Producers Grain Corp.

466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Producers Grain Corporation and International Longshoremen's Association , Local 1920, AFL-CIO. Case 23-CA-2628 January 30, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On October 5, 1967, Trial Examiner Ramey Donovan issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 excep- tions to the Trial Examiner's Decision, a supporting brief, and a request for oral argument.' The General Counsel filed a brief in answer to Respondent's ex- ceptions and 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 Na- tional 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, answer thereto, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Producers Grain Coproration, Corpus Christi, Tex- as, its officers,.agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Add the following as paragraph 2(b), the present paragraph 2(b) and those subsequent thereto being consecutively relettered: "(b) Notify the above-named employee, if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as. amended, after discharge from the Armed Forces." 2. The telephone number for Region 23, appear- ing at the bottom of the Notice attached to the Trial Examiner's Decision, is amended to read: Telephone 228-0611, Extension 4721. 3. Add the following immediately below the signature line of the Appendix attached to the Trial Examiner's Decision: Note: We will notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharged from the Armed Forces. Member Brown, dissenting: The contract between the parties had provisions relating')oth to absences from work and discharges for proper cause, and provided for final and binding arbitration of all disputes over the application of the contract. Saldana's discharge was processed through the grievance machinery and an arbitrator had been named when the Union decided to forego the grievance procedure in favor of pursuing a remedy at the Board. The Employer remains willing to pur- sue the arbitration procedures of the contract. In such situations, and for many of the reasons in- dicated by the Trial Examiner, it is my view that the Board should hold the case in abeyance pending the outcome of the arbitration proceeding to best effec- tuate the statutory policy of promoting industrial peace and stability through the collective-bargain- ing process.3 ' The Respondent's request for oral argument before the Board is hereby denied, as the record and briefs adequately present the issues and positions of the parties. 2 In an addendum to his Decision , the Trial Examiner set forth his belief that, despite Board precedent to the contrary , it would be preferable to hold this proceeding in abeyance pending an arbitration which would be available under the parties' contract. Our dissenting colleague agrees. However, in a situation such as this, where there has been no actual sub- mission to arbitration, where the unfair labor practice issue has already been fully litigated and is now before us for decision, and where the case involves no issue which only an arbitrator would be competent to deter- mine, we are unable to agree with our dissenting colleague that it would ef- fectuate statutory policy to defer this case for arbitration . See N.L.R.B. v. Thor Power Tool Co., 351 F.2d 584 (C.A. 7). 3 See my concurring opinion in Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410. TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner: The complaint is- sued under date of April 26, 1967, and was based upon a charge filed February 27, 1967, by International Longshoremen's Association, Local 1920, AFL-CIO, herein the Union. Respondent, Producers Grain Cor- poration, according to the complaint, discriminatorily discharged employee Saldana on February 14, 1967, because of his union activities, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as 169 NLRB No. 68 PRODUCERS GRAIN CORPORATION amended. Respondent denies the commission of the un- fair labor practice. The case was heard in Corpus Christi, Texas, on July 13, 1967, with all parties represented by counsel. Upon the entire record, including observation of the demeanor of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation, has a place of busi- ness at Corpus Christi, Texas, where it is engaged in stor- ing, merchandising, and exporting grain. The pleadings reveal that there is no issue as to the fact that Respondent is an employer engaged in commerce within the meaning of the Act or as to the fact that the Union is a labor or- ganization within the meaning of the Act The foregoing facts are accordingly found to be as set forth by the com- plaint and answer. II. THE ALLEGED UNFAIR LABOR PRACTICES GENERAL BACKGROUND Respondent acquired the Corpus Christi plant from a prior owner in June 1964. As far as appears, the plant continued the same type of business operation as had been the case prior to the acquisition and many of the em- ployees ofthe prior owner continued to work for Respond- ent. Saldana, the alleged discriminatee, had worked a total of 6 years under the two owners of the plant, until his discharge on February 14, 1967. His job was that of ahead operator in a department that unloaded boxcars. About 6 months after Respondent acquired the plant, Saldana undertook to organize the employees into the in- stant union. There is no evidence that Respondent was aware that it was Saldana who signed up more than half of its employees in the Union and there is no evidence of any opposition, legal or illegal, on Respondent's part toward the organization of its plant Pursuant to a consent election on February 25, 1965, the Union was certified as the collective-bargaining agent of the employees on . March 5, 1965. Thereafter, the Union and the Company negotiated a contract Williams, a representative from the Union's dis- trict office, was the chief union negotiator, assisted by a negotiating committee composed of employees Saldana, Mendiola, and McLaughlin. A contract was executed by the parties on May 12, 1965, fora 2-year period. Phariss, who is apparently an official in the Respondent's home office in Amarillo, Texas, signed for Respondent; Wil- liams signed for the International Union; and Saldana signed for the local union. The contract included a grievance procedure with binding third party arbitration as the final step therein. In addition to being a member of the negotiating com- mittee, Saldana had been elected president of the local union. After the negotiation of the contract, the plant ' From the nature of Respondent's business and the record in general, the term "elevator," as used, quite clearly refers to grain type elevators in- cluding the operations thereof and the handling of grain in various ways. 8 The contract grievance procedure provided that a grievance should be submitted by the aggrieved employee, "with the assistance of or in the 467 negotiation committee members became the grievance committee of the Union. Subsequent to Saldana's discharge, the parties negotiated a 3-year contract to be effective following the expiration of the old contract in May 1967. Saldana par- ticipated as a member of the union negotiating committee. More Immediate Background as to Saldana and His Relationship with Plant Supervisors Insofar as the issues in the case are concerned, the su- pervisory hierarchy in the plant consisted of the plant manager, Strader; Strader's assistant, Tomlinson; the elevator superintendent; and the two assistant elevator superintendents.' At the time Respondent took over the plant, in June 1964, Gravett was the elevator superintendent. - He remained in that capacity for about a year and was then replaced in that position by Morehead. Only one of the assistant superintendents is involved in the instant matter and his name is Francis. In the period after the execution of the initial contract a substantial number of grievances were taken up with the elevator superintendent. This was true with respect to Gravett and, later, with respect to Morehead when he was superintendent.2 The grievances involved such mat- ters as claims that a higher paid employee had been sent home on a particular occasion and his work was thereafter performed by a lower paid employee, or that two men performing the same work in the same classifica- tion received different wage rates and similar matters per- taining to working conditions. Based upon Saldana's testimony, as well as his key role in organizing the plant and the fact that he had been elected president of the local union, and a member of the negotiating and grievance committee by his fellow em- ployees, we are satisfied that Saldana was the principal protagonist in these grievances. We reach this conclusion albeit recognizing that many employees no doubt did file grievances and that undoubtedly other union officers and committeemen did participate in various degrees and at various times in the grievance procedure. There is minimal reference to Gravett in the record but, as far as the record discloses, there was no particular con- trast between the grievance filing and its processing under Gravett and Morehead. The substance of Saldana's testimony on this aspect was that he, as the principal union spokesman, could not obtain definite and prompt action from Morehead on various grievances or at least Saldana was not satisfied that Morehead was correcting what the various grievances claimed should be corrected. The evidence, in our opinion, does not reveal anything exceptional or illegal in the grievance handling or more than stemmed from differences of opinion or viewpoint as between management, on the one hand, and the em- ployees and their union, on the other. Various grievances were appealed to Strader by Sal- dana and the grievance committee. The limited evidence on this aspect consists of Saldana's testimony that Strader would say that "this is just some petty stuff that presence of a representative of the Union or by a representative of the Union on behalf of the employee " to the elevator superintendent in the first instance If the grievance was not settled it could then be submitted to the plant manager in writing . The next step was third party arbitration. 350-212 0-70-31 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD don't amount to very much, and I don't see why you and Buddys can't sit over there in the office ... and try to work some of these things out." Saldana would reply that he could not seem to get answers "to all these grievances" from Morehead. A series of grievances were taken to arbitration and disposed of although Saldana felt that the number arbitrated was limited by the cost of ar- bitration. As far as the Examiner has been able to discern, the Respondent had no basic policy of hostility toward, or warfare against, the Union. The relationship appears to have been a reasonably viable one with each side recog- nizing that it had to live with the other. If there was an il- legal discharge of Saldana, it stems, in our opinion, from the relationship between Saldana and Morehead and we will examine that relationship. Saldana testified credibly that, around April 1966, there were some temporary employees working at the plant and one of them was working in Saldana's depart- ment. It was Saldana's belief that the aforementioned temporary employee was performing work in a classifica- tion calling for $2.60 per hour whereas the employee was in fact being paid $1.75. Saldana spoke to Morehead about the foregoing and Morehead replied, "Well, they are just temporary workers and I don't see why you should worry about them ... and besides, hell, you have been presenting so damn many grievances , what's going to happen to you one of these days, you are going to grieve yourself out of a job. '14 Around the latter part of April 1966, according to Sal- dana, he and the other employees had been unsuccess- fully seeking permission from Morehead to have their own personal locks on their lockers in the plant.5 The matter came to a head when Saldana believed that some grievances that he had placed in his locker were removed by someone without his knowledge. This matter of per- sonal locks occurred in a context of other accumulated grievances that Saldana felt were not being acted upon. Saldana therefore communicated the situation to a union official, Massey, in the Union's district office in Gal- veston. Although Saldana testified that the district office sent a telegram tom" Phariss, an official of Respond- ent,6 this fact is not established . However, we do credit Saldana's testimony that soon after he commu- nicated with Massey, Morehead asked why he had sent a telegram to Massey. Saldana replied that he had not sent Massey a telegram but that Massey had sent a tele- gram to Phariss. Morehead asked why. Saldana said that it was because he had complained to Massey about the grievance situation. Morehead said that was "all I want to know because Mr. Frank Phariss is on the telephone and he wants to find out who it was [who complained to Massey]." Sometime in the summer of 1966 the Cruz incident oc- curred. Saldana, Morehead, and Cruz testified regarding this affair. Cruz, on the occasion, was operating two spouts through which grain was being propelled. He had per- formed this operation in the past. Saldana and other em- ployees had discussed this matter among themselves and they believed that, since the job classification was spout tender, it did not, or should not, require one man to operate two spouts. Saldana went to Cruz on this particu- lar occasion and told him to turn in a grievance about having to operate two spouts. Both Saldana and Cruz testified to this fact. Saldana testified that the men had been told that on such matters they were not to refuse to perform their assigned work but were to file a grievance. Whether Cruz, in the instant occasion, continued to operate two spouts after Saldana told him he should file a grievance thereon is not clear, but we credit Morehead's testimony below and it is our opinion that Cruz probably did operate one spout after his conversation with Saldana. In any event, according to Morehead, the dock operator7 reported to him that Cruz would operate only one spout. Morehead went to Cruz and asked him why he would not operate two spouts. Cruz replied that it was on Saldana's instruction. Morehead ordered him to operate the two spouts under pain of discharge and Cruz did so. Morehead states that he then went to Saldana and said he would have to discharge him because he had put him- self in a supervisory capacity. Saldana replied in sub- stance that Cruz was mistaken in what he reported Sal- dana had told him because "the men might tell me [Morehead] anything. ." Morehead then, in his testimony, states that "we considered firing him [Saldana] and [but] we.told him we would let him go ahead and work." Regarding the immediate aftermath of the Cruz in- cident we credit Saldana as contrasted with Morehead's testimony described in the paragraph above as to what ac- tion was taken by Morehead. Saldana testified that Morehead came to him and queried him about telling Cruz not to operate two spouts. Saldana replied that he told Cruz to state that he was going to file a grievance because of the two-spout opera- tion. Morehead then called to another employee to take over Saldana's work and told him that he was discharged. Morehead punched out Saldana's card and requested him to accompany Morehead to the plant manager's office. Saldana, upon request, was allowed to bring the two other employee members of the grievance committee with him. In Strader's office Morehead informed Strader that he had discharged Saldana and asked that the latter's time be made out. Saldana told Strader that he was being discharged for telling a man to file a grievance. Strader said: Well, I told you people to try to work your problems out over there. I know this is some of that petty stuff that can be worked out over there. Go back over there, go back to work and try to work out your problems.... ' Morehead then punched in Saldana's card and the latter returned to work.8 Another clash between Saldana and Morehead also oc- curred in 1966, as described by Morehead who did not re- call the month. On the occasion, there was something wrong with the electrical aspect of an automatic scale in the plant. Morehead assigned a maintenance man to fix the scale. According to Morehead, Saldana thereafter 8 Apparently everyone at the plant, including Saldana and the em- ployees and the other supervisors , addressed and referred to H. H. More- head as "Buddy." ' Morehead testified that he could recall no such incident. 5 Presumably the lockers were used by the employees to store their street clothes or other personal items while they were at work. 6 The exact title of Phariss is not shown in the record . However, he was the signatory for the Respondent on the union contract. 7 Unidentified and not a witness. 9 Strader did not testify. As we have seen, Morehead's testimony as to this post-Cruz incident was limited to stating that "we" considered discharging Saldana but we did not do so. PRODUCERS GRAIN CORPORATION 469 "called" him, evidently on the plant intercommunication system, and told him that the maintenance man should not work on the scale and that Morehead would be in trouble if this was done. Morehead replied that he would discharge the man if he did not work on the scale. As far as appears the maintenance man did follow Morehead's orders and this was the end of the matter. Saldana's sole reference, to this incident, is his testimony that he did not say anything about there being trouble if the maintenance man performed electrical work on the scale. The merits of the disputes or the differences of opinion in the foregoing incidents that we have been describing are not before the Examiner and we express no opinion on the merits. It is not important for our purposes whether the employees were entitled to have their own locks on their lockers; or whether or not temporary em- ployees should have been paid more than they were paid; or whether a man should or should not operate two spouts; or whether electrical work on a scale should be performed by a plant maintenance man; or whether other grievances were being disposed of expeditiously or satisfactorily; or whether Saldana should have com- plained to the district office of the International Union about the way grievances were being handled at the plant. The pertinent aspect is that these various matters in- volved subjects properly cognizable under the subject of union activities and Saldana as president of the local union and as a grievance committeeman was the prime mover and protagonist in these union activities. More- head was the supervisor immediately involved and the impact of all these activities was directly upon Morehead. In the light of the foregoing evidence there is little doubt in our mind that Morehead regarded Saldana as an irritant factor in the plant. We have no basis for believing that Morehead was determined to have no union in the plant or that he wanted no grievances whatsoever if there was a union. But, the evidence indicates that Morehead would have been less than human if he did not consider that without Saldana, Morehead would have had fewer complaints and irritations in the discharge of his duties as superintendent. And Saldana's activities, spilled over into an area in- volving more than simply Saldana and Morehead. Sal- dana, on one occasion, involved the district office of the International Union regarding the handling of the grievances in the plant. The district office evidently got in touch with higher management of Respondent and the latter, as reported by Morehead to Saldana, asked More- head about the matter. If nothing more, and assuming that higher management made no criticism of Morehead, the fact was that here was a local plant matter, involving the plant employees and the superintendent, that had not been confined to the plant but that spilled over into the International Union and higher management in the Com- pany. Ordinarily, the local plant supervisor is expected to, and, it is his own conception of his function, to handle the problems in his plant or departments. By the same token, a foreman expects to, and is expected to, handle matters in his department and not to involve the superin- tendent unless under unusual circumstances. The per- tinency of these observations finds some confirmation in the attitude of Strader, the plant manager, when the Sal- dana-Morehead conflicts drew him into the picture. Strader's expressed attitude was that such disagreements should be worked out between them and that he had enough to do without being drawn into such matters. This expressed position of Strader's and the fact that, an one occasion, he reversed Morehead's discharge of Saldana, carried an implication, whether deserved or not, that per- haps Morehead was not handling his department and Sal- dana as well as might be expected. We repeat_ our belief that it is not plausible to believe that Morehead did not re- gard Saldana and his union activism as a definite irritant and a troublesome factor. This conclusion does take into consideration the fact that Morehead, although previously a superintendent in another plant of Respondent, had no prior experience as a supervisor in dealing with a union and its plant representatives. Even if Morehead had had such prior ex- perience, it is our opinion, on the evidence detailed, that an active union protagonist such as Saldana would be re- garded as an irritant by a supervisor bearing the im- mediate impact of such union activity. Irritation or hostility toward an employee, however, are one thing and, needless to say, it does not automatically follow from such a finding, that a subsequent discharge of the em- ployee is therefore clearly ascribable to such feelings. It is our concern to ascertain the relationship between Sal- dana and Morehead in all its aspects since it is More- head's motivation in discharging Saldana on February 14, 1967, that is the issue in the case. The record indicates, and our observation of all the em- ployee witnesses tends to confirm, that the majority of the employees were Spanish speaking and evidently of Mex- ican, or, at least, Latin descent. From our observation of Juan Saldana, and from our hearing him testify we have no doubt that the foregoing observation is applicable to him nowithstanding his proviciency in English. We also believe that Saldana's leadership in organizing the em- ployees and his election as president and committeeman were facilitated by the common lingual and cultural bond among the Spanish-speaking employees. Spanish was, in our opinion, the language in which the majority of the em- ployees communicated with each other and, even among those possessing some proficiency in English, Spanish was the tongue in which they were most at ease and fluent. Sometime in the latter part of 1966, Morehead posted a sign in the plant that provided that only English was to be used at the plant during working hours. Immediately after posting the sign, Morehead took pains to call it to Saldana's attention, saying, "Saldana, I want you to read that notice on the bulletin board." Saldana read the notice, and, soon after, Morehead asked him if he had read it. Saldana said he had. Morehead said, "well, I guess you know what that means." Saldana said, yes, "but we are going to do something about that sign." The following day, at noon, Saldana gathered together substantially all the employees and they went to the plant manager's office. In the absence of Manager Strader, a committee of three, Saldana, Ramirez, and Mendiola, went into the office and spoke to Tomlinson, Strader's assistant. Saldana was the spokesman. He expressed the employees' displeasure about the sign, pointing out that a majority of the men had a very limited command of En- glish and could not converse in English, but if they were caught speaking Spanish they would be violating the new rule and would be subject to discharge. Saldana added "and besides, I think its violating our civil rights." The rule prohibiting Spanish does not concern us as such, in either its wisdom, equity, or any civil rights aspect thereof. However, it is embraced under the term 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of "conditions of employment" as used in the Act and the protest against it, spearheaded by Saldana,.was protected activity. Once more Saldana was at cross purposes with Morehead who was the one who would administer the rule and who was probably its initiator and the supervisor whose name appeared on the posted rule.9 Moreover, the. protest to Tomlinson, of which Morehead no doubt became aware, posed not only a union-management con- flict as had other past activities of Saldana, but, on this occasion, Saldana indicated an additional statutory basis of conflict, to wit, civil rights. Saldana indeed appeared to be a troublesome irritant. Aside from the fact that on the day the rule was posted and on the following day Saldana was the man who spear- headed the opposition and once more was an irritant fac- tor, we give some thought to the reason for the rule or at least some possible or partial explanation therefor. Since Respondent has offered no explanation, we resort to a consideration of some of the known circumstances. Saldana's extensive union activism throughout this period has been shown. We have also seen that as chief protagonist in union protests and grievances Saldana crossed swords with Morehead. Saldana's power base was unquestionably his Spanish-speaking constituents in the plant. While Saldana was truly bilingual, there is little doubt that communication of the Spanish-speaking em- ployees among themselves and with their leader, Saldana, was primarily or extensively or wholly in Spanish. Obvi- ously, a good deal of such conversation was on many sub- jects, personal, work, social, and so forth. But certainly one of the important subjects among the employees in the plant was their working conditions and conditions of em- ployment, including inequities or gripes , real or imagined. Many grievances had been filed and their processing and treatment were of undoubted interest and concern to the employees. Grievances and dissatisfactions do not bloom forthwith; there is generally a preliminary stage in which questions are raised about some work condition and these questions and discussions take place among the em- ployees, and, in this case, such matters were bruited about in the Spanish tongue . But discussions and gripes may well eventuate in nothing without a knowledgable and articulate leader with whom the employees can com- municate in the language in which they are most at ease and in which they can express themselves most effective- ly. Saldana, of course, was the leader, who shared a cul- tural and language community of interest with the other employees. It is unlikely that Saldana's awareness of conditions in the plant upon which he based his union activities was ob- tained otherwise than through observation and communi- cation with his fellow employee, primarily in conversa- tions in Spanish. Since there is no evidence or even indi- cation that Supervisors Morehead and Francis (or Strader or McLaughlin) were of Spanish-Mexican background or Spanish speaking, they were outside the Spanish-speaking enclave of most of the employees. And an important part of the activity within the enclave was Saldana's union activity. While there well may have been other reasons for the rule posted by Morehead, it came in the general period when he was having intermittent conflicts with Saldana involving activities of the latter pertaining to various con- ditions of employment in the plant as previously described hereinabove. We regard it as not an unreasona- ble conclusion that a factor in the rule was an effort to dampen somewhat what Morehead may have regarded as the semicabalistic goings-on in Spanish between the em- ployees and with their union leader in the plant on the subject of working conditions and union activities. Some degree of confirmation of the foregoing may be found in the fact that, immediately after posting the notice, More- head took pains to call it to Saldana's attention as if to in- dicate that it was particularly for his edification and per- tained to his general activities.10 Having considered the relationship between Saldana and Morehead with respect to the former' s union activi- ties, we now turn our attention to another aspect of that relationship. Around October 1966, on a particular day, Morehead asked Saldana to work in the evening at the end of his regular shift. Saldana agreed to do so. However, at the end of his shift, Saldana told Morehead that he was sick and could not work that night. Morehead agreed to ex- cuse Saldana but stipulated that Saldana was to bring a doctor's slip when he returned to work. Saldana said he would. Morehead testified that Saldana did not look sick to him and he believed that Saldana backed out from his prior agreement to work overtime after he ascertained that the particular work was not to his liking. Saldana returned to work the next day and Morehead asked him for the doctor's receipt. Saldana said he did not have one. Morehead reminded him of the preceding night's stipulation. Saldana replied that it was up to More- head to prove it and that was the end of the conversation. As a result of this experience and the fact that he con- sidered that the absentee rate of the employees was high, Morehead posted a rule, on October 7, 1966, that stated: Any employee absent due to sickness will be required to furnish a doctor's certificate. H. H. Morehead It is not the function of the Examiner to express an opinion as to wisdom, equity, or justification of this rule and we do not do so. However, we do observe that by its terms it is a strict rule." This perhaps explains More- head's admission that, as administered, it was "a pretty watered down rule." At this point, we prescind from examining the adminis- tration of the above rule, since we wish to continue our examination of the Morehead-Saldana relationship. 9 Respondent offered no evidence as to the rule either by way of testimony or otherwise. Saldana's testimony concerning the circum- stances described above is uncontroverted. We note that immediately after posting the rule, Morehead called it particularly to Saldana 's atten- tion and the latter gave notice that the employees were not going to take the notice lying down . Saldana protested the notice the next day. Sub- sequently, Saldana filed a charge of discrimination against Respondent, with the Equal Employment Opportunity Commission. The charge quoted the posted sign as follows: "Only one language will be used at this plant during hours of work and that will be English." "Posted 11/23/66, signed H. H. Morehead." 19 As is apparent , we make no finding regarding the legality of the rule under the Act or otherwise. It was not in issue as an unfair labor practice. However, we have considered it and the surrounding circumstances as evidence in the case on the matter of the situation in the plant and Sal- dana's relationship with supervision. 11 An individual with, for instance, a heavy cold or an upset stomach, may be doing himself, his fellow employees , and his employer a favor by not working in such a condition, but, commonly , the services of a physi- cian are not always necessary or customarily invoked immediately for such physical indispositions. PRODUCERS GRAIN CORPORATION 471 Morehead testified that he considered Saldana to be unreliable and untrustworthy and to have been absent too much. He states that he considered Saldana to be an un- satisfactory employee. Morehead asserts that the forego- ing were background considerations in his discharge of Saldana when the latter was discharged on February 14, 1967, for, according to Morehead, not bringing in a doc- tor's slip after an absence on February 13. In addition to the incident previously described, More- head related another incident as an example of the em- ployees' untrusworthiness. Morehead states that, typi- cally, Saldana would tell him one thing and, when More- head pinned that down, Saldana "would have some other excuse." In short, Saldana was rather too fast on his feet and evasive, mentally and explanation wise. As an exam- ple, Morehead said that if the cars were being dumped too slowly, he would ask Saldana the reason. Saldana would say there was excess paper in the cars and the paper had to be removed before the cars were dumped. Upon in- vestigation, Morehead would find that there was no paper in the cars. When confronted with this fact, Saldana would then, according to Morehead, come up with another excuse or explanation. As to absenteeism, Morehead testified that in 1966 the employee absentee rate was 6.63 percent. Saldana's rate was the highest, being 31.56. In January through Februa- ry 13, 1967, the general employee absentee rate was 7.70 percent. Saldana's rate was 26.67 percent; another em- ployee's rate was 33.33 percent, and there was also another employee with a rate of 20 percent. Saldana testified credibly that in early 1966 he had an industrial accident on the job, having caught his leg and fallen into a hole. He was hospitalized for nearly 2 weeks and was absent, from work as a result for over a month. He was hospitalized in August 1966 because of a severe tonsil infection. Later, his doctor ordered rest in prepara- tion for an operation. A tonsillectomy was performed in September 1966 and he was under medical care in the postoperation period for over a week, plus an additional recuperative period. Dr. Cameron, Saldana's doctor, testified regarding the operation and the treatement of the patient. The doctor stated that Saldana was prone to run a fever upon the advent of any infection. Saldana also testified that he had an army disability as the result of having his feet frozen in Korea and that his feet troubled him from time to time. In January 1967, Saldana's wife had a serious operation and Morehead gave him time off to be with his wife, saying that there were no ships or box- cars to be unloaded at the time. Morehead's testimony, as given, whether designedly or not, simply conveyed the impression that Saldana was ab- sent excessively, with the implication that the employee was an irresponsible "goof off." Saldana's testimony sheds a different light on the situation. 12 However, the fact is that Saldana was absent a good deal whatever the justification and an employer could hold such facts against an employee. But we perceive considerable cogency in the General Counsel's conten- tion that the absenteeism as a factor in the discharge was more in the nature of an afterthought than a viable ele- ment in the discharge. Neither Morehead nor any other supervisor had admonished Saldana about his absences or stated that the absences could not be tolerated. The ex- tent of Morehead's comments to Saldana had been, as Morehead testified, that he had told Saldana that when he was absent, it involved having to get someone to take his place. This was undoubtedly true but the comment was surely not an admonishment of possible discharge. Moreover, when he discharged Saldana, Morehead ad- mittedly made no mention, when asked for the reason for the discharge, of absenteeism or untrustworthiness. The reason stated was that Saldana had been absent on February 13 and had not brought a doctor's slip on February 14 as required by the company rule, aforemen- tioned. Further, when the instant charge was under in- vestigation by the Board, Morehead, again, admits that the sole reason he gave for the discharge was the absence on February 13 without subsequent production of a doc- tor's slip. There was no mention of the past absenteeism or unreliability or untrustworthiness as factors in the discharge. 13 THE DISCHARGE OF SALDANA February 13 was a Monday. Saldana testified that he had a high fever and diarrhea on the preceding Saturday. He telephoned his doctor, Ralph H. Cameron, M.D., on Monday and discussed his condition with him. Upon being asked, Saldana told his doctor that he had been tak- ing Pepto-Bismol and, although his condition was im- proved, he felt weak. The doctor advised him to continue the Pepto-Bismol and, if he did not feel better on the fol- lowing morning, to come to the doctor's office.14 Saldana's wife admittedly telephoned Morehead at the plant on the morning of February 13 and reported that her husband was ill and would not be at work. Morehead thanked her for calling. On Tuesday, February 14, Saldana reported for work before 8 a.m., the starting time. He states that McLaughlin, a fellow union committeeman, called him aside and told him that he had a call from the union attor- ney, Miller, who had been trying to contact Saldana to come to Miller's office to sign the civil rights discrimina- tion charge against Respondent.15 At this point, accord- ing to Saldana, Mendiola, the other union committeeman, motioned to Saldana and the latter observed Morehead 12 As an hourly paid employee, Saldana, of course, was not paid when he did not work This, plus his medical expenses, was certainly no incen- tive for, unnecessary absence. 13 No employee had ever been discharged by Morehead for absentee- ism, including an employee with a higher absenteeism record than Saldana in 1967 and who also had had a substantially high rate in 1966. No ex- tenuating circumstances appear in the record regarding the tolerated ab- senteeism of this other employee. 14 Saldana had testified that he telephoned the doctor on Saturday and told him he "had been sick over the weekend." The Saturday reference is obviously an error since the content of the conversation , that Saldana told the doctor that he "had been sick over the weekend " fixes the conversa- tion as having taken place after the weekend. Any doubt as to the time of the telephone conversation is dispelled by the testimony of Dr Cameron who testified, unequivocally, that his conversation with Saldana on the telephone took place on Monday , February 13. Dr. Cameron, moreover, corroborates Saldana as to the substance of their conversation. In the Examiner's opinion, the doctor was the sole disinterested witness in the entire case and his testimony is credited As will appear at a later point, ft, Examiner regards the doctor's testimony as of crucial importance. 15 The charge dealt with the notice banning the speaking of Spanish. Saldana, of course, had not been at work the day before and he had no telephone at his home but had recourse to either a public or a neighbor's telephone to make calls. 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing at the door, assertedly, "listening." 16 Saldana and McLaughlin then ceased their conversation and Sal- dana went over and punched in his timecard. Francis said that they would.be dumping cars that day so Saldana got the key to the control room from the office and went to the control room and started working. According to Saldana, he had been at work somewhat less than an hour when Francis came to him and said, "Since we made Gilbert go after, all the way to Robstown after a doctor's excuse, I think it's only fair that ... we ask you for one, too."" Saldana replied that he did not see a doctor and that was why he had not brought in a note from the doctor. He said, however, that he had con- sulted the doctor by telephone and the doctor "knows that I was sick." Saldana said that, "if you all are going to require me to bring a doctor's excuse, I will be more than glad to get you one." At that point, a breakdown occurred in the car dump and Saldana called Morehead on the in- tercom to report the breakdown and to ask that a main- tenance man be sent to make the repair. Francis had left and was not present during the Saldana-Morehead con- versation. The maintenance man arrived and started the repair work. A few minutes later employee Benavides ap- peared and told Saldana that Morehead wanted him in the office and Benavides was to take Saldana's place. Saldana went to the office. In addition to Morehead, there were several men in the office who were discussing the repair of a pipeline. When Morehead saw Saldana he handed him a check marked "Final Check." Because of the presence of the other men, Saldana stood aside and waited for them to leave. When the men left, Saldana asked Morehead what the check was for. Morehead said, "well, you have been terminated." Saldana asked for the reason, and Morehead stated, "I am firing you because you didn't get a doctor's slip and you know you broke a company rule [by not furnishing a doctor's slip]."18 Saldana said that he had offered to bring a doctor's cer- tificate and he said "give me a chance to go get a doctor's slip; Iwill go over there and get you a doctor's slip." The employee said, although he did not see the doctor, the doctor "knows I was sick because I called him." More- head repeated that Saldana had broken a company rule "and that is the reason we are letting you go."19 Saldana then left the plant and went to his doctor's of- fice in Robstown.20 He explained his predicament to Dr. Cameron. The doctor took one of his prescription blanks on which was printed his name , address, and telephone number and wrote in longhand: FOR [Printed]: Juan Saldana Jr., 2/14/67 [Longhand] This is to certify the above was ill and unable to work 2/13/67 [Longhand] R. H. Cameron M. D. [Signature] At the hearing, both Saldana and Dr. Cameron identified the above document.21 Saldana states that he then went to "my lawyer's of- fice" in Corpus Christi22 and telephoned Morehead at the plant. Saldana told Morehead that he had gone to Rob- stown and had secured a doctor's note; he asked More- head if he wanted to see the note. Morehead said that he would not accept a doctor's note "any more." Employee Canales was called as a witness by the General Counsel. The latter suggested that the witness would be more "comfortable" speaking in Spanish rather than in English. The Examiner, in English, asked Canales whether he would be at ease speaking in English and the witness answered, in English, that he would prefer to speak in Spanish. The official interpreter was thereafter used. The witness, however, in the early stages of his ex amination answered several questions in good English rather than iq Spanish. On cross-examination Canales testified that he understood English "well."23 The Ex- aminer believes that Canales had a good comprehension of English and that he spoke English and, in retrospect, that his entire examination probably could have been con- ducted in English. Canales testified that he had worked at the plant a total of 4-1/2 years. He was the pitman on the car dump, the operation on which Saldana was engaged on the morning of his discharge. Canales testified that on February 14, between 8:15 and 9 a.m., Francis came to Saldana and said that Saldana would have to furnish an excuse from the doctor since this had been required of Gilbert Rodriguez when he was absent. Saldana, according to Canales, replied that, although he had not seen the doc- tor, he had called him. The car dump then broke down and Canales heard Saldana call Morehead on the inter- com. Canales states that he heard Saldana tell Morehead that Francis had just been there and asked Saldana for a doctor's note. The next thing Canales heard Saldana say was, "if he wanted me...." and, at that point, Canales went outside to the car dump and heard no more of the conversation.24 19 In their testimony , Morehead and Francis say nothing about this aspect of reference to the civil rights charge . As we shall see, Francis testified that when Saldana reported for work he asked him for a doctor's slip. Francis also testified as to Saldana's answer. Morehead testified that he was present and overheard the conversation between Francis and Sal- dana. Both Morehead and Francis testified that Mendiola was in the vicinity but make no reference to McLaughlin . Neither Mendiola, McLaughlin, or Miller testified at the hearing. 11 Gilbert Rodriguez, an employee, had been absent on a day about 2 months before February 14, 1967. When Rodriguez returned to the plant he was told that he would not be permitted to resume work until he brought a doctor's certificate. Rodriguez, then went to Saldana, who was at work, and reported the situation to him. Saldana advised Rodriguez to get the doctor's certificate. Rodriguez returned to Robstown, a nearby community where the doctor and he lived, and subsequently returned with the doctor's note and was allowed to go to work. 11 That the reason given by Morehead to Saldana as the reason for the latter's discharge was as stated above is about the only aspect of the discharge upon which Saldana, Morehead, and Francis agree. Thus, Morehead testified , "I told him I was firing him because he did not bring in a doctor's slip." 19 The discharge occurred at approximately 9:30 a.m., February 14. 20 As indicated, Robstown is in the general Corpus Christi area. A, telephone call from the Corpus Christi plant to Robstown costs 20 cents, which is some indication of the distance. 21 G.C. Exh. 5. 22 We believe that the reference is to the office of attorney Miller who was at that time the Union's attorney. 22 The relevancy of the .foregoing is that Canales testified to having heard certain conversations between Salda na and Francis and Saldana and Morehead, which were in English. 24 Saldana testified that the only subject of conversation between him- self and Morehead on the intercom was the matter of the breakdown of the dump. PRODUCERS GRAIN CORPORATION 473 Morehead and Francis gave a different version of the discharge circumstances. When Saldana came to work on the 14th, Francis states that he asked him if he had a doc- tor's note. Saldana said no, but he had been to a doctor. Francis then lined up the work and made no further com- ment to Saldana. Morehead testified that he was standing nearby and heard the above conversation as described by Francis. Later, when Francis was in the office, Morehead told him to ask Saldana for the name of the doctor so that "we can call the doctor and verify it" and save Saldana a trip back to the doctor for a note. Francis then went to the car dump area where Saldana was at work and asked him for the name of the doctor so he could be called on the telephone to verify Saldana's statement. According to Francis, Saldana said, at that point, "no, he had not been to the doctor" and that was all. Francis then headed back to the office. Meanwhile, according to Morehead, Sal- dana called him and reported about the car dump break- down. Saldana further said, "Bill Francis was down here and asked for the doctor's name so you all could call him; there's no doctor's name because I did not go to the doc- tor." Saldana then changed the subject and started discussing a matter relating to dumping the freight cars. Upon Francis' return to the office he reported to More- head that Saldana said he had not been to a doctor and therefore there was no doctor to call. Morehead said that he had just talked to Saldana on the intercom and Saldana had told him the same thing. Morehead states that he then talked to Strader and Tomlinson and Attorney Johnson. It was determined to discharge Saldana.25 Morehead, continuing his version, had Saldana brought to his office for his final check. Morehead told Saldana he would have to discharge him. When asked the reason, Morehead said "because he did not bring a doctor's slip." Saldana said that other employees did not have to have a doctor's slip and he did not see why he should. Saldana then left. Morehead states and Francis affirms that the latter was also present. Francis corroborates Morehead. Both witnesses state that at no time on that morning did Saldana mention that he had telephoned a doctor when ill or offer to secure a note from a doctor. Later, according to Morehead, around 1 p.m. on that day, February 14, Saldana telephoned him and "He told me he had forgot," that he "had called the doctor and he now had a certificate" and "he wanted to know if I would accept it and I told him, no." Relative to the sharp credibility conflict, Respondent points to certain ancillary evidentiary matters and these have received the Examiner's careful attention. In an affidavit given to the Board agent investigating the instant charge, Saldana states that on February 13 he "went to see my doctor, Dr. Cameron...." Saldana testified that he did not make the foregoing statement but that he was misunderstood by the reporter or the Board agent during his interview and had called the inaccuracy to the attention of the Board agent. Under all the circum- stances, the explanation of Saldana impresses the Ex- aminer as possible but less than convincing. Respondent also points out that under the contract grievance procedure the union attorney, Miller, filed an appeal from Saldana's discharge with Plant Manager Strader. Saldana was aware of the matter. Miller's appeal, dated February 15, 1967, states that Saldana was ill on February 11, 12, 13 and that the latter's wife so notified Morehead on the 13th. No mention is made of any contact between Sal- dana and a doctor during the illness. This omission has received our attention but we do not regard it as diaposi- tive in itself. Finally, Respondent has focused attention to the charge filed with the Equal Employment Opportu- nity Commission by Saldana regarding the company notice forbidding employees to converse in Spanish. The i date on the charge and the jurat thereon by a notary public (Miller, the union attorney, was the notary) is February 13, 1967. In its brief, Respondent comments, "This was the day when Mr. Saldana claims he was sick and unable to go to work." Saldana testified that the charge was prepared on the 13th but that because of his illness he did not actually sign until the 14th.26 We note that the charge and the jurat, including the dates, were typewritten, except, of course, for Saldana's and the no- tary's signatures. It is possible and not inherently im- plausible that the attorney (and notary) had the document typed on the 13th expecting Saldana to sign that day and did not change the date to the 14th, since, at the time, there was no significance as to whether the charge was signed and sworn to on the 13th or on the 14th. However, the matter has certainly received our consideration on the question of Saldana's credibility.27 In resolving the credibility conflict relating to the events surrounding the discharge on February 14, the Examiner regards the testimony of Dr. Cameron as of critical importance. This view is not premised on any be- lief that a physician is per se a disinterested and credible witness. However, in the instant case, we regard the doc- tor, a general practitioner in the area, as the sole disin- terested witness as between the General Counsel's and the Respondent's witnesses and he impressed us as a credible witness. Dr. Cameron testified that Saldana did telephone him on February 13 and discussed his illness over the weekend, including the fact that at the time of the call Sal- dana said that he was still weak but was feeling better. The symptoms and medication were also discussed, ac- cording to the doctor, and he advised Saldana that if he 25 Morehead did not testify as to what he told his superiors and the com- pany attorney. Nor did any of these individuals testify. 26 A we have seen, Saldana had testified that on the 14th, McLaughlin had told him that Miller had been trying to reach him and that Miller had the charge ready for Saldana's signature. There is no corroboration from either Miller or McLaughlin who were not called as witnesses. 27 Since the Respondent, when it discharged Saldana, was admittedly unaware of the date on the charge, this factor was not an element in the discharge . The relevancy of the date and Saldana's explanation is with respect to the credibility of the witness generally. As to the fact that on March 22, Saldana filed another charge with the Equal Employment Op- portunity Commission stating that he had been discharged because he had filed a charge of discrimination with the Commission against Respondent, we note that the charge with the Board had been filed on February 27, 1967. We do not regard the charge filed with the two agencies as mutually inconsistent. Moreover the Company's rule against speaking Spanish while at work, which was the basis of the EEOC charge, also was a condi- tion of employment and a protest on that score was cognizable as pro- tected activity under the NLRA As noted previously, Saldana testified that Morehead was standing in the door listening on February 14 when McLaughlin told Saldana that Miller had the civil rights charge ready for Saldana's signature . Morehead testified that he was present when Saldana came to work that morning and Morehead testified to hearing the conver- sation between Francis and Saldana at the time. Morehead neither af- firmed nor denied hearing any conversation between Saldana and McLaughlin. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not feel better he should come to the doctor's office the next day. Further, on February 14, Dr. Cameron testified that he wrote out the certificate for Saldana'28 stating that Saldana was ill and unable to work on Februa- ry 13. The doctor stated that he wrote the certificate because he knew Saldana as a patient over a period of time and considered him reliable and believable regarding the subject matter of their February 13 conversation con- cerning the patient's illness. The fact that Saldana, on February 13, telephoned the doctor and consulted him regarding his illness cor- roborates Saldana's testimony and is consistent with his version of the events on February 14 when he was discharged. The Examiner is not persuaded that the credited Saldana-Dr. Cameron telephone consultation on February 13 is reasonably reconcilable with the testimony of Morehead and Francis despite the careful scrutiny that the entire evidentiary picture required of Saldana's testimony concerning the events of the 14th. Elsewhere in the record, Morehead testified, in effect, that Saldana was a glib and articulate individual, who, when he was pinned down on some excuse , always came up with another explanation. This and other evidence in the record and our observation of Saldana as a witness confirm our own impression that from the standpoint of mental agility , articulateness , resourcefulness, and general capability in day-to-day supervisor and employee relations , Saldana was well above the average employee in the plant. These qualities were no doubt factors in his role as organizer of the Union in the plant and his election by his fellow employees as president of the local union, member of the negotiation and grievance committee, and sole signatory in the original contract with Respondent on behalf of the local union. Despite the foregoing characteristics , Respondent's witnesses' testimony is that on February 14, when Sal- dana was asked for the name of the doctor that he asser- tedly said he had visited, Saldana said nothing more than that he not only did not have a doctor's certificate but had not been to a doctor and there was no doctor to telephone (as Morehead and Francis allegedly proposed to do), re- garding Saldana's claimed illness . In short, the resource- ful and articulate Saldana offered nothing but a complete blank regarding his claimed illness. At no time prior to his discharge on the 14th or at the time of his discharge, did Saldana, according to Respondent 's witnesses , mention his telephonic consultation with Dr. Cameron on the 13th or otherwise. We find the foregoing picture incomprehensible in the light of our appraisal of Saldana , aforestated, and in the light of the fact that on February 13 Saldana did consult Dr. Cameron. Even an employee possessing the lowest cerebration and limited ability to articulate, in our opinion, when being pressed , as was Saldana, for some medical verification for his claimed illness, would cer- tainly mention that he had in fact consulted a named doc- tor and had received medical advice from the physician on February 13, instead of simply stating that he had no medical certificate, had not seen a doctor, and that there was no doctor involved who could be called for verifica- tion of the illness. It also seems reasonable to believe that, since Saldana at the time was fully aware of the Rodriguez incident, previously described, and had been a participant therein, and was reminded of the Rodriguez matter by Francis on February 14, Saldana would not only have mentioned his consultation with Dr. Cameron but would have offered, as he testified, to secure a note from the doctor verifying the consultation, as Rodriguez had done when so advised by Saldana and as requested by Respondent. The soundness of the foregoing observations, following from the premise that Saldana did in fact consult Dr. Cameron on February 13, is so compelling that we have given the utmost attention to our factual finding that established the premise. The prime implication of Respondent's version of events on the 14th although not stated in so many words, is that the doctor was not telling the truth when he testified unequivocally regarding the telephone consultation with Saldana on February 13. Thus, it is our opinion that by implication, at least, Respondent is saying that the reason that Saldana, on the 14th, neither asserted that he had called the doctor on the 13th or any other time and did not tell the Company the name of the doctor so that the Company could telephone the latter for verification of the illness, was because Sal- dana had neither seen nor talked to a doctor. If such was not the fact, the implication is that Saldana would have surely mentioned that he had consulted Dr. Cameron and would have furnished the Respondent his name to call. Further affirmation that Respondent's version of events impliedly attacks Dr. Cameron's credibility is found in the focus placed by Respondent on the fact that the charge filed with the EEOC by Saldana was dated February 13. Respondent's brief notes that "This was the day when Saldana claims he was sick," the implication being that Saldana was not sick and had no discussion with the doctor regarding sickness on that day as had been testified to by the doctor and Saldana. Finally, the implication of Morehead's testimony that it was not until after his discharge, about 1 p.m., that Saldana advised him that he had forgotten that he had previously con- sulted his doctor and now had a certificate of his illness, is that the entire business of any contact between Saldana and his doctor was ex post facto and a contrived af- terthought on the part of Saldana, with the connivance of Dr. Cameron. Despite serious consideration of Dr. Cameron's credi- bility, the Examiner is not persuaded that he should not be credited and we do credit his testimony. We find Sal- dana's testimony essentially consistent with, and cor- roborated crucially by, that of the doctor and we credit Saldana in that we believe that he did state to his super- visor that he had consulted his doctor by telephone on February 13 and that he offered, prior to his discharge, to secure a doctor's certificate. The factual situation, therefore, is that on February 14, despite Saldana's wife call to Respondent, on the morning of the 13th, that her husband was ill and unable to come to work, and Saldana's statement to Respondent on the 14th, prior to his discharge, that he had consulted his doc- tor on the telephone regarding his illness and would secure a doctor's certificate in verification thereof, Respondent discharged Saldana. And the reason given to Saldana for the discharge at the time was admittedly and solely "because he did not bring in a doctor's slip." Further, and again admittedly, at least as to the offer to present, Respondent, a few hours after the discharge, 28 G.C. Exh. 5. PRODUCERS GRAIN CORPORATION 475 refused to consider or to allow Saldana to present a doc- tor's certificate, dated February 14, attesting to his illness on February 13. The alleged proximate and precipitating cause of the discharge was as stated at the time, the fact that after an absence on February 13, Saldana, prior to his discharge on the 14th, did not have a doctor's certificate on Februa- ry 14. As we have seen, a company rule stated that an em- ployee "absent due to illness will be required to furnish a doctor's certificate." It is apparent that, in one sense, Respondent applied this rule strictly to Saldana, but, in another sense, it applied the rule beyond its own terms. While the rule requires a doctor's certificate, it•says nothing to the effect that the employee must have visited the doctor or must have been visited by a doctor. Nothing is specified as to the content of the certificate. Nor does the rule specify when the certificate must be furnished or that it may not be furnished after the employee's return to work. Quite apparently, therefore, in ignoring Saldana's offer to get a certificate verifying that he had talked with his doctor on February 13, and in refusing to look at the certificate after Saldana had informed Morehead at 1 p.m. on February 14 that he had the certificate, Respondent was doing a good deal more than giving a literal in- terpretation to its rule. Respondent was, in fact, not ap- plying its rule according to the letter of the rule but was apparently imposing additional requirements and was ignoring Saldana's offer to comply with the rule as writ- ten. The evidence indicates that in instances involving em- ployees, other than Saldana, Respondent had been highly flexible in its administration of the rule. Morehead ad- mitted that it was a "pretty watered down rule." Customarily, Respondent would accept from an em- ployee, as a compliance with the rule, either a doctor's certificate; an appointment card showing a scheduled ap- pointment with a doctor; a receipt of payment from a doc- tor; or some other "proof" ("some kind of proof' in Morehead's words). Accepting an appointment card showing a scheduled appointment with a doctor as proof of illness is certainly a mild standard of compliance with Respondent's rule. Obviously the appointment is no proof that the appoint- ment was kept or that it was not postponed or canceled. A dated written receipt from a doctor, showing that a pa- tient paid the doctor $6, establishes little more than that on a particular date the money was paid - possibly on ac- count or otherwise.29 While Respondent's very flexible standards of com- pliance with its rule are its prerogative, there is a contrast between such standards and Respondent's failure and refusal to allow Saldana to secure a doctor's certificate when he offered to do so on February 14 or to consider such a certificate when the employee did secure it on February 14. Other evidence in the record also illustrates the less than rigid administration of the company rule regarding absence due to illness and the furnishing of a doctor's cer- tificate. Employee Canales was working on Saturday af- ternoon in January 1967. He informed Morehead that he was not feeling well as the result of something he ate at_ noon. He was allowed to leave. On Monday Canales returned to work without being asked for a doctor's cer- tificate. Employee Cruz was off sick one morning. He consulted a Dr. Gibson by telephone. He returned to work that afternoon and Morehead asked if he had a doc- tor's certificate. Cruz said, no, but evidently mentioned that he had consulted Dr. Gibson in Robstown. More- head asked Cruz if he wanted to go and get a certificate or did he want the Company to telephone the doctor aC Cruz' expense. Cruze opted for the latter and was - al- lowed to work. Francis testified that he thereafter tried- twice to reach the doctor on the telephone but was unsuc- cessful and he abandoned the effort. This was the end of the entire incident. Emplcvee Rodriguez, in 1967, was - absent on several occasions because of illness. On one occasion, upon his return, he was asked for a doctor's cer- tificate. He produced a receipt of payment and this was - accepted. On another occasion, apparently, upon his return, nothing was asked for. There was also the occa- sion when he was not permitted to return until he - produced a doctor's certificate. Rodriguez was allowed, however, to return to his doctor and subsequently, when he returned with the certificate, he resumed his job. On ine occasion, employee McLaughlin was supposed to work from 6 p.m. to 10 p.m.-and 11 p.m. to 3 a.m. He telephoned the plant shortly before 6 p.m. and said he was ill. Francis prevailed upon him to come in at 11 p.m. and McLaughlin worked from 11 to 3. McLaughlin was not required to produce a doctor's certificate because, ac- cording to Morehead, he could see that McLaughlin was sick when he did report for work at I 1 p.m. - Notwithstanding the somewhat spotty administration of the rule requiring a doctor's certificate, there would be little room for scrutinization if Respondent had refused to allow Saldana to work or to continue to work on Februa- ry 14 until he returned with a doctor's certificate. Moreover, aside from the fact that Respondent could have imposed this requirement on Saldana, as it had done in the case of Rodriguez earlier, it further appears that Saldana had expressed a willingness to secure a cer- tificate if that was what Respondent was requiring of him. Respondent ignored these possibilities and even refused to consider the certificate that Saldana did in fact obtain and offer on February 14. The evidence persuades us that Respondent chose to rid itself of Saldana on the basis of a rigid, disparate, and superliteral application of a rule, imprecise by its -terms and by the history of its administration. And Respondent told Saldana that the reason for his discharge was simply because he had not brought in a doctor's certificate. For reasons previously stated, we do not believe that Sal- dana's past absenteeism was a reason for his discharge. Basically, the evidence warrants the conclusion, in our opinion, that a history of friction between Saldana, an ac- tive leader of the local union in the plant, and Morehead, made Saldana's continuance as an employee undesirable to Morehead. We believe that Morehead did regard Sal- dana as an employee that he would prefer not to have in his plant and that he believed that the plant would be better off without Saldana. The friction between the two ss Such a printed receipt, G C. Exh. 8, shows the printed name of the under appropriate printed headings, aforedescribed, shows that on doctor, "R.V. St. Johns, M.D.," address, and telephone. The words, February 4, 1967, Gilbert Rodriguez paid $6 and under the printed doe- "Received of' and "For professional services " and "This Payment" are tor's name and next to "By" are the initials "R. W." in longhand. The im- printed, as is the word "By" at the bottom. The longhand on the receipt tials probably being those of a receptionist or nurse in the doctor's office. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD men was predominantly in a context of Saldana's union activities, including the aspect of those union activities pertaining to conditions of employment in which Saldana also invoked civil rights facets. In this overall context of Saldana's union activities there was intermixed, in a lesser degree, friction on a man-to-man basis, as, for in- stance, the prior occasion when Saldana had told More- head to prove that Saldana had promised to do something when Saldana later failed to abide by his promise. Such matters admittedly left a bad taste in Morehead regarding Saldana and was part of the amalgam of ill will between them. The discharge was the result of seizing upon the oc- casion presented by the events of February 14 and the reason given, in the light of all the circumstances, that Saldana had failed to present a doctor's certificate, was pretextuous. We find the discharge to have been in viola- tion of Section 8(a)(1) and (3) of the Act. ADDENDUM In its brief, Respondent contends ably that Saldana's discharge was not due to his union activity. It is then stated that the propriety of the discharge should properly be determined by an arbitrator under the ' contract- grievance procedure. If this matter was one of original impression, it would be the Examiner's opinion that the propriety of Saldana's discharge, assertedly because of 1 day's absence and failure to have a doctor's certificate, was eminently an issue to be processed through the grievance-arbitration procedure of the contract. A grievance was in fact filed and processed up to, and including, the appointment of an arbitrator on March 25, 1967. The Union canceled the arbitration on May 8, 1967, explaining that when it had filed its demand for arbitration, it had also filed a charge with the Board regarding the same subject and it was therefore canceling the arbitration because it had "just learned" that the Board would proceed;on the case.30 The purpose and policy of the Act, as the Examiner un- derstands it, and the purpose of the panoply of its election procedure and proscriptions against interference and dis- crimination and the requirement of good-faith bargaining is to encourage "the practice and procedure of collective bargaining" so that, when a labor organization is freely selected by the employees, it may negotiate with the em- ployer a contract or charter to govern the parties thereto in their exercise of industrial democracy.31 Congress, in' the Act, has declared "that it is the policy of the United States" that industrial peace and the general welfare can best be secured through collective bargaining and en- couraging employers and employees "to reach and main- tain agreements ... and to make all reasonable efforts to settle their differences by mutual agreement ... or by such methods as may be provided for in any applicable agreement for the settlement of disputes."33 The optimum result to be expected through the Act and its machinery and optimum effectuation of the Act's policy is a mutually agreed-upon contract, with a grievance and arbitration provision and a no-strike clause. Thus, as stated by the Supreme Court, "Complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration agreement being the `quid pro quo' for the agreement not to strike. . . ." 33 The foregoing principles, in our opinion, are unam- biguous. Equally clear and sound is an even older and well-established principle of law that parties who enter the enclave of an organization and of an organizational relationship and erect and subscribe to a charter or agree- ment for the internal administration of their relationship should first exhaust their internal administrative remedies before resorting to an outside tribunal. In the instant case, if it was the Examiner's function to issue policy decisions, he would have adopted the posi- tion that no complaint should issue until the Union had exhausted its contractual administrative remedy by resorting to arbitration. The complaint having issued, it would be our proposed position that the Board not adju- dicate the matter until the arbitration process of the con- tract had been utilized. At such time as an arbitration award issued,.we would apply the Spielberg case stan- dards, supra, and also the Raytheon principle.34 If the foregoing policy was adopted, in such cases, the key point thereafter would be at the precomplaint stage, an area where it is well established that the refusal to issue a complaint is an exercise of discretion unreviewa- ble by the courts.35 In fact, of course, the advocated pol- icy is less than an absolute refusal to issue a complaint since it contemplates merely that the parties first exhaust their contractual grievance-arbitration procedure. Thereafter, depending upon the fairness and adequacy of the arbitral hearing, a complaint would, or would not, issue in accordance with Spielberg and Raytheon standards. It is obvious of course that it is a violation of the Act to discriminate against an employee because of his union ac- tivities. Equally clear is the Board's power to act in such circumstances notwithstanding the existence of other means of adjustment or prevention. 36 But the issue is not power but discretion and policy. Thus, in the Spielberg case the complaint alleged a discriminatory refusal to reinstate certain strikers because of their union activity. 80 Notwithstanding that the General Counsel was willing to proceed, there is little doubt in our mind that the Union could nevertheless have withdrawn its charge before the Board and proceeded to arbitration. It is also apparent that the Union would have proceeded to arbitration if the Board had not asserted initial jurisdiction. If the Union proceeded to ar- bitration but refused to withdraw its charge with the Board, it is likely that the General Counsel would have suspended further action pending the result of the arbitration . If the latter was found to meet the requirements of Spielberg (Spielberg Manufacturing Company, 112 NLRB 1080), the General Counsel then, presumably, would have refused to issue a com- plaint. 91 Section 1, NLRA. 32 Section 201(a) and (b), NLRA. 33 United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578. And, as further stated by the Court, "The collective agreement covers the whole employment relationship . It calls into being a new common law-the common law of a particular industry or of a par- ticular plant" and the arbitration procedure of the contract is an essential element of evoking the common law of the plant since it "is part and parcel of the collective bargaining process itself." (/dem at 579 and 578.) 34 Raytheon Company, 140 NLRB 883. 11 Carl Jacobsen v. N.L.R.B., 120 F.2d 96 (C.A. 2); Lewis Food Com- pany v. N.L.R.B., 357 U.S . 10, 15-16; Contractors Association of Philadelphia v. N.L.R.B., 295 F.2d 526 (C.A._ 3), cert. denied 369 U.S. 813 and cases cited. 36 Section 10(a) of the Act. PRODUCERS GRAIN CORPORATION If proved, such conduct would be a violation of the Act.37 The Board dismissed the complaint since it accorded full faith and credit to the arbitration process and award. We do not believe that the Board's policy of deference to the arbitration process in appropriate circumstances is, or should be, based upon a principle of estoppel against a private party who, having participated in arbitration of a claim, will then-- find that the Board considers Turn estopped from having the Board litigate and adjudicate what otherwise is or might be an unfair labor practice. The Board's recognition of the arbitration procedure -)stems from the view that it is part of the collective-bar- gaining process and voluntarily erected by the parties themselves as the method for achieving industrial peace and stability and developing the common law of the plant.38 Accordingly, we perceive no sound reason why this principle should not be equally applicable when a grievance arbitration procedure exists by voluntary con- tractual agreement, irrespective of whether the arbitra- tion has or has not taken place. The principle dictates, we believe, that, in the latter situation, the Board should require resort to the arbitration process and exhaustion of that remedy, before considering the matter in the light of the Spielberg standards. It scarcely encourages or effec- tuates the cited Federal policy regarding contractual ar- bitration to permit bypassing the arbitral process and lodging the matter with the Board. 39 In fact, by coun- tenancing such bypassing, the Board is, in effect, making a Federal policy subject to the unilateral determination of one party to a contract. Finally, the Examiner can not be unmindful of the many Section 8(a)(5) cases, involving protracted and agonizing, and often bitter, contract negotiations in which a union was seeking a grievance arbitration provision and the em- ployer was refusing or grudgingly conceding that he would agree to a grievance clause with the final step of appeal being the company president. It is therefore dif- ficult for us not to place great emphasis on the achieve- ment of a union and employer who have agreed to a grievance third party arbitration contract. Encouraging and permitting the bypassing of such an arbitral process, in our opinion, is not only frustrating Federal policy but tends to confine our industrial democracy to perpetual immaturity.40 39 The Trial Examiner, in fact, found a violation. The employer asserted that its action was due to acts of misconduct by the individuals in the course of the stake. 31 "If complete effectuation of the Federal policy [favoring and en- couraging arbitration] is to be achieved, we firmly believe that the Board, which is entrusted with the administration of one of the many facets of na- tional labor policy, should give hospitable acceptance to the arbitral process as `part and parcel of the collective bargaining process itself.' [United Steelworkers ofAmerica v. Warriors & Gulf Navigation Co, 363 U.S. 574, 678] and voluntarily withhold its undoubted authority to adju- dicate alleged unfair labor practices charges involving the same subject matter, unless it clearly appears that the arbitration proceedings were tainted by fraud, collusion, unfairness, or procedural irregularities or that the award was clearly repugnant to the purposes and policies of the Act." International Harvester Co., Indianapolis Works, 138 NLRB 923, 927, enfd. sub nom. Ramsey v. N.L.R.B., 327 F 2d 784 (C.A. 7). The Supreme Court has approved the Board's policy of refusing to exercise its jurisdic- tion over unfair labor practices "where, in its judgment federal labor pol- icy would best be served by leaving the parties to other processes of the law." Smith v. Evening News Association, 371 U.S. 195, 198, fn 6 39 The policy advocated, while of general application, could and should, CONCLUSIONS OF LAW 477 Respondent, by discharging employee Saldana because of its hostility toward, and irritation because of, Saldana's union activities , has violated Section 8 (a)(1) and (3) of the Act. THE REMEDY Consistent with the finding of a violation of the Act as described, it will be recommended that Saldana be rein- stated to his former or substantially equivalent job, with his seniority and other rights and privileges unimpaired. It will also be recommended that Saldana be made whole for any loss of pay incurred by reason of his discharge, with net pay computed on a quarterly basis with interest at 6 percent.41 Also recommended is that Respondent cease and desist from the conduct found. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, it is recommended that Respondent, its officers , agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging legitimate union activities of its em- ployees that are within the protection of Section 7 of the Act by discharging an employee for engaging in such ac- tivity. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Juan F. Saldana, Jr., immediate and full rein- statement to his former or substantially equivalent job without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any net loss of pay he may have suffered by reason of his discharge as set forth in the section of this Decision enti- tled "The Remedy." ' (b) Preserve an-o, upon request, make available to the Board or its agents , all payroll and other records necessa- ry to compute the earnings of Saldana if he had not been discharged. we believe, bear the qualification that in unusual circumstances where the policy of the Act would otherwise be impaired, the Board could assume jurisdiction prior to the claimant's exhaustion of contractual arbitration remedies Thus , if the evidence indicated a complete or substantial break- down of labor management relations in a plant and evidence of a policy to destroy the Union and a rejection of the collective- bargaining principle, despite the existence of a contract , the Board could assume jurisdiction in- itially if the matter was placed before it. We perceive no such situation in the instant case. 41 The Board consistently and periodically exhorts its staff and all mem- bers of the agency to endeavor to settle cases. There appear to be two basic reasons for this emphasis. One is the unprecedented caseload of the Board and the second is the saving in time and money for all concerned if settlement supplants litigation In view of such considerations , we find it .difficult to understand the failure to encourage the parties to use their built-in contract procedure of arbitration as a settlement method by requiring the exhaustion of that procedure before resort to the Board If arbitrated, as provided by contract, many such matters would never reach the Board Such cases as come to the Board despite the use of arbitration would be subject to the Spielberg standards. 41 F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heat- ing Co., 138 NLRB 716. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its Corpus Christi, Texas, plant copies of the attached notice marked "Appendix." 42 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter , in conspicuous places, in- cluding 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. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.43 42 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 Ap- peals Enforcing an Order" shall be substituted for the wordds "a Decision and Order." 42 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 23 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES pany, the Union, and the General Counsel of the Board were represented by their attorneys, and at which wit- nesses testified and were examined and cross-examined and evidence was received, it has been found by the Trial Examiner, who heard the witnesses and considered the evidence, that the discharge of Juan F. Saldana, Jr., on February 14, 1967, was in violation of the National Labor Relations Act. Accordingly , in accordance with the Recommended Order of the Trial Examiner, we notify you that: WE WILL NOT discourage legitimate union activi- ties of our employees by discharging an employee because he has engaged in such activities.' WE WILL pay to Juan F. Saldana, Jr., the wages he has lost as the result of his discharge on February 14, 1967, and WE WILL reinstate this employee to his former or substantially equivalent job without loss of his seniority or other rights. WE WILL NOT in any like or related manner inter- fere with the exercise by employees of their rights under Section 7 of the National Labor Relations Act. Dated By PRODUCERS GRAIN CORPORATION (Employer) (Representative) (Title) Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: As the result of a hearing before a Trial Examiner of the National Labor Relations Board, at which the Com- 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4721.