B-D Laboratories, Inc.

786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Falcon Plastics - Division of B-D Laboratories, Inc. and United Rubber, Cork, Linoleum & Plastic Workers of America, International Union, AFL-CIO. Case 31-CA-387. May 19, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 6, 1967, Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. The Respondent filed a brief in answer to the General Counsel's exceptions. 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. 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 and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with this Decision and Order. We agree with the Trial Examiner that Respondent did not discharge Nhoon Reese because of his union sympathies. However, contrary to the Trial Examiner, we find merit in the General Counsel's contention that Respondent terminated Reese for engaging in protected concerted activity' to secure increased wage benefits. As found in the Trial Examiner's Decision, in early March, Supervisor Lux called a meeting of his three extrusion machine operators: Nhoon Reese; his brother "Bootsie" Reese; and Horace Powell. Lux advised them that the Company had acquired an additional machine and this would require further instruction and entail additional work. After the meeting, the three operators discussed the fact that while Lux had assigned them increased duties and responsibilities, no mention had been made of a corresponding wage increase. The three then discussed what would compensate them for their added duties and agreed not to accept anything less than a 25-cent-per-hour raise. At the end of March, ' Washington Aluminum Company, Inc, 370 U S 9, Bonded Armored Carrier, Inc , 147 NLRB 100 Respondent conducted its merit ratings. On March 30, 1966, when Reese reported to work on the second shift, Powell, who had just completed his shift, told Reese that Brayton, an admitted supervisor, had just offered him a merit increase of 10 cents, which he had turned down. Powell advised Reese to do the same, but to do so politely. After the close of Reese's shift, Foreman Byrd came to him with his merit rating, and said he was recommending a 10-cent raise. Reese refused to accept the increase offered, maintaining that the amount was inadequate. When Byrd pressed him for his approval, Reese became adamant and said if that was all the Company could offer, it could take the raise and "shove it up their butt." The following day, Byrd informed Brayton of his conversation with Reese and the language Reese had used in rejecting the merit increase. On April 4, Brayton informed Lux about the incident involving Reese and that Powell had also refused an offer of a similar merit increase that same day. Lux called Reese into his office and questioned him as to whether he had made the remark attributed to him in refusing the merit increase. Reese admitted this, but repeatedly apologized for using such language. Despite Reese's expressions of regret, Lux stated the Company would not tolerate such behavior and terminated his employment. Based upon the above facts, and the conclusions drawn therefrom by the Trial Examiner, as well as Respondent's failure to take exceptions thereto and its apparent acceptance of these conclusions, we do not view Reese's discharge as simply an exercise of an employer's inherent management right to discipline recalcitrant employees. The record amply supports the Trial Examiner's finding that the three extrusion operators acted in concert in demanding what they considered an adequate wage increase to compensate for their added work and responsibilities. And as the Trial Examiner found, Respondent was aware or suspected that these employees had agreed upon group action as a means of securing additional benefits for themselves.2 Thus, on April 4, Brayton advised Lux that both Reese and Powell had refused to accept the 10-cent merit increase. And just before terminating Reese, Lux asked Powell whether he was working a "family" back there, adding that he and Reese "had come up with somewhat the same thing." The question remains, however, whether Reese was discharged for insolen.;e and insubordination or whether the reasons offered by Respondent were pretextual. The only evidence of insubordination is the remark made by Reese in rejecting the proffered merit increase. Such language might in other circumstances be regarded as so offensive in character as not to be c -)ndoned. But the true 2 Walls Manufacturing Company, Inc , 137 NLRB 1317, enfd 321 F 2d 753 (C A D C ). 164 NLRB No. 101 FALCON PLASTICS 787 character of such mode of expression must be evaluated not in the abstract but in the context of the surroundings in which it occurs.' In this case there is evidence that such language was commonly used by employees at this plant in their work-a-day associations. Further, Reese made the remark to a supervisor with whom a personal relationship existed. Byrd admitted that he was not offended or outraged by the remark and that he did not regard it as a personal insult or affront. And Reese asked Byrd not to mention the remark to his superiors, which indicates that Reese was not seriously bent on challenging his employer's authority. It also appears from the evidence that Reese was subjected to disparate treatment. Just before terminating Reese, Lux spoke to Powell about his refusal to accept the merit increase, explaining to him that this increase related only to his previous work performance and would in no way affect any future general wage increase. Powell apologized for "causing this confusion" and agreed to accept the merit raise . A similar explanation was given to "Bootsie" Reese when he protested the inadequacy of the proffered merit raise, and he also agreed to accept it on that basis. But when Lux spoke to Reese he never offered him such an explanation. And, although Reese profusely apologized for his remark, he, unlike his fellow workers, was not given an opportunity to reconsider his refusal to accept the merit raise. Respondent offers no reason why the harshest penalty was imposed on Reese when the personnel manual quoted in relevant part by the Trial Examiner provided for punishment of lesser magnitude. There was no evidence that Reese or any other employee had ever been warned or reprimanded for using such language. Finally, the record indicates that at the time of his discharge Reese was regarded by his supervisor to be more than satisfactory in the performance of his job.4 Respondent conceded that Reese had made a number of constructive suggestions which were utilized to remedy problems the Company had encountered with its extrusion operation. Also, Respondent admitted it was suffering from a shortage of skilled labor at the time Reese was terminated. Under all these circumstances it seems obvious to us that the reason assigned by Respondent for the discharge of Reese was clearly pretextual. As the Trial Examiner concluded, the record herein establishes that Reese was not disciplined for using profanity, and the inference is justified that while Lux may have felt that Reese's behavior toward a supervisor warranted severe disciplinary action, what really disturbed Lux was his concern about the concerted action of the employees in rejecting the merit increase and the realization that the rejection presaged a demand for higher wages. Contrary to the Trial Examiner's holding, the above facts and conclusions, far from leaving the matter in doubt, establish prima facie that Respondent discharged Reese because he had engaged in protected concerted activities. Therefore, it was incumbent on Respondent to rebut that showing. This it has not done. Its asserted reason does not withstand scrutiny in light of the customary usage of such language at the plant, the disparate treatment accorded Reese, the provisions of the personnel manual, the failure to explain the imposition of the harshest punishment, and the high level of Reese's performance juxtaposed against an admitted shortage of skilled employees. Accordingly, we are convinced and find that, to foreclose such concerted activity in the future, Respondent singled out Nhoon Reese, the most outspoken participant in the common cause, and terminated his employment, thereby violating Section 8(a)(1) of the Act.5 THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has discriminated against employee Nhoon Reese by discharging him in violation of Section 8(a)(1) of the Act. We shall therefore order the Respondent to offer him immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and to make him whole for any loss of pay he may have suffered as a result of this discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of reinstatement, less his net earnings during such period, in accordance with the formula prescribed in F.W. Woolworth Company, 90 NLRB 289, together with interest at the rate of 6 percent per annum to be added to such backpay, such interest to be computed in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. ' See Butcher Boy Refrigerator Door Company , 127 NLRB 1360,1370-72,enfd 290 F.2d 22 (C A 7) " In January 1966, Reese received a written warning, cautioning him about the defective quality of his work However, there was evidence that within weeks , Reese showed a marked improvement And, as already noted , in March Reese was recommended for a merit increase , substantially based upon the competent performance of his duties. In any event , Respondent does not contend that Reese was terminated for performing his job duties improperly 5 Nemec Combustion Engineers , 100 NLRB 1118 , enfd 207 F 2d 655 (C A 9), Salt River Valley Water Users Association , 99 NLRB 849, enfd as modified 206 F 2d 325 (C A 9) 298-668 0-69-51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ADDITIONAL CONCLUSIONS OF LAW 1. Nhoon Reese was discharged in violation of Section 8(a)(1) of the Act. 2. The unfair labor practice found above is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) 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 Falcon Plastics-Division of B-D Laboratories, Inc., Los Angeles , California, its officers , agents, successors , and assigns, shall: 1. Cease and 'desist from: (a) Discharging , employees or otherwise discriminating 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 mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization , to form labor organizations , to join or assist any labor organization, to bargain collectively through representatives of their own choosing , and to, engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Offer Nhoon Reese immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his 'seniority or other rights and privileges previously enjoyed. (b) Make the above-named employee whole for any loss of pay,he may have suffered by, reason of the discrimination against him , in the manner and in accordance with the methods referred to in the section above entitled "The Remedy." (c) Notify the above -named employee if presently serving in the Armed Forces of the United States of his 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. (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 and the rights of employment under the terms of this Order. (e) Post at its, establishment in Los Angeles, California, copies of the attached notice marked "Appendix." '' Copies of said notice , to 'be furnished by the Regional Director for Region 31, 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 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. (f) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges violations of the Act not herein found 'be, and the same are,,hereby dismissed. 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify all employees that: _ WE WILL NOT discharge any of our employees or discriminate in' regard to their hire; te.iure of employment, or any , term or condition of employment, because they have engaged in concerted activities for the purpose of mutual aid or protection. WE WILL NOT in any like or,related manner interfere with,,restrain, or coerce employees in the exercise of their 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 of such activities. WE WILL offer Nhoon Reese immediate and full, reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privilges previously enjoyed. WE WILL make Nhoon Reese whole for any loss of pay 'he may have suffered by'reason of the discrimination against him. FALCON PLASTICS-DIVISION OF B-D LABORATORIES, INC. (Employer) Dated By (Representative) (Title) FALCON PLASTICS 789 Note: We will notify the above-named employee, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 10th Floor, Bartlett Building, 215 West 7th Street, Los Angeles, California 90012 Telephone 688-5801. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE IRVING ROGOSIN, Trial Examiner: The complaint, issued July 14, 1966, alleges that, since about January 18, 1966, Respondent, by its officers, agents, and supervisors, has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, by various acts or conduct; and, on or about April 4, 1966, discharged Nhoon Reese, and has since failed and refused to reinstate him, because of his union or other concerted activities, to discourage membership in a labor organization, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) and 8(a)(3) and Section 2(6) and (7) of the Act.' Respondent's answer admits the jurisdictional allegations of the complaint, and the supervisory status of named employees, but denies generally the remaining allegations of the complaint, including the status of the Union as a labor organization, and the commission of any unfair labor practices. Hearing was held on October 5 through 7, both inclusive, and 11, 1966, at Los Angeles, California. The General Counsel and Respondent were represented by counsel, afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence relevant and material to the issues, and to argue orally and file briefs and proposed findings of fact and conclusions of law.2 The General Counsel declined to argue orally but reserved leave to file a brief. Respondent's counsel argued orally on the record. Motion of the General Counsel, at the close of the hearing, to conform the pleadings to the proof, was granted without objection. Pursuant to leave duly granted, both parties filed briefs, on November 15, 1966. Upon the entire record in the case, and the observation of the witnesses, their attitude and demeanor on the stand, and the briefs of the parties, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, Respondent's answer generally admits, and it is hereby found that Falcon Plastics-Division of B-D Laboratories, Inc.,3 Respondent herein, is a California corporation, with its principal place of business at Los Angeles, California, engaged in the manufacture of plastic disposable medical laboratory products. Respondent sells and causes to be transported products valued in excess of $50,000 annually directly to customers located outside the State of California. Similarly, Respondent purchases and receives materials and supplies valued in excess of $50,000 annually directly from sources outside the State of California. It is, therefore, found, upon the basis of the foregoing and upon the entire record, that, at all times material, Respondent has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, but Respondent's answer denies, that United Rubber, Cork, Linoleum & Plastic Workers of America, International Union, AFL-CIO, is, and, at all times material has been, a labor organization within the meaning of Section 2(5) of the Act. For reasons not established by the record, Respondent has denied the status of the Union as a labor organization. Upon the basis of affirmative and uncontroverted evidence introduced by the General Counsel, it is hereby found, contrary to Respondent's contention, that the Union is, in fact, a labor organization within the meaning of the Act.4 Ill. THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether Respondent, through its supervisors, violated Section 8(a)(1) of the Act, by engaging in coercive interrogation of employees concerning their union affiliation and activities; creating the impression of having engaged in surveillance of their union or other concerted activities; promising employees economic benefits to combat the Union; granting employees on the swing and graveyard shifts premium rates of pay; threatening employees with discharge or other reprisals for engaging I The charge was filed and served on April 25, 1966 References are as follows The Charging Party or the Union, United Rubber, Cork, Linoleum & Plastic Workers of America, International Union, AFL-CIO, the General Counsel, unless otherwise specified, his representative at the hearing, Respondent or the Company, Falcon Plastics-Division of B-D Laboratories, Inc , the Act, the National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U S C Sec. 151 et seq ) Unless otherwise noted, all dates are in 1966 t Respondent's petition to quash subpena directed to it, on the ground of irrelevancy, and the further ground that it called for documents outside the scope of the complaint, was denied at the outset of the hearing 9 The complaint names Respondent as Falcon Plastics-Division of Becton-Dickinson & Company The name has been corrected to conform to Respondent's answer, and the stipulation of the parties at the hearing 4 This finding is based upon the credited and unrefuted testimony of Field Representative Joseph S Nelson, the Union's constitution , as amended , in effect at the time of the hearing, as well as at the time of the organizational activities, and the activities themselves at Respondent's plant , as well as officialt the other end until the contents are released by removing the finger activities themselves at Respondent's plant, as well as official notice of numerous Board decisions , in which the status of the Union as a labor organization has been determined. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in union or concerted activities; and issuing an employee warning notice to Nhoon Reese. 2. Whether Respondent discharged Nhoon Reese because he had engaged in union or other protected concerted activities to discourage membership in a labor organization, in violation of Section 8(a)(3) of the Act. B. Interference, Restraint, and Coercion 1. Introduction Falcon Plastics, a division of B-D Laboratories, is a wholly owned subsidiary of Becton-Dickinson & Company, a manufacturer of medical products located at Rutherford, New Jersey. Except for certain overall controls by the parent company and divisional head, Falcon Plastics is independently operated under the general supervision of General Manager Irving Horn. Respondent manufactures some 60 types of products, including sterile plastic products, consisting of single-use, nontoxic, internally calibrated pipets, petri, and tissue culture dishes, test tubes, and specimen containers, for use in laboratories and hospitals. During the period with which we are concerned, Respondent employed a total complement of 225 production and maintenance employees in various departments under the direction of separate supervisors. The department involved in this proceeding, injection molding and extrusion, has some 50 employees, under the general supervision of Rudolph "Rudy" Lux. There are four supervisors, exclusive of leadmen, under his direction. The extrusion department operates on three shifts. In January, one extrusion operator was employed producing pipets on each shift.5 The pipet is a plastic tube, about 8 inches long and 3/16 inches in diameter, tapered at the tip, and internally calibrated for accuracy in measurement, printed, and plugged with cotton to protect the user from absorbing the contents when used by mouth.6 Respondent stresses the need for high quality control, stricter than the requirements imposed by the Food and Drug Administration and other government agencies, not only from the standpoint of health and safety but also from that of its pride in reputation of its products. The parent company maintains Biological Safety and Quality Control committees which audit Respondent as to both aspects of this production and Respondent itself maintains detailed quality production control records. 5 By April, Respondent was employing between three and five extrusion operators, with possibly two relief operators, and, at the time of the hearing , eight or nine, on all shifts 6 When used in this manner, the fluid or specimen is drawn into the pipet by suction, and retained by placing the finger at the other end until the contents are released by removing the finger It is, therefore, imperative that the end of the pipet to which the finger is applied is smooth, to prevent injury to the finger, and that the pipet is not defective so that the contents will not escape The petition (Case 21-RC-9264) was originally filed in Region 21, and was formally closed before Region 31 was established s These findings are based upon a stipulation of the parties at the hearing It was further stipulated that no other representation petition has been filed by any labor organization, and that no unfair labor practice charges, other than the present charge, have been filed against this employer " It was stipulated that the Union handbilled the plant on October 28, November 11, 1965, April 19, 26, 27, May 3 and 10, 1966, and later the same month According to Personnel Manager Martin Farkas, he first learned that the Union was handbillmg the plant when one of his foremen, Fate "curly" Saint, brought him one of the handbills, and remarked that it looked as though the The pipets are produced from plastic pellets by an extrusion process, and, after inspection, cut and "stretched" in the "stretch and center cut" operation into two pipets of equal length, and calibrated internally, a millimeter pipet being calibrated in tenths and one- hundredths, the finest calibration consisting of 1/100th of a millilitre. 2. Previous organizational attempts The earliest attempt at organization of the employees took place in the fall of 1964. On October 27, 1964, International Union, Allied Industrial Workers of America, AFL-CIO, Local 976, filed a representation petition.7 No hearing was held on this petition but, instead, a stipulation for certification upon consent election was signed and approved by the Regional Director on November 24, 1964. Mrs. Edwin Selvin represented the Company; Charles A. Graham, that union. The union lost the election, held on December 18, and, on December 29, 1964, the Regional Director certified the results. No objections were filed to the conduct of the election. On June 27, 1966, the Union, here, filed a representation petition (Case 31-RC-295) which it withdrew, on July 6, without a hearings The Union had initiated its organizational campaign late in October 1965, with the distribution by Field Representative Nelson of some 175 handbills, with authorization cards attached, at the company gate. On two occasions in January, according to Nelson, he distributed 170 additional handbills at the plant. Further distribution was made by Nelson in February, March, and June, but not, according to him, in April or May.9 3. The events of January 18, 1966 On January 18, Shirl Brayton, administrative director, molding, an admitted supervisor, issued an employee warning notice to Nhoon Reese for defective work and carelessness.is On the same date, according to Reese,ii Brayton or Carl Byrd, second (swing) shift molding room foreman, notified Reese to report to Supervisor Rudy Lux at his office. Reese testified that when he got there he found Lux in a "pretty bad rage," pacing the floor and "cursing." Querying him as to "why do I have this damn union to represent me and pay union dues," Lux, Reese testified, asked him whether the Company had not treated Company was going to have to "go through it all over again " Saint also brought Farkas other handbills, which were subsequently turned over to Mrs Selvin, who furnished them to the Regional Office Although Nelson claimed he had distributed handbills at the plant between November 1965, and April 1966, he failed to produce copies for that period Nelson testified, however, that he also circularized the employees by mail, on January 12, and passed out handbills at the plant on May 3 and 10, and June 23 and 28, 1966 The dates of distribution of the handbills are significant only in deciding whether Respondent was aware of the union organizational campaign on the critical dates , discussed later "' The alleged violation of Section 8(a)(1) by the issuance of this warning notice, and of Section 8(a)(3), by the subsequent discharge, are discussed below Since the General Counsel's case depends almost entirely on the events alleged to have occurred on January 18, they are dealt with in some detail i i All references to Reese hereinafter, unless otherwise stated, are to Nhoon Reese, as distinguished from Governor "Bootsie" Reese, his brother, who was also employed at the plant as an extrusion operator on the graveyard shift FALCON PLASTICS 791 him fairly enough so that it should not have been necessary for him to pay anyone to represent him. Reese asked Lux how he knew that he was having anyone represent him. According to Reese, Lux told him that there were "many ways of finding out things like that. "12 During the conversation, which lasted, according to him, about 2 hours, Reese asked Lux why he had received the "demerit," protesting that he had tried hard to do the best work of any of the employees, that he knew his work was "not bad," and that it was unfair to give him a demerit. Reese testified that he told Lux that "if something else [was] happening," Lux should have told him instead of charging him with "putting out bad production." According to Reese, Lux replied, "Well, probably you came to work drunk." Reese testified that he told Lux that, during the entire period of his employment, he had come to work only once after having two beers. Lux then ventured, "Well, probably you were looking at the women." Reese denied this, protesting his marital fidelity. With that, according to Reese, Lux finally proposed, "Well, let's you and I be fair with each other. Let's put our cards on the table." Lux then asked Reese who was trying to get him fired. Reese suggested that there were "any number of people." Lux said, "Well, let's break it down to who you think it is." Reese mentioned Carl Byrd, but Lux ruled him out, adding that Byrd spoke highly of him, and never gave him a "bad reference." Reese then asked whether it was Horace Powell. Lux told Reese that it was not-that it was a white man, not a colored man.13 Reese testified that Lux then remarked that since Reese had signed with "this damn union," he had become indifferent about his work, which had deteriorated increasingly over the last few days. Reese retorted that he had been "doing better inspecting of my work than I ever had." Believing that Lux wanted to fire him then and there, Reese told him that regardless of what had happened, he would never vote for a union in the plant, that the Union could only gain recognition by "being voted in," and he would never vote in favor of the Union. Reese pleaded with Lux to cancel his "demerit," since he had never received one in his 15 years as an extrusion worker, and, in the event of termination, his future job opportunities elsewhere would be jeopardized by this warning notice. Lux refused, but told Reese, according to him, to continue as he had been doing, and the demerit would in time take care of itself. Discussion turned to the subject of wages, and Lux told Reese that, according to his information, Reese was the only extruder operator who was complaining, and reminded him that the extruders had been receiving scale. Lux told him, however, that since the Company had installed an additional extrusion machine, necessitating an extra operation, the wage scale for extruders would be reevaluated and increased to $3.25 an hour. Lux, for his part, denied that he engaged in any conversation with Reese, on or about the date in question, testifying that he knew of no such meeting. Shift Foreman Byrd, Reese's immediate supervisor, testified that he had no recollection of sending Reese to Lux's office on the occasion about which Reese testified. He testified, furthermore, that if Reese had had occasion to be away from his extrusion machine for any length of time, it would ordinarily have been necessary for Byrd to furnish a relief operator from the assembly department, and that he had no recollection of doing so on this occasion.'4 Shirl Brayton, administrative director, molding, and Byrd's superior, shared an office with Lux. Brayton testified that he did not send Reese to see Lux on the date in question, and that he did not recall seeing Reese in Lux's office that day. According to Brayton, whose testimony was corroborated by Lux, he was usually in the office between 3:30 and 5:30 or 6 p.m., when he prepared his production cards and did his paper work as part of his daily routine, and if Reese had, in fact, been in the office, he would certainly have remembered it. While the testimony of Byrd and Brayton reflected something less than a categorical denial of Reese's testimony, and somewhat less than complete corroboration of Lux's more positive denials, their testimony is perhaps nonetheless convincing and persuasive for being couched in equivocal terms. Judged by his own testimony, his attitude and demeanor on the witness stand, and his obvious personal interest, his account of his alleged conversation with Lux was singularly unconvincing. His description of Lux's behavior, during a conversation allegedly lasting 2 hours, with Lux pacing the floor, cursing, and pulling his hair, in an apparent "bad rage," seems wholly at odds with Lux's general attitude and demeanor on the witness stand, and the circumstances which are claimed to have provoked this rage. Apart from the employee warning notice which had been issued to Reese, and his mere union membership, of which, as will be seen, management was not even aware, nothing had occurred up to that time to warrant the explosive outburst attributed by him to Lux. Moreover, it may be noted that, at the time of the earlier organizational attempt by the other union in 1964, several meetings were held of supervisory personnel with the Company's labor relations consultant, at which a pamphlet, outlining the rights and duties of supervisors, was distributed and discussed at length.'' Again, in October 1965, when the Union embarked on its campaign, another meeting of supervisory personnel, including foremen, was held at which the same leaflet was distributed and reviewed. Lux and Byrd attended both meetings, and Brayton, the latter meeting in October."' i' The allegation that Respondent created the impression of surveillance is apparently based solely on this testimony " Like Reese, Powell, his brother-in law, was a Negro Reese testified that he concluded that it must have been Earl Hamilton, a maintenance man, who was the only person, other than Powell, to whom he had shown his union card, who had "snitched" about Reese's union membership Reese assumed this because the Saturday after he showed him his card, Hamilton had worked while Reese had not Hamilton was not called to testify, and there was no direct evidence that he revealed Reese's union membership to any management representative is According to Reese, Byrd instructed him to shut down his machine Supervisor Lux testified that it takes several hours to start up the extrusion machine once it has been shut down It is. therefore doubtful that Byrd would have issued such instructions The pamphlet appears to have been a reprint of a leaflet entitled "SOME DOs AND DON'Ts FOR SUPERVISORS Under the I abor-Management Relations Act of 1947 and Labor- Management Reporting and Disclosure Act of 1959," apparently prepared by Charles A Kothe, vice president industrial relations, National Association of Manufacturers iF According to Personnel Manager Farkas, on whose testimony the above findings are made, Brayton was probably not a supervisor at the time of the 1964 meetings 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Granting that supervisors have been known to ignore such instructions, it seems improbable, in light of the indoctrination shown here, that a management representative of Lux's level of supervision would have so completely disregarded these instructions as to vent any displeasure he may have harbored toward the Union by castigating a rank-and-file union member in a 2-hour tirade. Reese himself admitted that the extent of his union activities consisted of signing an authorization card. He did not distribute union authorization cards or literature, did not solicit other employees to join the Union, and engaged in no other union activity. Moreover, there was no persuasive showing that management was aware of Reese's union sympathy or adherence at the time of the alleged conversation with Lux, apart from Reese's testimony to that effect in that conversation. Any contention that management knew Reese was a union member must be based upon speculation that Hamilton or Powell, Reese's brother-in-law, revealed his union membership to someone in management , an inference not warranted by this record. In fact, as will later appear, in connection with the discussion of Reese's discharge, Powell could not testify that Reese had shown him his union membership card, and, according to Powell, he had no knowledge of Reese's membership until he learned it at the hearing. Hamilton, though still in Respondent's employ, was not called as a witness, and Lux testified that Hamilton, who was in his department, never discussed the Union with him, and did not reveal to him that Reese belonged to the Union.17 According to Lux, he learned of Reese's union membership for the first time in May 1966, a month after Reese's discharge, during a hearing on his claim for unemployment compensation. Moreover, Lux categorically denied discussing the employee warning notice with Reese, testifying that he generally avoids any direct contact with production employees, except in a situation involving expansion of their department or affecting the scope of their work, and that he relied on his intermediate staff to handle day-to-day relations with the employees. Under these circumstances, Reese's testimony that Lux, for no plausible reason, summoned him to his office, and embarked on a tirade of vituperation because of his union membership (of which Lux had not even been aware) and union activity (in which Reese admittedly did not even engage), imposes a serious strain on one's credulity. The fact that the purported conversation with Lux is alleged to have occurred within a week after Reese claims to have displayed his union membership card to Hamilton, and a day or two after the warning notice to Reese, has not been overlooked Viewed in the light of Reese's insignificant role in the organizational activities, these coincidences are insufficient to lend credibility to Reese's testimony as to his alleged conversation with Lux. Moreover, it seems highly improbable that Reese could have confused this conversation with the one several months later, during his exit interview, detailed below. " It is noteworthy that in a pretrial affidavit to a Board agent, Reese mentioned only that he had shown his union membership card to Hamilton Reese testified that he failed to mention Powell in his affidavit because he knew that Powell would not divulge this fact Reese also testified, however, that Hamilton had actually talked to him about the Union, told him that it was the best Union to join in the State of California, that he was a former member, and had a withdrawal card from that Union It therefore seems improbable that Hamilton would have betrayed him to his employer Reese also testified that he spoke to other employees, One is, of course, reluctant to condemn testimony out of hand as a fabrication, but Reese's testimony as to his alleged conversation with Lux is so palpably contrived to furnish a basis for his claim of discriminatory treatment as to be unworthy of belief. Perhaps the most charitable thing to be said for Reese's testimony is that it was a case of "the wish being mother to the thought." It is therefore found that Lux did not send for Reese, on or about January 18, 1966, and did not engage him in a conversation, in which he made statements attributed to him by Reese, and did not thereby engage in unfair labor practices within the meaning of Section 8(a)(0 of the Act. 4. Alleged promises of economic and other benefits The complaint alleges, and Respondent's answer denies, that Respondent promised the employees economic and other benefits to refrain from affiliating with the Union or engaging in other protected concerted activities . The benefits, the complaint alleges, were announced by a notice posted on the bulletin board at the plant on January 19. The notice, on the letterhead of Respondent, the only one during the period , was actually dated January 27. This announcement , and the granting of shift differential pay, presently discussed , constitute the only basis for these allegations (apart from Reese's testimony , previously discredited , that in the alleged conversation of January 18, Lux promised to increase the pay scale for extrusion operators to $3.25 an hour). Because of the General Counsel' reliance on the notice in support of this allegation , it is quoted in full. It reads: January 27, 1966 NOTICE TO ALL HOURLY EMPLOYEES PAY SCALES As has always been our policy, employee benefits as well as pay scales are constantly being reviewed to maintain the highest possible level. We have just completed a re-evaluation of our pay structure. We have raised the starting rates as well as the top rates on many job classifications. In addition we have eliminated the previous policy of waiting one (1) year between raises when you are near the top of the scale. This was done so you can reach the top of the pay scale sooner. The new program works this way: New employees will be given a Merit Review three (3) months from their date of employment. They then fall into the regular semi-annual review period of March and September for increases to go into effect the first Monday in April and October. As you already know, Merit Increases are not automatic, they are earned. We hope you all earn the whose names he could not recall, about the Union, and that he had spoken to a maintenance supervisor during the 1964 union campaign. He further testified that he told Lux, during the alleged conversation, that he had started to talk to Byrd about the Union outside the plant, in or about March 1966. In his pretrial affidavit, however, Reese stated that he had no further conversation with Lux or any other supervisor about the Union, between January 18 and the date of his discharge, and that he did not, during the same period, discuss the Union with employees in the shop or solicit them to join FALCON PLASTICS 793 maximum increase . Since your performance is directly related to the Company's ability to pay higher salaries, it is to your benefit to work to the best of your ability. Remember, the amount of your increase depends on your work performance, attendance, cooperation, and attitude. Your attendance record weighs quite heavily at review time. More raises are lost because of poor attendance than for any other reason. For your own benefit, be at work every day, be here on time and perform to the best of your ability. This new pay program will go into effect Monday, January 31, 1966. The next regular review period will be in March for increases to go into effect on April 4, 1966. This is just part of our continuing program of making FALCON PLASTICS the best place to work. I. Horn General Manager IH/jsk Reese testified that he read the notice, that it was on a letterhead of the Company, signed by General Manager Horn, and that it bore the date of January 19 or 20. Although he could not recall the precise wording of the document, he understood it to mean that under the new policy all employees would be upgraded to the "top of the scale" instead of by intermediate steps. He did recall, however, that the change was to become effective on April 4.1 11 According to the undisputed testimony of General Manager Horn, top-level management representative at the plant, Respondent had established a policy of semiannual merit increases , based upon a review of the employees' work performance, attitude, and attendance, for several years prior to the announcement posted on January 27. This was quite apart from individual increases based on promotions or job reclassifications. Personnel Manager Farkas testified that, during his tenure in that capacity, some 5-1/2 years, the Company had conducted 15 to 20 merit reviews, and that he was certain that similar notices had been posted in the past The last general wage increase, prior to the posting of the January 27 notice, granted in July 1965, effective August 2, amounted to 5 cents an hour, and a notice was posted announcing the change. The only material changes effected by the January 27 notice appear to have been an increase in starting rates, as well as the top rates, in various job classifications, based upon a reevaluation of the pay structure, and the elimination of the 1-year waiting period, to accelerate the time for employees to reach top scale. This would be accomplished by granting new employees a merit review 3 months after their initial employment, with regular semiannual reviews thereafter, in March and September, and corresponding increases in April and October. As has been noted, the new pay program was to become effective January 31,the next regular review to be held in March, with increases to take effect April 4.1' Assuming that the January announcement and institution of the "new pay program" represented an actual increase in wages and benefits (an impression which the Company obviously intended to convey), there is no affirmative evidence that the action taken was calculated or reasonably understood by the employees to be contingent upon their refraining from selecting the Union as their bargaining agent. On the contrary, there is credible and unrefuted testimony that the new wage program was installed in an effort to attract qualified help and halt excessive turnover in a highly competitive labor market. According to Personnel Manager Farkas, the Company had been losing employees to the aircraft industry in the area. What has been said is also true of Respondent's action in granting swing and graveyard shift employees premium pay of 7 cents an hour, in May 1966.21' The General Counsel contends, however, that Respondent instituted these economic improvements "in the midst of an organizing campaign and [that the changes] were accompanied by other unfair labor practices and with expressed union animus ." To the extent that he relies on the alleged episode between Reese and Lux, on January 18, for reasons previously stated, it has been found that no such encounter took place. For the same reason, it has also been found that there is no evidence that Lux created the impression of surveillance (by telling Reese that there were ways in which Lux could discover union adherents). As for the employee warning notice given Reese on January 17, previously mentioned, and discussed in more detail in connection with Reese's discharge, the evidence, as will presently be shown, fails to establish any discriminatory motive in regard to the warning or that the giving of this notice in any way constituted a violation of Section 8(a)(1) of the Act. This, then, leaves 'the question of whether the coincidence of timing of Respondent's actions justifies the conclusion that it was prompted by antiunion considerations. Mention has been made of the organizational campaign accompanied by handbilling of the plant conducted by another union, in the fall of 1964, in which that union failed to achieve the right of representation. As has been noted, no objections were filed to the conduct of the election in that case, and no evidence has been offered in this proceeding of union animus, hostility or opposition to the rights of employees. The organizational campaign by the Union, here, began in October 1965, with handbilling at the plant by Field Representative Nelson. According to Personnel Manager Farkas, who attempted to maintain a complete file of handbills distributed by the Union, no handbills were distributed between November 11, 1965, " Reese admitted that no other such notice was posted on the bulletin board during this period The notice, furnished by Respondent in response to a subpena , was, as has been seen, dated January 27 Governor "Bootsie" Reese also testified that this was the only document of its kind posted at the plant during the month of January It is apparent that Nhot n Reese was either mistaken about the date or deliberately advanced the date to coincide more nearly with the date of his alleged conversation with Lux " Questioned at the hearing about the January notice, "Bootsie" Reese testified that he saw the announcement on one of the three bulletin boards, and identified the copy introduced in evidence Based on his recollection, he testified that the notice provided for "merit" raises every 3 months, with a merit raise starting in September, effective October It is evident that he did not recall the entire contents of the notice According to him, when he was hired by Lux on November 11, 1965, he was told that after "some" months he would receive a raise "' Alleged by amendment during the hearing as further evidence of violation of Section 8(a)(1) Prior to this, male personnel had received no premium pay, and female, 5 cents an hour, for these shifts 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and April 19, 1966, and he had no knowledge of handbilling between December 1965 and March 1966. Despite Union Representative Nelson's testimony that he tried to keep a complete file on his activities at the plant, and made routine activity reports to the Union, he produced no documentary support for his contention that handbills were distributed at the plant between December and March. Respondent argues, therefore, that Nelson was mistaken in his testimony that he made distributions at the plant during that period, and that there was, in fact, no organizational activity in those months.'' Whether or not there was an actual suspension of handbilling, it would be sheer sophistry for Respondent to argue that it assumed that the Union had abandoned its organizational campaign. It would be unrealistic to believe that, because active recruiting by means of distribution of literature might have been halted, Respondent ceased to be aware of the Union's purpose to organize Respondent's employees. The implicit argument that Respondent had no reason to engage in a course of opposition to the Union is, therefore, not too persuasive. However, there was no adequate showing that Respondent had manifested opposition to the Union or the self-organizational rights of the employees. Respondent had already experienced one organizational campaign a year earlier. Although that attempt at unionization had failed, there was no contention that the failure was attributable to unfair labor practices on the part of Respondent. If Respondent had actually been opposed to the self-organization of its employees, it may be assumed it would have viewed this renewed assault by another union with something approaching concern, if not alarm. The absence, however, of any evidence of opposition to the union in the former campaign, or to the Union here (the only evidence of Respondent's alleged misconduct having been rejected), and the absence of any union animus, hostility, or other misconduct, it must be concluded that the timing of the announcement and establishment of the improved wage program, in January, and the granting of the premium pay or shift differential, in May, were merely coincidental It is therefore found, on the basis of the foregoing, and upon the entire record, that, by granting or promising its employees economic benefits in the form of a new or improved wage program, on or about January 27, and, differential or premium pay to employees, in May 1966, Respondent has not interfered with, restrained, or coerced employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1) of the Act. It is further found that the allegation of the complaint that Respondent, through Supervisor Lux, created the impression of engaging in surveillance, during an alleged conversation on or about January 18, has not been sustained by the preponderance of the reliable and probative evidence. 21 As has previously been noted, the Union did not file its representation petition until June 27, 1966, and it was withdrawn, without hearing, on July 6 The charge was filed on April 25 22 While performing maintenance work, he was on the day shift, receiving the same hourly rate According to Reese, the top rate of pay at the time of his discharge was `supposed to be" $3 25 an hour, based upon what Lux had allegedly told him, but Reese was uncertain whether the top rate was being paid at the time Reese was receiving 82 85 at the tune of his discharge C. Discrimination in Regard to Hire and Tenure of Employment of Nhoon Reese 1. The employee warning notice Nhoon Reese was employed by Respondent from July 1, 1963, to April 4, 1966, when he was discharged under circumstances later described. Except for the period between October 1963 and January 1964, and on random occasions during slack periods when he performed maintenance work, he worked as an extrusion operator on the second shift, from 4 p.m. to 12 midnight, at an hourly rate of $2.40 or $2.50.2 2 In October 1965 he joined the Union , signing an authorization card which he had received with a handbill. He mailed the signed card to the Union and later received his membership card. Reese testified that about January 12, he showed his union membership card to fellow employees Earl Hamilton and Horace Powell, in the plant. On January 18, Supervisor Brayton issued an employee warning notice to Reese for defective work, which Reese called a "demerit."13 Brayton told Reese that he had found defective parts in his work, and had no alternative but to give him a written warning. Reese contended that his work had not been inferior, and told Brayton that the demerit was a reflection on him. According to Reese, Brayton expressed regret at having to give him a demerit, but said that Lux had instructed him to issue it Reese testified that Brayton told him not to worry about it-that "time could take care of everything." Reese admitted, however, that Brayton had told him that he had found some "bad end cuts" on parts he had produced, and showed him three or four defective parts. Reese testified that he had produced 5,000 parts on his shift, but that Brayton did not disclose the total number of defective parts he had discovered Reese had never before received a warning notice, or been told that his work was "below standard." Later the same day, Reese testified, he was notified either by Brayton or Byrd, Reese's foreman, to report to Lux's office. Reese's testimony about this alleged 2 i The notice, on a printed form, read EMPLOYEE WARNING NOTICE NAME CLOCK NO Nhoon Reese S-249 NATURE OF VIOLATION V Defective Work Safet, Conduct Lateness Absence Attitude Housekeeping Disobedience \ Carelessness s Shirl Bra y ton Signature o f f oreman or Supervisor 1st Notice X 2nd Notice DEPARTMENT DATE Molding 1 18/66 REMARKS Nhoon has been cautioned about his poor quality of work on end cutting of pipets in the past Molding D epartment is getting too mans kick backs from Assent Dept s Nhoon Reese icie ignature FALCON PLASTICS incident, previously discredited, has been recounted elsewhere. (Section III, B,supra.) The General Counsel contends in his brief that the issuance of the warning notice, on January 18, constituted a violation of Section 8(a)(1) of the Act, that is to say, amounted to interference, restraint, and coercion in the exercise of rights guaranteed in Section 7.24 Presumably, it is argued that the issuance of the notice constituted a form of harrassment or coercion as a means of retaliation for his union sympathy or adherence, and to inhibit him from engaging in union activities in the future. There is no foundation for this contention in the record. First, because, as has already been found, there is no evidence that Reese had in any way distinguished himself as a union adherent or advocate, and, even if it be assumed that Respondent was opposed to efforts at self-determination of its employees, and knew of his union affiliation, an assumption not warranted by the record, no cogent reason has been advanced as to why Respondent should have singled out Reese as a target for reprisal. Second, because there is abundant evidence in the record to warrant the conclusion that the warning was well deserved. There is unrefuted evidence in the record that Respondent was confronted, in January, with a problem of defective pipets in the extrusion department. On January 17, and, again, on the 18th, Foreman Fred Ross, of the assembly department, notified Brayton that pipets delivered to his department were defective. Brayton verified this, on inspection in the assembly department, discovering "bad end cuts." Some had been crudely cut and others had been transferred from the "extruder cutoff box" to the "unfinished product box," without having been cut altogether. On the first visit, Brayton discovered two boxes, each containing 2,500 defective units or pieces, and, on a subsequent inspection the following day, found four boxes with defective units. After his first inspection, Brayton returned one of the boxes containing defective parts to the extrusion department, and, on checking through the production records, a relatively simple matter, traced the defective parts to Reese.25 In January, Respondent employed three extruder operators in the manufacture of pipets, Horace Powell, Nhoon Reese, and Governor "Bootsie" Reese, one on each shift, on the day, swing, and graveyard shifts, respectively. By means of the production and quality control records, the defective parts were traced to Nhoon Reese, the sole operator on the swing shift. When Reese reported for work about 4 o'clock, January 17, Brayton pointed out the discrepancies in his pipets, and, after examining the parts, Reese conceded that he was responsible for them. At the hearing, Reese himself did not deny that he had produced the defective parts, but relied, instead, on the fact that the female inspector had "OK'd" the "end cuts." He admitted, however, that this inspection consisted merely of a spot check. Reese also attempted to attribute the defective 'a There is apparently no allegation or contention that Respondent violated Section 8(a)(3) by issuance of the warning notice 2-1 Because of the critical standards required by the nature of the product manufactured, Respondent maintains detailed production and quality control records These records include a form. designated as Vendors Lot No Pipet Extrusion Control, showing the raw material, certified by the vendor to meet certain standards, and bearing the code and control numbers of each lot Thus, Respondent is enabled to trace any item manufactured, 795 parts to the dullness of the cutter blades and the necessity of adjusting the tension on the spring cutter.26 Next day, January 18, Brayton reported to Lux on the rejections of pipet tubes and Reese's involvement in the defective production. Brayton told Lux that he intended to give Reese a written warning because he had already given him oral warnings, including one the day before. Lux obviously concurred, and Brayton wrote out the warning, and submitted it to Reese for his signature. Reese signed the notice, without protest, other than what has been related. General Manager Horn conceded that there is a certain percentage of rejects in the production of pipets. The production and quality control records, during the period in question, however, indicate a sharp increase in rejections in January. Horn testified that, during casual patrols through the plant, he observed the records of "stretch and end cut operations," questioned Assembly Supervisor Ross about the increase in rejections, and asked him what the problem was. Ross agreed to look into the matter, and reported to Horn that the defective parts were coming from the molding and extrusion department. Horn told Ross to take care of the matter. During a casual encounter with Lux, Horn mentioned , in passing , what he had learned from Ross about the rejections coming from the extrusion department. Production records, maintained in the usual course of business,•introduced in evidence, and unchallenged by the General Counsel, establish that rejects in the production of pipets, primarily due to defective end cuts, increased from a norm of approximately 2 percent to 5 6 percent and 6.3 percent in January at the stretch and center operation. Respondent had apparently had no complaint about Reese's work prior to January. Moreover, Respondent conceded that Reese had made a number of constructive production suggestions in 1963, when Respondent was encountering problems with the extruding operation, admittedly requiring a technical knowledge, which Respondent utilized. At least , until December 1965, Reese's work performance had been generally satisfactory, and Superintendent Lux admitted that he had been a "good worker" until then. It cannot be disputed, however, that the quality of Reese's work deteriorated substantially during the period in question. Lux conceded, however, that after the written warning, Reese's work gradually improved until, by March, some 2 months later, he had achieved at least the same level of performance as he had established prior to December 1965. A careful analysis of the statistical and documentary evidence offered by Respondent, together with the credible and substantially uncontradicted testimony of various management representatives, to say nothing of Reese's own admission, abundantly establishes that the warning notices, both oral and written, given Reese on January 17 and 18, were fully justified. from the start of the operation until the finished product is released by the laboratory Without going into the details of manufacture, each box containing parts which leaves the extrusion department is numbered, and the operator responsible for production of those parts is required to initial the extrusion control form, indicating that he had worked on the parts contained in the box "' As a matter of fact, Respondent had complained that Reese had made adjustments on the extrusion machine without authorization 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is therefore found that Respondent did not, by issuing the employee warning notice, on January 18, interfere with, restrain, or 'coerce employees in the exercise of rights guaranteed under the Act. The coincidence of timing in issuing the warning notice, within a week after Reese allegedly apprised Hamilton and Powell of his union membership, is wholly insufficient, in the circumstances of this case, to overcome the overwhelming evidence that the warning was given for legitimate reasons rather than for those proscribed by the Act. 2. The events culminating in the discharge of Reese Early in March, Lux called a meeting at his office of the three extrusion operators.27 Brayton, Byrd, and Earl Deeds, apparently another supervisor, were also present. Lux told the operators that the Company had acquired a new extrusion machine, and this would necessitate some instruction and entail additional work. He explained that two female employees would be assigned to each shift, and announced that Powell was being designated as "senior operator." Lux said nothing about any increase in wages, and this was the subject of discussion among the extrusion operators after they left the meeting. "Bootsie" remarked that, although much had been said about increased duties and responsibilities, no mention had been made of a corresponding increase in wage rate. According to Nhoon Reese, either he or Powell mentioned that Lux had promised to raise the basic hourly rate to $3.25. The men discussed what they would consider an acceptable hourly rate when the increase they expected went into effect.28 Mention was made of a 25-cent increase. Reese pointed out that in order to bring him up to a $3.25 rate, he would have to receive a 40-cent raise. Powell observed that, at the rate he was receiving for operating only one machine, a 25-cent raise would not be sufficient to compensate him for operating two machines, 27 Although "Bootsie" Reese had been working on the graveyard shift at the time, he and the others had worked on the day shift for the 3 days preceding this meeting 28 This was apparently based on the announcement of the "new pay program," made on January 27, 1966 29 Reese could not recall the exact date, but assumed that it was on March 28 or 29 Byrd, his foreman, gave the date as March 30, which he fixed as a Wednesday Byrd's testimony as to the date is probably more reliable. 3' Reese quoted Powell as saying "be nice and talk nice to him" 31 According to Byrd, between 11 and 11 30 p in., on March 30 32 The sheet , presumably the merit rating form , reproduced here in full, does not appear to have a place for the employee's signature. FALCON PLASTICS MERIT RATING FORM DATE 3/7/66 NAME- DEPT 91 d, 300 nn E Mo dec er S 4 RATE RA G DATE OF HIRE-dZT2/63u AMT I AST INC T'S^'C^7 ^^ner_ DATE LAST INCREASE CURRENT RATE 2A6 MERIT INCREASE .10 NEW RATE T E ATFF C Ii S FOR SUPERVISOR ONLY FXCFLLENT GOOD AVERAGE BELOR AVERAGE ATTENDANCE SKILL QUALITY QUANTI APPHOAC INITIATIVE INCREASE PECOMMENDATION .10 REMARKS FOR DEPARTMENT HEAD ONLY NO INCHEASF R^ h. and that he felt he should receive an increase of at least 50 cents. He said, however, that if the others were willing to accept a 25-cent raise, he would go along with them, but that he would not agree to anything less than that. In March, Respondent conducted its merit ratings. The recommendations, reduced to writing on a form provided for the purpose, were signed by the supervisor, and approved or disapproved by the department head, Lux, in the case of the extrusion operators. On March 30,29 when Reese reported for work on the second shift, Powell, who had just completed his shift, told Reese that he had been offered a 10-cent raise, which he had refused. He advised Reese to do the same, cautioning that he do it politely,3° but to tell Byrd that he would rather it be added to the October increase so that he could feel he was receiving a worthwhile increase. Some 5 or 10 minutes before the close of his shift,31 Byrd came to Reese with his merit rating. According to Reese, Byrd told him to hurry and sign it because he, Byrd, had been running late and had almost forgotten to give him his rating. Byrd told him that he was recommending a 10-cent raise .32 Reese declined the raise, maintaining that the rate was to have been increased to $3.25, and that he had no intention of accepting the raise offered. Byrd, according to Reese, urged him to "sign," remarking that the raise amounted to almost $10 a week. Reese retorted that it was "short of $10.00 by about $6.00," and that if that was all the Company could offer, it could take the raise and "shove it up their butt." Byrd asked Reese if he wanted him to put that on the form. Reese replied that he decidedly did not, and asked Byrd to note merely that Reese had refused the 10- cent raise but that he would be willing to accept it in October, with the next increase , so that he could feel he had received an appreciable raise. According to Reese, Byrd agreed to do 50.33 33 Byrd's version of this conversation did not differ materially from Reese's. According to Byrd, he told Reese that he had his merit rating, and that the Company had decided to grant him a 10- cent increase, bringing his rate up from $2.85 to $2.95. In Byrd's version, Reese said that the Company could "take it and stick it up their ass until they can give me more." Byrd corroborated Reese to the effect that he had asked Reese whether that was what he wanted him to put on the form, and that Reese replied that he did not, but insisted that he had been promised $3.25 Byrd thereupon explained to Reese that he was within 5 cents of the top rate of $3.00, and that until that rate was increased, that was all he could get him. Reese refused the increase, and the interview ended. APPROVED DISAPPROVED REMARKS Ve od .,1006,,, bu eede ,o DATE r e FINAL APPROVAL BY M E FALCON PLASTICS 797 Next day, when Brayton asked Byrd if he had completed his merit ratings,34 Byrd told him of the problem he had encountered with Reese, and the language Reese had used in rejecting the merit raise. Lux had been out of town when the incident occurred. When he returned on Monday, April 4, Brayton and Deeds reported the incident involving Reese. Lux told Brayton that they would wait to see what Byrd had to say when he came to work. Meanwhile, Lux discussed the matter with General Manager Horn. Horn apparently made no specific recommendations relying on Lux to decide what action to take. At or about 3:30 p.m., Byrd arrived, and Lux spoke to him in Brayton's presence. Byrd confirmed that Reese had refused the merit increase and made the remark in question. Lux asked Byrd whether he was in the habit of letting his employees talk to him that way. Byrd said he was not-that he felt such an attitude warranted discharge, and that he was "mad enough ... [to] fire him on the spot," but was so taken aback that he decided to await Lux's return. Besides, Byrd told Lux he was uncertain whether he had the authority to fire employees under his supervision. About 4 o'clock that afternoon, Lux told Byrd to have Reese report to his office. Byrd escorted Reese, and when they arrived, Lux and Brayton were there. Questioned about whether he had made the remark, as quoted by Byrd, Reese admitted it, and said he was "sorry." Lux told him that that did not excuse his behavior toward his supervisor. Reese said he realized that, and repeated that he was sorry. Lux declared that the Company could not tolerate such behavior, and that he had no alternative but to terminate him. Reese reiterated his regret, and asked Lux to reconsider. Lux told him that employees could not be permitted to gain the notion that they could speak to supervisors in that manner.ss Reese told Lux that he had made the remark to Byrd on a personal basis, and had not expected Byrd to report it to management . Lux repeated that that was no excuse for using such language to a supervisor. Reese explained that he had supposed that he and Byrd were good friends, intimating that the remark was made more or less in confidence.36 Reese appealed to Byrd to tell Lux that he had not meant anything by the remark, and had certainly never intended it to get back to Lux. Byrd said that he was sorry but that he had reported the incident to Lux.37 Reese told Lux that he did not believe his conduct warranted discharge. He told Lux that he had been planning to sell his home in Pasadena and move closer to work. Lux was unmoved. Brayton then told Reese to "punch out," and return the next day with his uniforms and pick up his check. Next day, Reese went to the personnel office to sign the necessary papers for his voluntary retirement refund. Personnel Manager Farkas remarked that Reese had been with the Company a long time. According to Farkas, in a discussion of his termination, Reese acknowledged that he had made some improper remarks, and that he understood the reason he had been discharged, adding that he "would have done the same thing," in the Company's position.38 Reese asked Farkas whether he would advise him what to state on any future employment application as the reason for his discharge. Farkas told him that he could use his name as reference (because he "happened to like the guy personally"), but that if inquiry were made as to the reason for Reese's discharge, he would be obliged to state that it was for misconduct and insubordination. Reese replied, according to Farkas, that he would "have to live with it," referring to the fact of his discharge. With regard to the two other extrusion operators, both accepted the merit raise offered them by the Company after the ratings were made. Powell, whose rate in January was $3, at first refused a 15-cent raise offered him by Brayton after his rating. He told Brayton, as he later advised Reese to do, that he preferred to have that raise added to the next pay raise, so that he would feel he was receiving a more adequate increase. When Brayton pointed out that the 15-cent increase would amount to $6 a week, Powell told him that he preferred to continue at his then rate rather than accept a 15-cent raise. Brayton suggested that the matter be held in abeyance until Lux returned, and Powell agreed. On his return, Lux sent for Powell and questioned him about his rejection of the 15- cent raise. Powell told Lux that he did not feel the raise was adequate to compensate him for the extra work on the second extrusion machine. Assured that the increase was intended only in recognition of his past performance, and that it would not affect any future increases, Powell apologized for "caus[ing] this confusion," and agreed to accept the raise, with thanks. According to Powell, Lux then remarked, "What am I working back there, a family," adding that Reese had "come up with somewhat the same thing." Powell disavowed the implication, and said that he "had nothing to do with what anybody else" does, and that he was only concerned about himself. Lux then broached the incident involving Reese, and Powell commented that he himself refused the raise, but he did it in "a nice way, without get[ting] out of line with Shirl." Brayton, who was present during Powell's interview with Lux, confirmed this. Lux stated that he was undecided about what to do with Reese. "Bootsie" Reese, who had been employed about 11 months at the time of the hearing, was hired initially at the rate of $2.48, and increased to $2.67. The day his brother, Nhoon, was discharged, "Bootsie" discussed his merit rating with Kenny Calcut, his supervisor, in the diner at the plant. " Bootsie" examined the form, which his supervisor had prepared, and noted 34 According to Byrd , he had conducted 14 merit reviews the night before 35 According to Reese's version, Lux mentioned during this interview that the Company had planned to use Reese in a supervisory capa.ity, but that his attitude in this instance precluded that, and that as far as Lux was concerned, Reese "was through " i6 Byrd, who referred to himself as a working supervisor, testified that there was no one within earshot of his conversation with Reese He admitted that he had gone on fishing trips with Reese, and that he had frequent personal conversations with Reese during working hours He conceded that he was not shocked by the use of the epithet itself, and testified that by the next day, his anger had cooled to the point where he had a personal conversation with Reese ' The transcript of the proceedings quotes Reese as saying, "So Carl said `I am sorry I told him."' It is not clear whether Reese meant by this that Byrd said that he was sorry, but that he had told Lux, or that Byrd had said that he was sorry that he had told Lux In view of the context, it is more probable that Reese intended to testify to the former version 33 Called in rebuttal, Reese denied this remark, but did not deny any of the other remarks attributed to him by Farkas in this exit interview Although unnecessary to a resolution of the issues, it is more probable that Reese made this remark possibly as a conciliatory gesture 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that his performance had been rated as excellent. He protested, however, that the amount of his merit increase was inadequate to compensate him for the increased work entailed in operating the added extrusion machine. When his supervisor explained that the merit increase was only in recognition of his past performance, and that after full production was started on the new machine the wage scale would be reviewed, he agreed to accept the increase. 3. Contentions regarding Reese's discharge The General Counsel contends that Reese's discharge was provoked either by his union activity or his concerted activity in connection with Respondent's proposed merit increase. Respondent maintains that Reese was discharged solely because of his attitude of disrespect and insubordination toward Supervisor Byrd during his merit rating, which culminated in Reese's rejection of the increase offered. As regards Reese's union activity, as has already been shown, it consisted of little more than the signing of an authorization card, which has not been shown by the preponderance of the evidence, to have been known to Respondent. The General Counsel's reliance on the employee warning notice to Reese, about a week after he received his union membership card, and allegedly displayed it to two fellow employees, one of whom, his brother-in-law, at the very least, was unable to recall this incident, and the other, an apparently ardent union adherent, whose sympathies were well known to management (and who, incidentally was not called to corroborate Reese), has nothing more to commend it than the coincidence of timing. Moreover, as has been clearly established by this record, and Reese fairly acknowledged, the warning notice was entirely deserved. With respect to the question of whether Reese actually engaged in protected concerted activity in March, the preponderance of the credible evidence fairly establishes that, when Respondent introduced the new extrusion machine and announced it to the operators, all three, in effect, agreed to make common cause in demanding a wage increase of not less than 25 cents an hour to compensate for the added work and responsibility which the new machine would entail. Contrary to Respondent's contention, it is immaterial whether it was aware that these employees had agreed to act in concert in demanding the raise. If the employees were, in fact, acting concertedly in asserting their demands, they would have been protected against unlawful discharge. Respondent's contention that there was no evidence that management was aware of any concerted activities among the extrusion operators regarding the merit increases goes not to the question of whether the employees were actually engaging in protected concerted activities, but whether Respondent was aware of Reese's participation in that activity as a postulate for a finding of discrimination in regard to his discharge. There is evidence in the record to justify the inference that, if Lux was not actually aware that these employees were disgruntled about the amount of the merit increase being offered, and had initially agreed to refuse anything less than 25-cent increase, he at least had reason to suspect 3' Although, as has been noted, the three men were actually members of the same family, it is evident that this is not the sense in which Lux intended the remark. The remark is more reasonably interpreted as reference to their concerted action that the extrusion operators had agreed to act in concert on this issue. Thus Lux's musing, after Powell had agreed to accept the merit increase, previously refused, about whether Lux was "working [a family] back there," and his comment that "Bootsie" had "come up with somewhat the same thing." obviously referred to the attitude of the extrusion operators in rejecting the merit increase.39 Even assuming, however, that the action of the extrusion operators constituted protected concerted activity, of which Respondent was aware, these circumstances are not in themselves sufficient to establish a discriminatory motive in connection with Reese's discharge. For, although knowledge, or at least suspicion, of the discharged employee's union or concerted activity is indispensable to a finding of discrimination, such knowledge or suspicion does not, without more, establish a discriminatory motive, where the employee has been discharged for cause, without regard to his concerted activities. For., it is axiomatic that an employee who engages in union or concerted activities is not insulated from discharge for cause, unless it can be shown that his union or concerted activities were a consideration in the employer's decision.4° And, in determining whether the employer was, in fact, motivated by the employee's protected activities, the presence or absence of union animus, hostility or opposition to the self-organizational rights of its employees, and the commission of unfair labor practices are relevant considerations. Reese's behavior and attitude toward Supervisor Byrd, and the language with which he underscorded his disgruntlement about the proffered merit increase, undoubtedly provided cause for discharge. The apparently personal relations which existed between this employee and his supervisor, which may have led him to assume that his friend would not report his remark to management, might be relevant if mitigation or extenuation were a factor in making a determination. Clearly, Reese did not intend that Byrd should relay his impetuous remark to his superiors. But, it is not our province to decide whether the penalty imposed by the employer was lust or reasonable in light of all the circumstances, or to substitute our judgment for that of management in meting out punishment for the offense. If there is one precept more well entrenched under the Act than any other, it is that an employer may discharge an employee for good cause or bad, or, indeed, none at all, provided only that he does not do so for reasons proscribed by the Act. The principle, however, is more easily stated than applied, for, in dealing with motivation, a subjective state of mind, the determination must take into account all the surrounding facts and circumstances, including the severity of the punishment in relation to the offense. Manifestly, Reese was not disciplined for the use of what might be regarded as a vulgar or obscene remark. Whether Reese used the word imputed to him by Byrd or one which Reese may have regarded as somewhat more innocuous, it is evident that Reese was not discharged for using profanity, per se, toward a supervisor. Byrd himself acknowledged that the use of the expression, which he attributed to Reese, was certainly not extraordinary as shop talk in a plant, and did not outrage him or offend his "" See Electra Controls, Inc , 161 NLRB 307. N L R B v Park Edge Sheridan Meats, Inc, 341 F 2d 725, 728 (C A 2), and cases cited FALCON PLASTICS sensibilities. Nor does it appear that Byrd regarded the remark as a personal insult or affront to him. It is even possible to assume that, when Byrd queried Reese as to whether he wanted him to note his remark on the merit rating form, Byrd may himself have asked this in a jocular manner. At any rate, whatever may be said for Byrd's conduct, he undoubtedly assumed he was discharging his reponsibility to his superiors in reporting that Reese had rejected the Company's offer. It is difficult to separate the fact of the rejection of the merit increase from the rude, perhaps insolent, manner in which the rejection was made. When the incident was first reported to Supervisor Lux, his immediate reaction may well have been indignation at the language employed by Reese. It seems improbable, however, that if an employee had used the same language in a different context to a fellow employee or even a supervisor, Lux would have felt impelled to discipline the employee if, indeed, the matter would even have reached Lux. It therefore becomes fairly inferable that, although Lux may have felt that such behavior toward a superior warranted severe disciplinary action, what really disturbed Lux was his concern about the rejection of the merit increase, and the realization that the rejection presaged a demand for higher wages. In this connection, the expression of incomprehension by both Byrd and Brayton when Reese and Powell refused what was stated to them as a $6-a-week increase is not without significance. It is also significant that the personnel manual distributed to all employees at the time of their employment, provides for alternative penalties for insubordination, as Respondent characterized Reese's conduct.91 The pertinent language reads: The following Company's rules and regulations are intended to define and protect the rights and responsibilities of all employees. Violations of any of these rules will be sufficient grounds for disciplinary action ranging from reprimand to immediate discharge, with loss of accumulated vacation and/or severance pay, depending on the seriousness of the offense in the judgment of Management. When an employee who has been disciplined maintains a clean slate for the following six months, his entire record will be considered as cleared. There follows a list of rules and definitions. Rule No. 3. Insubordination: Insubordinate or refusal to do work assigned. Rule No. 17. Poor Attitude: Poor attitude produces poor work and will not be tolerated. Various offenses with applicable penalties, consisting of written warning, disciplinary layoff, and discharge, follow. With regard to "Misconduct," which covers insubordination, according to Respondent, the penalty provided in the manual is for either a disciplinary layoff or discharge for the first offense, with discharge for the second offense. "' Respondent did not claim that it relied on the manual in discharging Reese The manual was produced in response to my request after I established that such a manual existed "t This rule was invoked by the General Counsel, in inquiring whether it included by definition "cursing," of which Reese had accused Lux in the alleged conversation of January 18 43 Respondent admittedly was not relying on the employee warning notice, issued Reese on January 18. In fact, Respondent 799 A further rule, designated as rule 2, relates to "Immoral Practices: Guilty of Obscene or immoral practices on Company premises." It is obvious that Respondent was not relying upon violation of this rule, which, apparently, would in any event carry the same penalty.42 In view of the alternative penalties provided in the rules, and the fact that this was Reese's first offense,43 one is tempted to wonder why Respondent chose to impose the extreme penalty of discharge rather than layoff, in view of his prompt apology, and Respondent's professed shortage of qualified personnel and problem of labor turnover. As has already been pointed out, however, it is not for us to decide whether the punishment meted out to Reese was disproportionate to the offense. It is our responsibility to decide only whether Respondent discharged Reese because of his union or protected concerted activities for the purpose of discouraging membership in a labor organization , as proscribed by the Act. It has already been shown that Reese' s union activities were minimal, consisting only of the signing of a union authorization card. Moreover, there is a total absence of evidence of union animus , hostility or opposition to the Union, or of the commission of unfair labor practices by Respondent. Any possible unlawful motive, therefore, must be sought in the concerted activity in which Reese may be found to have engaged with his fellow employees in rejecting the merit increase offered by Respondent. It may be assumed that Respondent had concluded that, of all the extrusion employees who had initially refused the merit increase , Reese had been most vociferous and, perhaps, even that his attitude did not bode well for Respondent's future wage structure.44 By the same token, Respondent had been aware that the two other extrusion operators had initially refused the merit increase on the same basis as Reese. After receiving management's explanation of the purpose of the merit raise, however, they accepted the increase offered. To hold that Reese was discriminatorily discharged because Respondent chose to impose the penalty of discharge rather than layoff, it would be necessary to find that Respondent was bent on eliminating a stormy petrel and that it seized upon the incident as a pretext for doing so. It would also deprive Respondent of its inherent management right to discipline recalcitrant employees. Personnel Manager Farkas testified that the Company could not countenance an attitude of insolence and insubordination toward supervisors without taking drastic action lest other employees be tempted to follow the example set by the errant employee. The right of an employee to indulge in the argot of the plant in his day-to- day relations with his fellow employees and perhaps, even in certain circumstances, with his superiors, must be weighed against the right of the employer to maintain plant discipline and morale, and respect for superiors. Even when such language is resorted to in the heat generated conceded that Reese's work performance had steadily improved thereafter and, by March had reached substantially the same level as in December 1965, when his work had admittedly been satisfactory This is further manifested by the fact that Respondent actually offered him the merit increase, in March 44 It should be noted, parenthetically, that Reese had been expressly admonished by Powell to be affable and respectful toward his foreman in refusing the merit increase 800 DECISIONS OF NATIONAL during the give and take of negotiations , an employer is not required to countenance insolence and disrespect toward superiors , whether or not accompanied by vulgarity. Any doubt or misgivings regarding Respondent's motivation in disciplining Reese by the extreme penalty of discharge can only be a matter of conjecture , and must be resolved in favor of Respondent . An appraisal of the record , taken as a whole, does not warrant the conclusion that the allegations of the complaint have been sustained by a fair preponderance of the reliable, credible, and probative evidence , and it will, therefore, be recommended that the complaint be dismissed in its entirety. LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent , Falcon Plastics-Division of B-D Laboratories , Inc., is, and at all times mentioned herein has been , engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum & Plastic Workers of America , International Union , AFL-CIO, is, and at all times mentioned herein has been , a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) or (3) of the Act. [Recommended Order omitted from publication.]