Southwire Co.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nize or bargain with us as the representative of its employees who are classi- fied as OS & D clerks, junior dispatch clerks, junior payroll clerks , junior inbound clerks, or in any other classification, where Sea-Land has lawfully recognized, in accordance with the National Labor Relations Act, as amended, Office Employees International Union, AFL-CIO, Local No. 402, Office Employees International Union, AFL-CIO, or any other labor organization other than us, and a question concerning the representation of said employees may not appropriately be raised under Section 9(c) of the Act, unless we are then currently certified by the National Labor Relations Board as the repre- sentative of such employees. WE WILL NOT adamantly demand or insist that any agreement reached with Sea-Land Service, Inc., include employees who are not within the unit found appropriate in Case 24-RC-1971, and WE WILL NOT resort to economic pres- sure, including strike action or threat of such action , to force Sea-Land to include in a contract with us employees who are not in said appropriate unit, so long as the certification issued to us remains outstanding and Sea-Land insists on confining the negotiations to the employees in said unit. INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, LOCAL 1575, DISTRICT COUNCIL OF THE PORTS OF PUERTO Rico, ILA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board 's Regional Office, P.O.. Box 11007, Fernandez Juncos Station , Santurce , Puerto Rico 00910, Telephone 724- '7171. Southwire Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Case 10-CA-6007. June 15, 1966 DECISION AND ORDER On February 11, 1966, Trial Examiner Maurice S. Bush issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take. cer- tain affirmative action, as set forth in the attached Trial Examiner'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. The 'Charging Party filed cross-exceptions and a supporting brief. 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 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, the exceptions, cross-exceptions, and 159 NLRB No. 32. SOUTHWIRE COMPANY 395 briefs, and the entire record in this case, and hereby adopts the find- ings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent with this Decision and Order. 1. As found by the Trial Examiner, the numerous unfair labor practices committed by Respondent in the past in furtherance of its stated antiunion policy, including discharging employees for engag- ing in union activity,' amply establishes animus. More significantly, however, the record in the instant case clearly shows that the Respondent has neither changed its antiunion policy nor the unlaw- ful methods it utilizes in the furtherance of that policy. Thus, new employees are subjected to the Respondent's orientation program, which includes the motion picture "And Women Must Weep." 2 Furthermore, the record shows that the Respondent has repeatedly threatened employees with discharge for engaging in union activi- ties and has denied an employee a merit wage increase because he was active on behalf of the Union. In addition, at the time of the events herein, a Board-directed second election was pending, a pro- pitious time for discriminatory discharges to defeat the Union. 2. We find, contrary to the Trial Examiner, that the General Counsel has established that Respondent discriminatorily discharged Timothy Mabry on January 13, 1965. The record shows that Mabry, who was hired by the Respondent as a "clean up man" on Novem- ber 7, 1963, was considered a good worker. He was a member of the union committee, an active union adherent, and Respondent had knowledge of Mabry's union activities. Approximately 1 month before his discharge, the Respondent's General Superintendent, Joe Bass, told Shift Superintendent W. Jones that Mabry was engaging 'in union solicitation during working hours and to keep "a better eye" on him. Jones relayed this information and instruction to Mabry's immediate superior, Jerry Johnson. Respondent's Assistant Personnel Director Grady Lane, who was investigating the suspected theft of a ratchet set, concluded that since Mabry's job duties took him to various areas of the plant he had a better opportunity to steal tools and therefore was a suspect along with a number of other employees. Lane thereupon suspended Mabry, pending investigation, telling him that he was suspected "of breaking company rules of a pretty serious nature." 1 See Southwire Company, 133 NLRB 83 ; Southwire Company, 145 NLRB 1329, enfd. In pertinent part, N.L R.B. v. Southwire, 313 F.2d 638., It is immaterial that another labor organization was the Charging Party in Southwire Company, 133 NLRB 83, since the matter of union animus is one of general proportions and need not be confined to a specific labor organization. 2 We find for the reason stated by the Trial Examiner ; and under the circumstances of this case, that the showing of the film "And'Women Must Weep" to new employees violates Section 8 (a) (1) of the Act. Member Zagoria finds it unnecessary in his resolution of the case to consider this film. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Approximately 4 or 5 days after his suspension, Mabry and the other suspected employees were given polygraph examinations by an operator under contract with the Respondent. Lane testified that the polygraph operator reported that the examination cleared Mabry of stealing company property. However, Lane further testified that the operator also told him that after the examination Mabry volun- teered the information that he [Mabry] had on occasion stolen such small items from the Respondent as a roll of tape and some knives and pliers, and that before his employment with the Respondent lie [Mabry] had been fined $140 for reckless driving and "driving under the influence." The next morning, January 13, 1965, Lane terminated Mabry telling him that it was for stealing from the Company and for falsifying his employment application.3 Before Mabry's union activities came to the attention of the Respondent, his oral denial of a suspected theft was sufficient to sat- isfy the Respondent.' However, after Mabry's union activities came to the attention of the Respondent, its attitude changed. Thus, when the ratchet set disappeared the Respondent, departing from its past treatment of Mabry, not only suspended him without informing him of the charge against him, but permitted a number of other sus- pected employees to continue working pending the polygraph exam- ination. This disparity of treatment, which is both in contrast to that accorded Mabry prior to his union activities and in contrast with that accorded other employees similarly situated, indicates that Mabry was treated in such a manner because of his union activ- ities. In addition, the reason given for his discharge further indi- cates Respondent's discriminatory motive. According to Lane, Mabry was discharged for "stealing little things" such as a roll of tape, knives, and pliers,' a reason which is in direct contradiction to Lane's statement to Shoemake and Suddeth, discussed, infra, during their termination interview, that the Respondent was not interested in whether they "stole little things like screw drivers." It therefore appears that, by his own admission, Lane considered "stealing little things," the very basis which he advanced as cause for Mabry's dis- charge, of no importance. Upon consideration of all the matters set forth above, including the Respondent's established union animus and the disparate treat- ment accorded Mabry after it became aware of his union activities, 3 Mabry had indicated on his employment application that he bad never been convicted. 4 On two previous occasions Mabry's name was mentioned in connection with a sus- pected theft. The Respondent In the first instance found It unnecessary to investigate the matter and in the second Instance accepted Mabry's oral denial. The record shows that the first incident occurred 2 months before Christmas , rather than 1 month before Mabry's discharge as indicated by the Trial Examiner. 6 Although Mabry was told he was discharged for stealing and falsifying his employment application , Lane admitted that he discharged Mabry for stealing SOUTHWIRE COMPANY 397 we are convinced that the reason given by the Respondent was pre- textual, and that Mabry was discharged because of his union activi- ties. Accordingly, we find that Respondent thereby violated Sec- tion 8(a) (3) and (1) of the Act.r 3. The Trial Examiner concluded. that the General Counsel had not established Respondent's discriminatory motive in the discharges of employees C. C. Shoemake and Paden Suddeth on February 11, 1965. We do not agree. The Respondent asserts that Shoemake and Suddeth were dis- charged for refusing to take a polygraph examination, under the following circumstances : About 4 days before these discharges, Respondent's Vice President Holliday noticed an unsigned timecard which carried the same time in and time out as Shoemake's timecard. Holliday informed Assist- ant Personnel Director Lane, and Lane made inquiries of employee Monty Buck, an electrician who worked in the same crew as Shoe- make and Suddeth. Buck told Lane about a telephone conversation he overheard purportedly between Suddeth and Shoemake in which Suddeth said, "Look, if you can get by the guard at the gate, don't worry about punching. I'll have a timecard waiting on you, give you full time." Buck also told Lane that other employees were involved in timecard cheating. Without any further investigation of the latter's report, Lane decided to require Shoemake and Sud- deth to take a polygraph examination. On February 10, Lane and Holliday confronted Shoemake and Suddeth with the accusation of timecard cheating and requested they take a polygraph examination. Both men denied any such involve- ment. That evening Shoemake called the Union's lawyer seeking advice on whether he should take the test, and the next day both men refused to take the test, each stating that he would not take the test unless the other did. At this point the Respondent discharged both Shoemake and Suddeth. Even though he would find the employees innocent of timecard cheating, on the evidence presented, the Trial Examiner was of the opinion that the Respondent had "reasonable grounds to believe that [they] were involved" and under such circumstances he viewed the refusals to take the polygraph test as "just cause" for their ter- mination.7 We find on the evidence herein that Shoemake and Sud- 6 See L E. Farrell Company, Inc., 153 NLRB 40, enfd . 360 P.2d 205 (C.A 2). 7 The Charging Party asserts that the concerted refusal by Suddeth and Shoemake to take a polygraph examination was for their mutual aid and protection and was itself a protected activity as a protest against an offensive term or condition of employment and discharge therefor was a violation of Section 8(a) (1) of the Act . In view of our determination herein , it is unnecessary to reach this question. CY 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deth were discharged, not for their refusal to take the test but because they. were the most active union supporters-a fact well, known to the Respondent. The Respondent's treatment of the unsigned timecard situation, discloses a departure from past company practice. The record reveals that it is not unusual to have two or more timecards that are, exactly alike. Further, under normal circumstances when an un-, signed timecard is discovered, the Respondent goes to the foreman involved in order to determine which employee failed to sign the card. However, Holliday did not deal with the unsigned timecards in the usual manner, but immediately went through all of the time- cards to find a match, instead of taking the card to the foreman. A review of Lane's limited investigation also reveals a marked depar- ture from the Respondent's normal method of investigating suspected breaches of company rules. Furthermore, Lane relied solely on, Buck's report of the alleged telephone conversation between Suddeth and Shoemake and did not attempt to investigate its reliability by questioning the crew's foreman or the guard, as he would have done in the course of a normal investigation. The Respondent under nor- mal circumstances, as is evidenced by the Mabry incident, would follow company policy and attempt to resolve such a matter by sub- jecting all affected employees in the department to polygraph exami- nations. However, in the instant case, Lane, even though he was informed by Buck that many employees were involved in the time- card cheating, selected only Shoemake and Suddeth for polygraph examination. The discriminatory motive for the foregoing disparate treatment of Shoemake and Suddeth is underscored by other conduct of the Respondent directed toward these two known active union adher- ents including repeated threats to discharge them for their union activity 8 and the refusal to grant Shoemake a recommended merit increase and advising him and Suddeth that the raise was withhel& because he had engaged in union activity. Any significance their resistance to the administration of the polygraph test may have had in these circumstances is undermined by the fact that, as demon- strated in the example of Mabry discussed supra, successful comple- tion was no guarantee of exoneration nor presumably would it pre- vent their discharge for engaging in union activities. The circumstances herein convince us that Respondent's motive for investigating the timecard incident was to uncover some reason which on its face would appear to be at least a tenable cause for ridding itself of the two most active union supporters., When Sud- 8We 'find, in agreement with the Trial Examiner, that Foreman Imback and Dufy's. threats to Shoemake, on October 21 and November 30, 1964, were violative of Section. 8(a) (1) of the Act. SOUTHWIRE COMPANY 399 deth and Shoemake fortuitously resisted the test, the Respondent seized upon their refusal as a "reason" for their discharge. In view of the foregoing, and Respondent's well known union animus, which in the past has led to at least 10 discharges found to be in violation of Section 8(a) (3) as well as other unfair labor practices, we find that Shoemake and Suddeth were discharged because of their union activities and not for the reason given by the Respondent, and, there- fore, Respondent violated Section 8(a) (3) and (1) of the Act. THE REMEDY Having found that the Respondent has discriminated against employees Timothy Mabry, C. C. Shoemake, and Paden Suddeth by discharging them in violation of Section 8(a) (3) of the Act, we shall order the Respondent to offer the above-named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to them of a sum of money equal to that which they would have earned as wages from the date of the discrimination to the date of reinstatement, less any net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Com- pany, 90 NLRB 289, together with interest on that sum, such inter- est to be computed in accordance with the, formula prescribed in Isis' Plumbing eQ Heating Co., 138 NLRB .716. ADDITIONAL CONCLUSIONS OP LAW 6. By discharging employees Timothy, Mabry, C. C. Shoemake, and Paden Suddeth for discriminatory reasons, the Respondent has engaged in unfair labor practices in violation, of Section 8 (a) (3), of the Act. ORDER -Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Southwire Company, Carrollton, Georgia, its offi- cers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discharging employees or discriminating in regard to their hire, tenure of employment, or any term or condition of employ- ment, because they have engaged in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. (b) Discouraging membership of its employees- in' the Interna- tional Union of Electrical, Radio and Machine Workers,. AFL-CIO, 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or any other labor organization, by threatening its employees with discharge if they joined or engaged in activities on behalf of the said Union or any other union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Timothy Mabry, C. C. Shoemake, and Paden Sud- deth immediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed. (b) Make Timothy Mabry, C. C. Shoemake, and Paden Suddeth whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner and in accordance with the methods referred to in the section above in this Decision entitled "The Remedy." (c) Notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full rein- statement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. - (e) Post at its plant in Carrollton, Georgia, copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for Region 10, shall, after being duly signed by the Company's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 10, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 9 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be sustituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." SOUTHWIRE- COMPANY 401 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge any of our employees or discriminate in regard to their hire, tenure of employment, or any term or condition of employment because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT discourage membership in the International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, by threatening our employees with discharge if they join or engage in activities in behalf of said Union or any other union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the International Union of Electrical, Radio and Machine Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own free choice, and to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Act. WE WILL offer Timothy Mabry, C. C. Shoemake, and Paden Suddeth immediate and full reinstatement to their former or substantially equivalent positions without •prejudice to their seniority or other rights and privileges previously enjoyed. WE WILL make Timothy Mabry, C. C. Shoemake, and Paden Suddeth whole for any loss of pay they may have suffered by reason of the discrimination against them. SOUTHWIRE COMPANY, 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 application, 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 posting, and must not be altered, defaced, or covered by any ,other material. 243-084-67-vol. 159-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NW., Atlanta, Georgia 30323, Telephone 526-5741, if they have any ques- tion concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The issues in this proceeding are whether the Respondent Southwire Company has engaged in certain unfair labor practices, more specifically set forth below, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The case was heard before Trial Examiner Maurice S. Bush, on July 27 and 28, 1965, at Carrollton, Georgia. Briefs were filed by the General Counsel and the Respondent after the hearing. These have been carefully reviewed and considered. The complaint herein was issued on May 28, 1965, pursuant to a charge filed by the Union on February 24, 1965. The answer, as amended, places in issue only the unfair labor practices-charged by the complaint. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Southwire Company, a Georgia corporation, is engaged in the manufacture, sale, and distribution of wire cable and related products at its plant at Carrollton, Geor- gia, which is also its principal office and place of business. In the normal conduct of its business the Respondent sells and ships products valued in excess of $50,000 from its plant in Carrollton directly to points outside the State of Georgia. It is found that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION The International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. M. THE ALLEGED UNFAIR LABOR PRACTICES A. The issues The issues in the case are as follows: 1. Whether the exhibition of a movie entitled "And Women Must Weep!" to new employees constitutes a violation of Section 8(a)(1) of the Act? 2. Whether Respondent in violation of Section 8(a) ((1) threatened employees with discharge for engaging in union activities through certain named supervisors? 3. Whether Respondent in violation of Section 8(a)(3) discharged employees C.. C. Shoemake and Paden Suddeth for engaging in union activities. 4. Whether Respondent in violation of Section 8(a)(3) refused to grant a wage increase to the said C. C. Shoemake some six months before his discharge because of his union activities? 5. Whether. Respondent in violation of Section 8(a)(3) discharged employee Tim- othy Mabry for engaging in union activities? B. General background facts The Company, in business since about 1950, employs approximately 900 employ- ees at its plant in Carrollton, a town of about 11,000 people. Pursuant to motion made at the hearing by General Counsel, official notice I is taken of, prior proceed- 1 Southwire Company, 133 NLRB 83 ; 145 NLRB 1329, enforced for the most part, 352 F.2d 346 (C.A.,5) ; and Intermediate Report dated September 15, 1965, in Case 10-CA- 4546 by Trial Examiner Leo Lightner to which no exceptions were taken. SOUTHWIRE COMPANY 403 ings before the Board involving the same Respondent. These show, as does the present proceeding, the Company's open and intractable opposition over the years to any unionization of its plant.2 In the prior proceedings, it was found that Respond- ent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3). The present and past proceedings show that the Company for many years has had a vigorously enforced "no solicitation" rule aimed primarily at preventing any union solicitation during working hours. Attempts over the years by unions to organize Respondent's plant have been unsuccessful. C. Issue as to whether movie shown to new employees encroached on employee rights The complaint alleges that the Respondent since August 26, .1964 has shown to all newly hired employees at its plant a motion picture film entitled "And Women Must Weep!" The complaint further alleges and charges that the Company through the film "threatened its employees' physical and economic security if the Union were successful in its organizational campaign ," in violation of Section 8(a)(1) of the Act. The facts with respect to the showing of the movie are not in dispute. The evidence shows that the film has been shown by the Company to all of its new employees over the past three years as part of their "orientation" on their new jobs. The script of the movie (General Counsel's Exhibit 6); bears the descriptive heading: KANSANS FOR THE RIGHT TO WORK Presents -AND WOMEN MUST WEEP! Produced by CENTRON CORPORATION A KANSAS CORPORATION The movie was shown at the hearing. The record contains a verbal description of the unfolding scenes depicted on the film as related by me during the showing of the film and accepted by counsel. The Board has heretofore considered a film of the same title in two representa- tion cases. Plochman and Harrison-Cherry Lane Foods, Inc., 140 NLRB 130, and Carl T. Mason Co., Inc., 142 NLRB 480. The film in these two cases were exhib- ited by the employers to their respective employees prior to representation elections. The Board in each case held in effect that the film contained misrepresentations of such prejudicial nature as to vitiate the elections and accordingly ordered new elections. The same film was also considered by Trial Examiner Thomas S. Wilson in Bannon Mills, Inc., 146 NLRB 611, on the issue of whether the showing of the film because of its contents constituted a violation of Section 8(a)(1); that section of the Act was not involved in the aforementioned Plochman and Mason represen- tation cases. On appeal the Board in the Bannon Mills case disposed of the mat- ter without decision on Section 8(a)(1) issue as it deemed it ". . unnecessary to decide whether the showing of the film was violative of the Act." Based on appropriate comparisons, I find and conclude that the film here involved entitled "And Women Must Weep!" is identical with the film of the same title involved in the Plochman, Mason, and Bannon Mills cases. The issue in the case with respect to the film is whether the showing of the movie to new employees as part of their orientation in their new jobs with the Company constitutes a coercive threat to employees from engaging in protected activities under Section 7. The General Counsel contends "that the repeated showing of this film to new employees conveys to such employees the impression that organization of the Respondent's plant by a union would seriously threaten not only their economic 9 An example of such company opposition to unionization is reflected in printed matter distributed to its employees reading as follows "We are convinced that wherever there are unions there is trouble , strife and discord and that a union would not work to our em- ployees' benefit but to their serious harm In view of this , it is our positive intention to oppose unionism by every proper means." See opinion of the Court of Appeals for the Fifth Circuit , supra, following appeal from Board decision in Southwtre Company, 145 NLRB 1329 , in which right of Company to disseminate the quoted statement to its em- ployees is upheld under the so-called "free speech" provision of Section 8(c) of the Act. 404- DECISIONS OF NATIONAL LABOR RELATIONS BOARD security but their physical security as well." As authority for his position, General Counsel relies on the Board's finding in the Plochman and Mason cases for the probable effect of the film on employees. The Respondent, on the other hand, contends "that the movie is only informa- tional, reflecting the employer's views on right to work laws, and that any refer- ences to violence can only be construed as a mere prediction of adverse conse- quences which often result from union activity within a company operating under a union shop contract." [Emphasis supplied.] From the premise that the movie is merely informational, Respondent argues that its right to disseminate such infor- mation in visual form is protected by the "free speech" provision's of Section 8(c) of the Act and cites numerous cases dealing with the rights of employers to engage in "free speech" in expressing antiunion views to their employees, subject only to the statutory limitation in Section 8(c) that "such expression contains no threat of .reprisal or force or promise of benefits." As heretofore indicated, the nub of the question is whether the movie contains, directly or by implication, a "threat of reprisal" to employees for engaging in union activities, contrary to the guarantees of Section 7 and in violation of Section 8 (a) (1) of the Act. For a description of the nature and contents of the movie and its emotional effect on the viewer, I adopt the findings of Chairman McCulloch in his concurring opinion in the Mason case, supra, which in part reads as follows: The film is not a documentary. It is a staged production based on a contrived script, played by professional actors, including an actress who impersonates a minister's wife, the narrator. The film tells the story of property destruction, violence, and the near murder of a child allegedly committed by a union dur- ing the course of a strike ostensibly called for no justifiable reason. It is organized with sequences skillfully put together so as to achieve the maximum dramatic and emotional impact. The professional acting is smooth and extremely lifelike. In fact, the entire production is so well conceived that the ordinary viewer is likely to consider that it represents the literal truth. - I have no doubts that among audiences of working men and women, as well as others, "And Women Must Weep" is emotionally overpowering. It pictures a 'labor dispute as one in which Americanism, religion, family, motherhood, and innocent childhood are arrayed on one side, and goons, brutes, and murderers on the other or prounion side - Discussion and Conclusions As heretofore noted, the movie is shown by the Company to new employees as -part of their orientation on their new jobs. The employees are essentially captive -audiences. As part of their orientation they are also informed that the Company allows no union solicitations during working hours. From the fact that Respond- ent's plant is located in a town with a population of only 11,000, it is inferred and found that most new employees would have advance knowledge of the Company's ,strong opposition to the unionization of its employees and of its successful efforts to keep unions out of its plant, and of the numerous employees who had been discharged for proven or suspected union activities. Under these circumstances, I find and conclude that the showing of the movie here under consideration to new employees has the affect of restraining and coerc- ing such employees in the exercise of their rights under Section 7 in violation of Section 8(a)(1) and that the film, being coercive under such circumstances, is not protected by the "free speech" provisions of Section 8(c) of the Act. D. Issues as to whether supervisors threatened discharge of certain employees and as to whether these same employees were later discriminately discharged The complaint alleges that the Respondent in violation of Section 8(a)(1) ,threatened unnamed employees with discharge through named supervisors the latter part of 1964 if they joined or engaged in activities on behalf of the Union. The 8I have viewed the film, and personally attest to the powerful emotionally prejudicial impact of the film. SOUTHWIRE COMPANY 405 complaint further alleges that the Respondent in violation of Section 8(a)(3) discharged two employees, C. C. Shoemake and Paden Suddeth, on February 11, 1965, for engaging in union activities. The two charges will be considered together as much of the evidence relating to each is common to both. C. C. Shoemake was hired as a construction electrician by the Company, in September of 1962. Paden Suddeth was similarly employed by the Company as a construction electrician on July 14, 1964. The two electricians, who became friends, worked under the immediate supervision of Foreman Charles Imbach. Both were discharged by the Company's Vice President Frank Holliday on Feb- ruary 11, 1965, under the circumstances set forth below. Vice President Holliday, who has been with the Company since 1952, is in charge of planning and engineer- ing for the Company. Upon his employment Suddeth was required to sign an agreement to take a polygraph examination, the pertinency of which will appear below, whenever required by the Company. Before undertaking his duties as a construction elec- trician, Suddeth was given a briefing or orientation on company policies by B. Cowan of the Company's personnel department. As part of his orientation, he was shown the aforementioned movie "And Women Must Weep!" He was also given a booklet of company rules and Cowan specifically called his attention to one of these rules which reads: "No person will be allowed to solicit or carry on union organizing activities on the job. Anybody who does so and who thereby neglects his own work or interferes with work of others will be subject to dis- charge." In addition Cowan orally warned Suddeth that the Company "frowned on the Union and not to have anything to do with any Union activity whatsoever"- and that he would be fired if he became a member of the Union. Suddeth was also notified that the Company regarded timecard irregularities as a matter of gravity and ground for discharge. Notwithstanding these warnings against union participation, the record shows that Suddeth some three weeks after commencing work with Respondent in July 1964, became actively involved in efforts to organize the plant in behalf of the Union. Toward the end of August, Suddeth informed Foreman Imbach while they were both working high on a scaffold that he believed that the Company needed a union and that he was for the Union. Imbach warned Suddeth not to engage in such remarks as the Company "would run him out the gate," if they became known. Suddeth also expressed his strong prounion views and sympathies to another Southwnre employee, Grady A. Dickson, of the Company's shipping department. Although they worked for entirely different departments, the two men became acquainted through their wives and frequently visited each other's home. At Sud- deth's last visit to the Dickson home in 1964 around Christmas time, Suddeth expressed to Dickson hostile feelings about Southwire 's wage scale , expressed a strong interest in the Union, and told Dickson that he had been engaged in solicit- ing union cards from employees at the plant. Dickson, having heard that Suddeth was being considered by the Company as "supervisory material," deemed it his duty to fully report Suddeth's prounion sentiments and activities the next day to the Company's personnel director, Marvin Martin, as is revealed by Dickson's affidavit of record herein. Shoemake was even more outspoken about his prounion sympathies than Sud- deth. Although both Shoemake and Suddeth worked under Foreman Imbach, Shoemake was more intimately acquainted with Imbach than Suddeth. They lived next door to each other, frequently visited each other's home, and considered them- selves friends. Shoemake's uncontradicted testimony shows that he conveyed his strong union views and sympathies to Foreman Imbach as early as the Union's 1962 organizational drive and frequently since then. Just prior to a union elec- tion in 1963 which the Union lost, Imbach warned shoemake to "lay off" the Union and advised him that the time to join a Union was after it had gained recognition and not before. On October 21, 1964, Imbach phoned Shoemake to warn him to remove a union sticker he had on the automobile he drove to work as this would cause him trouble with the Company; Shoemake readily complied. On November 30, 1964, Shoemake was sharply reprimanded by Company Vice Presi- dent Sherman for failure to wear a safety belt while working aloft. Following this reprimand, Shoemake sought out Foreman Imbach to tell him in the presence of several of his coworkers that he wanted him (Imbach) to know that he was a member of the Union's organizational committee. Imbach requested Shoemake not to do any unionizing on the job. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the evening of the same day, November 30, Shoemake received a personal visit at his residence from Charles Duffy, a foreman in another department at Southwire and personal friend, who stopped his car long enough to say to Shoe- make who was on his lawn "I don't know how far you have gone with the union business, but you had better get out of it." Shoemake, who gained the impres- sion that Duffy had been asked by the Company to make this warning, replied that he "was in and I was going to stay in." The record shows that the Union again started organizing the Company in the early fall of 1964 and that both Shoemake and Suddeth served on the Union's organizational committee. Meetings of the committee, attended by Shoemake and Suddeth among others, were held at shoemake's home in the months of October, November, and December 1964, but efforts were made to keep the meetings secret from the Company. Both Suddeth and Shoemake were actively engaged in solicit- ing union cards from employees in the plant. Suddeth personally obtained 20 such cards by the time he was discharged. From the above findings and the entire record, it is found and concluded that the union sympathies and activities of both Suddeth and Shoemake were known to or suspected by responsible company offi- cials for many weeks prior to their discharge on February 11, 1965. The Company's defense and stated reason for discharging Suddeth and Shoe- make was their refusal to take polygraph examinations demanded by the Company in connection with suspected timecard irregularities. As heretofore shown, Suddeth upon entering the Company's employment had signed a written agreement 4 to take such examinations at any time required by the Company. Shoemake, on the other hand, had not signed a polygraph agreement because the Company was not requir- ing this at the time he was hired. The Company's premises is fronted by a guardhouse through which all employees must pass before entering the plant. The plant is equipped with eight or nine time- clocks placed at various locations. All employees are required to punch a timecard just prior to beginning their shifts and at the end of the workday when they are also required to sign the card and leave it on a rack adjacent to the timeclock for even- tual processing for payment.• Employees who are late are required to sign a late arrival roster in the guardhouse before they punch in. From the testimony of wit- nesses for both General Counsel and Respondent, it is established that is is occa- sionally possible for a late arrival to get through the guardhouse without signing the late arrival roster. The timeclock which Suddeth and Shoemake punched was assigned to a total of some 60 to 70 employees working the day shift. About 4 days before Suddeth and Shoemake were discharged, a foreman, whose responsibility it was to pick up completed timecards at the end of a shift, called the attention to Vice President Holliday to a timecard which showed a reporting and quitting time but no signature. The card aroused Holliday's suspicion that some- one had punched the unsigned timecard for an employee-friend who might be com- ing late or was planning to leave early. Respondent watches timecard cheating very closely because it could lead to serious hidden losses. Holliday made a careful comparison of the unsigned card with the 60 to 70 signed timecards for the same shift and discovered that the only signed card it matched for both check-in and check-out time was that of Shoemake's. Although the record is clear that several employees could have identical check-in or check-out times on their timecards inasmuch as the timeclocks operate on time segments of one-hundredth of an hour, it is the Company's experience that it is highly improb- able for any two timecards in a single work shift to coincide precisely for both check-in and check-out times. This led Holliday to believe that there was a pos- sibility that Shoemake on the day in question had punched two cards in immediate succession both at check-in and check-out time and had signed one, but had inad- vertently left the unsigned card on the rack as well as the signed card. Vice President Holliday took up the matter of the unsigned card and the matching Shoemake timecard with the Company's assistant personnel director, Henry G. Lane. Lane thereupon sought out another company electrician, Monty Buck, who was indebted to Lane for a favor, to inquire if he knew anything about timecard irregu- larities in the electrical crew. Lane's testimony, which I credit, shows that Buck informed him that he had heard Suddeth telephone Shoemake from the plant one morning and had overheard Suddeth tell Shoemake: "Look, if you can get by the AA copy of the polygraph agreement signed by Suddeth is shown in Appendix A. SOUTHWIRE COMPANY 407 guard at the gate, don't worry about punching, I'll have a timecard waiting on you, give you full time." By a coincidence, Lane had just prior to this time conducted an inquiry into Suddeth's background in connection with a promotion Suddeth was seeking to a supervisory position. To his surprise, the investigation disclosed that Suddeth, the electrician, had been employed as a truckdriver for a retail furniture store in his last prior employment and that his former employer had found Suddeth to be an unsatis- factory worker in that he drank beer on the job, had wrecked a delivery truck, and had been locked up. He also received information that Suddeth at one time had been picked up in a nearby county for burglary, but that the charge was eventually dropped. Lane had this information on Suddeth's background, whether true or not, when Vice President Holliday came to see him about the unsigned timecard and the matching Shoemake timecard. With the receipt of the new information from electrician Buck of also the possible involvement of Suddeth in timecard cheating, Holliday and Lane on February 10, 1965, called Suddeth and Shoemake in, informed them of the information they had, inquired as to whether they had participated in any timecard irregularities, and asked them to submit themselves to a polygraph examination or lie detector test "to clear" them of any possible implication. Both men denied any involvement in dishonest timecard practices and indignantly refused to take the lie detector test. Holliday pleaded with the men to take the test, and especially pleaded with Suddeth, because of the friendship that existed between the two men, to take the examination, saying "You know me," to give added weight to his assurances that his job was secure, if the test cleared him. Suddeth responded: "If my word don't mean any more than that, I will turn in my tools." Holliday's spontaneous and instantaneous response to this was: "No, I don't want you to quit; I want you to take the test." 5 The conferences of February 10, 1965, ended with an agreement by Shoemake and Suddeth, despite their earlier demurrers, to take the lie detector test the next day. The next morning, however, the two employees, upon being called in separately to take the test on plant premises from an outside polygraph operator under contract with Respondent, refused to submit to the examination. Shoemake refused upon the advice of an attorney for the Union and on principle and Suddeth declined to take the test unless Shoemake did. After the lapse of a considerable period of time in interoffice consultation, Holliday notified Shoemake and Suddeth that they were being terminated because of their refusal to take the polygraph examination. Their termination became effective that day, February 11, 1965. Holliday, however, even after he notified the men of their termination, gave them the opportunity to take the test and be reinstated if the tests cleared them. The record shows that Shoemake was almost discharged two years earlier. In October 1963, Shoemake was notified of his discharge by the Company's aforemen- tioned Personnel Director Marvin Martin, because of a garnishment against his wages, as the Company had a rule, then unknown to Shoemake, that a garnishment was a cause for discharge. At that time Shoemake was engaged in union activities which were scheduled to culminate in an election within a fortnight. The person- nel director, however, revoked the discharge before it became effective. Under the insufficient facts of record herein on the surrounding circumstances of this near dis- charge, I expressly refrain from drawing any inferences therefrom either in favor of Respondent or Shoemake, as it is possible that the Company really intended to dis- charge Shoemake for his then well known union sympathies and activities, but changed its mind as the discharge could have resulted in unfair labor charges in connection with the forthcoming election. Discussion and Conclusions The first of the two issues here under consideration is whether the Respondent in violation of Section 8(a)(1) through its aforementioned supervisors, Charles M. Duffy and Charles Imbach, threatened, and alleged in the complaint, "its employees g The above findings on the verbal exchanges between Holliday and Suddeth are based on testimony reluctantly given by Shoemake on cross-examination by Respondent's counsel on the basis of statements made by Shoemake in prior affidavits to the Board and a union lawyer. These affidavits, although used in the examination of witnesses, were not offered in evidence. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in or about the vicinity of its plant that it would discharge its employees if they joined or engaged in activities on behalf of the union." The evidence of record relates -these alleged threats only to employees Suddeth and Shoemake. Section 10(b) of the Act bars the issuance of a complaint based upon unfair labor practices "occurring more than six months prior to the filing of the charge with the Board and the service of 'a copy thereof upon the person against whom such charge is made . . ." The charge on which the allegations of the complaint here under consideration was issued was filed on February 24 and served on February 25, 1965. Most of the evidence submitted by General Counsel, although proper as background material, related to events occurring more than six months prior to the filing of the charge herein. The record, however, does disclose two instances of implied threats by Foremen Imbach and Duffy to Shoemake of discharge for engaging in union activities which fall well within the six months limitation provision of Section 10(b). The first of these occurred on October 21, 1964, when Imbach phoned Shoemake to remove a union sticker from his car which he parked on company premises. This implied a threat of discharge for engaging in union activities, if Shoemake continued with such activities. The second of these threats occurred on November 30, 1964, when Fore- man Duffy made a personal call to Shoemake's residence and there while sitting in his car warned Shoemake "I don't know how far you have gone with the Union business, but you had better get out of it." This is also a clear threat of dismissal if Shoemake did not stop his union activities. I deem it immaterial that the warning came from his friend Duffy who supervised an entirely different group of employees (construction workers) than the group (electricians) Shoemake worked in under the foremanship of Imbach. Shoemake felt that the Company had sent his friend Duffy to administer the warning, and this was not an unreasonable assumption in the light of the Company's well known opposition to any unionization of its employees. The Company did not call upon either Duffy or Imbach 6 to testify in its behalf and .there is thus no denial that they made the threats here under discussion. Under all the circumstances, these threats are imputed to the Respondent. The threats were no less sinister because they came from supervisors whom Shoemake considered his personal friends. As the two foremen are dependent upon the Company for their livelihood, their first loyalty is to their employer. I find and conclude that the Respondent has engaged in unfair labor practices in violation of Section 8(a) (1) by reason of its threats of discharge through its afore- mentioned supervisors to its former employee Shoemake for his union activities. There were no such threats to Suddeth during the 10(b) period. The second issue here under consideration is whether the Company discharged Suddeth and Shoemake because of their union sympathies and activities in violation of Section 8 (a) (3) of the Act. The basic question under this issue is the determination of Respondent 's true moti- vation in discharging the two men. General Counsel contends that Suddeth and Shoemake were discharged because of their union activities. The Company, on the other hand , contends that Shoemake "was discharged for cause because of his refusal to take a polygraph test required by the Company in an investigation based on their reasonable belief that Shoemake was involved in falsifying timecards at the plant" and that Suddeth was also discharged for his refusal to take the lie detector test in circumstances under which the "Company had reasonable grounds to believe that Suddeth either was involved in timecard violations or had knowledge that such violations were being perpetrated by employees within the electrical gang." Two factors favor General Counsel's contention that Suddeth and Shoemake were discharged because of their union activities. The first is that the record leaves no doubt that the Company was well aware of the union sympathies and activities of the two men. The second is that the Company has a reputation in Carrollton for relentless opposition to any union participation by their employees which in a num- ber of instances has exceeded the bounds of fair labor practices and in the past resulted in orders by the Board to the Company to cease and desist from a number of unfair labor practices, including the discharge of numerous employees for engag- ing in protected union activities. It is possible that the Company as the result of long experience has developed in the case of employees Suddeth and Shoemake a highly refined and sophisticated method for terminating employees for union activities without a seeming infraction of Section 8(a)(3). But on the basis of the record made in this proceeding and 6 Foremen Imbach and Duffy were not called as witnesses by any of the parties. SOUTHWIRE COMPANY 409 the impressions gained from the witnesses, I find and conclude that the Company had just cause for terminating the services of the two men and that they were not discharged because of their union activities. It should be noted at once, however, that we are not here determining whether Suddeth and Shoemake are guilty of time- card cheating. On the contrary, if that question were before me, I would find them innocent on the basis of the present record. The issue here, however, is not whether Suddeth and Shoemake are guilty or innocent of timecard cheating but whether the Company had, as it contends, "reasonable grounds to believe that Shoemake and Suddeth were involved" in such practices and whether the refusal of the two employ- ees to take a lie detector test on their possible involvement in timecard irregularities constitutes under the circumstances revealed by the record in this case the real rea- son for their discharge, rather than a subterfuge for discharging them for union activities. It is at once apparent that employee falsification of timecards for the purpose of causing an employer to pay wages for time not worked would be a matter of grave concern for any employer. Undetected on a small scale it could lead to insidious effects on a company's financial health, and on a large scale it could cause bank- ruptcy. As a matter of self-preservation, it is within the right of any employer to jealously guard against timecard cheating, to enforce strict rules with respect to time- cards to prevent falsification, and to take vigorous action to protect its resources whenever timecard cheating is suspected. In the instant case the fact that the Company found an unsigned timecard that exactly matched the signed timecard of Shoemake for reporting time and quitting was not questioned by Shoemake or Suddeth. Although it is not unusual for two or more timecards to show either similaneous punch-in and punch-out times, the record- is clear that in the Company's experience it is most unusual for it to find two matching cards among the 60 or more employees using the same timeclock, which match each other precisely to the hundredth of an hour on the timeclock with respect to both reporting time and quitting time. In view of this experience, the finding of such an unsigned card which exactly matched Shoemake's fully punched card aroused the Company's suspicions and gave it a reasonable ground for believing that Shoemake was involved in timecard irregularities. This suspicion was reinforced by information it had received from another electrician in Suddeth's and Shoemake's crew that he had overheard Suddeth tell Shoemake over the telephone "Look, if you can get by the guard at the gate, don't worry about punching, I'll have a timecard waiting on you, give you full time." This new information in turn also gave the Company reasonable grounds for believing that Suddeth was also involved in timecard irregularities, a suspicion which was enhanced by unfavorable information it had uncovered about Suddeth's background as shown above in a rou- tine prior investigation in connection wtih consideration being given Suddeth for advancement to a supervisory position. Notwithstanding the above information, the Company did not arbitrarily then and there discharge Suddeth and Shoemake, but instead gave them the opportunity "to clear" themselves by taking the lie detector test. It is not here our purpose to dis- cuss the fallibility or infallibility of the polygraph examination or the ethics of sub- jecting employees to tests of such controversial accuracy. Although the results of such tests are not admissible in evidence in judicial proceedings, the test appears to be widely used in industry and my attention has not been directed to any authority under the Act which bars an employer from requiring an employees to take such an examination or be fired for refusal where such action is not used as a cover for a discriminatory discharge. The right of an employer to discharge an employee for any reason except protected union activities under the Act is too well established to require citation. On the issue of the motivation for the discharge, the Respondent not only had reasonable grounds for suspecting Suddeth and Shoemake of complicity in timecard irregularities, but the Company's conduct leading up to and subse- quent to the actual discharges corroborates the conclusion that the two employees were discharged solely for failure to cooperate with the Company in what it deemed a reasonable method for ascertaining the truth or falsity of their sus- picion that Suddeth and Shoemake were involved in timecard cheating. There is no evidence that the Company peremptorily ordered the two employees to either take the polygraph examination or be fired. On the contrary, the record shows that Vice President Holliday personally pleaded with the men to take the test "to clear" themselves. The sincerity of these pleas as recited by Shoemake in pretrial affidavits came through Shoemake's reluctant testimony thereon at the 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present proceeding. The record even shows that Holliday especially pleaded with Suddeth because of the friendship between the two men to take the test and "clear himself, giving him the assurance of his personal word that he would not be fired if he passed the test. Even after the discharge Holliday gave the two employees the chance to" take the test and be retained if the tests were negative.? Shoemake and Suddeth nevertheless declined to take the test. Their refusal to take the lie detector examination was their voluntary decision and inasmuch as they were discharged for refusal to take the test, the cause for their discharge was solely within their control. This is not, however, to be interpreted as a criticism of the two employees for their refusal to take the test. Suddeth and Shoemake were essentially on the horns of a dilemma. Although they asserted innocence and there is no legal proof that they were not innocent, if the tests, conceded by many to be unreliable, showed them guilty, their employment record could be besmirched for all time. If they failed to take the test, they could be fired. They chose, as many honorable and intelligent employees would, the latter. In summary, I find that General Counsel has not sustained the burden of proof to show that Suddeth and Shoemake were discriminately discharged in violation of Section 8(a)(3) and (1) of the Act. E. Issue as to whether Respondent discriminatorily refused to grant a wage increase to Shoemake The complaint alleges and the answer denies that Respondent discriminatorily "on or about October 4, 1964, failed and refused to grant a wage increase to its employee C. C. Shoemake, "who is the same Shoemake heretofore referred to under other issues of the case. The Company has a system of periodic merit wage increases. The record shows that Shoemake received successive periodic merit wage raises throughout the more than two-year period he worked for the Company, except for the 10-cents-per-hour increase recommended for him by his immediate superior, the aforementioned Foreman Imbach, in July 1964, which if granted would have become effective on or about August 21, 1964. This effective date for the merit increase Shoemake might have received if the Company had approved Imbach's recommendation therefor was supplied for the record by Respondent 's counsel at the request of General Counsel and made the subject of a stipulation by General Counsel. The stipulation was entered into by General Counsel with full aware- ness that the stipulation could result in a barring of the charge here under con- sideration under the 6-month limitation provision of Section 10(b) of the Act. This would arise from the fact the charge here under consideration under which the complaint was issued was filed on February 24 and served on February 25, 1965, whereas the merit raise was due on or about August 21, 1964. General Counsel in his brief concedes that "the merit increases came out a very short time prior to the beginning of the 10(b) period in this case" but argues that I "may conclude from the testimony of Shoemake and Suddeth that the state- ments of [Foreman] Imbach to them concerning Respondent's basis for not giving Shoemake a wage increase were made within the 10(b) period." Without deciding whether these statements, hereinafter described, are legally sufficient in themselves to sustain the discrimination charge here under consideration, I find that the statements in question were made by Foreman Imbach to Shoemake and Suddeth within a day or two of August 21, 1964, and are therefore, like the Company's failure as of on or about August 21, 1964, to grant Shoemake a merit wage increase, also not timely under Section 10(b). The above-mentioned statements by Foreman Imbach to Shoemake and Suddeth are as follows. Taking up first the statement by Imbach to Shoemake, Shoemake's testimony shows that he had been informed by Imbach that Vice President Sherman had informed Imbach that he was disapproving the recommended August merit raise for Shoemake because Shoemake "was mixed up in the Union." Shoemake's testimony as to when Imbach had relayed this statement by Sherman to him is conflicting. At one place in his testimony he said Imbiach gave him this informa- tion in October or November 1964 whereas later in his testimony Shoemake said he received this information from Imbach within a day or two of August 21. As 7 The testimony of Holliday, on the one hand, and Suddeth and Shoemake, on the other, show without any conflict that Holliday pleaded with Suddeth and Shoemake to take the lie detector test. SOUTHWIRE COMPANY 411 it seems logical to believe that Shoemake would have asked about his failure to receive the merit raise on or close to the day it was due , I accept Shoemake's last testimony that he received the information from Imbach as to why Sherman had said he was disapproving his wage increase within a day or two of August 21, 1964. Referring now to the statement made by Foreman Imbach to Suddeth on the subject of merit raises, the record shows that Imbach informed Suddeth that man- agement had indicated that it had disapproved his (Imbach's) recommended wage increase for Shoemake because of Shoemake's "connection with the Union" or suspicion of such a connection . Suddeth also was a little confused in his dates as to when Imbach had relayed this information to him, but a careful reading of his testimony leaves no doubt that the information was conveyed to him on or about August 21 when the merit raises came out or within a day or two thereof, as one would naturally expect, and I so find. Respondent's cross-examination of both Shoemake and Suddeth brought out the strong possibility that Shoemake was denied a merit wage increase in August because of his failure to take expected safety precautions against falls when work- ing at hazardous heights. However, Respondent did not press this defense by calling company officials to testify thereon, preferring to rely on the time bar of Section 10(b) to the charge here under consideration. Although Shoemake was denied a merit increase in August, the record shows that he was awarded a merit raise in the following December. In summary, it is found and concluded that the Company's refusal in August 1964, to give Shoemake his recommended pay raise is barred as a basis for a Board order under the provisions of Section 8(a)(3) and ( 1), by reason of being untimely under Section 10(b) of the Act. Similarly , it is found and concluded that the statements made by Foreman Imbach to Shoemake and Suddeth "con- cerning Respondent's basis for not giving Shoemake a wage increase " are also barred from relief because untimely under Section 10(b). F. Issue as to whether Respondent discriminatorily discharged Timothy Mabry The remaining issue is whether Respondent discriminatorily discharged an employee by the name of Timothy Mabry on January 13, 1965, in violation of Section 8(a)(3) of the Act. The Company's defense is that it terminated Mabry because of stealing company property and falsification of his employment application. Mabry, a young Negro in his early twenties, was hired by Respondent as a "clean-up man" on November 7, 1963, and discharged on January 13, 1965. As a clean-up man, Mabry's job was to pick up scraps and debris with the aid of a lift truck throughout the plant. Because of the nature of his job, he was not stationed at any particular section of the factory but had the run of the plant, including the employees' locker room and the department where tools were kept. During his tenure with the Company, he acquired the reputation of being 'a good worker and of being a pleasant and cooperative employee. Mabry did not testify. Counsel for General Counsel stated at the hearing that he had mailed -a registered letter to Mabry at his home in Carrollton some two weeks in advance of the hearing , notifying him of the hearing and requesting that he come in for a prehearing discussion . Government counsel further reported that Mabry failed to contact him and that he learned at the eve of the hearing that Mabry was out of the State, working in Columbus, Ohio, although his wife and children continued to reside in Carrollton. Through the testimony of Robert Best, business agent for the Union, it is established that Mabry was a member of the Union and actively functioning on a union committee just prior to his discharge on January 13, 1965. Mabry during his tenure at Respondent's plant worked under the immediate supervision of Jerry M. Johnson, leadman in the Company's drawing and strand- ing department. Johnson in turn worked under W. Carl Jones, shift superin- tendent for the entire plant. Jones in turn worked under Joe Bass, general superin- tendent of the entire plant. The shifts at the plant work on a rotation basis; Mabry thus worked under the same supervisors at all times. The undisputed evidence shows that about a month before Mebry was dis- charged on January 13, 1965, General Superintendent Bass received information from an unidentified source that Mebry had been seen soliciting is union card from another employee during working hours contrary to company rules. The record further shows that Bass had passed this information along to Shift Super- 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intendent Jones with instructions to keep "a better eye" on Mabry; and that Jones in turn had relayed the information to Mabry's immediate superior , Johnson. From these evidentiary facts, I find and conclude that at the time of Mabry's discharge on January 13, 1965, and for some weeks prior thereto the Company suspected Mabry of being actively engaged in union organizational work at the plant. Two plant incidents in which it was reported Mabry might be involved came to the attention of Shift Superintendent Jones in the last quarter of 1964. In Novem- ber 1964, Jones received a report that Mabry and another employee had been seen rummaging through the lockers of other employees . Upon inquiry, Mabry denied any part in the reported incident and Jones , having no reason to doubt Mabry's word , dismissed the matter from his mind. The other incident occurred about a month before Mabry's discharge of Janu- ary 13, 1965 Jones on that occasion received a telephone call at his office from a guard at the Company's guardhouse, J C. Ackers, that he had witnessed that morning a tall colored man running through the guardhouse Ackers reported that the running man had his face covered with a ski mask , wore a black trench coat, and that he had dropped a small tool upon entering the door of the guard- house. None of the witnesses at the hearing were able to recall whether the running man had retrieved the tool or abandoned it. This telephone call to Jones from the guard was received in the presence of Johnson , Mabry's aforementioned immediate superior. Johnson, from Acker's description of the running man, thought he might have been Mabry. Mabry was known to have been seen wearing such a ski mask around his face at the plant, sometimes startling those who saw him. Jones never inquired of Mabry if he was the man who had been seen running through the guardhouse and never reported the incident to any one else in the Company . Johnson never found any shortage in tools charged to Mabry. Jones in a pretrial affidavit in evidence herein states- "At no time did I have any reason to doubt the integrity, honesty and loyalty of Mabry . . Shortly before Mabry's discharge, the aforementioned Henry G. Lane, assistant personnel director, was investigating the theft of a $100 rachet set that had mysteriously disappeared almost immediately after its purchase. According to Lane's testimony , a number of factors led him to put Mabry under suspicion for the theft . He believed that Mabry would have a better opportunity than most employees for theft of company tools as in his work he had the run of the plant, including the tool department and employees' locker room where employees fre- quently kept their tools upon completion of their shifts. He also recalled the guardhouse incident involving a colored man with the ski mask running through the guardhouse as had been casually mentioned to him by the guardhouse attend- ant, the aforementioned J. C. Ackers, a few days after the event. He further recalled that Mabry had been suspected of being involved in the reported locker rummaging incident. For these reasons , Lane, as his testimony shows, concluded that Mabry "has been stealing these darn tools ." He thereupon called Mabry into his office, told him that he was suspected "of breaking company rules of a pretty serious nature," and suspended him pending an investigation , but gave Mabry no indication of what misbehavior he was suspected of. Lane decided on an investi- gation by a polygraph examination of Mabry. Within a few days Mabry and other employees also suspected of stealing com- pany property were subjected to polygraph examinations by an outside operator under contract with the Company at which all company officials were excluded. Although the polygraph operator did not testify herein , Lane's testimony shows that the polygraph operator reported to him that the lie detector test had cleared Mabry and the other suspected employees of stealing company property, but that Mabry in a subsequent conversation with the operator had confessed to the operator that he had on occasion stolen such small items from the Company as a roll of tape and some knives and pliers . The operator also reported to Lane that Mabry had told him that prior to coming to work for Southwire he (Mabry) had been arrested for such offenses as gambling and wreckless driving and had once been fined $140 for an unidentified offense. After thinking about the matter over night, Lane 's testimony shows that he decided to discharge Mabry, notwithstanding Mabry's good working record in the past year and half and his good natured cooperation in taking the lie detector test, because of his belief that "stealing is stealing" even though Mabry "stole little things." SOUTHWIRE COMPANY 413 At his termination the next morning Lane told Mabry that be was being fired for stealing from the Company and for falsifying his employment application, but that in the interest of not harming his future employment possibilities, the report of his termination to State authorities would only show that he was terminated for falsify- ing his employment application. Mabry's preemployment application to the Respondent contains a question asking if the- applicant had ever been "convicted of violating any law" to which Mabry had replied "None." The application did not ask whether the applicant had ever been arrested . Mabry's admission to the polygraph operator of arrests as distin- guished from convictions would not reflect any falsification of the application, but Mabry's admission of having been fined $140 for an unidentified offense (unidenti- fied as far this record is concerned ) does indicate a conviction and Mabry 's answer of the word "None" to the question of whether he had ever been convicted of any violation of law was in this respect a falsification of his employment application. The Company suffers an annual loss of about $50,000 by theft of tools and supplies. The record shows that the Company has from time to time discharged employees for falsification of employment applications. As heretofore noted, Mabry did not testify, presumably because he was working out of State, and accordingly we do not have the benefit of his testimony on the issue of whether he had been discriminatorily discharged. Discussion and Conclusion The central issue with reference to M'abry's discharge, as in the case of Suddeth and Shoemake, is the Company's real motivation for firing an employee it regarded as a good worker and a pleasant and cooperative employee. The Company's stated reasons for Mabry's discharge, as noted above, was his admission, after' being cleared by a lie detector test, that he had pilfered a few small hand tools, and the falsification of his preemployment application by his fail- ure to disclose therein a conviction for an unidentified violation of law for which he had been fined. The predischarge background shows, however, that the Assistant Personnel Director was seeking to terminate Mabry, even before he made his confessions to the polygraph operator, on thin suspicions of theft in the locker room and guard- house incidents which Mabry's own Shift Superintendent Jones, by reason of his more immediate contact with and responsibility for Mabry, believed groundless, as "at no time," in the more than the year that Mabry worked under him did he have any reason to doubt the integrity, honesty and loyalty of Mabry." In the light of'this predischarge background, the termination of Mabry for the stated reasons of his petty pilfering and what appears as a harmless falsification of his preemployment application (offenses which most employers would only repri7 mand in,these times of labor shortages ) is suspect ,as pretext for the firing of Mabry for suspected union' activity. The difficulty, however, 'with finding 'such-a' discriminatory motivation is that the evidence is too scant and circumstantial to. support a, conclusion that Mabry's dis- charge- was in any part due to his union activities. There'are dnly two evidentiary facts which could be urged to support the con- clusion that Mabry was discharged for union activity. The first is that the Company had information which 'led it 'to believe that Mabry was active in behalf of the Union in that it had an'unconfirmed report that he had been observed soliciting a union card, from another employee during working hours. This caused the general superintendent of the plant to alert the shift superintendent and Mabry's leadman to keep "a better eye" on Mabry. But this fact in and of itself does not support an inference that Mabry was fired because of suspected union activity. As shown above, the Company for many 'years has had a rule prohibiting the solicitation of union membership on company time which is well known to its employees and strictly enforced by the Company. This rule is not challenged here, nor was it in prior Board proceedings involving the Southwire Company. Mabry was observed in what appeared to be an infraction of the Company's no-solicitation rule. Under these circumstances, the Company had the right to take measures to assure itself against the infraction of the rule by instructing Mabry's supervisors to keep an "eye" on him. This is all the Respondent appears to have done in the case of Mabry, and no inference can properly be drawn from the mere instruction to keep an eye on Mabry that the Company intended to fire him for union activity unless such inferences is supported by other facts or circumstances of record herein. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only other circumstance in the case which might support an inference that Mabry was discharged for union activity is the Company's long and well known antiunion position. But it is at one evident that the mere fact that an employer opposes the unionization of his employees would not,,in and of itself support a conclusion that a discharge by such an employer was discriminatory. There must necessarily be additional evidence which however indirect shows that the employer's discharge of an employee was motivated by the desire to be rid of the employee because of his union sympathies or activities. There is no such evidence in the instant case. Since neither the fact of the Company's instructions to Mabry's supervisors to keep an eye on Mabry to prevent his • infraction of the Company's no solicitation rule during working hours, nor the fact of Company's antiunion -position, in and of themselves support a conclusion that Mabry was discharged for union activities, these two facts in combination cannot support such a conclusion, where as here the employee did not appear to deny the thefts he was said to have confessed or otherwise explain the circumstances surround- ing his discharge. In the absence of testimony by Mabry who had, he appeared and testified might have thrown an entirely different light on the record, I must conclude on the present record that Mabry was discharged solely because of admitted pilfer- ing and misstatement on his preemployment application. While Respondent's judgment in discharging an employee for,such minor pilfering and inconsequential application falsification seems questionable, the right of an employer to dismiss an employee for any reason except protected union activity is, as heretofore noted, absolute. At the hearing Respondent moved for the dismissal of the portion of the com- plaint charging the Respondent with the discriminatory discharge of Mabry' on the ground of failure of proof. The motion, taken under advisement, is hereby granted. • IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, found to be violative of the Act as set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and ,commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1), it will be recommended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It will be recommended that Respondent forthwith cease and desist from exhibiting to employees or prospective employees the picture film entitled "And Women Must Weep!" It will also be recommended that Respondent cease and desist from threaten- ing its employees, directly or indirectly, with discharge if they join a union or engage in union activities. It will also be recommended , in view of the nature of the unfair labor prac- tices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Southwire Company, is an employer engaged in com- merce or in an industry affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 2. The International Union of Electrical Radio and Machine Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed, them by Section 7 of the Act, to the extent found above, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. TRW SEMICONDUCTORS, INC. 415 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. 5. Respondent has not discriminated with respect to the hire and tenure of employment, and terms and conditions of employment , of C. C. Shoemake, Paden Suddeth, and Timothy Mabry, within the meaning of Section 8(a)(3) and (1 ) of the Act. [Recommended Order omitted from publication.] TRW Semiconductors, Inc., a Subsidiary of TRW, Inc. and Inter- national Association of Machinists and Aerospace Workers, AFL-CIO. Case 31-CA-27 (formerly 21-CA-6f25). June 15, 1966 DECISION AND ORDER On January 24, 1966, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that 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. The Trial Examiner further found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' 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 [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including Respondent's exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 'The Respondent has requested oral argument. This request is hereby denied because the record, the exceptions, and the brief adequately present the issues and the positions of the parties. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE Upon a charge and amended charge filed October 9 , 1964, and November 18, 1964, respectively, and duly served thereafter, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing to be issued and served upon TRW Semiconductors, Inc., a subsidiary of TRW, Inc., which will be designated as Respondent in this Decision . The complaint was issued June 7, 1965; therein, Respondent was charged with unfair labor 159 NLRB No. 43.