John S. Barnes Corp.

JOHN S. BARNES CORP. John S. Barnes Corporation and Lodge No. 1553, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 13-CA-7372 (formerly 38-CA- 187). June 16,1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On November 18, 1966, Trial Examiner David E. Davis issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner' only to the extent consistent with this Decision and Order. For the reasons stated by the Trial Examiner in his Decision, we find that Respondent violated Section 8(a)(1) of the Act by its distribution of photostatic copies of employees' testimony and union authorization cards. We disagree, however, with the Trial Examiner's findings that Respondent violated the Act by denying employment to, and eventually terminating, employee Edwards because he engaged in protected activity and gave testimony in a prior formal Board proceeding. Briefly, the facts regarding Edwards are as follows: Edwards, who had virtually no vision in his left eye, had been an employee of Respondent for 11 years. He became active in the Union and, following the organizational campaign and subsequent unfair labor practice charges filed by the Union, testified in a Boarding proceeding. Shortly after testifying in late November 1965, he broke a bone in his foot which incapacitated him. In late December, Edwards received permission from his own doctor to return to work with a walking cast on his foot. On ' Although no exceptions were filed to the Trial Examiner's reliance in part upon findings in an earlier Trial Examiner's Decision, we do not adopt those portions of the Trial Examiner's Decision here Subsequent to the issuance of the Trial Examiner's Decision herein, the Charging Party filed a motion to consolidate with the instant case unfair labor practice allegations contained in 165 NLRB No. 58 483 Monday, January 3, 1966, Respondent permitted his return. When Plant Manager Stenberg arrived at work, he learned Edwards had returned wearing a cast. Stenberg informed the company nurse that he would not permit Edwards to work with a cast, and the nurse then informed Edwards that he could not work with a cast on his leg. Edwards personally got in touch with Stenberg who again advised him that he would not be permitted to work with a cast on his foot. Stenberg, claiming he sought to avoid potential liability, admitted that at one time another employee had worked wearing a neck brace, but distinguished this from Edwards' situation. As a result of Stenberg's decision, Edwards went home and did not return to work until January 17, 1966, after the cast was removed and after receiving approval from both the company doctor and his own doctor. Toward the end of January, Respondent set up an appointment for Edwards to have an eye examination. Stenberg told Edwards that the Company was enforcing its eye protection program, that Edwards had not been complying although he had but one good eye, and that the Company had arranged for him to have an eye examination. Thereafter, Edwards' eyes were reexamined and new prescription glasses ordered. Later, Edwards received his new glasses, which were fitted by the company nurse. The same afternoon Edwards received his glasses, Respondent's president, Svenson, approached Edwards' bench and noticed that Edwards did not have his glasses on. Svenson asked Edwards if he had received his glasses and Edwards replied that he had. Svenson asked why they were not being worn and Edwards replied that he did not need them for that particular operation. Svenson urged Edwards to put his glasses on, but Edwards repeated that he did not need them. When Edwards became disrespectful, Svenson went to Stenberg's desk, signed a memo previously prepared by Stenberg requiring Edwards to wear his glasses at all times, had Edwards sent down, handed him the memo, and suspended Edwards for 1 week as a reprimand because he did not wear his glasses. There was more heated conversation, and Edwards was accompanied to the exit by a guard. Later that week, Edwards picked up his tool box from the plant and refused to sign a resignation form. At that time, the evidence shows, Edwards had found employment with another company at 42 cents an hour more than he received while with Respondent. The Trial Examiner found that Respondent's reasons for not allowing Edwards to return to work with a cast on his foot were a pretext and that the true reasons were his known union sympathies and consolidated Cases 13-CA-6407 et at and 13-RC-10159, in which a Trial Examiner's Decision was issued on August 26, 1966 A reply in opposition to this motion was filed by the Respondent As it appears that the charges m'the instant case allege new unfair labor practices which may properly be litigated separately, the motion is denied 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his earlier testimony. For a number of reasons, particularly Edwards' known affection for the Union, the Trial Examiner concluded that the condition of Edwards' eyes was "seized upon by Respondent as a cloak for harassment" and that Edwards ' suspension was actually discriminatory. Accordingly, the Trial Examiner found Respondent discriminatorily refused employment to Edwards from January 3 to January 17, 1966, and constructively discharged Edwards on February 7, 1966, in violation of Section 8(a)(1), (3), and (4) of the Act. We disagree with these conclusions. The record is clear that Edwards returned to work on January 3 with a cast on his foot. Respondent's concern over potential liability is readily understandable, particularly in view of the fact that Edwards had only one good eye. The fact that at one time Respondent had allowed an employee to work while wearing a neck brace is not analoguous to Edwards' situation and is not a basis for finding disparate treatment. A review of the record as a whole convinces us that Respondent had good reason to refuse to permit Edwards to work until he had the cast on his foot removed and until he obtained a release from the company doctor. Similarly, in regard to Edwards' suspension and alleged constructive discharge, we are also of the opinion that Respondent did not act out of a discriminatory motive. Respondent's exhibits show that its insurance carrier, Midland , became concerned with the high rate of eye injuries in June 1965. In August 1965, Midland suggested that all plant personnel be required to wear eye protection while on the premises. In reply to Midland's letter, Respondent stated it was pursuing an active policy of eye protection. During August, Respondent had ordered eye safety signs pertaining to goggles, and, as stated by the Trial Examiner, instituted plans for an eye protection program because of the demands of the insurance company. In early February 1966, Respondent ordered more eye protection signs, delivered later in the month , and also requested prices for eye safety signs, warning of discharge if safety glasses were not worn. Respondent presently requires all personnel , as well as customers and visitors, to wear safety glasses while in the manufacturing area . It should be noted that Respondent bears the cost of issuing regular safety glasses to employees who do not wear glasses, and provides examinations by the company doctor for prescription ground safety glasses for those who do wear prescription glasses. In addition, the company nurse refers employees to the company doctor for eye reexaminations periodically. Consideration of the entire record has failed to convince us that Edwards was suspended and subsequently constructively discharged for the reasons alleged in the complaint. Instead, we find that Respondent had instituted an eye protection program sometime in 1965 at the' insistence of its insurance company. Thus, signs were posted and Respondent began a campaign of urging its employees to wear safety glasses. In conformity with that campaign , Respondent urged Edwards to wear his new prescription glasses, recommended and prescribed by the company doctor and provided by Respondent . Despite Respondent's urging, Edwards insubordinately refused to wear the glasses and was suspended. A review of the evidence indicates that Respondent had ample reason to suspend Edwards. Underlying the theory of constructive discharge is the employer's responsibility of creating a situation so unbearable to any employee that he quits rather than continue working in the face of harassment. Even if the testimony in this case is assessed in a light most favorable to the General Counsel's position , it would not show that Respondent precipitated a plan or created an atmosphere which made it impossible for Edwards to work under normal or reasonably normal conditions . We cannot speculate that his suspension, resulting from his insubordinate failure to wear his new glasses, was part of a plan to harass him because of his earlier testimony or his known union sympathies. Accordingly, we conclude that the General Counsel has not established by a preponderance of the evidence that Edwards was suspended or discharged because of his union activities and earlier testimony. To the contrary,we find that Edwards was suspended because he insubordinately refused to wear his safety glasses and subsequently quit his job because he had found his present more lucrative position. Under these circumstances, we therefore find, contrary to the Trial Examiner, that Edwards was not discriminatorily discharged in violation of Section 8(a)(1), (3), and (4) of the Act, and shall dismiss those portions of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, John S. Barnes Corporation, Rockford, Illinois, its officers , agents, successors , and assigns, shall: 1. Cease and desist from interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations , to join or assist Lodge No. 1553, International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the purpose' of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: JOHN S. BARNES CORP. (a) Post at its plant at Rockford, Illinois, copies of the attached notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall 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. (b) Notify the Regional Director for Region 13, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. Except to the extent found in this Decision and Order, the National Labor Relations Board hereby orders that the remaining portions of the complaint herein be, and they hereby are, dismissed. ' 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 you that: WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations , to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. JOHN S. BARNES CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may 485 communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 S. Dearborn Street, Chicago, Illinois 60604, Telephone 828-7597. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Trial Examiner: Upon a charge filed on February 25, 1966, by Lodge No. 1553, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein called the Board, issued a Complaint and Notice of Hearing on June 17, 1966, against John S. Barnes Corporation, herein called Respondent , alleging that Respondent violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, herein called the Act. Upon answer by Respondent on June 24, 1966, issue was joined.' The complaint, as amended, alleged that Respondent distributed copies of union authorization cards signed by various employees, which were introduced in a prior formal Board proceeding and copies of the testimony of employees who testified in that proceeding, thereby threatening employees with reprisals for h, irrg engaged in union activities and having given testimony under the Act. It was further alleged that Respondent denied employment to Clyde Edwards from January 3, 1966, to January 17, 1966, and terminated Clyde Edwards on February 7, 1966, because he engaged in protected activity and gave testimony in the prior formal Board proceeding. The Respondent denied each of the allegations and denied that it had engaged in any unfair labor practices. A hearing was conducted before me, the duly designated Trial Examiner, on September 7 and $, 1966, at Rockford, Illinois. At the hearing all parties were represented and were afforded full opportunity to present evidence, to examine witnesses , to argue orally, and to file briefs. The General Counsel and counsel for the Respondent waived oral argument but each of them submitted excellent briefs. Upon the entire record and after careful consideration of the briefs," I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a corporation organized under the laws of the State of Delaware and has maintained its principal office and place of business at Rockford, Illinois, where it is engaged in the manufacture and sale of hydraulic pumps, components, and limited machine tools. During ' The complaint was amended during the course of the hearing by GC Exh 9. The reporter, in setting up the GC Exh. file, erroneously designated this exhibit as merely marked for identification Page 254 of the record of this hearing shows that the amendment was allowed and received in evidence by the Trial Examiner. 8 In a motion dated November 8, 1966, Respondent 's counsel moved to strike certain portions of the brief filed on behalf of the General Counsel. The motion is herewith denied. 299-352 0-70-32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the last calendar year Respondent manufactured, sold, and distributed products valued in excess of $500,000, of which more than $50,000 worth were shipped directly from its plant in Rockford, Illinois. to other States of the United States. The complaint alleged, the answer admitted, and I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I also find that it would effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The complaint alleged that the Union was a labor organization within the meaning of Section 2(5) of the Act. The answer stated that Respondent is without knowledge of this and that it is not required to answer this conclusion of law. On August 26, 1966, Trial Examiner Eugene E. Dixon issued his decision, TXD-494-66,3 in which he found, inter alta, that the Union herein was a labor organization within the meaning of Section 2(5) of the Act. I have taken official notice of this decision. Moreover, the evidence in the instant case clearly establishes that the Union acted in behalf of the Respondent's employees and was designated by numerous employees as their collective-bargaining representative. Accordingly, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Issues The issues litigated in this proceeding are as follows: 1. Did Respondent violate Section 8(a)(1) of the Act by distributing copies of the testimony of employees and copies of their signed union authorization cards? 2. Did Respondent violate Section 8(a)(1), (3), and (4) of the Act by refusing to permit Clyde Edwards to work from Janudry 3, 1966, to January 17, 1966? 3. Did Respondent violate Section 8(a)(1), (3), and (4) of the Act by suspending Clyde Edwards on February 7, 1966? 4. Did Respondent unlawfully cause Clyde Edwards to quit Respondent's employment and in effect discharge Edwards in violation of Sections 8(a)(1), (3), and (4) of the Act? B. Background As stated above, I have taken official notice of Trial Examiner Dixon's decision in the prior formal proceedings before the Board. I note the following: 1. The hearing in the consolidated cases was held on various dates from November 3, 1965, to January 13, 1966. 2. Clyde Edwards, Alice Swift, Samuel LaSala, E. J. Svenson, and William Stenberg testified in that proceeding as well as in the instant case. 3. The Union's organizational campaign among Respondent's employees commenced in the spring of 1964, several months after Respondent moved into its present plant. 4. Respondent was found by the Trial Examiner to have 3 The case was officially designated as John S Barnes Corporation and Lodge No 1553, International Association of Machinists, AFL-CIO, Cases 13-CA-6407, 13-CA-6637, 13-CA-7049, 13-CA-7027, and 13-RC-10159 (consolidated for hearing) engaged in conduct violative of Section 8(a)(1), (3), and (5) of the Act. 5. The Tual Examiner found that Clyde Edwards was discriminated against in violation of Section 8(a)(1) and (3) because of his union adherence and activities. C. Refusal to Permit Edwards to Work From January .3, 1966, to January 17,1966 The record evidence in the hearing established that Edwards, an employee of Respondent for 11 years, has almost no vision in his left eye as a result of a childhood accident, and wears prescription glasses which corrects vision in his right eye to the accepted standard of 20/20. Respondent, when it hired Edwards in 1956, and at all times since, has been fully aware of Edwards' condition Edwards' duties during the last 3 years of employment at Respondent's plant were primarily hand bench assembly of hydraulic units , pumps and valves, mostly on special orders. On occasion, in connection with his work, Edwards operated a drill press, a grinder, and a reamer. Edwards, about November 28, 1965, broke a small bone in his right foot which incapacitated him. On December 29. 1965, Edwards received written approval to return to work from his doctor. Dr. B. C. Snell. He called the Respondent's industrial nurse, Mrs.-Edna M. Lindberg, and informed her that his doctor had released him to go to work, that he had a walking cast on his foot, and that it was permissible for him to work with this cast on his foot. Lindberg acquiesced in Edwards' return to work on Monday, January 3, 1966. On Monday Edwards reported, punched the timeclock, and gave the note from Dr. Snell to Eric Johnson, his foreman. Foreman Johnson shook hands with him and said he was happy to have him back. After Edwards had been working about 2 hours, Johnson told Edwards that Nurse Lindberg wanted to see him. Edwards went to the office where Lindberg told him that Stenberg4 had ruled that he could not work with a cast on his foot. Edwards again told her that his doctor said he was able to work Lindberg replied that she realized that but Stenberg had overruled her. As Stenberg was not in his office, Edwards reached Stenberg on the plant telephone and asked Stenberg why he was being sent home when he had clearance from his doctor and was able to work. According to Edwards' credited testimony' Stenberg said that he did not care if he had a release from the "Jolly Green Giant," that Edwards was not going to work with a cast on his foot. Edwards asked Stenberg how the "Jolly Green Giant" was involved, as it was quite serious to him. Stenberg replied that it was quite serious to him too, but that Edwards was not going to work with a cast on his foot. As a result Edwards went home and did not return to work until January 17, 1966. After the cast was removed, Edwards received another written statement from Dr. Snell and called Lindberg on January 14, 1966. Lindberg informed Edwards that he was required to go to the Respondent's doctor to receive verification in writing that he was in fit condition to return to work and to bring it with him when he reported for work on Monday, January 17, 1966. Edwards thereupon visited Respondent's doctor and received a written memorandum William J Stenberg, plant manager. Edwards' testimony up to this point is uncontradicted on the record JOHN S. BARNES CORP. 487 from him which stated that he was capable of returning to work Lindberg, a registered nurse with many years of experience in hospitals and industrial plants, testified that her chief duties consisted of taking care of accidents, maintenance of medical records, and processing group in- surance. On occasion she would make home visits to sick employees. No testimony was elicited from her concerning the foregoing. Stenberg testified that he learned of Edwards' return to work with a cast shortly after he came into the plant on January 3. 1966, and decided that he did not want Edwards working under circumstances where "having one eye" and wearing a cast, he was required to use the stairs to go to the washroom. To avoid potential liability, Stenberg thereupon instructed the nurse to send Edwards home until the cast was removed and the company doctor okayed him for work. Stenberg said that when he talked to Edwards on the telephone he told him that he could not come back to work until the cast was off his foot and he had an okay from the company doctor. He denied that he told Edwards that he said even if he got a release from the "Jolly Green Giant" he could not work with a cast on his foot.' Stenberg further testified that he told Edwards that anyone who was off 3 days for illness or accident needed an okay by the company doctor before he could return to work. On cross-examination Stenberg was asked (p. 366): Q. Why didn't you send him to your doctor to see if he might give him a release at that time? Stenberg replied: A. First of all, I don't want him in the plant with a cast on I don't want anybody in the plant with a cast on their leg The latter statement is contrary to evidence adduced that a former employee, Henry Gillette, was permitted to work for several months while wearing a neck brace which restricted movement of his head. Stenberg was asked on cross-examination why he had not sent Gillette home when he had that cast or brace around his neck. Stenberg replied: Well, he didn't have a cast on. He just had one of these leather things around his neck for a whiplash. This wouldn't cause him to trip and fall down the steps. The distinction drawn by Stenberg between the walking cast and the neck brace is difficult to understand. Stenberg did not see Edwards on January 3. 1966. when he sent him home because he was wearing a cast. Lindberg and Johnson did. Neither one raised any objection or saw any difficulties which would present a danger to Edwards or would prevent performance of his duties. Yet Stenberg concluded without seeing Edwards that he could not work in the plant with a cast on his foot. He did not even consider receiving an opinion from the company doctor prior to removal of the cast. Henry Gillette, who was wearing a brace which severely restricted head movements, surely was more handicapped in performing work requiring use of machines and in far greater danger of falling down stairs than Edwards who was wearing a walking cast. This disparate treatment, the flimsy reasons given by Stenberg, the fact that Edwards had testified in the prior case which did not close until January 13, 1966, and in which Edwards was alleged as a discriminatee, and the record evidence in the instant case, detailing further discriminatory treatment of Edwards by Respondent, to which Stenberg contributed, convince me that Stenberg's refusal to permit Edwards to work while he was wearing a cast stemmed from Edwards' known union sympathies and activities, and because he gave testimony in the formal Board proceeding concluded on January 13, 1966. 1 find that to be the true reason, and the reasons advanced by Stenberg constitute a pretext to disguise the true reasons. Accordingly, I find that Edwards was discriminately refused employment from January 3 to January 17, 1966, in violation of Section 8(a)(1), (3), and (4) of the Act. D. The Distribution of Copies of Testimony and Authorization Cards Commencing on or about January 23, 1966, and continuing for about 3 weeks, Ernest Svenson, president of Respondent, and Stenberg distributed photostatic copies of the testimony to those employees of Respondent who testified. Additionally, employees who had signed authorization cards designating the Union as their collective-bargaining representative received photostatic copies of their signed cards which had been introduced in evidence in the formal Board hearing concluded on January 13, 1966. The record evidence discloses that Edwards, Samuel LaSala, and Benny Hagen were among the first recipients of their testimony and cards. Svenson accompanied by Stenberg came to LaSala's working area and Svenson said, "Mr. LaSala?" When LaSala replied in the affirmative, Svenson then said, "Here is your testimony that you gave at the recent hearing." Whereupon LaSala was handed a folder containing the photostatic copy of his testimony and his signed union card. The folder had LaSala's name typed on its index tab. Edwards testified that when he was approached by Svenson and Stenberg, Svenson opened the folder bearing Edwards' name and said, "You are Clyde Edwards." Edwards replied, "Yes, Sir." And Svenson then asked him if that was his card and his signature . Edwards recognized it and said, "Yes, I signed that." Svenson then said, "This is the testimony that you gave against me at the National Labor Relations Board hearing in November."7 Benny Hagen, who did not testify," received a folder" containing a photostat of a single sheet of paper which is reproduced as Appendix A, attached hereto. [Omitted from publication.] Hagen on this particular day was the first to receive his folder, Edwards second, and then LaSala. LaSala and Hagen turned their folders over to Edwards and Edwards turned all the folders over to the Union. LaSala's and Edwards' photostatic copies of their testimony contained numerous markings , names, and comments on various pages. Edwards' copy in particular was copiously marked with handwritten comments, such as: s I credit Edwards As will appear , infra, I do not consider Stenberg a credible witness ' On cross-examination Edwards displayed some uncertainty as to whether Svenson used the phrase , "testimony you gave against me." Svenson and Stenberg denied that this phrase was used at any time As LaSala and Alice Swift also received copies of their testimony and did not testify that this phrase was used when they were addressed, I credit Svenson in this regard. ' Hagen was deceased at the time of the hearing See GC Exh. 5 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This man has only one eye. I discussed him with Dr. Duchon 12-6-65. His vision in one eye only 20/80. Dr. Duchon corrected right eye lens, per memo from nurse 11-4-63. I have not and would not shake hands with Edwards. It will be important to analyze the poor eye of Edwards by using medical opinion. Numerous other remarks emanating from Svenson, although written by Mrs. Svenson, disparage certain aspects of Edwards' testimony, or term certain statements a "plain lie," many printed remarks like "Hit" are spread over the pages. Svenson testified that these remarks were added at a conference in his home when Stenberg, Mrs. Svenson, and other supervisors were going over the recorded testimony to assist Respondent's counsel in the preparation of a brief to the Trial Examiner. Svenson stated that this annotated copy of the evidence was from such a "working" copy of the transcript and was accidentally duplicated and distributed. The evidence shows that only about five or six copies so marked were actually distributed. I credit the testimony that the marked copies were distributed by accident or error and that only five or six such copies were distributed. It is readily apparent that this was a "working" transcript intended to assist Respondent's counsel. In my view, however, whether such copies were distributed through accident or error, as I have concluded, or through deliberate intention, does not affect the ultimate decision. I find that the distribution of all such material whether marked up or not, including the copies of the authorization cards, constituted a not too subtle form of coercion, designed to warn the employees that their testimony was known, to apprise the employees that when they signed a union card it became known, and that Respondent had a complete record of the foregoing. It therefore tends to deter employees from union activity or adherence and to desist from giving testimony under the Act. The elaborate, formalized ceremony engaged in by the two top executives of Respondent when they distributed the folders in person over a 2- or 3-week period clearly was designed to impress the employees with the seriousness with which Respondent viewed such employee activity. The evidence further shows that a formalized ritual and a solemn manner of distribution was observed when union adherents received their folders and a casual and friendly attitude was displayed by Svenson and Stenberg when they delivered the folders to supervisors and nonadherents of the Union. This difference in approach served notice to the employees that the Respondent looked with disfavor upon those who gave testimony unfavorable to Respondent and upon those employees who signed union authorization cards. I cannot conceive a legitimate purpose in the distribution, so soon after the close of the former hearing and under the accompanying circumstances. Svenson's testimony that he wanted all his employees to have a copy of their testimony, the testimony that Svenson habitually distributed by mail certain books and pamphlets to his employees, and the fact that a similar distribution was made in 1949 after the conclusion of an earlier NLRB unfair labor practice hearing, I regard as weak, unconvincing excuses that do not justify or mitigate the deterrent effect of this conduct upon the employees. I find that the distribution of photostatic copies of the employees' testimony and the union authorization cards were violative of Section 8(a)(1) of the Act. I find that this conduct tended to inhibit the employees from fully exercising their rights under Section 7 of the Act and tended to inhibit them from giving testimony under the Act.' ° E. The Alleged Discharge of Edwards Stenberg testified that on January 27 or 28, 1966, after Lindberg had set up an appointment for Edwards to have an eye examination, he called down to the assembly department and had Edwards sent up to his office. He told Edwards that he wanted him to have an eye examination, that it was quite a while since he had one; that there was a new program of 100 percent enforcement of safety glass wearing in the plant; that, as Edwards only had one eye, Stenberg wanted to make sure that he had proper glasses and that Edwards had not been wearing glasses in the plant prior to that time. Stenberg quotes Edwards as saying, "I'll go down and have my eyes examined and I'll get the glasses, but I won't wear them because I don't need new glasses." Stenberg told him that the Respondent would provide him with transportation to the doctor for the eye examination and that he wanted Edwards to have new glasses and that when he got the new glasses he was going to wear them or else he would be subject to discipline, possibly even discharge. Edwards testified that the conversation with Stenberg took place on the morning of January 31, 1966. Edwards quotes Stenberg as saying, "Clyde, I don't want you to think that you are being picked on but we are starting a new procedure in the shop. Everyone who wears glasses must have an eye examination and be fitted for prescription glasses if so needed. We are doing this alphabetically and as your name is an E that puts you on the top of the list." Stenberg then, according to Edwards, told Edwards that an appointment had been set up with Dr. DuShane" for that morning and that someone from the Company would take him to the doctor's office. Edwards said that a short time later he received a call from Lindberg that Dr. DuShane had broken his leg over the weekend in a skiing accident and that the appointment had been canceled. Later that day, he again received a call informing him that an appointment for shortly after lunch had been made with Dr. Roe and that Henry Stuttgart, an employee of Respondent, would drive him to Dr. Roe's Office. 12 Subsequently on February 7, 1966, Edwards was called to Lindberg's office and given the new safety glasses which had been ground to the specifications of the prescription furnished by Dr. Roe as a result of his "' The Welch Scientific Co. Inc. v N L.R B , 340 F 2d 199 (C.A. 2), rehearing denied February 3, 1965, in which the court said at 203, "The cases clearly demonstrate that it is the tendency of an employer's conduct to interfere with the rights of his employees protected by Section 8(a)(1), rather than his motives, that is controlling." Citing Burnup & Sims. Inc, v. N.L.R B, 379 U.S 21; Erie Resistor Corp v. N L.R B, 373 U.S. 221. " Undoubtedly the same "Dr Juchon" referred to in one of Svenson's notes on Edwards ' copy of t'ie transi°ipt of his testimony 'i I credit Edwards' version rather than Stenberg's As will appear, Infra, Stenberg testified that he pla..ned to warn Edwards that failure to wear the glasses would be penalized, when Edwards received his glasses. JOHN S. BARNES CORP. 489 examination of Edwards' eyes on January 31, 1966. Before discussing the events of February 7, 1966, it is necessary to set forth a summary of the considerable testimony with regard to the Respondent's eye protection program. Edwards testified that there was no requirement that employees wear safety glasses or any glasses at any time. He said there was a sign on the grinder which said that glasses should be worn by the operator of the machine but that there was no enforcement of this requirement and he frequently observed foremen and other employees operating the grinder and other machines without glasses. He stated that he, himself, wore glasses whenever he operated any machine as he wished to guard his good eye. I credit Edwards' testimony as summarized above. Sam LaSala, Alice Swift, and Dorothy F. DeGarmo in their testimony likewise corroborated Edwards' testimony with regard to the absence and/or lack of enforcement of rules regarding the wearing of safety glasses. Indeed, all of these witnesses credibly testified that when an insurance safety inspection was about to make a survey of conditions various foremen would circulate among the employees and, for the period of the inspection only, would require them to put on safety glasses and safety caps.'" Lindberg and Stenberg testified that in August or September 1965 an eye safety program was inaugurated. The evidence does not support their testimony. I find, in accordance with the testimony of Gilbert M. Laurence, the master mechanic who had the responsibility for safety in the plant, that a definitive and enforced program was not instituted in the Respondent's plant until sometime in March 1966. At that time it was made mandatory for employees to wear safety glasses in the plant under penalty of discipline. Prior to March 1966, 1 find that while there were a limited number of signs urging the wearing of safety glasses, there was no genuine requirement nor enforcement except when an insurance inspection was due. I do not credit Lindberg's conclusionary testimony by which she attempted to have me believe that a new policy or compulsory eye protection was inaugurated in August 1965. This testimony was completely demolished on cross- examination when she admitted that safety prescription glasses continued to be subscribed only when requested by an employee. Moreover, her total credibility was seriously impugned by numerous contradictory statements . Thus, she testified that Svenson asked her to have Edwards' eyes checked again14 and subsequently, when she was asked concerning her conversation with Svenson, she denied that she had ever discussed Edwards' eyes with Svenson or that she had testified to that effect. 1-5 Moreover, Svenson's notations on Edwards' copy of his testimony in the prior Board proceeding stated that Svenson was going to have Edwards' eyes reexamined. This was delivered to Edwards on January 23, 1966. I conclude therefore that Svenson did speak to Lindberg and Stenberg about having Edwards' eyes reexamined. Stenberg likewise attempted to create the impression that a definitive eye protection program was inaugurated by the Respondent in August or September 1965 and that employees, particularly Edwards, were cautioned that penalties would be incurred if employees failed to wear safety glasses in the plant. When pressed by the Trial Examiner, Stenberg was evasive and equivocal. It was apparent to me that he was attempting to place the Respondent in a more favorable light regardless of the true facts. Accordingly, because of Stenberg's demeanor and apparent lack of candor, I have discredited him wherever his testimony is in conflict with other witnesses or contrary to the facts as I find them. My conclusion that the actual institution of a comprehensive eye protection program coupled with strict enforcement occurred in March 1966 is fully supported by LaSala's testimony, which I fully credit, Laurence's testimony and that of Edwards, Swift, and DeGarmo. Undoubtedly, because of the insistent demands of the insurance company, the Respondent made plans for an eye protection program in August and September 1965, but the evidence is plain that whatever plans were made, they did not develop into action until March 1966. On February 7, 1966, after Edwards received his new safety glasses from Lindberg, Edwards returned to his bench. A little later, he was engaged in a hand operation, reaming a small part. Svenson approached Edwards' bench and saw him performing the operation. At that time Edwards was not wearing glasses. Svenson asked him if he had received his glasses that day and Edwards replied that he had. Svenson then asked why they were not being worn and Edwards replied that he did not need them for the particular operation. Svenson asked where the glasses were and Edwards stated they were in his toolbox. Again Svenson urged that Edwards put them on and Edwards again repeated that he did not need them. I credit Svenson's testimony that Edwards was disrespectful and in fact insubordinate in this conversation. Svenson then went to Stenberg's desk in the office upstairs and had a secretary type a memorandum in Stenberg's handwriting which he knew was in Stenberg's desk. Svenson signed this memorandum and brought it with him when he went downstairs to Foreman Johnson's desk about 25 feet from Edwards' bench. Svenson instructed Johnson to bring Edwards there. When Edwards arrived, an argument ensued between Edwards and Svenson. Svenson thereupon handed Edwards the memorandum which he had just signed.16 Edwards stated that he had never seen the memorandum before and Svenson agreed. Svenson then said "I'm going to send you home for the week as a reprimand because you do not wear your glasses." [Emphasis supplied.] Svenson further testified that because of the abuse he had taken he refused to permit Edwards to use the company telephone to call home for transportation. Apparently there was some further heated discussion and Svenson called a guard to accompany Edwards to the exit. Svenson in summarizing the reasons for his action testified: I'm the chief executive. I have created every structure we make. I also own the premises where we manufacture, and I also furnish the working capital. I got to have some respect. I cannot have a mess in the 13 This testimony is uncontradicted in this record None of the foremen identified as giving such instructions was called as a witness by Respondent. 14 Transcript, p 292, 1. 16, 17 15 Transcript, p. 303, 11 2-10. 1e GC Exh 6 It is dated February 7, 1966, and signed by Svenson although it is headed as an interdepartmental memorandum from Stenberg to Edwards It reads as follows- After receipt of your new prescription safety glasses you will be required to wear said safety glasses at all times when inside the plant. Failure to comply can lead to a penalty which would include dismissal. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. I have to have some discipline and I am entitled to that." On cross-examination Svenson testified that shortly after the move to the new plant in 1964 Edwards started to be obnoxious by disagreeing with the foremen and with other men in the plant. Edwards, on February 8, 1966, the day after his suspension, successfully applied for employment in another plant. On the morning of February 11, 1966, he called Johnson and asked permission to get his tools. Johnson told him to come to the plant about 5 p.m. When Edwards arrived, Stenberg requested Edwards to sign a document which Stenberg had previously prepared. The document in fact was a resignation from the Company. Edwards refused to sign the resignation even though repeatedly requested to do so by Stenberg. Stenberg defended his insistence by stating that when an employee removes his tools from the plant it is a sign that he is quitting his employment there. The General Counsel argues that under the circumstances described above, Edwards' suspension for 1 week was discriminatory and that Edwards' employment in another plant resulted from a constructive discharge by the Respondent and did not constitute a voluntary quitting by Edwards. Respondent contends that Edwards' suspension was fully justified and that he voluntarily relinquished his employment with the Respondent. The evidence disclosed that Edwards currently is receiving 30 cents to 40 cents per hour more than he was earning while he was in the employ of the Respondent. Under these circumstances it is fair to assume that Edwards would not return to Respondent's plant even if offered reinstatement. However, the latter consideration is completely irrelevant. The question presented to the Trial Examiner is whether the entire episode, or series of episodes, constitute unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. If so proper effectuation of the Act calls for the issuance of an order that requires an offer of reinstatement be made to Edwards. As I have indicated above, I am convinced that Edwards was insubordinate when Svenson asked him to wear his glasses. The evidence indicates that Svenson felt that his authority was being challenged and that he felt hurt because his position was being demeaned. I find that to be true. I have serious doubts, however, that these ostensible reasons were the only ones that motivated Svenson to suspend Edwards or in fact were controlling.'" It is difficult to minimize the background events which establish that Edwards was a known protagonist of the Union,''' that Respondent was well aware of Edwards' union sympathies and displayed marked resentment towards Edwards (a) by the discrimination found by me in the prior case, (b) by the discrimination I have found above from January 3, 1966, to January 17, 1966, when Stenberg refused to let Edwards work with a walking cast on his foot, (c) By the tenor of the remarks on the marked copy of Edwards' testimony which Svenson handed him, (d) by the fact that among those remarks was a direction that Edwards' eyes be examined by Dr. DuShane, (e) by the singling out of Edwards for a special eye examination, (f) by the memorandum prepared by Stenberg and given to Edwards by Svenson on February 7, 1966, indicating that Edwards was singled out for special attention and a special rule which was not at that time applicable to other employees, (g) by Svenson's statement, emphasized above, in which he said he was suspending Edwards for not wearing his glasses-rather than his insubordination, (h) by imposing the requirements of the February 7, 1966, memorandum on a retroactive basis. It is somewhat of an understatement to merely state that Svenson was resentful of Edwards' known union sympathies and desires. Svenson's own testimony indicates his attitude toward Edwards when he related Edwards' alleged obnoxious behavior to the time when union organization activity commenced in the plant, i.e., after Respondent moved to the new premises in January 1964. While I am convinced that Edwards' insubordination and lack of respect for Svenson were contnbuting factors to Edwards' suspension, I conclude that the primary causes were Svenson's animosity to Edwards stemming from Edwards' union activity and his testimony in the prior Board proceeding. It is my conclusion, therefore, that Edwards' suspension for 1 week was discriminatory and in violation of Section 8(a)(1), (3), and (4) of the Act.L' I further conclude that the entire course of events was a compelling reason for Edwards to seek employment elsewhere and but for the pressure arising from the developments detailed above, Edwards would not have sought employment elsewhere. As these pressures and incidents were discriminatory in nature , I can only conclude that Edwards was in fact discharged even though Respondent did not do so in so many words. Moreover, Stenberg's adamant insistence that Edwards sign a it Stenberg testified that after his conversation with Edwards in which he notified him of the new eye examination, "1 made up my mind that lie , above all others, was going to wear the glasses in the plant, because he only had one eye " Stenberg then wrote a memorandum in his own handwriting to the effect that "when he got his new glasses he would get this memo, and it would require him to wear his safety glasses at all times when he was in the manufacturing plant, subject to disciplinary actions which could lead to his discharge " [Emphasis supplied.] After Stenberg prepared this memo, he placed it in a drawer of his desk and mentioned it to his secretary and to Svenson He did not give the memo to Edwards because he took a short vacation from February 4 to February 9, 1966 It is established, therefore, that Edwards knew nothing about the special memo directed to him until Svenson handed it to him after Svenson suspended him for not wearing glasses As Svenson was far from an indecisive person it seems to me that , if Svenson was solely motivated by Edwards' insubordination and disrespect, he would have immediately suspended Edwards and stated that as the reason However Svenson did not follow this course but instead had Stenberg's memorandum typed and then. told Edwards that he was being suspended for not wearing his glasses and because of Stenberg's memorandum , the contents of which Svenson conceded had not been hitherto disclosed to Edwards IN "Without question an employer may lawfully discharge an employee for any reason provided the reason is not conduct protected by the Act " Interboro Contractors, Inc , 157 NLRB 1295, 1301 On the other hand, "the fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of his union activities." Ace Comb Co v N L R B, 342 F 2d 841, 847 (C A 8), Symons Mfg Co v. N L.R.B , 328 F 2d 835, 837 (C A 7), Portable Electric Tools, Inc v NLRB,309F2d423,426(CA 7) IN His prominence is further indicated by the fact that LaSala and Hagen turned over the folders of their testimony and authorization cards, which Svenson gave them, to Edwards for transmission to the Union m That other and legitimate reasons for a discharge may exist does not constitute a defense , if discrimination or other illegal considerations are substantial and motivating , Whitin Machine Worksv NL R.B.,204F2d883,885(CA 1) JOHN S. BARNES CORP. resignation demonstrates that he, himself, was quite conscious of the fact that Respondent's treatment of Edwards could be construed as a discharge in fact. In arriving at the above appraisal of the events leading to Edwards' employment elsewhere, I am not unmindful of Dr. Roe's testimony. Dr. Roe testified that his examination of Edwards' eyes revealed that Edwards' left eye had a retinal detachment which added up to industrial blindness in that eye; that the left eye corrected produced 20/20 vision; that his prescription was slightly stronger than the glasses Edwards was wearing and that the new prescription was a slight change "pulling in his near point of vision perhaps five inches or so." He stated he did not remember whether he talked to plant nurse, Lindberg, prior to examining Edwards' eyes but that Lindberg called him after the examination because she was interested in his findings. Dr. Roe stated that Lindberg was interested whether Edwards was a source of hazard because of the condition of his left eye. Dr. Roe further testified that after Edwards' eye examination he sent the following letter, dated January 31. 1966, to Respondent. Mr. Clyde Edwards came to my office on January 31st, and upon examination was found to have an essentially blind left eye from a childhood accident. The vision in the right eye is 20/20 with good peripheral field when wearing the proper glasses. There is no sign of detachment nor other pathology in the right eye. That thereafter he received a call from Lindberg that the letter was not complete enough. He testified that he got the "impression that there was a little more interest." As a result he sent another letter to Respondent on February 4, 1966, which read as follows: Mr. Edwards came to my office on January 31, 1966. On examination he was found to have an essentially blind left eye from a childhood accident. The vision in the right eye is 20/20 with good peripheral field when wearing the proper glasses. There is no sign of detachment nor other pathology in the right eye. The uncorrected vision in the right eye, at distance, is 20/50. Thereafter, additional phone calls were made by Lindberg to Dr. Roe's office apparently with a view that Dr. Roe discuss Edwards as a potential hazard because of the condition of his left eye. As a result Dr. Roe, on February 10. 1966, sent the following letter to the Respondent: Mr. Clyde Edwards came to my office on January 31, 1966. He has a blind left eye. The right eye is 20/50 vision when not wearing glasses and is corrected to 20/20 when wearing glasses. Safety glasses are recommended for plant wear at all times. Some work around machinery might be contra- indicated entirely due to his being one-eyed. I note also that when Dr. Roe conducted his examination of Edwards' eyes, Edwards told him that Respondent was unhappy with him and that perhaps they were trying to get rid of him. I believe that the above recital indicates that Respondent in fact was engaged in an inordinate search for medical justification of Edwards' discharge and that Edwards' state of mind was such that he correctly surmised that Respondent was trying to get rid of him. Accordingly, after the February 7 suspension, it was logical for Edwards to conclude that his prospects for future employment with Respondent were precarious and that, under the circumstances. it was rather compelling for 491 him to seek other employment. In view of the above, I conclude. contrary to the contentions of the Respondent, that the Respondent by the acts and conduct described herein created an atmosphere which rendered it impossible for Edwards to continue his employment with Respondent under reasonably normal conditions.2' On the record in the instant case, I conclude that the condition of Edwards' left eye was seized upon by the Respondent as a cloak for harassment because of his prominence in union organization , his adherence to the Union, and because he gave testimony under the Act in the prior Board proceeding. Accordingly, I find that Edwards was constructively discharged in violation of Section 8(a)(1), (3), and (4) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent, in violation of Section 8(a)(1) of the Act, distributed copies of its employees' testimony given by them in a prior Board unfair labor practice hearing and that Respondent also distributed photostatic copies of their signed union authorization cards for the purpose of inhibiting them from exercising their right under Section 7, I shall recommend an order that it cease and desist therefrom Having found that the Respondent violated Section 8(a)(1), (3), and (4) of the Act by denying employment to Clyde F. Edwards from January 3, 1966, to January 17, 1966, and that Respondent, by unlawfully discharging Clyde F. Edwards on February 7, 1966, further violated Section 8(a)(1), (3), and (4) of the Act, I will recommend that the Respondent shall offer Edwards immediate and full reinstatement to his former or substantially equivalent position without prejudice to seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from January 3, 1966, to January 17, 1966, and from the date of his discharge to the date of the Respondent's offer of reinstatement , less his net earnings during such period, with backpay and interest thereon in the manner proscribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The unfair labor practices found herein indicate a purpose to coerce Respondent's employees from engaging in lawful concerted activities and to deter them from giving testimony under the Act. It is therefore concluded " BeiserAviation Corporation , 135 NLRB 450,451, Springfield Garment Manufacturing Company, 152 NLRB 1043, 1062 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that these unfair labor practices are of such a character and scope that they strike at the basic purposes the Act was designed to achieve. It will therefore be recommended that Respondent cease and desist from in any manner interfering with, restraining, or coercing employees in their guaranteed rights. Upon the basis of the foregoing findings of fact and upon the record as a whole I make the following: CONCLUSIONS OF LAW 1. Respondent is and , during all times material herein, was an employer engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is and, during all times material herein, was a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By denying employment to Clyde F. Edwards from January 3, 1966, to January 17, 1966, and by discharging him on February 7, 1966, because of his membership in the Union, his protected concerted activities, and because he gave testimony under the Act, Respondent has discouraged membership in a labor organization and has discriminated against said Edwards in violation of Section 8(a)(3), (4), and (1) of the Act. [Recommended Order omitted from publication.]