Terry Industries of Virginia, Inc.

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Terry Industries of Virginia, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America , UAW, AFL-CIO. Cases 5-CA-3604 and 5-RC-5677 May 22,1967 DECISION, ORDER, AND DIRECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On February 9, 1967, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also recommended that the Board overrule the challenges to the ballots of Cather Orndorff and Dwight Funkhouser, and that the Regional Director be directed to open and count their ballots and take such further action in the representation case as may be appropriate. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The Charging Party filed a brief in support of the Trial Examiner's Decision. 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 the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. I ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Terry Industries of Virginia, Inc., Winchester, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. DIRECTION It is hereby directed that the Regional Director for Region 5 shall, pursuant to the Rules and 164 NLRB No. 117 Regulations of the National Labor Relations Board, within 10 days from the date of this direction, open and count the ballots of Cather Orndorff and Dwight Funkhouser, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of said ballots, and issue the appropriate certification. I We hereby correct the following error in the Trial Examiner's Decision the charges herein were filed on September 14, 1966, and not on September 19, 1966 TRIAL EXAMINER'S DECISION FREDERICK U. REEL, Trial Examiner: These cases, consolidated by order of the Acting Regional Director, and heard at Winchester, Virginia, on November 30 and December 1, 1966,' present primarily questions as to whether Respondent (herein called the Company) discharged two employees for legitimate cause or for activity on behalf of the Charging Party (herein called the Union). These questions , of self-evident importance in the unfair labor practice case, must also be resolved in the representation case, in which a Board election, held September 8, 1966, resulted in a 24 to 24 tie with 2 challenged ballots2 cast by men whose status as eligible voters turns on whether their discharges shortly before the election were lawful. Upon the entire record, and after due consideration of the briefs filed by each of the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that the Company, a Virginia corporation, engaged at Winchester in the production and sale of camping trailers, annually ships products valued in excess of $50,000 to points outside the State and is engaged in commerce within the meaning of Section 2(6) of the Act. The pleadings further establish, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background-The Organizing Campaign The Company commenced operations in February 1966. About May 1 the Union commenced efforts to organize the plant. The first union cards were signed July 9; the signers were Dwight Funkhouser and Cather Orndorff, whose later discharges form the principle subject of this case. Funkhouser, Orndorff, and a third employee, Robert Quick, led the organizing drive, with Funkhouser as the prime mover. In due course the Union filed a representation petition, and at the ensuing Board hearing on August 10 Funkhouser sat at counsel table with the Union's lawyer and its International representative. As ' The charge was filed September 19, 1966, and complaint issued October 21, 1966 All dates herein, except the date of this Decision, refer to the year 1966 2 Originally three challenged ballots, but one challenge was dropped TERRY INDUSTRIES OF VA. 873 noted above, the representation proceeding led to an election on September 8, but Orndorff and Funkhouser had been discharged on August 18 and 23, respectively, under circumstances described below. B. The Discharge of Orndorff On the morning of August 17 , Orndorff was suffering from an infected jaw and was unable to go to work. He had no telephone , but he sent word to his neighbor, Funkhouser, to notify the Company that he (Orndorff) would not be in to work that day. This was a practice which Orndorff had previously followed in his 6 months' employment with the Company on occasions when he was not coming to work. On this occasion , contrary to his past practice , Funkhouser, on arriving at work in time for the 7 a.m. starting hour did not immediately report Orndorff's absence to the office . Not until later in the morning, when Production Manager Allan Rusk asked Funkhouser where Orndorff was, did Funkhouser advise the Company that Orndorff was not coming in. According to Funkhouser, Rusk did not ask and Funkhouser did not offer any reason for Orndorff's absence ; according to Rusk , he asked the reason, and Funkhouser said he knew of none. I am inclined to credit Rusk on this issue , as the question seems to me a natural one to ask , and Funkhouser himself testified that at that time he did not know the reason for Orndorff's absence . Funkhouser placed the time of Rusk's inquiry as 8:30 to 9 a.m.; Rusk placed it as "late morning," and after 9 a.m. Again I credit Rusk as more apt to have been aware of the hour. That evening Funkhouser called on Orndorff, who said that if his infection did not subside he would go to the dentist the next day, August 18 . He did not, however, ask Funkhouser to tell the Company that he (Orndorff) would not be in the next day. The next morning between 10 and 11 a.m., Orndorff went to the dentist , and about noon the latter's secretary telephoned the plant at Orndorff's request to advise the Company that Orndorff was undergoing medical treatment and would be at the plant later in the day. Orndorff arrived at the plant about 1 p .m., and advised Plant Manager Leroy Armstrong that he had just been to the doctor, would have to go back for further treatment in about 10 days , and would not be at work that afternoon. Armstrong sent for Production Manager Rusk, who handed Orndorff his final paycheck and told him he was discharged for not reporting in. Rusk testified that he had made out Orndorff's final paycheck earlier that day after noting that Orndorff had not reported in. This, according to Rusk , was his regular policy in cases in which an employee who was absent 1 day without notifying the Company did not report by 9 a.m. of the following day. This policy in turn stems from a formal company rule, which reads as follows: If however, you know you will be late or absent please notify your production manager immediately. You must do this within two hours after you are supposed to be here so that arrangements can be made to have your work done. If we do not hear from you within 24 hours it is necessary for us to remove your name from the payroll. According to Rusk, this rule had been invoked in seven other cases in addition to Orndorff's. The seven cases involved employees Feathers, Heishman, Hughes, Luttrell, Mills, Swartz, and Yost. In contrast to Orndorff, who had been with the Company for 6 months, the actual worktime of the other seven could be reckoned in terms of days.3 Moreover, of these seven, the records of Luttrell and Swartz show that they were each allowed a third consecutive day of unreported absence before being discharged, a circumstance which the Company explains as leniency accorded them because they were new employees and their first days of absence coincided with the local Apple Blossom Festival. Also Heishman appears to have been absent 3 consecutive days before being discharged. General Counsel, in addition to the Luttrell, Swartz, and Heishman examples introduced by the Company, showed two other instances in which the rule invoked in Orndorff's case was not applied. In one case, one Kuykendall had 3 consecutive days of absence in 1 week and was not discharged until the next. The Company explained this as having occurred during a heavy snowstorm; Kuykendall (like Orndorff) had no telephone, and the Company assumed he had been snowbound. The other case was that of a janitor, Walker, on whose timecard the Company wrote "did not call" on 3 consecutive days, but thereafter erased the entries on the last 2 days upon receiving word on or after the third day that he had been sick. In sum, of the nine cases in addition to Orndorff's in which the absence rule might have been invoked as speedily as it allegedly was in his case, the Company waived the rule twice because of the Apple Blossom Festival, once for a snowstorm, once because of a late report of illness, and once for no reason shown on the record. Analysis of the employment records discloses one difference of treatment in Orndorff's case which may be significant. In all the cases proffered by the Company of discharges for unreported absences the timecards showed a notation as to the reason for discharge, and a notation also appears at the top of the employment record after "Reason for Termination." These employment record forms, however, also contain a column headed "Remarks." This column is blank on all the other "absentee" discharges, but is filled in on Orndorff's as follows: "Whenever this man is off, he never calls in. He has been doing this since employment." Production Manager Rusk testified that he filled that column in when Orndorff was discharged, and the record does not disclose why the column was left blank with respect to all the other "absentee" discharges. The evidence, I might add, falls far short of sustaining the "Remarks" on Orndorff. The Company identified only 2 other days on which he was absent in the course of his 6 months, and he sent timely word on one of those (on the other, his car broke down, apparently while he was en route to work). Orndorff also was absent some other times, unidentified as to dates, but Rusk's own testimony is that Orndorff on other occasions 3 Feathers 1 day, Heishman 6 , Hughes (who had quit once before) 29, Luttrell 3, Mills 17, Swartz 2, and Yost 7 These figures, of course, exclude weekends and days absent. In this connection , it should be noted that the rates of pay and the dates therefor on the employment record are apparently entered in advance when the employee is hired and reflect his potential future changes in rate, as in many cases the dates shown in those columns go far beyond the date of termination . The actual duration of employment is shown by the "date started" and "date terminated " on each record 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when he was not coming to work had sent in word to the Company via Funkhouser.4 Rusk's testimony is suspect in certain other respects as well. He testified that he noticed no swelling on Orndorff's jaw and face on August 18, a statement I find difficult to credit. Orndorff had just come from the doctor's and had an appointment to return there about 10 days later. He had been suffering considerable pain for 2 days; his face was still swollen later that evening when Funkhouser saw him at home. Moreover, Rusk knew Orndorff had been at the doctor's that morning. More important, I do not credit Rusk's testimony that he did not know or even suspect that Orndorff was active in the Union or a union member. Rusk himself later admitted saying to Orndorff on one occasion, "I heard that you were up to the Union Hall last night." Also the testimony is undisputed that Stanley Haines, Rusk's assistant, during the 2 weeks preceding Orndorff's discharge, repeatedly asked Orndorff if he "was going down to the Union Hall." Finally, Rusk knew that Funkhouser was the union leader, and that Funkhouser and Orndorff were closely associated away from the plant. On considering the whole record I am compelled to brand as unworthy of belief Rusk's testimony that he did not even suspect Orndorff might be a union member, and this falsehood casts doubt on his answers to related questions concerning his knowledge of the leading role Orndorff played, along with Funkhouser and Quick, in furthering the Union's organizing effort. In addition to such light as may be shed on the matter by the false testimony of Rusk, I note further the peculiar fact that Rusk at the time of discharge made a detailed (and what is more, a false or inaccurate) statement in the "Remarks" column of Orndorff's employment record setting forth the assigned reason for discharge, a practice not followed with respect to any other employee allegedly discharged for failure to report his absence. Also, the rule allegedly invoked in this case had not been rigidly applied, but had been waived where the failure to report could be attributed to a local festival, a snowstorm, illness (reported as in Orndorff's case after the permitted time had expired), or (in Heishman's case) for no apparent reason at all. Orndorff was one of the oldest company employees in length of service and was considered a satisfactory workman,5 a factor of some significance in view of Rusk's testimony that the regular complement of employees had been about 50, that he had been trying to keep close to 60, and that "sometimes it's real rough" to obtain replacements. In short, considering all the facts, I do not believe that the Company fired Orndorff for the reason assigned. Under any circumstances it would strain credulity to the breaking point to find that an employer discharged a man who had been undergoing medical treatment and who was 2 hours late in apprising the employer of this fact; even if discharge papers had been prepared, the natural reaction of any person in these circumstances would be to tear them up. Cf. E. Anthony & Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26 (C.A.D.C.): "Such action on the part of an employer is not natural." But when to this is added the special notation made in the "Remarks" column, the inaccuracy (to put it mildly) of the report there made, the fact that the rule allegedly invoked had been relaxed in other cases, the false testimony before me as to the nonexistence of even a suspicion of Orndorff's union leanings, the need for and difficulty in obtaining employees-upon all these facts, I am compelled to find that the Company gave a false reason for its discharge of Orndorff, and compounded the falsity by careful preparation of a false statement in the "Remarks" and by false testimony before me. I must perforce conclude that the Company is striving to conceal its true motive, and that that motive is unlawful. See Shattuck Dean Mining Corp. v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). It is clear, of course, that Orndorff's union activity furnished him no guarantee against discharge, and it is equally clear that an employee may lawfully be discharged for a "bad" reason (other than statutorily protected activity) or for no reason at all, and that the Board may not substitute its business judgment or its standards of reasonableness for that of the employer. The law is also clear that the burden of proof of showing a violation is on the General Counsel. The question is whether application of these principles leads to dismissal of Orndorff's case, notwithstanding that the reason assigned for discharge "does not stand up under scrutiny." North Carolina Finishing Company v. N.L.R.B., 133 F.2d 714, 718 (C.A. 4); see also N.L.R.B. v. Thomas Dant, et al., dlbla Dant & Russell, Ltd., 207 F.2d 165, 167 (C.A. 9), and the cases there cited. In the ordinary case, the General Counsel is able to point to other antiunion conduct of the employer as support for the inference that union activity was the real reason for the discharge which the employer sought to explain on false grounds. In this case, as more fully noted below, I find that apart from the discharges themselves, the Company engaged in little overt antiunion conduct.6 But just as the showing of other antiunion conduct is of some support, but is not conclusive, in establishing that a particular discharge was for union activity, so the comparative absence of such conduct is not conclusive in establishing that a discharge was not for union activity. A contrary rule would mean that an employer could discharge union leaders with impunity if he refrained from other acts of hostility to the union. The ultimate question is what was the reason for the discharge, and the present or absence of other antiunion actions is an aid to answering the question, not an answer in itself. On this record, the General Counsel must make his case, if he can, without substantial aid of that nature. But I am satisfied that he has made it. I find that the reason given for the discharge was a false one, and I infer from that fact and from the other surrounding circumstances previously detailed, that the false reason was given and pressed in an effort to conceal an illegal reason-Orndorff's union activity. Cf. Shattuck Denn Mining Corp., supra. 4 The Company, although producing timecards showing unexcused absences for a number of employees, produced only one such card for Orndorff, covering his last week of employment The failure to produce any documentation for his other alleged unreported absences warrants an inference that such proof does not exist See N L R B v Kalof Pulp & Pater Corporation, 290 F 2d 447, 451 (C A 9), N L R.B v Elias Brothers Big Boy, Inc, 327 F 2d 421, 427 (C A 6), Note, 5 ALR 2d 893, 896, 907-908, 909-911 5 There is some suggestion that his work in the cabinet shop to which he had recently been transferred was not up to standard but the Company expressly stated on the record that his discharge "was not related to his cabinet work " and that it rested exclusively on the nonreporting of absences 6 There is some evidence of hostility to the Union in that Rusk on one occasion said to Funkhouser "Why don't the employees out here pick someone in the plant to represent them instead of the Union9" TERRY INDUSTRIES OF VA. 875 C. The Discharge of Funkhouser 1. Background-events preceding the episode which culminated in the discharge As already stated, Funkhouser was the most active union proponent among the employees. On August 9, Funkhouser asked Rusk for permission to be absent on August 10 to attend the hearing in the representation proceeding. Rusk replied, "So you're the one," and added the query, quoted in footnote 6, as to why the employees wanted a union to represent them. He gave Funkhouser permission to attend the hearing, and on August 10 Funkhouser sat at counsel table with the union representative during the hearing. By coincidence, on this same day, August 10, the Company promoted Robert Quick to a leadman's position, although the Company was well aware of Quick's support of the Union. Quick had been embroiled with employee Herbert Bowen earlier in the summer over Bowen's refusal to indicate support of the Union, and Bowen had brought the quarrel and its cause to the attention of management. By further coincidence Bowen was involved in the episode which culminated in the discharge of Funkhouser, as detailed below. Funkhouser, one of the first employees hired by the Company when it commenced operations in February, became leadman in the mill in June. The mill was the department in which most of the powersaws were located. Some employees (some employed outside the mill department as well as some employed within it) from time to time would use the saws to cut out small wooden decorative objects (referred to as "whatnots") for their personal use. On one occasion, in March, Production Manager Rusk told several employees in the mill that he wanted this practice stopped. In July however, Rusk learned from employee Shelby Bishop that Bowen had asked her to stain some "whatnots" for him. Rusk looked for "whatnots" in the plant at that time, but could not find any and did not discuss the matter with Bowen. According to Rusk, he did discuss the matter with Funkhouser at that time, asked him if he knew anything about it, and-upon receiving Funkhouser's negative reply-emphasized that no one was to cut out "whatnots." Funkhouser's testimony on this matter is somewhat equivocal, and I credit Rusk. On August 11, the day after the representation hearing, employee Ray Knight complained to Rusk about a verbal altercation Knight had had with Funkhouser. Rusk, according to his testimony, ascertained from Funkhouser that Knight "had been going around the plant popping off because he, Funkhouser, had gone to the [representation] hearing and Knight wanted to know why." Rusk admitted on the witness stand that it was Knight, not Funkhouser, who had been creating the turmoil in the plant. Nevertheless, Rusk, after talking to Funkhouser, made the following entry on the latter's employment record: I have had this man in my office, talked to him about his job. He was told to stay in his own dept. but did not. He was told not to cut out anything for anybody other than company work. He was told not to let anyone use the saws other than those assigned to them. Rusk testified that the references there made to cutting out work for other people and permitting them to use the saws were not prompted by anything in the Knight altercation, but came out of "the incident that happened a week or so earlier," apparently referring to Bishop's report on staining work for Bowen, which Rusk had received the preceding month.7 2. The fatal "whatnot" On August 22 when Bowen was leaving the plant at the end of the day, he was stopped by Stanley Haines, Rusk's assistant, who saw Bowen carrying a package. Haines discovered that it contained a "whatnot" in two pieces, one a large board about 2 feet long, and the other a piece of wood sawed in the shape of a cloverleaf, which had clearly broken off a "stem" cut in the other board. Haines took the items from Bowen and reported the matter to Rusk. Early the next morning, August 23, Rusk took Bowen's and Funkhouser's timecards to his office so that they would have to see him when they reported for work. When the two men were in Rusk's office the morning of August 23, he asked them about the "whatnot." Funkhouser explained that the preceding afternoon at the end of a regular "break," he had returned to his machine and found this board (then in one piece) "laying on the table and part of the way it was sawed out," and I finished sawing it out and set it down by the sander." Funkhouser further told Rusk that the next time he saw the "whatnot" was when Haines took it from Bowen. Bowen explained that he had found the broken "whatnot" on the floor and ' This is perhaps as good a place as any to note that Rusk was a most unsatisfactory witness In some aspects, as noted above, I have credited his testimony But on occasion his evasiveness gave rise to grave doubts as to his fundamental veracity in this hearing Note, for example, the following exchange on cross-examination of Rusk Q Did Mr. Funkhouser tell you what this "popping off at him" was all about9 A Yes Q What did he tell you9 A He said he was popping off, that Ray Knight was Q Right A. about him and the Union Q And going to the hearing, was it not9 A He could have Q Not "He could have " Wasn't that it, that Ray Knight was popping off around the plant because he had gone to the Union to represent the employees? TRIAL EXAMINER "Because he 9" Who 7 MR SLAUGHTER Mr Funkhouser TRIAL E XAMINER . All right Q (By Mr Slaughter) Wasn't that what he was popping off about9 A Porbably it was Q Not "Probably it was " It was, was it not 9 A Well, it was That's what Funkhouser said Q And Ray Knight told you that too, did he not9 A. Not all of it like that And later Q All right Now, therefore, the person who had been creating the turmoil in the plant was not Mr Funkhouser but, in fact, Mr Knight, was it not? A It could have been I talked to Mr Knight Q It was, was it not? Yes or no? A Yes " Actually the board was about two-thirds sawed when Funkhouser picked it up, and in a matter of seconds finished the sawing 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not know who had sawed it.0 At this point Rusk discharged both men for violating the rule against sawing out personal "whatnots" on company machinery. Prior to so doing, Rusk had discussed his intention to fire Funkhouser with Plant Manager Armstrong. Rusk testified that he did so because he was aware of Funkhouser's union activity and did not want "to cause any problems." Rusk noted on Funkhouser's employment record as the reason for termination: "Did not do job as to instructions. Sawing whatnots on company time." He made no entry at that time under "Remarks" (where he had already noted some comments after the Knight episode), but some weeks later after talking with a "man from California"" Rusk added under "Remarks" that Funkhouser "seemed to fall apart efficiency and responsibility-wise." As to Bowen, Rusk noted as the reason for termination "making whatnots on company time," and added under "Remarks" the following: "This man was warned about making things to take home on company time but he still did it and was caught taking it out in a box." 3. Conclusions with respect to Funkhouser General Counsel contends that with Funkhouser, as with Orndorff, the Company seized on a pretext to discharge him, and that Funkhouser's union activity was a substantial motivating factor in his discharge. Various factors tend to support that conclusion, and others to detract from it. The "whatnot" episode itself appears somewhat trivial as far as Funkhouser was concerned. His sole offense was to complete the sawing of the wood, a matter of seconds rather than minutes. Even if Rusk disbelieved this part of the tale (and there is no testimony that he disbelieved it, and no apparent reason for him to have done so as Funkhouser apparently freely confessed his involvement)," the sawing of the entire board would not have taken more than 1 to 2 minutes. Also it should be noted that Rusk seemed somewhat determined to involve Funkhouser in the matter if at all possible, for Rusk had pulled Funkhouser's timecard although no one at that time had connected him with the episode in any way, and he was by no means the only man operating the saws. 12 Of greater significance, perhaps, is the effort by Rusk to build a case against Funkhouser starting the day after Funkhouser attended the representation case hearing. Rusk took what appears to be the unprecedented course of making an entry on Funkhouser's personnel record of criticisms of Funkhouser, although by Rusk' s later admission the episode giving rise to the entry was the fault not of Funkhouser but of Knight, and the written entry dealt with matters not even involved in Knight's complaint. In answer to these contentions, the Company points to the fact that it discharged Bowen and promoted Quick, although Bowen was believed to be antiunion and it knew Quick to be prounion. The Company also notes that by Funkhouser's own testimony, Rusk did discuss "whatnots" with him early in August (presumably, therefore, during the interview following the Knight episode), and-finally, and most important-that Rusk did not regard the "whatnot" situation as trivial and was determined to put an end to it. If Funkhouser's case stood alone, I would incline to the view that General Counsel had established nothing more than suspicious circumstances, and would not have carried his burden of proof. Even though Funkhouser's participation in the "whatnot" episode was trivial, I would not think it lay in my mouth, or the Board's, to give the Company "gentle guidance by over-the-shoulder supervision." N.L.R.B. v. I. A. McGahey, et al., d/b/a Columbus Marble Works, 233 F.2d 406, 413 (C.A. 5). The difference between Funkhouser's case, if it stood alone, and Orndorff's is that the ground assigned in Funkhouser's case may seem unreasonable, but it is not totally unbelievable and contrary to all human experience, whereas the facts with respect to Orndorff show that the alleged ground attributes to the Company behavior so harsh as to be incredible, and at odds with its own practice. But Funkhouser's case does not stand alone. Only a few days before the Company had discharged Orndorff, his friend, neighbor, and associate in the Union, under circumstances which I have found establish that the Company was motivated by Orndorff's union activity. This circumstance when added to the others in Funkhouser's case tips the balance, and I find that his leadership of the Union was a motivating factor in the decision to discharge him.13 Having found Funkhouser's discharge violative of Section 8(a)(3) and (1) of the Act, I deem it unnecessary to pass upon the further allegation that the Company discriminated against him in violation of Section 8(a)(4) "because he filed charges or gave testimony under the Act," an apparent reference to his attending the representation hearing. D. Alleged Interference, Restraint, and Coercion The complaint alleges that Rusk on or about July 19 and August 26 violated Section 8(a)(1) of the Act "by creating the impression of engaging in surveillance of meeting places, and activities of the Union ...." The evidence concerning these matters establishes the following: (a) One afternoon in mid-July Orndorff stood outside the union hall talking to a girl for 15 to 20 minutes. The next morning Rusk asked him in a friendly manner why Orndorff had not been "in the union hall with the rest of Rusk's and Bowen's testimony conflict as to whether Bowen admitted or denied drawing the pattern for the "whatnot" on the board. Funkhouser corroborated Bowen's testimony that Bowen denied marking the board The conflict does not seem to me to be material to the issues before me, for even if Bowen denied drawing the pattern, Rusk may not have believed him However, I credit Bowen's testimony that he denied drawing the pattern. 11 The man is not otherwise identified, but I note that a California attorney signed the answer to the complaint in this case " Rusk apparently disbelieved Bowen's story that the wood was lust in the trash when Bowen discovered it But Rusk had some basis for suspecting Bowen, for Shelby Bishop had earlier named Bowen as asking her to stain "whatnots" for him 12 Not only other men in the milling department but also employees in other departments repeatedly operated the saws, and their use by nonmill employees was not prohibited until after Funkhouser's discharge 1' As to Quick, it suffices to note that the Company may well have had no pretext for treating him in any other fashion , and that failure to discriminate against some union members sheds little or no light on whether others were unlawfully treated See Nachman Corp v NLRB, 337 F 2d 421, 424 (C A 7), N L R B v W C Nabors d/bla W C Nabors Company, 195 F 2d 272, 276 (C A 5), cert denied 344 U S 865 As to Bowen , he had to be discharged to preserve even the semblance "of a pretext for discharging the union leader , Funkhouser TERRY INDUSTRIES OF VA. 877 the employees," and what he "was doing standing out front talking to the girl." Orndorff replied that he had been talking to a friend and had not been inside, whereupon Rusk laughed and said , "Maybe I shouldn't ask you that." The union hall is on the main road between the plant and downtown Winchester, and the driver of any car passing the hall could have seen Orndorff without turning into the hall. Rusk did convey to Orndorff that the Company knew its employees were attending a meeting at the union hall, and this episode occurred within 10 days after the first cards were signed . But if employees attend an afternoon meeting in a union hall situated on a main road, the Company's indication of its awareness thereof falls somewhat short of "creating the impression of surveillance." (b) The second episode occurred about August 26 when Rusk came to two employees at work , Gladys Perry and Isabelle Kump, and asked them if their addresses were properly listed as the Union wanted a list. After the two employees had verified their addresses , Rusk asked them what "went on at the union meeting the night before," and then added , according to his own testimony , "I don't think Gladys was there, but I think you were there, Isabelle." Neither of the two women asked Rusk how he knew who had attended the meeting , and by the time of the hearing before me Perry had forgotten that Rusk knew she had not been there ; she was of the mistaken impression that he had asked her if she had attended . At the time Kump replied to Rusk 's inquiry by telling him that nothing in particular had happened but that some pamphlets had been passed out, and she gave him one. Rusk testified that in going through the plant checking addresses he learned of the meeting the night before, and "people said this one was there and this one was, and [he] didn't hear [Perry's] name mentioned." But this explanation , even if true, does not answer the allegation in the complaint . As the Board stated in Moore's Seafood Products, Inc., 152 NLRB 683-684: How this information reached [the employer] is not the criterion . The Board has held that whether or not an employer in fact spies upon the employees' union meetings , the creation of the impression in their minds that he is keeping their union activities under surveillance is as intimidating and as coercive as surveillance itself.14 Even allowing for Perry 's failure to remember the episode clearly (and she recalled that he had known of Kump's presence before interrogating them), the record is clear that Rusk made Kump aware that he knew who had attended, and who had not attended , the union meeting. This is sufficient to sustain the allegation of "creating the impression of surveillance ." N.L.R.B . v. Prince Macaroni Manufacturing Co., 329 F.2d 803, 806 (C.A. 1). CONCLUSIONS OF LAW 1. The Company by discharging Lather Orndorff and Dwight Funkhouser because of their union activities engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 2. The Company by creating the impression of surveillance over union meetings engaged in an unfair labor practice affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. THE REMEDY I shall recommend that the Company cease and desist from its unfair labor practices and from in any other manner infringing on the rights of its employees under the Act. See N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Affirmatively, I shall recommend that the Company offer to reinstate Orndorff and Funkhouser with backpay computed in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, and that it post appropriate notices. I shall also recommend that the challenges to the ballots of Orndorff and Funkhouser be overruled, and that the Regional Director be directed to open and count their ballots and take such further action in the representation case as thereafter seems appropriate. Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this case , I therefore recommend , pursuant to Section 10(c) of the Act, issuance of the following: ORDER A. Respondent , Terry Industries of Virginia, Inc., Winchester, Virginia, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee because of membership or activity in International Union, United Automobile , Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, or any other labor organization. (b) Creating the impression among its employees that it is keeping union meetings under surveillance. (c) In any other manner interfering with , restraining, or coercing any employee in the exercise of his right to join or assist the above-named or any other labor organization. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer to reinstate Cather Orndorff and Dwight Funkhouser, to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner described in the portion of the Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them. (b) Notify Lather Orndorff and Dwight Funkhouser 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. "Moore was enforced 369 F 2d 488 (C A 7), with express reservation of this point , fn 2 Under the circumstances, it may be appropriate to note that I find the foregoing quotation fully and properly applicable here Cf. J M Machinery Corporation, 155 NLRB 860,865 878 DECISIONS OF NATIONAL (d) Post at its plant at Winchester, Virginia, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by an authorized representative of the Rspondent, shall be posted by it 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' e B. The challenges to the ballots of Cather Orndorff and Dwight Funkhouser in Case 5-RC-5277 are hereby overruled, and that case is remanded to the Regional Director to open and count their ballots and to take further appropriate action therein. 15 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 1" In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in LABOR RELATIONS BOARD order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL offer Cather Orndorff and Dwight Funkhouser their former jobs and pay them for wages they lost since their discharges in August 1966. WE WILL NOT take or threaten to take any action against them for engaging in union activity, create the impression that we are spying on union meetings, or in any other manner interfere with, restrain, or coerce them in their exercise of those rights. All our employees have the right to loin or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, AFL-CIO, or any other union . They also have the right not to join or assist any union. TERRY INDUSTRIES OF VIRGINIA, INC. (Employer) Dated By (Representative) (Title) Note: We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon 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 , Sixth Floor, 707 North Calvert Street, Baltimore , Maryland 21202, Telephone 752-8460, Extension 2100.