferred another girl into. that work about January 1, 1965. Luckett also admitted that Respondent's normal annual turnover was about 20 percent of the whole force of about 480 employees (between 90 and 100 workers a year). In these circumstances, Respondent offers no credible explanation,why it did not seek to recall Hopper, an experienced employee, at least after November, when it knew she wanted to return, and must have known that Bruner would have been happy to have her back.43 Another 19I do not credit Hopper 's denial that she left the leave request with him then, because she was vague and self-contradictory about her disposition of that slip , stating on direct testimony that she gave - him only the release, and then reversing position on rebuttal to say that she gave the August 31 slip to him then, and the September 28 release went to Luckett through her husband. 'a These facts are based on credited testimony of both Hoppers . • Testimony of Bruner and Luckett at variance therewith is not credited. 41 Luckett testified credibly that, Respondent does not automatically, accept a doctor's request for leave of absence for an employee. 43 There is no allegation , or argument, that Luckett deliberately forced her to quit by refusing the second leave request. ,'3 Luckett testified that, before deciding on recall of a worker , he examines many aspects, including the skill needed at the time , age, family economic status, and general health ( which may include reports from hospitals or doctors ). However , he does not state that any of these factors were investigated and led ,to the, refusal of recall (other than the , skill needed, which is answered, by Bruner's testimony and the other proof noted above). , 60 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD circumstance weighing against the defense is the conflicting reasons for refusal of recall which Luckett and Bruner gave Raymond Hopper on the same day in November. In my view, all of these factors, in light of Respondent's past unlaw- ful conduct, including the clear warning of discharge from an outside supervisor (which indicated that management might be awaiting the right opportunity to get rid of her), discredit Respondent's defense to such an extent as to warrant the inference that the main reason why Respondent did not rehire this experienced worker was her known union adherence, notwithstanding that her open union activ- ity was not prominent but minimal. Considering all factors and arguments pro and con, I am constrained to conclude that Respondent has not adduced substantial evidence sufficient to rebut the prima facie case of General Counsel as to recall, and that on the whole record General Counsel. has sustained the requisite ultimate burden of proof of a discriminatory failure to recall Hopper in November 1964. I find that Respondent thereby violated Section 8(a) (3) and (1) of the Act. 5. The layoff and refusal of recall of Joy Longest Joy Longest had worked on and off for Respondent since 1956. In her first employment of about 11/2 years she wiped filler off cabinets; after a layoff, she worked in the "rough mill" for about a month; after another layoff, she worked from May 1959 in finish room 3, first as a sealer-sander, then doing some grill- edging, and since about 1962 until her last layoff of October 7, 1964, as a wash- coat sander. Her prior layoffs were temporary for economic reasons, and on several other occasions she had been transferred for short periods for the same reason to do sanding in another finish room. At her last layoff she wds 60 years old. Longest signed a union card on September 9, 1963. Her union affiliation first came to Respondent's attention about March 5, 1964, in a letter of March 4 listing Longest, Edwards, and 10 other employees as active members of the "Cornwell Organizing Committee" for the Union at the plant. She was listed in like fashion in a letter and handbill which Respondent received about March 26, 1964. The first letter advised Respondent that all named members of the committee were lead- ers in the campaign and would actively solicit members for the Union and engage in other lawful activities protected by the Act. Shortly after Respondent got the letter, Harold Lambdin, Longest's foreman, came to her, after a short talk with Luckett nearby, and said Respondent had received the letter and he had "granted your rights back." Prior to the second election, Longest wore the smaller blue- white union badge openly on her clothing two or three times. I find that from and after March 5, 1964, Respondent knew Longest was a leader in the workers' con- certed and union activities in the plant. Prior to October 1964, Longest and others on the production line had been finishing conventional, completely assembled cabinets to be used for installation of high-fidelity record-playing equipment. Her wash-coat sanding job, the second operation on that line, was a quick hand-sanding required to prevent a wash coat just applied from going too deeply into the wood and thus darkening it, also to smooth the surface (somewhat roughened by the wash coat) to prepare it for wip- ing stain . Longest sanded sides and tops on one side' of the line, while Vivian Smith stood opposite her and sanded fronts on the other. In the first week of October, that line was shifted to finishing knock-down hi-fi cabinets (called K-Ds), which came along the line in unassembled pieces, such as sides, backs, fronts, and tops. In finishing these items, no wash coat was applied, hence no wash-coat sand- ing was necessary, and this eliminated the need for two wash-coat sanders as well as one inspector. On October 7, 1964, Foreman Brinson told Longest that her line was chaneing to K-Ds so there would be no need for wash-coat sanding, and "I am going to have to lay you off." , He also said "I don't want any hard feelings toward me or these other girls, for they will go off at 9 a.m. tomorrow." Longest replied, "when I see them off I will know they 'are off."' Brinson laid off Smith at the same time for the same reason , as well as Inspector Roger Haley. Longest has never been recalled to work, while Snyith was recalled in November 1964 to work on K-Ds. Respondent received notice on December 11, 1964, by letter dated Decem- ber 3, that Longest and both Hoppers had become active union workers as mem- bers of the Cornwell Organizing Committee and would engage in open union activi- , ties thereafter.44 "I find the above facts on credited testimony of Longest , company records, and admis- sions of Luckett and Brinson and Kerby. Testimony of any of these witnesses in conflict therewith is not credited. CORNWELL COMPANY, INC. - 61 General Counsel claims the choice of Longest for layoff and failure to recall her was discriminatory because (1) wash-coat sanding operations were continued on other lines, but she was not transferred thereto in accordance, with normal plant practice, (2) Smith, who had never worn union buttons or'shown evidence of union sympathy, was shortly recalled to do some wash-coat sanding and then sealer sand- ing, both of which Longest had done in the past, and the recall of Smith alone broke the pattern of prior short layoffs and recalls of Smith and Longest as a team, so to speak, and (3) Respondent retained two other sealer-sanders, who were appar- ently not prounion, though they had less seniority than Longest. On the seniority issue, the record shows that Longest had about the same''length of service as Smith and Nellie Maddox, but more than Dorothy Williams, and of these three Smith and Williams never openly disclosed any union or antiunion sentiment in the plant, so far as the record shows, while Maddox openly wore a'green procompany badge. However, Luckett' testified credibly, and I find, that in layoff and recall of employ- ees seniority was only a minor consideration, the major factors being the skill needed, ability, health,' age, and family economics of the employees. Since the economic reason for the layoff is, not attacked by General Counsel, and Longest admits she was told before the layoff that her job was being eliminated due to the work changeover on that line, I think her seniority as such over other employees doing other work does not indicate a discriminatory motive for her layoff from that line, even though she was a well-known union worker, while the others were not or were neutral.45 However, on ability to do other continuing jobs, the record shows that in the past, while Longest's main work for 3 years had been wash-coat sanding, she had also been transferred on occasion to do sealer-sanding, on other lines for short periods, so that Respondent knew she had some experience in that work 46 While Respondent does not explain why it made no effort to use that experience by transferring Longest to wash-coat sanding on conventional cabinets which continued on two other lines under Brinson, or to sealer-sanding on K-Ds which were running elsewhere, I do not consider this significant, since General Counsel does not show as part of his prima facie case that there were openings or need for more wash coaters on other lines, or more sealer-sanders for K-Ds; further, Longest admits she did not ask for transfer to one of those jobs when notified of the layoff. It thus appears that Respondent retained two sealer-sanders who had been doing that work steadily, though they had less seniority, as against Longest who had done that only sporadically, and on this point Longest significantly admitted under oath in her statement to the Board and adopted at the hearing, that at this layoff, Respondent retained workers "who did jobs that I had never done, could not do"; to counter the effect of this she changed her story at the hearing to argue that she had more seniority on sealer-sanding than Maddox and Williams, but this is not credible since. she admits she only did that work sporadically. Hence, I must conclude that on sealer-sanding these workers had far more ability and experience in the form of con- tinuous service at that job, and I am satisfied that this was the real, nondiscrimina- tory reason for the failure to transfer Longest to that job. Considering past per- formance, the record shows that up to October 1964, Longest had never received any criticism about her work, but on two occasions in September or October, after the assembly line had been speeded up'-and both Longest and Smith were having trouble keeping up with it, Superintendent Gehl remarked to Longest that she seemed to be behind, and when she admitted it, he said the first time that "you can speed it up, get busy or get out, there are other people who would like to have this job, so keep it up," and on the second merely warned her it "had to be speeded up." While Smith was working a few feet from Longest at the time, so that she probably heard the remarks, I think they were intended mainly for Longest. How- ever, as both were laid off at the same time for the same economic reason as in the past, I attach no discriminatory significance to the remarks47 Considering all 45 The layoff appears normal in that both Longest and Smith were laid off at the time, after being told the economic reason therefor, which Longest admitted was the same way Respondent had handled them on short, temporary layoffs in the past. 6 I credit testimony of Longest and Brinson on this 47 Accepting Longest's testimony that about a week after the second election Luckett asked her in his office "what in the world did you mean by doing what you done"' to which she replied "What in the world did I dos" ( all of which Luckett denied), I find no substantial proof in this equivocal remark of any animosity toward Longest which would tend to show that her layoff was discriminatory , since Longest admits he never said anything else nor explained what he meant, and she could give only her own sub- jective guess that he referred to her union activities. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the above factors, I must conclude that General Counsel has failed to sustain the ultimate burden of preponderant credible proof that Longest was laid off for discriminatory reason. On the failure to recall, however, the picture is different . Smith was recalled in the latter part of November 1964, a week or so after the K-Ds line went on a faster schedule , to do sealer-sanding alongside two other workers already doing that work. Foreman Brinson does not state why he recalled Smith as against Longest, but testimony of Brinson and Kerby shows that this job requires more and longer physical effort because the operator must sand down two coatings of a thicker and heavier sealer compound with coarse sandpaper to a smooth finish , as contrasted with a single thin wash coat which needs only a light sanding with fine sandpaper. Sealer-sanding is also the first , and only, operation of that kind on a K-Ds line, it must be done while walking along with the moving assembly line, and at times the sealer-sander must cross the moving track to do the job right, which requires some agility. Kerby had not specifically observed Longest or Smith doing their work, particularly when they did sealer-sanding, but testified that from his general knowledge of Longest and observations by Brinson he felt that Longest could not have handled the sealer-sanding, and told this to Luckett. Since the supervisors who had charge of Longest while doing sealer-sanding were not called to testify about her performance on that job, and Brinson said nothing specific about that, Kerby's general , second-hand opinion on it leaves the defense weak on that score. On other recall factors, Luckett testified credibly that: Before recalling workers over 40 years of age , he checks their health records and, where necessary, secures written reports from doctors and hospitals, all of which is kept in the worker's files. Longest had suffered an ankle injury in the plant early in 1963, for treat- ment of which Luckett had personally taken her to the doctor several times in 1963, and at least twice in 1964 when she complained about it; on the last trip Luckett had secured a full report from the doctor of her entire treatments for this. In addition , her file shows the same doctor reported to the insurance carrier in May 1964 that she was still suffering severe inflammation of the ankle due to the old injury, and felt she could not work standing up. Luckett considered all these facts in determining not to recall her. But the potency of this proof is diminished by several circumstances . Although Longest had been ailing since early 1963 with a bad ankle, which repeatedly gave her trouble and would probably affect her ability to work standing or moving with the assembly line, there is no proof that it affected her work sufficiently to warrant criticism or warning or even transfer for the sake of her health , in'the 4 or 5 months after Respondent got the doctor's opinion of May 1964 . Gehl's criticism shortly before discharge came only after a speedup which made it more difficult for both Longest and Smith to keep up, but there is no indication that the speedup taxed Longest 's ankle beyond endurance. Moreover, Brinson had the best chance to observe and testify about the work of both women, but he does not give any comparative testimony about their work, general agility or specific ability to do their jobs. Further, Respondent does not produce Smith's personnel file to show her age, general condition of health , or even testimony of Smith to show her experience , at sealer-sanding, which would afford a reliable comparison with Longest , nor does Brinson say he considered any of these factors in recalling only Smith . These omissions became particularly signif- icant where the facts show a failure to recall a known union adherent as against Smith, an apparent neutral in the campaign , though both had about the same experience in terms of length , of service, both could handle sealer-sanding, and both had been handled alike on layoff and recall in the past . In addition, while I have found that the changeover to K-Ds eliminated the wash-coat sanding operation at, that time, Brinson admitted that, in finishing K-Ds, wash-coat sanding is still performed "in instances where we washcoat sand it ...," which weakens Kerby's testimony that that job was permanently eliminated ' on that line . On this point, Dale Edwards, a sprayer , on the same line as Longest, testified that after, Smith came back, she did wash-coat sanding for about 30 days and then was moved to other work. This raised a crucial issue of fact as to Smith 's actual work on recall which might well be resolved by testimony of Smith herself , hence Respondent's failure to call her as a witness (assuming she was antiunion or neutral ) warrants the inference that she could not truthfully support Kerby's testimony or contradict Edwards. Finally, since the record shows an annual turnover of about 20 percent of the average work force of 480, which means between .90 and 100 openings a year, Respondent gives no persuasive reason why it could not find an opening in, the ensuing 12 months up to the close of the hearing for Longest, an employee of CORNWELL COMPANY, INC. 63 8 years of experience, at one of the five types of work in which she had some experience, even despite her weak ankle. In view of these weaknesses in Respond- ent's total defense, it seems to me that Longest's open and notorious union adher- ence, in light of Respondent's union animus and unlawful conduct toward other workers, looms large as the only reasonable and credible explanation for its failure to recall her. While the issue is a close one, I am constrained to conclude and find from all the pertinent facts and circumstances in the record that Respondent failed to recall Longest from and after November 12, 1964 (the date of recall of Smith), because of her well-known and long-continued union adherence and activ- ity, in violation of Section 8(a)(3) and (1) of the Act. 6. The discharge of Robert H. Collins Collins worked in the finishing, department from August 1960 until his discharge on December 28, 1964. He signed a union card January 15, 1964, openly wore union badges in the plant, and distributed some union handbills at the plant entrances before the second election, and also formally notified Respondent by letter on Sep- tember 24, 1964, that he, with Tillett, Edwards, and about 15 other workers, had joined the organizing committee. I have already found that shortly after the second election Chief Inspector Wilson had warned him he might be discharged if he did not throw away his union badges. I find that Respondent was well aware of Col- lins' union activity, and Wilson's remarks in light of Respondents' other coercive conduct, including discrimination against other union adherents, found above, raise an inference that it would be likely to take similar action against Collins. Since 1958 Respondent had a rule that all notices of debt and garnishee notices received by it should be given to the employees who owed the debts, with the advice that Respondent would not "accept garnishee proceedings from any court," that the employees must settle such matters with their creditors and, failing that the employ- ees would be dismissed, since Respondent refused to deduct payments from wages as bookkeeper for either creditor or debtor. Under this rule, Luckett would give garnishment papers served on Respondent to the employee-debtor, advise him of the rule, and tell him to take care of it under penalty of dismissal. The record shows that Luckett had followed this practice for various employees in the past, including Collins and Tillett, and that in general the warning to the employee had resulted in prompt payment or settlement of the debt by the employee, so that Respondent had never been compelled by court order actually to deduct moneys from wages to pay the debt. During his employment Collins had had three or four judgments for debt against him in local courts, on which garnishment proceedings had been instituted. In all but the last, he paid off the debt through the local court after notice and warning from Respondent under the rule outlined above, of which he was well aware. In April '1964,, Collins' landlady, Mae Busick, got a judgment of $65 and costs against him for-,unpaid rent. In November, the personnel office received a letter threatening garnishment proceedings, which Kerby showed to Collins, reminding him of the company ,,rule and possible discharge. Collins said he would look into it. Shortly after December 1, Respondent received an order to appear in supplementary proceedings before the local court, to, make discovery regarding assets of Collins, and on December 9 Luckett signed and returned to the court, sworn interrogatories showing Collins' weekly earnings. At the same time, he gave Collins the order, telling him to straighten it out, reminding him again of the rule, and saying that he would have to pay the debt, as Respondent would not. On December 12; Collins talked to a local lawyer, James Farlow, who advised that if, Busick kept his stove and refrigerator; that should pay the debt, , Farlow apparently wrote Busick,or her lawyer, one Tucker, about it, but Collins never did find out if or how Farlow "settled" the matter for him,,, nor told Luckett anything about it. On December 10, or shortly thereafter, a "summons to garnishee" issued by the court in the Busick case was served on Luckett, commanding Respondent to deduct 10 percent of Collins' wages weekly and remit it to the court until the judgment and costs were satisfied. Luckett gave the copy -of the summons to Collins, told him his wages had been garnished, and said he had better take it to Tucker's office. Collins took it to his own lawyer. On receipt of the,summons, Luckett called the judge. to find out if Respondent must honor the summons, and in response the judge sent him a letter, dated December 18, advising that the garnishment "order" served on Respondent was legal and binding on it. Luckett 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD got this letter on December, 19 or 21. The plant was shut for the Christmas holiday from December 22 through 27. On Monday, the 28th, Luckett took Collins' timecard from the rack, and when he came in asked Collins why'he had not taken care of the debt. Collins said he intended to do so. Luckett told Collins that he had loaned him money-to pay, and that he only had 4o pay $5 every second week on the judgment. Collins made no reply. Luckett then told him he was discharged, and marked his personnel record "Dismiss- garnishee policy-several warnings." At date of the hearing, Collins had. not paid the debt, the judgment was apparently still outstanding, and the summons to garnishee had never been withdrawn by the court 48 Respondent says on these facts that Collins was properly discharged for violation of the company rule and policy on wage garnishments. In support of this, Luckett further testified that he considered the "summons to garnishee" a final order upon Respondent to pay the debt out of wages, which Respondent was bound to obey. This appears to be the legal effect of the "summons" which by its terms is also called a "writ of execution on said Cornwell Co. Inc. corii- manding the said Cornwell Co.; Inc., to hold and pay unto this court," etc. Hence, on, its face the service of this writ, and failure of Collins effectively to settle it so as to have it satisfied or otherwise withdrawn, appears to be a clear violation of the company rule, warranting discharge. In support' of the defense, it must also be noted that the record is devoid of proof that Luckett or any other company official mentioned the Union or Collins' adherence thereto in the dis- cussion about the garnishment. The record also shows that Luckett made one loan of $20 to Collins out of company funds on December 10, 1964, to assist him in making payments on the debt, which was consistent with its longstanding practice of making loans to employees to pay off debts.49 Luckett also testified that Collins was the only employee of all whose debts went to garnishment proceedings who had failed to take care of the debt against him before Respond- ent became legally obligated to pay it out of wages. General Counsel argues that the alleged reason for the discharge was a pure pretext on several grounds, i.e., Luckett's conflicting testimony about the loan to Collins to pay off the debt, his alleged false assertion that no other garnish- ment case had gone to the point where Respondent had to honor a garnishment order, and his alleged false claim that the "summons to garnishee" was a binding order on the employer to make deductions. On the last point, examination of the pertinent Indiana law satisfies me that as soon as a summons to garnishee in the form used here is served on au employer, he is liable to the plaintiff in the debt action for the amount of the judgment, to the extent required by the statute.59 This supports Luckett's interpretation of the effect of service of the summons in the Busick case , as well as the statements of the local judge in the letter which he sent to, Luckett, and on which Luckett relied. Hence, it is immaterial whether earlier or later pleadings were issued and served on Respondent in this instance or other garnishment proceedings . I have already "The above facts are based on credited testimony of Collins, Luckett, and documentary evidence. Testimony of either witness at variance therewith is not credited. 0 I find the fact and purpose of the loan from credible testimony of Luckett, and admis- sions of Collins who, while denying at one point 'that he got any loans for this debt, also admitted he could not remember the purpose of the $20 loan so Burns Indiana Annot. Stat., Sec. 3-523, provides "Liability of garnishee=From the day of service of the summons , the garnishee shall be accountable to the plaintiff in the action for the amount of money, property or credits in his hands, or due and owing from him to the defendant." Other provisions of the statute provide for issuance and service of a final order in supplementary proceedings in actions for debt in which the employer or prospective garnishee is at the outset joined as a third-party defendant, and where that is done the final order contains both the judgment against the debtor as well as the order on the garnishee to pay. That expedited procedure was used in several suits against employees of Respondent , and I am satisfied that the final order was binding on Respondent, -war- ranting its application of its rule if the debtor did not pay up However, I also conclude that the summons to garnishee used in the Busick suit had the same legal effect as the final order, where the garnishee was only made a party 'after entry of judgment, for pur- poses of garnishment of wages. Hence, the argument of General Counsel about the preliminary and nonbinding nature of the summons is without substance. CORNWELL COMPANY, INC. 65 considered and discounted Luckett's testimony when called as a surprise adverse witness by General Counsel' under Federal Rule 43 b, about the loans to Collins to pay this debt, and the status of other garnishment proceedings, for Luckett's broad statements were made-without benefit of all the records showing the true facts (which General Counsel apparently already knew, while cross-examining Luckett) and he was able to, testify to the true facts later, and only after exam- ining . the company record to refresh his recollection. In any event, I have relied mainly on the records in evidence. However, Luckett's uncontradicted testimony for Respondent shows that the December 10 loan of $20 was made to f assist Collins to pay off the debt, and this is consistent with Respondent's practice of making-loans to workers in like straits, which indicates that it was here exeicising its normal financial assistance to a worker, notwithstanding his known union adherence: The same leniency is shown by the fact that Respond- ent did not discharge Collins until about a month after it first received knowledge of the -garnishment, and about 15 days after it received the binding "summons" requiring it to honor, the garnishment; in all this period it forbore dismissal action, while warning Collins three times to take care of the debt under pain of dismissal under the company rule. This appears to be a reasonable for- bearance which militates strongly against any inference that his union activity motivated the discharge. Further, the records of garnishments in company personnel files on other employees, and uncontradicted testimony of Luckett, show that in all such prior cases the employee promptly arranged to pay off the debt, which apparently relieved Respondent of all liability to pay, even in two cases (George T. Morgan and Charles Music) where Respondent had been made a third party in the case in which a final order had been entered under the alternate procedure outlined above, and in one case involving Charles Thacker where the same procedure was followed as in Collins' last case resulting in "summons to garnishee" on Respondent. Hence, I must conclude that Respond- ent over the years applied its rule about garnishments uniformly and without discrimination in all cases, including that of Collins. This conclusion is all the more impelling since it appears that it took no drastic action against him on earlier garnishments in 1964 when he paid the debts, although he was a known union adherent, and obviously discharged him as a last resort, after giving him a long period in which to take care of the debt, and even loaning him funds with which to make payments on it. This action appears quite charitable and nondiscriminatory especially 'in light of Collins' indifference to the debt and his responsibility under the company rule, which is shown by his testimony that, after assuring management that he would take care of the debt, he left the matter in'the hands of his lawyer, relying on his alleged assurance that the debt would be canceled by the creditor's retention of some of his personal property; but Collins apparently did not give the lawyer the $20 borrowed from Respondent to apply on the debt, nor did he later explain the alleged settlement to Luckett, nor did he bother to.see the plaintiff's lawyer, as Luckett suggested in his final warning on receipt of the writ of execution; and his own lawyer is not called by General Counsel to support his story of the alleged settlement of the debt, and what if anything was done to cancel or satisfy the writ of explana- tion of record. In all the circumstances, the cogent proofs adduced by Respond- ent to support its defense far outweigh the circumstances relied on by General Counsel and are adequate to rebut the prima facie inference of discrimination which arises from Respondent 's other unfair labor practices and its union animus. I conclude that General Counsel has failed to sustain the ultimate,- burden of proving by a preponderance of credible evidence in the whole record that Collins was discharged because of his union adherence and activity. I grant Respondent's motion to dismiss as to him, and shall recommend that the com- plaint be dismissed in that respect 5i 7. The discharge of Ernest Dale Edwards Edwards had two work stints with Respondent between 1947 and 1956. He returned in December 1957 and worked steadily until his discharge on March 15, 1965. His last job before termination was a sprayer on line 3 in the finish room. 511 have already considered and disposed of the incident at the Texaco gas station in- volving Cornwell , Collins, and Tillett, in my analysis of Tillett 's discharge. 243-084-67-vol. 159-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Edwards was the prime mover in bringing the Union to Paoli to organize the plant, was prominent in its organizing campaigns before both elections, signed a union card at the first union meeting in August, 1963 , became a member of the organizing committee in March 1964, and vice chairman of it in March 1965, openly distributed union leaflets at the plant and solicited employees in the plant to sign union cards, openly wore union badges in the plant before the elections, was a union observer at the second election , and signed another union card and continued some of these same activities during the second organizing drive in January and February 1965. Respondent admittedly had knowledge of most of these activities from March 1964 onward. I have already found that Respondent engaged in surveillance of the first union meeting at his house in 1963, that Luckett queried him about his union sentiments in that year and in February 1964, that Cornwell warned him of possible reprisal at a union meeting in February 1964, which Cornwell was watching, and it is inferable from this conduct that Respondent not only resented prominent union activities of this employee of long service, but was probably inclined toward retaliation against him for it. Edwards lived in Hardinsburg, Indiana, about 15 miles from the plant, and as he did not own a car or have a driver's license, for about a year before his discharge he relied upon Troy Kennedy to drive him to and from work. Begin- ning with February 6 and ending March 13, 1965, Edwards was absent from work four out of six Saturdays under circumstances noted hereafter.52 At his last absence, March 13, Edwards' timecard was pulled and a red absentee card substituted in the usual manner, and when he reported for work on Monday, March 15, Supervisor Kerby sent him to Superintendent Gehl's office. Gehl had some of his red cards in his hand, and asked Edwards why he was absent Saturday. Edwards said he had no transportation, because Kennedy had not shown up, that Edwards had waited until 8:30 a.m. trying to thumb a ride to work but without success, so he stayed at home and cut wood. Gehl asked Edwards if he had a telephone, Edwards said no. Gehl asked where the nearest telephone was, and Edwards said about a mile from his home. Gehl said this was a "poor excuse," he wanted him to tell it to Richard Commingore, vice president, so Gehl called in Commingore from the next office, and Edwards repeated what he had told Gehl. Gehl then referred to the red cards in his hand, and said that if Edwards could not give any better explanation for his last absence, he was through, because Respondent could not tolerate his absence every Saturday morning,53 and it looked like Edwards had made up his mind that he would not work Saturdays. Edwards replied that he would work on Saturdays if he "had a way in to work." Edwards then left the plant. His red card of -the 13th was marked "unexcused absence" and signed by Kerby.54 Respondent argues that the discharge of Edwards was a routine discipline for repeated violation of the rule against absenteeism by his failures to work on suc- cessive Saturdays, after repeated specific warnings against repetition. It also intimates that enforcement of the rule by discharge was particularly appropriate in Edwards' case, because he rode in a car pool, and the red card system had been instituted mainly to reduce group absenteeism, as where the driver of a car pool was absent, thereby preventing others in the car from going to work. Edwards' personnel file shows that under the red, card system he had only one unexcused absence in 1964, on a Saturday in April, however, he had six in 1965 up to his discharge, the last five of them on Saturdays. Leaving out the permitted snow- 52 He was actually out five Saturdays , but the parties stipulated that the plant was shut down February 27 because of'a severe snowstorm, hence that absence is not charge- able to him. sa In the 1964-65 -period, Saturday was a scheduled workday, and workers were re- quired to report that day, unless absent with permission , and absences on Saturdays without notice or permission were subject to the red card system of discipline found above. The only regular exemptions from Saturday work were given to those with religious beliefs forbidding work on Saturday, like the Jehovah's Witnesses, Seventh Day Adventists, and members of the Pentecostal Church, but none of these exemptions applied to Edwards or Troy Kennedy, whose case is discussed hereafter. 84 The facts in this paragraph are based on credited testimony of Edwards, Luckett, and Gehl, and documentary evidence . Testimony of any , of these witnesses at variance therewith is not credited. CORNWELL COMPANY, INC. 67 storm absence of February 27, Respondent must rely on the remaining four: February 6, 13, and 20 and March 13. General Counsel argues that these, singly or together, did not justify the drastic discipline of discharge, for various reasons, hence reliance on them was a pretext. February 6: The red card for this date indicates that the reason Edwards was "off" was that his wife had tried to poison herself. Edwards testified that when he reported that morning, he told Foreman Brinson about his wife, and asked per- mission to go to the hospital. Brinson referred him to Kerby, who said "I cannot refuse" when he heard the story, and gave him permission to leave. I credit his testimony,55 and find therefrom that this was partial Saturday absence with permis- sion, and thus not a violation of the company rule, in light of Kerby's admission that there was a great difference between permitted and unexcused absence. February 13: The card for this date shows that Edwards apparently told Kerby on reporting that he had "no way to ride." On this, credible testimony of Troy Kennedy and Edwards shows that: On February 10, Kennedy asked Brinson for permission to see the doctor about his back. Brinson said he would have to check with Kerby, and after talking with Kerby, he told Kennedy he could go only after he (Brinson) made an appointment with the doctor for him. Brinson made the appointment for 11 a.m., and let Kennedy go at that time. Kennedy was treated by a Paoli doctor, who gave him a slip requesting medical leave for him until Saturday the 13th. Kennedy gave the slip to Kerby that evening, and on this basis his red card for the 10th was made out by Kerby "off until 13th by doctor's request." 56 However, while Kennedy was absent, he did not tell Edwards about the length of his absence, so Edwards assumed he would work Saturday, and when he did not show up, Edwards had no ride to the plant. Edwards had been told by Brinson on the 12th that he would have to work 5 hours on the 13th, and Edwards replied that he would come in if he could, as he rode with Kennedy. When Kennedy did not send any word to the plant, by telephone or otherwise.57 Edwards also testified credibly, and I find, that Brinson knew beforehand that Edwards rode with Kennedy because, on past occasions when Kennedy did not drive due to illness, Edwards would take an illness message from Kennedy to the plant. How- ever, Edwards' carriage of such messages for Kennedy to the plant, and the fact that he apparently worked on February 11 and 12, when Kennedy was out sick, also shows that Edwards had an alternate method of getting to the plant when Kennedy was ill, which must have been known to Brinson. Hence, Edwards' alleged warning to Brinson on the 12th that he might not get to work on the 13th, depending on transportation by Kennedy, does not ring quite true as a defense for his absence of the 13th. However, if we assume Brinson should have known about this, he apparently did not on the 12th suggest that Edwards use his alter- nate mode of transportation to get to work, if Kennedy failed him, nor did Brinson make any apparent advance arrangement for a relief man for Edwards on the 13th. In light of these facts, while Edwards' reason for that absence is somewhat sus- pect, Gehl made no real attempt on March 15 to dispute it or show its probable falsity based on Edwards' past relations with Kennedy and, in' addition, there is no proof that Kerby' gave Edwards any argument about the validity of his absence, or warning, when he recorded the alleged reason'on the February 13th card, which further indicates that 'he realized there may have been extenuating circumstances created in part by Respondent's own action on Kennedy's absence. On all the facts, I must conclude that Gehl's reliance on this absence appears questionable, especially in absence of proof that he got all the facts from Brinson and Kerby before the discharge conference. 11 15 Brinson denied only that be gave permission for the absence,, and Kerby does not deny Edwards' version of the talk with him. 511 also find that the request was intended, and so understood by Respondent, to include Saturday, the 13th, for Kennedy's-file does not contain any red card for an absence of that date, Edwards testified without contradiction that Kennedy did not return td work until Monday, the 15th, and Kennedy testified without contradiction that the doctor requested leave for him until Monday, the 15th., 67I do not credit Iierby's denial of receipt of the slip from Kennedy's doctor, as he' does not deny the rest of Kennedy's story about this incident. Brinson does not deny the testimony of either worker. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 20: Edwards was absent this Saturday with a cold, and did not feel like working. Although his driver, Kennedy, apparently worked that day, as there is no red card in his file for that date, Edwards did not attempt to send word of his illness to the plant through him or otherwise.58 When Edwards brought his red card to Kerby the next workday (February 22 or 23), Kerby- told him his absence on Saturday must stop, or he would be dismissed. Edwards replied that he would see if he could not correct it, that he:could improve pit if he could "find a way in to work." Kerby then wrote on the card "this is the third Saturday in a row that Dale has failed to work. - This card is to serve as final warning to him against any further absenteeism," and Edwards signed it, indicating receipt of this warn- ing.59 On these facts, this absence appears to be a clear violation of the company rule which Respondent could take into account for discipline purposes. March 13: Since Edwards by his own admission apparently had some other method of getting to the plant when Kennedy failed him, his reliance on that excuse for the March 13 absence appears questionable, however, Gehl did not mention alternate transportation or specifically question this excuse, but only queried Edwards about the availability of telephone service for a call-in.60 Since Edwards was telling the truth about the failure of a ride from Kennedy, and lack of immediate telephone service, this furnished a reasonable explanation based on circumstances which Respondent already knew. Hence, Gehl's comment that it was a poor excuse, without asking about other transportation, is an indication that Respondent was seeking an ostensible legitimate reason as a pretext for discharge regardless of the validity of his excuse. The same inference arises from Gehl's general reference to the earlier Saturday absences to support his view that Edwards had determined not to work Saturdays. for there is no proof that Gehl made any in- vestigation of the circumstances of the three earlier absences discussed above.61 On the contrary, Gehl took the rather surprising step of having Edwards repeat his excuses before a vice president of Respondent, ostensibly so that he could be a witness, rather than have Kerby (who knew all the circumstances from discussions with Edwards when the cards were filled out) present to confront Edwards and explain all the facts for Gehl. Other circumstances lead to the same conclusions. Thus, while Edwards appeared to work in a key job on the finish line,62 which would justify Respondent's concern about his repeated absences, it appears that Edwards was given only one prior warning on February 20 of discipline for any repetition, and this was a final warning, indicating the next offense would result in discharge, which is a distinct variance from Respondent's normal practice of giving two or three such warnings before discharge, as found above,63 and also stands in sharp contrast to its far more lenient attitude toward absences of many 58 Lacking any explanation by Edwards , it is a fair inference that Kennedy came to pick him up in the normal course, and would have been the best method of sending a message to the plant, just as Edwards had taken similar illness messages in for Kennedy when the latter was Ill. "I find these facts on credited testimony of Edwards and Kerby and the red card Testimony of Edwards denying any mention of dismissal is not credited. 60 For reasons stated in consideration of Tillett 's discharge , I. raise no discriminatory inference from the fact that Superintendent Gehl handled this discharge. 81 Gehl testified that he had noted Edwards' five absences in a row in the usual course of checking the red cards and had talked to Kerby about Edwards about 2 weeks be- fore, after Edwards had been out three times. However, he does not state what he learned from Kerby, nor *does Kerby testify on this, so I can only assume Gehl learned from Kerby that the February 6 absence was with permission and that of February 13 had some elements of justification by any fair standards , leaving only that of the 20th as an unexplained violation. 62 He was the sole final coat lacquer sprayer , the final operation on line 3 , so that his absence would have a definite effect on production until a substitute was found. 63I do not consider a warning to Edwards in 1964 for failure to check out one night, as coming within the three-time rule under" the absentee policy. Further, Respondent presents no plausible reason why the three-time rule should not apply to Edwards ; at most Gehl testified that its application to absences depended on the period over which absences extended, but no witness for Respondent indicates how or why Edwards' two unexplained and unexcused absences in less than 30 days in 1965 was such an unusual concentration of absences or so flagrant a violation of the absentee rule , as to warrant a single warning of dismissal on the first and discharge on the second. CORNWELL COMPANY, INC. 69 other male employees.64 The contrast is accentuated by Kerby's testimony that his personal practice was to give two warnings before discharge, and that he tried to be very generous by giving workers several chances after repeated absences (as he did with Tillett), as against which it becomes significant that Edwards did not get even the second chance, so far as Kerby's written record on the cards shows. Again, another indication of Respondent's normal lenient attitude lies in the fact that, in practically all cases of actual discharge for absenteeism detailed in the record (other than Edwards and Kennedy, but including Tillett), the discharges involved workers of comparatively short tenure, and came after several warnings, or one or more unexcused absences of 2 or more days in a row, or in circum- stances showing actual quitting during a workday, or a deliberate violation of the absentee rule. In the case of Melvin Earl, which is somewhat like that of Edwards, Earl was not discharged until after 10 absences without permission. In two cases of discharge for Saturday absenteeism, Hubert Rainey was terminated on a Mon- day in May 1965, after two previous Saturday absences without permission, but in his case it is inferable that these were deliberate absences without excuse, for there is no proof that he tried to • explain them away, like Edwards; and Garvin Ashby was fired for clear refusal to work Saturdays, based on apparent call-ins giving the false reason of illness as the excuse., None of these factors appeared in Edwards' case. Finally, Cornwell testified without contradiction that: After work hours on March 15, Edwards and Kennedy approached Cornwell in Paoli, and told him they had been discharged. He said he knew it. Edwards asked Cornwell to take them back, saying they had been wrong in their union activities, the workers could never win an election at the plant, and if he would take them back, they would work for the Company against the Union, and would tell him how to see that the Union did not get into the plant. Cornwell replied that he did not care about their activities, as it was up to the workers to vote, and that he would not go over his supervisors' heads. Cornwell explained on cross-examination that he made this reply because "I knew they could not do this, they did not have to tell me that they could do it, I knew that they couldn't, so I said I do not go over a supervisor's head." The effect of his explanation is, that he decided he would not by to reverse his subordinates' actions in firing them because he knew that they could not carry through on their present offer to fight against the Union, and the implication is, that he would have taken steps to reinstate them if he had thought they could carry out their promise. This is a further indication that top manage- ment knew they had been discharged for their union activities, and refused to recall them because it did not feel they could effectively reveise those activities. Considering all of the above facts and circumstances, I conclude that Respond- ent has not adduced proof adequate to rebut the prima facie case of discrimination established by General Counsel, and that General Counsel has sustained the requi- site overall burden of proof on the entire record that Respondent discharged Edwards on March 15, 1965, for his union activities in violation of Section 8(a) (3) and (1) of the Act. 64 Respondent's records show: (1) George Smock had nine red cards in 1965 and through February 19 (with only one allowed absence), before he received a mere warning (without any indication of finality or discharge ) about the need for Saturday work unless absence is excused, and when he violated this warning the very next Saturday for a nonsick reason , he was not disciplined ; and five later unexcused absences in 1965 did not bring warning or discharge. (2) At least nine workers had six or more unexcused'absences, some of them con- centrated in 1965 , without recorded warnings or discharge (Clark, Goodman, Wyman, J. W. Combs, Skelton, Houston, Roberts, Ragsdale, Jones ) ; Ragsdale had 10 absences concentrated between March. 18 and June 1, 1965. ' (3) C. R. Smith had four unexcused absences in October 1964; the first wa's for lack of transportation, and his excuse for not calling in was a mile walk to the nearest tele- phone (like Edwards), yet he was not warned or disciplined (4) Harold Schultz had four successive absences for lack of transportation in the winter of 1964-65 (one a month) without warning or discipline There is no proof that any of the above employees came to Respondent' s attention as nienibeis of the organizing committee, or were otherwise, pro nil nent in the campaign, but for purposes of comparison. I take the view most favorable to Respondent and assume that some, at least, may have been "rank-and-file" union adherents : if I assumed they were all antiunion, the variance between their treatment and that of Edwards' would be far more noticeable 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8 Discharge of Troy Kennedy Kennedy was hired in'October 1963, and worked continuously until his discharge on March 15, 1965 ],have found.that he was the driver in the car pool that included Edwards. Respondent claims he was discharged for the same reason as Edwards, repeated absences after repeated warnings. In November 1963, Kennedy signed a union card which he got from Edwards, and woie a union badge in the plant for 3 weeks before the second election, but engaged in no further noticeable union activity until February 1965, when he signed a second union card, and also solicited one employee to sign a card, when he was warned of possible discharge therefor by Brinson as found above. On one occasion in August 1964, Kennedy asked Luckett in a restaurant in Paoli if he could take a few days off in order to take his wife to the hospital. Luckett replied "you can if you will leave Dale Edwards alone." 65 I find that Respondent knew before the discharge that Kennedy was a union adherent, suspected that he might be active with Edwards in that work, and resented it. Notwithstanding Luckett's advice, Kennedy continued to drive to and from work with Edwards until his dis- charge, as he had a clear right to do. On Friday, March 12, 1965, Kennedy asked Foreman Brinson if they would work Saturday, Brinson said, not that he knew of. Later in the day Brinson told him they would work a half day. Kennedy replied that he would work if he could get there. Kennedy testified that Saturday he got up with a sore back, so stayed home and had his wife telephone to someone (not identified) in the plant per- sonnel office that he was ill and would not come in, and would probably go to a doctor.66 When Kennedy reported at the plant on Monday, the 15th, he took his red card as usual to Kerby, who told him he had had enough warning about previous absences, and was terminated. Kerby marked his red card "Dismissed- too much absenteeism." Respondent argues the discharge was based on a series of 13 red card absences (involving 22 workdays) in 10 months from May 14, 1964, about which Kennedy had received a specific warning in September 1964 and a second and final one in February 1965, and that the final straw was the absence of March 13, 1965, for which Kennedy gave a false reason. Regarding these absences, the record shows that Kennedy hurt his back while at work in May 1964, and was apparently under a doctor's care for this for 5 workdays, from May 14 through 21. He received no reprimand or warning for this, as it was clearly his first absence and caused by a work injury. He was out December 10 and 11 for doctor's care of a back injury, and furnished Luckett with a doctor's certificate about it; he received no warning of discipline for this. He became ill at work February 10, 1965, was released at 11 a.m to see the doctor, by permission of Kerby after the latter had made the appointment, and after medical treatment was out 3 more days through the 13th at the doctor's request; according to Kerby's testimony, this instance cannot be counted against him, for it was an absence with permission at the outset These total 11 days of permitted or excused absences. After his initial 5-day absence in 1964, he was out for family or personal illness 1 day in June, once in July, twice in August (one of which was apparently with conditional permission of Luckett as found above) and twice in September, five of them with- out permission. On the last of these (September 15) for personal illness, Kerby warned him that his absences, were "out of control" and were hurting his. produc- tion line, and he would have to improve, or suffer dismissal. Kennedy said he would improve. At the time Kerby wrote on the card "This is final absentee card. Next time off you are dismissed," and Kennedy signed the card. After that, how- ever, he was absent once in October for a, family tragedy, twice in December for back trouble, once in January 1965 for dental treatment, 2 days at end of January for lack of transportation, 4 days in February with permission for illness, and for part of the day on March 8 with permission because of his brother's illness. Leav- ing aside the seven later absences with permission, he received no further warning (or dismissal) for the four remaining unexcused absences. Kerby admitted that any of the six absences of October, December, and January met the test for dis- " I find these facts on credited testimony of Kennedy. Luckett could not recall the restaurant talk, denied the quoted remark, but I do not credit him on this in view of his extensive interrogation and criticism of other employees about their union activities, as found 'above. The above facts are found on uncontradieted testimony of Kennedy, his wife, and Alice Baker. CORN`VELL• COMPANY, INC; 71 missal given in the "final" warning of September 15, 1964, and his only excuse for not dismissing him was his policy of, generosity in giving employees another chance. This indicates that the rather frequent prior absences were condoned. Respondent does not rely on the March 8, 1965, absence with permission. How- ever,, Kerby testified that he is lenient only if the worker's "dependability requires it," and he testified further that on the occasion of the 2-day December illness absence under doctor's care, he gave Kennedy another, final verbal warning, in which he referred to all prior absences, and told him further absences would result in dismissal. He also testified that he received no word of a call-in on behalf of Kennedy on March 13, hence discharged him for that absence, in accordance with a warning in Febiuary. This explanation is suspect because of (1) the cir- cumstances of the February 10-13 absences which show clearly that Luckett accepted the doctor's certificate, so that the absence was excused after the fact, so to speak, (2) Kennedy denies flatly any warning on or about February 10, and (3) Kerby gives no credible explanation why he did not record the alleged final verbal warning on the February 10 card in accordance with his usual practice. He also testified that when he gave that warning, he had in mind the prior warning of September 1964, but this is incredible because he did not mention it or the inter- vening absences to Kennedy at the time.67 I am convinced and find that Kerby in fact did not give verbal warning to Kennedy on February 12. Thus, the dis- charge of March 15 must be based on the three unexcused absences of January, two in December, and one in October. Considering Respondent's leniency in disciplining others for like reason, and its apparent reluctance to discharge others until they had been guilty of far moie unexcused absences, as noted above, and the fact that Kennedy had received only one warning in September 1964, I am convinced by all the circumstances that Respondent was not bothered by Kennedy's various absences after the September 15, 1964, final warning (which it never implemented according to its normal policy) until after he was discovered solicit- ing for the Union in February 1965, whereupon all his prior delinquencies (whether permitted, excused, or not) suddenly loomed important and intolerable for purposes of supporting a discharge.68 I have also considered the discriminatory implications of Cornwell's remarks to Kennedy and Edwards shortly after their discharge, as found above. In all the circumstances, . I conclude that Respondent has not sustained the burden of going forward with cogent evidence adequate to rebut the prima facie case of discriminatory discharge made out by General Counsel, and on all the pertinent facts and circumstances, I further conclude that General Counsel has sustained the ultimate burden of proving by substantial evidence that Respondent did not take action against Kennedy for his admittedly bad red card record but con- doned it, until after it learned that he was active in the Union's 1965 campaign, and then suddenly revived that record as the pretext for termination, and that Respondent thereby discharged Kennedy on March 15, 1965, because of his recent union activity, in violation of Section 8(a)(3) and (1) of the Act.69 av I do not credit Keiby's testimony about his statements to Kennedy on the 10th be- cause he told inconsistent stories about it on direct and cross-examination, n hick induces the belief that he was trying to lay the groundwork for the final discharge by inserting a "final" warning at the nearest, substantial absence before March '13 83 In reaching this conclusion, I have weighed carefully discrepancies in Kenneth's te4ti- mony about the March 13 incident which would indicate that the alleged illness reason was spurious Thus, he contradicted himself several times about his season for going to the office on Maich 15. indicating at two points that lie did not come in to go to work He also admitted.he never saw a doctor on the 13th as his wife told the personnel office, and that he was never successful in getting a certificate from a doctor about his tie.it- ment on the 13th, which he could have given Luckett on his return, as he had done at least once before He also admitted at one point that lie "figured" lie might get some kind of discipline after getting so many red cards in his file I also note that he did not give Kerby any argument or explanation about his absences when discharged. While this tends to show that the reason for his final absence may have been faked, and it was in- excusable. it is also significant that Kerby did not go into the circumstances of the absence (like Gehl did with Edwards ) in discussion with him or otherwise, before dis- charging him, so that he did not know the true circumstances , and was probably not in- terested in them. . 11, 00 I have considered other corollary facts and arguments presented by the parties pro and Cori, and find them insufficient in fact or law to change this conclusion 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section III , above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. Having found that Respondent has unlawfuly 'discriminated in regard to the hire and tenure of employment of June Hopper and Joy Longest by failure to iecall Longest after layoff and rehire Hopper, and by discharge of and failure to reinstate Ernest Dale Edwards and Troy Kennedy, I shall recommend that Respondent offer to each of them immediate and full reinstatement to his or her former or a substantially equivalent position , without prejudice to. seniority and other rights and privileges previously enjoyed, and that Respondent make them whole for any loss of pay suffered by reason of its discrimination against them, by payment to each of a sum of money equal to that which he or she would have earned as wages from the date of the discrimination against such employee, as found above, less net earnings during said period, the backpay to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be added to the backpay due, as set forth in Isis Plumbing & Heating Co. Inc., 138 NLRB 716 . I shall also recommend that Respondent preserve and make available to the Board or its agents, upon request, all records which may be necessary and pertinent for computing the backpay due and the right of reinstatement recommended herein. In view of the nature and variety of unfair labor practices committed which indicate Respondent's basic disregard of the fundamental rights of employees protected by the Act, I shall recommend issuance of a broad cease-and -desist order. I shall also recommend that the complaint be dismissed insofar as it alleges discriminatory discharge of June Hopper and discharge or layoff of Joy Longest, and a discriminatory discharge and refusal of reinstatement of Franklin S. Tillett and Robert H. Collins. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By failure to rehire June Hopper and to recall Joy Longest after layoff, and by discharging and refusing to reinstate Ernest Dale Edwards and Troy Kennedy, because of their union affiliation and activity , thereby discouraging membership in a labor organization , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the above conduct and by interrogation of employees , surveillance of their union activities, and threats of reprisal because of such activities, which tended to interfere with, restrain, and coerce employees in exercise of rights guaranteed to them by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. Except as found above in this Decision, Respondent has not engaged in any other unfair labor practices as charged in the complaint as amended. RECOMMENDED ORDER On the basis of the foregoing findings of fact , conclusions of law, and the entire record in the case , I recommend that Cornwell Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: ' (a) Discouraging membership in the above -named Union or any other labor organization of its employees by discharging and refusing ,to, reinstate , refusing to rehire, refusing to recall employees after layoff , or in any other manner discriminating CORNWELL COMPANY, INC. 73 in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a)(3) of the Act, as amended. (b) Interrogating employees about their union activities, affiliations, or senti- ments in a manner ,constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act, engaging in surveillance of their union or'concerted activities, threatening them with discharge or other reprisal because of such activities, or in any other manner interfering with, restraining, or coercing them in the exercise of any of the rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act- (a) Offer to Joy Longest, June Hopper, Ernest Dale Edwards, and Troy Kennedy immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to seniority or other rights and privileges previously enjoyed, and make said employees whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Post at its plant in Paoli, Indiana, copies of the attached notice marked "Appendix." 70 Copies of said notice, to be furnished by the Regional Director for Region 25, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. , (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to com- pute the amount of backpay due and the right of reinstatement under the terms of this Recommended Order. (d) Notify said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps- Respondent has taken to comply herewith.71 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges a discriminatory 'discharge or layoff of Joy Longest, discharge of June Hopper, Franklin.. S. TiJlett, and Robert H. Collins, and a failure to reinstate Tillett• and Collins; and to the extant that it alleges other unfair labor practices not found in this Decision. 7u In the event that 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. In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order " shall be substituted for the words "a Decision and Order." 71 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, 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 National Labor Relations Act; as amended, we hereby notify our employees that: WE WILL NOT discourage membership by any of our employees in United Furniture Workers of America, AFL-CIO, or in any other labor organization, by discharging or refusing to reinstate, refusing to rehire, or refusing to recall employees after layoff, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any other term of condition of employment, except to the extent permitted by the proviso, to Section 8 (a) (3) of the Act, as amended. WE WILL off, er'Joy ,Longest,"June Hopper, Ernest Dale Edwards, and Troy Kennedy immediate"and' full 'reinstatement to their"formers or substantially equivalent positions, "without prejudice to seniority or 'other rights and 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privileges previously enjoyed , and WE WILL make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner described in the Trial Examiner's Decision. WE WILL NOT interrogate employees about their union activities , affiliation, or sentiments in a manner constituting interference , restraint, or coercion within the meaning of Section 8(a)(1) of the Act, engage in surveillance of their union or concerted activities , threaten them with discharge or other reprisal because of such activities , or in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization , to form, join, or assist any labor organization , to bargain col- lectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activities , except to the extent permitted by the proviso to Section 8(a)(3) of the Act, as amended. All our employees are free to become or remain, or to refrain from becoming or remaining, members of United Furniture Workers of America, AFL-CIO, or any other labor organization. CORNWELL COMPANY, INC. Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by an other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street , Indianapolis, Indiana 46204, Telephone 633-8921. Campbell Soup Company and United Packinghouse, Food and Allied Workers, AFL-CIO. Case 16-CA-2354. June lo, 1966 DECISION AND ORDER On January 25, 1966, Trial Examiner Herman Tocker issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision with supporting briefs.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 1 The Respondent also filed with the Board a motion to strike the General Counsel's exceptions and brief. Thereafter, the General Counsel filed an opposition to the Re- spondent's motion to strike. The Respondent's motion to strike is denied as the General Counsel's exceptions and brief were filed in accordance with the Board's Rules and Regula- tions and Statements of Procedure, Series 8, as amended , revised January 1, 1965. 159 NLRB No. 18.