Julian A. McDermott Corp.

JULIAN A. McDERMOTT CORPORATION 491 Julian A. McDermott Corporation and Plastic, TRIAL EXAMINER'S DECISION Moulders & Novelty Workers Union , Local 132, International Ladies Garment Workers Union, AFL-CIO. Case 29-CA-1669 July 7, 1970 DECISION AND ORDER BY MEMBERS FANNING. MCCULLOCH, AND BROWN On January 7, 1970, Trial Examiner Samuel M Singer 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 and a sup- porting brief, and the General Counsel filed a brief in reply thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Trial Examiner 's Decision , the exceptions and briefs, and the entire record in the case, and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner.' 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 and hereby orders that the Respondent, Julian A. McDermott Corporation, Ridgewood, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' The Respondent 's exceptions , in large part , are directed to the credi- bility findings made by the Trial Examiner It is the Board's established pol- icy not to overrule a Trial Examiner 's resolutions as to credibility unless, as is not the case here , a clear preponderance of all the relevant evidence con- vinces us that they are incorrect Standard Dry Wall Pruduus, Inc , 91 NLRB 544 , enfd 188 F 2d 362 (C A 3) As to the Respondent 's assertion that it lacked knowledge of Mary Suno 's activities on behalf of the Union, we find , in accordance with the credibility resolutions of the trial Ex- aminer, that Company President Julian McDermott personally expressed to Sumo his suspicion that she was providing the Union with the material used in its organizing campaign SAMUEL M. SINGER, Trial Examiner: This proceeding was tried before me in Brooklyn, New York, on September 23-October 1, pursuant to a charge filed on May 19 and complaint issued on June 30, 1969 ' The issue litigated was whether Respondent violated Section 8(a)(1) and (3) of the Act by discriminatorily discharging and not rein- stating an employee on account of her union mem- bership and protected concerted activity in order to discourage union membership. All parties were represented by counsel and were afforded full opportunity to be heard and to ex- amine and cross-examine witnesses. At the conclu- sion of the case General Counsel and Respondent presented oral argument, and subsequently a brief was received from General Counsel. Upon the entire record' and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED Respondent maintains its office and place of business in Ridgewood, New York, where it en- gages in manufacture, sale, and distribution of elec- tronic devices, lights, and related products During the representative past year Respondent shipped from that plant to points outside of New York State products valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of the.Act. The Charging Party ("Local 132") is a labor or- ganization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES A. The Organizational Drive Respondent is a family owned corporation, producing in its factory signal lighting and safety devices primarily for utilities and governmental agencies. Julian A . McDermott is its president and chief executive; his son Vernon is a supervisor and foreman in the assembly department.' Two other sons work in the plant , one (Kelvin ) as foreman of the machine shop. Respondent's work force "varies from time to time," the maximum ranging between 20 and 25. In April 1969 , about 20 females were employed in the assembly section , including 4 leadgirls,4 and there were 4 males in the machine shop. Unless otherwise noted, all dates are 1969 Transcript as corrected by my order on notice dated December I I At the hearing, the caption was corrected as appears above ' Unless otherwise indicated, references to McDermott as an individual are to Julian McDermott ' In addition to ordinary production work, leadgirls-who are not claimed to be supervisors-supply women working with them with parts, check the stock, and see to it that orders from Vernon McDermott are car- ried out 184 NLRB No. 52 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Around April 10, Mary Siino, the employee whose discharge is in issue here, contacted Adams, Local 132 organizer and business agent, and asked him "to come down to organize the plant."5 Around April 11, Adams distributed the first of a series of union leaflets at the plant entrance as em- ployees were leaving work (4:30 p.m.). The leaflet described the advantages of unionization and urged employees to send in signed cards enclosed, designating Local 132 as bargaining representative After meeting with Siino to obtain "the reaction" to this distribution, Adams on April 24 or 25 dis- tributed another leaflet, calling for 40-cent hourly increases , a $2.50 hourly minimum wage , and vaca- tion and health benefits. Several days later (April 28 or 29) Company Pre- sident McDermott addressed the employees. Mc- Dermott testified that in discussing the "union situation" he told them that "we had a union be- fore" which "hadn't worked out to the satisfaction of our workers . not only the workers' interest but ours", and that "if enough of them filled" out Local 132 authorization cards they would not be af- forded an opportunity to express their choice in a second election. However, he also told them that "they should do whatever they felt" and if they wanted a union "they should pick a good union" which would "work out best for them." Noting that it had come to his "attention" that the Union in its leaflet had characterized the Company's profit- sharing plan as "some kind of illusion ," McDermott described "the details" of the plan, pointing out that "it was a real thing, that the people had been receiving cash from it " According to McDermott, he also discussed employee absenteeism, stating that "our situation was becoming desperate and that . this absenteeism must be cut down," specifically mentioning a recent Defense Depart- ment contract cancellation notice.' McDermott's described testimony, essentially consistent with that of General Counsel's employee witnesses, is credited.' In addition employees Rin- gels and Kellas testified credibly that McDermott "told us about the other union lI BEW Local 3 ] they had there and how they didn't make out too well and they [the employees] voted it out."; and that McDermott said "he wanted us to join a good [union] if we decided to get into one."" Referring to the Union's $2.50 hourly wage "demand," Kellas quoted McDermott as saying that he "did not see how the union can het those kind of wages" and Siino recalled his saying that "they'd never get it in ' Respondent's production and maintenance employees had been represented by another union (IBEW Local 3) from 1956 until about Oc- tober 1961, when the employees, dissatisfied with Local 3's servicing of the shop, sought to decertify it in a Board proceeding As a result of a 1962 election , the Regional Director decertified Local 3 ^ the notice (Resp Exh I ), dated April 24, canceled a contract because "no excusable cause has been presented for the failure to submit" a test re- port by March 18 As shown below (fn 17), Vernon McDermott admitted the failure was his fault ' While McDermott testified that he held only one employee meeting in April, at least two General Counsel witnesses (Scalzo and Ringels ) testified that plant." Employees Scalzo and Ringels recalled that when McDermott talked about the Company's profit-sharing plan he "gave a number of the women there a rough estimate of what he thought they had there," including an estimate in Siino's ac- count. According to Kellas, when McDermott raised the question of absenteeism and the threatened contract cancellation, he mentioned that "a lot of people, men and women, were taking off occasionally whenever they wanted to" and that "if people take time or days off, there is nobody in the shop to do the work." In answer to some of McDermott's remarks at this April 28 or 29 meeting, Organizer Adams handed out a third union leaflet a few days later (May I or 2). The leaflet purported to answer the "doubts and misrepresentations" the Company al- legedly sought "to instill . . in the minds of the workers" by assuring the employees, for example, that Local 132 had never fined employees and that the Union "will not accept one penny" from them until it obtained a wage increase; and it exhorted the employees to "UNITE, BEHIND THE UNION TO SECURE YOUR DEMANDS." On May 6, Respondent distributed two letters from Company President McDermott-one to re- mind them of existing benefits (paid vacations, holidays, hospitalization, periodic raises, etc.) and to refute the Union's claim that the Company's profit-sharing plan was a myth; the other, to explain "the law" on self-organization and the legal effect of their signing union cards. Explaining the opera- tion of its Profit Sharing Trust Fund, McDermott pointed out that this fund "was established by the Company [on December 31, 1962] after the union that we had [IBEW Local 3] was voted out by our employees" (see supra, fn. 5), that the Company al- ready made seven annual contributions to the fund, normally 15 percent of the yearly total payroll, that employees covered by the plan were entitled to draw (and had annually elected to draw) 30 per- cent of the amount contributed to their individual accounts; and that a statement of amounts already accrued to each employee was being prepared for distribution. Comparing the company plan with union-sponsored plans, McDermott stated that while the latter conditioned benefits on member- ship "until retirement or death," the benefits under the company plan become vested after 10 years "even if you leave the company." McDermott re- minded the employees that all money contributed by the Company before 1962 to the fund main- that two meetings were held and a third (Sono) recalled about three Mc- Dermott placed his first 1969 meeting as the end of March, prior to advent of the Union Both he and General Counsel's witnesses indicated that the profit-sharing plan and absenteeism were discussed at all meetings and General Counsel's witnesses further testified that the current (Local 132) organizational drive and the "old" union (IBEW Local 3) were also men- tioned " Siino similarly testified that McDermott talked about "the trouble" the employees had with the old union , but quoted him as adding that "this was a small shop and we didn 't need a union here " JULIAN A. McDERMOTT CORPORATION 493 tained by Local 3 ($20,000 to $30,000 ) was "for- feited to the general union fund ," even though the employees had paid dues, initiation fees, and assess- ments. He also pointed out that Local 3 had been unable to get them other jobs when the Company "had to lay off employees because of loss of con- tracts." McDermott's second letter stressed that even though a secret Board election could be held if 30 percent of the employees signed authorization cards, the election ( whereby the employees could express their free choice by the " democratic process" ) might never take place "if a majority sign cards." Emphasizing that " a union has no magical power to deliver anything " and that " We now have a good working organization WITHOUT THREATS OF STRIKES ** VIOLENCE ** FINES ** FEES * * ASSESSMENTS OR DUES ," he ex- horted them , " Let's keep it that way." B. Discharge of Siino 1. Siino's union activity and status as employee spokesman Mary Siino, hired in May 1954, was the senior employee in Respondent's service at the time of her discharge on May 7, 1969. As one of the four as- sembly department leadgirls, she instructed two or three girls working with her, in addition to as- sembling, testing, and inspecting signal lights. At the time of her discharge she worked under Vernon McDermott's supervision, at $2.15 an hour or $86 a week She admittedly was a "good worker" and there was "no criticism of her work." Siino testified that Company President McDermott "always said [she] was part of his family because [she] was the only one that came from the old plant that was left." As already noted (supra, sec. A), it was Siino who in mid-April contacted Local 132 Business Agent Adams to organize the plant. Siino testified that she "decided to try to bring a local union in" when several girls became "quite disgusted" at Mc- Dermott's failure to grant them the insurance benefits which he had given the four leadgirls.9 After discussing the matter with a "few of the girls" in the dressing room, she spoke to her brother, an official of a Teamsters local, who recommended Adams. Siino had been a committeeman for the "old" union (IBEW Local 3) which had represented the employees prior to its 1962 decer- tification (supra, fn. 5) and had substituted for her husband, the Local 3 shop steward, when he was unable to attend to his duties. She played a prominent role "in getting Local 3 out" and after its departure was looked upon as "leader" and spokesman of the employees. Siino testified credibly that when she and two other employees discussed with McDermott the employees' plan to decertify Local 3, McDermott told them, "Well, when this goes through you don't have to worry, I will keep to the old contract."10 Siino had in fact retained a copy of the Local 3 contract, to which she called McDermott's attention in pressing grievances. She cited as an example a conversation with McDermott 5 years ago when she convinced him to reverse his decision not to pay the em- ployees for a Washington's Birthday, Siino having produced the old Local 3 contract to prove that it had stipulated for such pay. On another occasion, when Siino objected to McDermott's "changing the vacations," she tore up her copy of the contract, stating "there is no use for me keeping this." About 2 or 3 years ago, Siino, accompanied by another girl, took up with McDermott the employees' request for Good Friday off, which he refused because he "couldn't afford" it. Also 2 or 3 years ago, she and employee Warkin protested Mc- Dermott's failure to include Warkin in a general shopwide wage increase, McDermott justifying his action on the ground that "she was getting it (i.e., the wage raise) in the form of additional hospitalization benefits." Within the past year, em- ployees discussed with Siino their dissatisfaction with McDermott's failure to grant them the in- surance benefits he had extended to the leadgirls (supra, fn. 9) and his assignment of women in the machine shop and paintrooms to do "men's work." Another subject of dissatisfaction which she took up with employees in 1968 was the Company's failure to inform employees as to the amount of money they had accrued in the company profit- sharing plan.12 It was to Siino that employees turned to verify McDermott's statements at em- ployee meetings; for example, whether, if the Union obtained a certain number of signed authorization "In March 1969 (before the advent of Local 132) McDermott had ad- vised the leadgirls ( Siino, Scalzo, Mueller, and Mercogliano ) that they would be given a $5,000 insurance policy According to McDermott, this company-financed policy, which previously covered only "salaried" staff (supervisors and clerical employees ) was given to the four women because they were "critical people" and "essential parts of the operation " Siino testified credibly that McDermott "didn't want the other girls to know [about the policies] because there was some there [in the plant] much longer " However, the girls ' curiosity was aroused when they saw Mc- Dermott talk to the leadgirls and Siino then told them about the policies Because of the "hard feelings " that developed, McDermott assembled all of the female employees to explain his action 1" Respondent did not produce one of the three employees (Kamer), an admitted supervisor , to explain or contradict Siino on this point 11 McDermott did not specifically deny the incident although he generally denied discussing with Siino any wage raises for anybody Testify- ing that Siino never spoke or acted for other employees, McDermott de- nied discussing holiday pay, other benefits , or grievances with her Accord- ing to McDermott, "I always considered that Mary ( Siino ) represented her- self," admitting , however, that if she "disagreed with something" about the Local 3 contract " she discussed it with me " Later he added, "She wasn't necessarily talking for the whole shop " When specifically asked whether Siino did not take up any requested employee benefit or grievance, Mc- Dermott evasively stated, "I can't think of any I-it's years and I can't think " I do not credit McDermott's denials Suno's testimony is cor- roborated by the testimony of other credited employee witnesses that Siino was regarded as the employees ' spokesman 12 As previously noted ( supra, sec A) in his May 6, 1969, meeting with the girls McDermott promised to supply them soon with a statement of amounts accrued in their accounts Earlier (in his March 1969 meeting) McDermott gave only the "approximate amounts" some senior employees (such as Siino) had in the fund 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards, "they wouldn't be able to have a closed bal- lot." According to Siino's uncontradicted testimony, at one of the meetings McDermott him- self asked the girls to check with Siino whether the Company had not in fact reduced its operations (number of plants and employees) after the old union (Local 3) had come to the plant. According to employee Scalzo, a highly credible witness, Siino "was one of the longest workers there and I imagine she was the most respected worker there, even by Mr. McDermott." Employee Kellas testified that he knew her as "the spokesman for the girls." Ringels, another credible witness, testified to the same effect. Siino testified credibly that after distribution of the second or third union pamphlet (late April or early May), McDermott told her that she "had known the trouble we had with the other union [Local 3]"; that "this was a small shop and we didn't need a union here "; and that "he was won- dering who was giving out all the information to Jack Adams." McDermott also asked if she "was involved" with the Union. When she answered "no," McDermott said that he "thought" she (Siino) might be the source since she was "the smartest one to remember all that was going on in the meetings."13 2. The May 7 discharge Siino worked on Monday, May 5, despite a toothache that had kept her up all night. On the fol- lowing day (May 6), a dentist removed the im- pacted tooth and ordered her home. She admittedly did not "call in" or otherwise notify the Company that she would be out that day.14 Finding her timecard missing from the rack upon arrival for work early the next morning (May 7), Siino went to Vernon McDermott, her supervisor.15 When Ver- non asked Siino where she had been on the previ- " McDermott disclaimed "any private or individual conversations" with Siino regarding the Union and added that "I lust didn't care what in- dividual brought it [the Union ] in " That McDermott was not as uncon- cerned and apathetic about the Union as he sought to convey is indicated by the content of his talks and literature to employees in which he ex- pressed serious concern about its wage and other demands " Although a company rule-generally followed by employees- requires an absentee to call in absences before 10 on the morning of absence, Siino had for many years followed the practice of calling in only if she expected to be out for more than I day "As previously noted , Vernon is Company President Julian Mc- Dermott's son "The above findings are based on Siino's credited testimony Although Vernon McDermott did not mention Siino's explanation for not calling in on May 6 on account of the described tooth extraction , he did not deny that Siino gave that explanation According to Vernon , when he advised Siino that "she was fired because she didn 't call in and was out the day be- fore," Siino "accused [him ] of being vindictive " for a complaint Siino had lodged against Vernon with Vernon's father 2 weeks earlier for assigning Siino to what Siino regarded to be an undesirable task ( the "sandbag job") ous day, she told him about her "bad toothache" and visit to the dentist, showing him "the hole." Vernon said, "Well, you're fired." Asked the reason, Vernon said, "For not calling ... You know the rules." Siino answered, "I couldn't call because I was in such agony, and I never called be- fore unless of course I was out two days, knowing I'd be out two days, I hadn't called in all that time, maybe once or twice." Vernon said that "that wasn't the only reason," citing Siino's failure to complete timesheets and her alleged refusal to go to the machine shop to pick up parts. When Siino said that "quite a few people" had failed to fill out timesheets and that she had in fact picked up parts in the machine shop, Vernon answered that she was being fired "for a lot of reasons."'s Vernon McDermott testified that he decided to discharge Siino in the late morning or early after- noon of May 6 (the day she was at the dentist) because he was embarrassed by the fact that three other girls were also absent on that day-a day when three Government inspectors happened to come to the plant "to find out why we were late on deliveries."" Of the four absentees, Siino was the only one who failed to call in that morning. Ac- cording to Vernon, before leaving the plant that night, he removed Siino's timecard from the rack and telegraphed her that "Due to repeated unex- cused absences, failure to call and other reasons your employment with Julian A. McDermott Corp. is hereby terminated." Immediately upon her discharge by Vernon, Siino saw Julian McDermott, telling him about her dental problem, her visit to the dentist, and the tooth extraction. When Julian offered to go with her to talk the matter over with Vernon, Siino refused, stating she "took enough abuse off him when [she] was down there the first time." Julian thereupon suggested that Siino telephone him "maybe in a day or two and he would see what he "According to Vernon , he had in mind that only about a week earlier (on April 24 ) the Defense Department had canceled a contract with Respondent and he felt that with " four girls out it ruins my production time and as a result I don't get the jobs out " He admitted , however , that Siino was not assigned to work on that contract, and also that the cancellation was prompted by Vernon 's own failure to submit a sample or test report for which Vernon as the engineer was solely responsible Attempting, how- ever, in some way to connect the contract cancellation with Siino's absence , Vernon claimed that because of his preoccupation with the leadgirls (including Siino ) who were not attending to their jobs , " I didn't have time to work on it [ the test report ] " In addition to the April 24 con- tract cancellation, Vernon testified that "two other contracts were under fire as far as cancellation" was concerned , on May 6, indicating that although the Respondent had not received notices of default thereon until after Suno 's discharge, he feared potential cancellations (for failure to make deliveries ) prior to the discharge However , as to these also Vernon admitted that Siino "didn't work on [the] items " covered by these con- tracts either, he claimed , however , that he "could " have assigned her to such work ( although he never had) JULIAN A. McDERMOTT CORPORATION 495 could do," indicating that "things were just upset now. "i8 On returning home later in the morning (May 7), Siino learned of Vernon McDermott's telegram of discharge and immediately telephoned Julian Mc- Dermott, expressing surprise about the telegram "saying finally I was fired" when only minutes earlier in the plant Julian asked her "to call him in a day or two." Claiming that he did not know "anything about it," McDermott again asked Siino "to call him back in a day or two." 19 Siino again telephoned Julian McDermott a day or two later (May 8 or 9) as to whether he would take her back. Julian again said that he "didn't get a chance to talk to Vernon because [Vernon's] wife was sick and [Vernon] was upset." Encourag- ing Siino "to take another job some place else and maybe [she] would like it better," Julian neverthe- less assured her that "he'd see what he would do." Siino did not thereafter hear from (nor did she again call) Respondent.20 Both McDermotts disclaimed knowledge of Siino's membership or union activity at the time of her discharge, Julian claiming that he did not "be- lieve" she was a member even at the time of the in- stant hearing on September 30. Asked if he had not become aware of this when he received the unfair labor practice charge (filed on May 19), he an- swered, "Then I would assume that she was" a member. He admitted telling a Board investigator in a questionnaire, dated June 10, that when he concluded his conversation with Siino before she left the plant on the morning of her discharge (May 7), Siino said, "the union won't like this," but he claimed (at the hearing) that he did not "see that had any relationship that she was a member and [he] didn't so assume."21 Julian and Vernon Mc- Dermott admitted knowledge that Siino's brother was a business agent of a Teamsters union. " Siino's testimony (on the basis of which the above findings are made) is consistent with that of Julian McDermott, except in one material respect According to Julian, when he suggested talking the discharge over with Vernon, Suno refused to do so on the ground that her brother, an official of another union, had told her he "can get a better job for [her] at $3 50 an hour " Admitting that she indicated she could get such job through her brother, Suno insists that she made this remark only in response to the sug- gestion from Julian that she could obtain a better job According to Suno, what she said to Julian was, "If I wanted another job, I could have gotten one months ago at $3 50 an hour from my brother, but knowing the people and working there so long I wanted to stay where I was " I do not credit Ju- lian McDermott's version of this conversation Snno's version is supported by the testimony of employee Scalzo, a disinterested and highly credible witness, who, as noted infra (sec C), quoted McDermott as telling the girls at a meeting on the day of the discharge that Siino had turned down her brother's offer because she had been with Respondent "so many years and liked to work" with the girls That it is not likely that Suno told Julian that she was giving up her job at Respondent is demonstrated by the fact that she vigorously protested the discharge to Vernon, appealed it to Julian, and (as presently shown) persistently sought to regain it 10 According to Julian, in her telephone conversation Sumo merely asked, "Are you going to put me back9" and he, in turn, replied that he had not yet seen Vernon to arrange a conference regarding Siino's return Julian opined that the telephone conversation took place a day later (May 8), but he was uncertain as to this 20 Julian McDermott did not specifically deny Snno's testimony that he advised her to take another job He did testify that he "suggested she call [him ] back again, the matter wasn't closed " Sumo, on the other hand, de- C. Postdischarge Events On May 7, the date of Stino's discharge, Julian McDermott called a meeting of the assembly de- partment and told the women that he "felt that he should tell [them] why he had fired Mary because he knew how [they] all felt about her." McDermott mentioned that he had offered to discuss the discharge with Vernon and had asked Siino to call him back "in a couple of days" after he saw him. McDermott also said that Siino had told him that her brother (the Teamsters business agent) "can get her a job," that he (McDermott) said "she should take" it, and that Siino refused because she had been with the Compan so many years and liked to work" with the girls.2 ` About 5 days later (May 12), the Union (Local 132) distributed to the employees a leaflet at- tacking the discharge of Siino, pointing to her past role in pressing employee grievances and urging the women to organize lest they become "a victim" like Siino even after 15 years of "devoted" company service. Shortly thereafter McDermott called another shopwide meeting at which McDermott again discussed the discharge, asserting that Siino was discharged for not completing timesheets, absentee- ism, lateness, and not calling in. Concerning Siino's stated intention to file "charges" against Respon- dent, McDermott said that he "would just have to see this through."23 D. Respondent 's Defenses Vernon McDermott testified that his "immediate reason" for discharging Siino was her May 6 absence and failure to "call in that she was going toy be out for the day." He cited as "other reasons": "excessive absenteeism," failure to complete med that Julian asked her to call back According to Julian McDermott, the second telephone conversation "was a repetition of the first," indicat- ing that he "still [had not] been able to talk this over with Vernon because [ Vernon's] wife is sick and in the hospital " Vernon himself testified that he had in fact talked the matter over with his father immediately after he discharged Siino (and after she left the plant) on the morning of May 7 According to Vernon, Julian at that time asked, "Do you want to have a conference with Mary" and he (Vernon) answered that he would meet with her only if she complied with "certain conditions from now on," specifically that "she fill out the time slips" and generally that she follow "the rules " 2' Answering a leading question on redirect examination, Julian Mc- Dermott testified that he did not "have any idea what union [Suno] was talking about" in the above-described Suno-Julian conversation, i e , whether she had referred to Local 132 or her brother's (a Teamsters) union According to Julian, he merely took Snno's statement to mean that "some union wouldn't like it " I do not credit McDermott's transparent at- tempt to convey the impression that he did not even suspect that Siino was a Local 132 sympathizer Julian admittedly was aware of Local 132's then intensive campaign to organize the plant, having himself distributed anti- union literature and conducted at least one antiunion meeting (See also infra, sec E, 2, c ) 22 Based on the testimony of Scalzo, a highly credible witness Mc- Dermott's testimony is consistent with that of Scalzo, except that in quoting Siino regarding her brother's job offer McDermott did not state that Siino had turned it down Based on Scalzo's testimony, in essential respects consistent with Mc- Dermott's 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timecards, and smoking by her bench in violation of instructions. Later in his testimony he added "late- ness" as still another reason. He indicated, how- ever, that Siino would still be working in the plant had she not been absent on May 6. Vernon ad- mitted that he "never told" or warned Siino that he was going "to fire" her for any of her alleged dere- lictions. According to Julian McDermott, although Vernon had complained about Siino's past "infrac- tions," he had done nothing about them. 1. Failure to call in or report absences As previously noted (fn. 14), a company rule requires employees to call in absences before 10 in the morning. Vernon McDermott testified that the purpose of the rule was to enable a supervisor like himself to reassign the work of an absentee if needed to meet delivery requests. The record shows, as Vernon testified, that the girls in his de- partment complied with this rule "[m]ostly all the time."24 Both Vernon and Siino testified that Siino called in only "once in a while." Over the course of many years of her employment, Siino's practice had been to call the office only if she expected to be out for more than 1 day. According to Siino, neither of the McDermotts had ever criticized or warned her about this practice. Vernon McDermott, however, testified that he had talked to her twice (June 1968 and April 1969) about her failure to call in.25 2. Absenteeism SIIno was absent 8-1 /2 days from January 1 through May 6, 1969, 15-1/2 days in 1968, and about "the same or maybe even a little more" in the 3 previous years (1965-67). Three of the eight and one-half 1969 absences (February 10-12) were admittedly under "very unusual circumstances"- during a snow "blizzard" when only those residing in the plant neighborhood could get to work. Another 1969 absence included Good Friday (April 4), which Siino had taken off for "the last couple years" to go to the cemetery.26 Under com- pany rules, an employee is required to sign a slip after each absence, giving the reason therefor, even if called in or permitted in advance. None of Siino's absentee slips bears the notation "Excuse unac- ceptable. "27 The record shows that absenteeism was common in the plant and that Company President McDermott frequently complained about it in meetings with employees (supra, sec. A). Siino credibly testified that neither Julian nor Vernon McDermott had ever talked to her, criticized her, or warned her about absenteeism.28 The record shows, however, that she was absent more than any of the other three leadgirls.29 On the other hand, the record also shows that Respondent has retained at least two workers with absentee records com- parable to or worse than that of Siino; i.e., assembly department employee Pugh, with 17 absences in 1968, and 9 in 1969 (until May 6), and Kellas, with 8 absences in 1969.30 Each of these had con- siderably less employment seniority than Siino. 3. Lateness Vernon McDermott testified that Siino was late for work during 11 weeks of 1968 and 7 weeks in 1969 (i.e., up to her discharge on May 7, 1969).31 According to Vernon, the number of weeks during which the other three leadgirls were late in the comparable period were: Scalzo-6 and 4; Mueller-7 and 2; and Mercoghano-3 and 3. As previously noted (fn. 29) Scalzo and Mueller lived close to the plant and most of the other girls lived 24 General Counsel witnesses Scalzo, Rmgels, and Kellas testified that they always called in absences 25 The April 8, 1969 (Good Friday ), incident is discussed infra, in 26 Absentee slips produced by Respondent show that Snno called in 5 of I 1 recorded absences in 1968 and I of 7 absences in 1969 As hereafter shown , three of the seven 1969 absences were in a February snowstorm 26 Under company policy employees were entitled to 1-1/2 hours off on Good Fridays , so as to leave at 3 instead of 4 30 p m On the day before Good Friday of 1969 (April 3), Sumo asked Vernon McDermott for per- mission to take off Good Friday afternoon Vernon first approved the request, then changed his mind According to Sumo, she thereupon told Vernon that she "had to go some place " and would take the whole day off When Vernon said that she would not get paid for 1-1/2 hours, Sumo an- swered "that's all right " Vernon McDermott conceded first giving and then denying Suno permission to take off that afternoon , but claimed Snno said nothing about taking the entire day off According to Vernon , when on her return to work the next Tuesday ( April 8 ) he asked Sumo why she had not called in her April 4 absence , Snno answered that she "didn't have time 27 Sumo testified credibly and without contradiction that she knew of at least one case in which Respondent made such a notation on another em- ployee's absentee slip 2" Vernon McDermott's testimony on the question whether he had talked to Suno about absenteeism is too vague and evasive to warrant credit Asked ( by company counsel ) if he had spoken to her about her absences in 1968 or 1969 , Vernon said that he had talked to her in June 1968 about her failure to call in, and again on the same subject on April 8, 1969 ( supra, fn 26) Although later generally averring that he "talked to her twice about the absences ," his testimony discloses that according to him he actually spoke to her only about a "lateness " in February 1969 and about her failure to call in on April 8, 1969 29 According to Respondent 's records , leadgirl Mueller was absent five times in each of the years 1968 and 1969 (January-May 6, 1969), Scalzo 1-1/2 and 2 half days, and Mercogliano twice in 1968 and none in 1969 Scalzo and Mueller lived near the plant "' Kellas testified that he was actually absent approximately 30 times since hired on December 18, 1968 Vernon McDermott explained the glar- ing discrepancy by indicating that Kellas "apparently made the time up " Vernon named three other employees with excessive absences , indicating that two of these ( Lambethas and Faber , who worked under his brother, Kelvin, in the machine shop) had been fired for that reason and for failure to call in He named only one employee working under him in the assembly department ( Mufano) who was purportedly discharged for absenteeism, but then indicated that the "immediate reason " for that dishcarge was in- subordination-for refusal to comply with a job assignment, Mufano had been absent 24-1 /2 times in 1968 " Vernon based these figures on company weekly payroll records, which do not record "latenesses " According to Vernon , he inferred that Sumo (and others for whom he gave comparative figures ) was late in a particular week from the fact that the payroll record showed "odd" or "uneven" number of work hours in that week, e g 39-3 /4 hours, signifying to Vernon a I5-minute lateness , and 39-1 /2 hours, signifying to him a 30-minute or possibly two 15-minute latenesses He indicated , however , that in some cases, as where an employee worked over 40 hours , it was difficult to deter- mine the extent to which the "odd" figure represented overtime work as distinguished from lateness , e g , 40-1 /2 hours could (possibly, for exam- ple) mean a half hour overtime work or a half hour lateness or some other possible conjectural combination JULIAN A. McDERMOTT CORPORATION 497 in the neighborhood; Siino lived several miles away and (according to Siino) it took her as much as an hour or more "between waiting for all the buses" to get to work. As previously noted, Vernon testified that he spoke to Siino once or twice about her late- nesses. 4. Failure to complete timesheets Vernon McDermott testified that after he became a supervisor (in January 1968) he decided "to update" the assembly department. In June 1968, he made up "IBM cards" listing all opera- tions and instructed the girls, including Siino, to make out timesheets, indicating such information as number of pieces worked on and the time it took to complete a particular job. According to Vernon, he specifically asked Siino to complete records on the signal lights manufactured for the Pennsylvania Railroad, on which she spent 70 to 90 percent of her time, so as to enable him to compute prices to be charged the customer. Vernon testified that when he first collected timecards in October or November 1968, he found only 10 to 20 cards in Siino's box; that it was obvious to him that Siino had not completed timeslips for all of the jobs; and that when he called this to Siino's attention she promised to complete them in the future. Further according to Vernon, when he again checked on Siino's timeslips in March 1969, he "found the same thing" and, as in October, he was unable to make an accurate timestudy on the basis of Siino's 10 to 20 completed cards and the 30 to 40 cards he found in other girls' boxes. Vernon also testified that the situation was no better when he again checked on Siino's performance in the middle of April and prior to her discharge in May, despite Siino's promises to comply with his instructions.32 The credible evidence establishes, however, that employees other than Siino who were expected to complete timesheets on various jobs in the as- sembly department likewise failed to do so. Thus, Scalzo, a leadgirl like Siino, credibly testified that she made out these slips only when she had the time , indicating that she was often preoccupied with the girls working under her-instructing and checking their work. 33 Ringels testified that although she invariably made out the timesheets- and indeed was instructed to do so by Siino (her leadgirl) as well as by Vernon McDermott-she knew that some girls did not complete them. At one point in his testimony, Vernon McDermott himself admitted that not all of the girls made them out, in- dicating that "no matter how much discipline [he] put into them," they would "follow lead workers" 12 Suno admitted that Vernon hau requested her to complete the slips on Pennsylvania Railroad jobs Although claiming she made out such slips, she appeared rather vague on this point While it appears , as Siino claimed, that she kept records on repairs in a special book so as to enable Respon- dent to determine charges to customers , these entries appear to cover work on old lanterns rather than on new lamps for which timeslips were expected of her Sumo claimed that Vernon never criticized her for not completing the timeslips , except on the date of discharge I do not credit Suno's who were derelict in this respect.34 It is clear that no employee was ever discharged, or warned of discharge, for not filling out timeslips; nor was the subject raised in Julian McDermott's meetings with employees where McDermott discussed other em- ployee problems and alleged derelictions such as absenteeism. 5. Smoking by the workbench Vernon McDermott testified that the no-smoking rule in the plant "wasn't rigidly enforced" until March 1969, although he would be "finding people" smoking all the time. In his March 1969 meeting with the employees (supra, fn. 7), Julian McDermott told them, that on inspection of the plant in January or February, the firemen said that they "want[ed] us to cut out smoking" and, as be- fore, he restricted smoking to designated areas such as the ladies' dressing room. According to Vernon, Siino continued to smoke by her bench during the lunch hour up to the time of her discharge. How- ever, he testified that he talked to her about this only once-at the end of March. He also indicated that other employees continued to smoke in restricted areas for "awhile" after the March meet- ing. Siino testified that while she would light up a cigarette by her bench during breaks and lunchtime and then proceed to smoke it in the ladies' dressing room, she discontinued this practice (and began to smoke by her bench at lunchtime) after she could no longer suffer the "disgusting" habits of one of the employees in the ladies' dressing room. Em- ployees Scalzo and Ringels corroborated Siino, the latter testifying that because of the "alcoholic" woman in question "we had to come out [of the dressing room] and eat at our benches and once in awhile we did take a puff on a cigarette." And Ver- non McDermott admitted receiving complaints about the eating habits of the employee in question, and that he finally terminated her employment at the end of May 1969. It is undisputed that Siino was never warned of discharge for smoking by the bench and that no employee was ever discharged for violating the no-smoking rule. E. Conclusions 1. Credibility resolution I have already resolved much of the conflicting testimony in this case. Insofar as Julian McDermott is concerned, it appears that some of his testimony was 'equivocal and evasive; as, for example, his testimony on the subject of timecards, except insofar as her testimony is corroborated by other credited testimony, including that of Vernon Mc- Dermott and employees Scalzo and Ringels " Vernon McDermott admitted that Sumo had to instruct three girls on the Pennsylvania Railroad job at the same time she was doing production work " On the other hand, at another point, Vernon claimed that the girls had completed timeslips "90 percent of the time " 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony regarding Siino's role in processing past grievances on behalf of fellow employees (supra, fn. 1 1)-testimony at odds with that of disinterested employees to the effect that Simo had been a prominent employee spokesman . I have also noted (supra , fn. 21) Julian McDermott's transparent at- tempt to put self-interest over duty to truth in in- sisting that he had no suspicion even as late as the date of the hearing that Siino was linked to Local 132. His claimed lack of interest in the union drive is belied by his- campaign literature and talks with employees. Nor do I believe Vernon McDermott's self-serving testimony that he thought the plant "in the long run will be better off with a union." His recital of Siino's numerous and varied derelictions, as well as his demeanor on the stand , lead me to be- lieve that Vernon was prepared to go to extreme lengths to brand and get rid of Siino as an undesira- ble, uncontrollable , and intolerable worker-in order to fashion a plausible excuse to discharge her "for cause ." For example he heavily stressed Siino's absenteeism . Yet, he testified that he spoke to her only twice on this subject-once a year before the discharge ( June 1968 ) and again a month before discharge (April 8, 1969). Later, he claimed that he had a third conversation (in February 1969), but admitted that all of these discussions related only to Siino's failure to "call in " the absence and to "late- ness." Furthermore , he sought to convey the im- pression that Respondent lost Defense Department contracts because of Siino's absenteeism, but on closer examination it appeared that Siino was never assigned to any work on these contracts ; indeed, he acknowledged that it was his own failure to submit an engineering sample or test report which led to the cancellation of one contract. Nor was Vernon McDermott completely forthright in his testimony concerning his authority to hire and fire employees. Asked on the first day on the witness stand whether he could hire and fire without first discussing the matter with his father, Vernon hedged with the answer, "I have done it. I am not supposed to," stressing his limited authority in other fields as well, including sending out orders and making design changes. When he returned to the stand the next morning, however, Vernon this time emphasized his authority in these spheres , asserting , " I have the right to hire and fire ... and I discipline," subject only to the right of his father as president of the Company to "overrule " him. He insisted that he alone decided to and did fire Siino , that he "had the right to make the decision," and that " since I took over as foreman I have been making the deci- sions," subject to his father's power to later "overrule me." He claimed that his father did not even know that he sent the telegram of discharge to Siino on the night of May 6. It is difficult for me to believe that Vernon McDermott would have discharged the senior employee of this small Com- pany, an admittedly good worker and a leadgirl who had been with it for 15 years, without his father 's advance permission . It seems far more like- ly under the circumstances presented that Julian McDermott , who preferred no union in his plant, used his son as an instrument to effect the discharge . I so find. As to Siino, I have no doubt that she exaggerated some of her testimony to suit her best interests. Her testimony concerning the timesheets , in which testimony she sought to convey the impression that Vernon McDermott was totally unconcerned about her failure to complete those sheets, conspicuously falls in this category . Siino nonetheless impressed me as essentially truthful in meeting Vernon Mc- Dermott 's charges regarding her other work habits-i .e., chronic absenteeism and failure to call in absences . Furthermore , her testimony concern- ing her concerted and union activities and discus- sions thereon with other employees and Company President McDermott was not only convincing and stood up well under vigorous and able cross-ex- amination , but was to a degree corroborated by dis- interested credible witnesses (see supra , sec. B, 1). On the whole , I am persuaded that she was a more reliable witness than Vernon and Julian Mc- Dermott. In crediting Siino's versions of the events to the degree described , I have not overlooked two factors which , Respondent claims, tend to detract from her credibility . The first is Siino 's admission that she "lied" to a Board agent in a 1961 investigation of charges filed by IBEW Local 3 against Respondent. As noted (supra, fn. 5), as a result of an employee decertification petition filed in 1961 , the Board decertified Local 3. That union filed charges alleg- ing that Respondent had illegally assisted the em- ployees in circulating the decertification petition, but the Regional Director refused to issue a com- plaint thereon. In this proceeding, Siino testified that she was untruthful when she told the Board's investigator that Julian McDermott had no hand in the preparation and circulation of the 1961 peti- tion, explaining that Julian had in fact volunteered to get the papers to start the decertification proceeding, and that he had called each employee, one at a time, to the company garage to sign the petition. Siino claimed-plausibly and credibly, as it impressed me-that she had covered up for Ju- lian McDermott because McDermott had pleaded with her that he "could get in a lot of trouble if it was found out he was involved in it." In this proceeding McDermott denied that he had had anything to do with the decertification petition, specifically disavowing discussions thereon with Siino, except that Siino and another employee (who had gone to the Board with the petition) had asked to be paid for lost time, which request he denied. I have considered these circumstances in resolving credibility in the instant case. Secondly, Respondent claims that Siino falsely accused Julian McDermott of requesting her to represent that she was a "salaried " ( as distin- guished from an hourly) employee on an applica- tion for insurance As noted (supra, fn. 9), in JULIAN A. McDERMOTT CORPORATION 499 March 1969, Julian awarded his four leadgirls, in- cluding Siino, a $5,000 insurance policy which previously covered only " salaried " staff. Siino un- derstood Julian to say that "the only way we could get it is that he [Julian] had to say we were on straight salary" when, in fact, they were not. Julian denied requesting Siino to "designate herself as a salary rather than hourly worker" and in support produced Siino's insurance application which called for no representation in this regard. Viewing Siino's testimony in the light of what Julian McDrmott testified as to what he told Siino and the testimony of Scalzo, a disinterested and credible witness, who, like Siino, quoted Julian as telling her that "we would be on straight salary," I find, contrary to Respondent, no deliberate attempt on Siino's part to falsify. Julian himself testified at one point, "I said it was for our salary worker" and, at another point, "I mentioned that they were being brought into the salaried group." It would seem that Julian McDermott, who acknowledged that he himself "was a little confused" on the matter, either was under the impression that the insurance plan was applicable to salaried people only and so informed or implied to Siino and Scalzo, or, if he was not under such misapprehension , that the confusing or imprecise language he used led the women to be- lieve that they were or might be treated as salaried for insurance purposes. 2. The discharge The applicable principles are well settled. Whether Respondent discharged Siino for dis- criminatory reasons or legitimate reasons presents a purely factual question, the key issue being Respon- dent's intent or motive. However, "It would indeed be the unusual case in which the link between the discharge and the union activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence." N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). See also Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466, 470 (C.A. 9). Furthermore, "the rule is well established that although ample valid grounds may exist for the discharge of an employee, that discharge will vio- late § 8(a)(3) if it was in fact motivated, even par- tially, by the employee's union activity [citing cases] Thus, where there are legitimate reasons for the discharge of an employee, the question is whether those were in fact the only grounds for the dismissal, or whether they were `put forth as a mere pretext to justify an impermissible discharge."' N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 109-110 (C.A. 2). On the record as a whole, and particularly in view of the considerations set forth below, I find that the preponderance of evidence and the reasonable inferences to be drawn therefrom establish that the discharge of Siino was based on Respondent's suspicion and belief that she had brought the Union to the plant. a. Admittedly, Respondent did not look favorably upon Local 132's advent into the plant, preferring to deal with its employees directly. Thus, through literature and at shopwide meetings, Com- pany President McDermott sought to impress upon his employees that their prior organizational effort (representation by IBEW Local 3 until 1961) "hadn't worked out" to "the workers' interest" any more than Respondent's. McDermott reminded them of the "trouble" they had had with that union, pointing out that the' had "forfeited" their rights under the old union s pension program, that the union had let them down in a Company layoff (powerless to find them other employment), and that Respondent had had to reduce its business (plants and staff) while Local 3 was in the plant. McDermott 's message was plain : the employees should refrain from repeating the mistake of resort- ing to organization. As he emphasized in a letter to the employees: "We now have a good working or- ganization WITHOUT THREAT OF STRIKES ** VIOLENCE ** FINES ** FEES ** ASSESS- MENTS OR DUES. Let's keep it that way." Exem- plifying what he characterized in his letter as the Union's lack of "magical power to deliver anything," he stresses at one meeting that "they'd never get" the $2.50 hourly wage demanded by the Union. While it is true, as Respondent correctly asserts, that McDermott's statements to the employees were free from and unaccompanied by outright threats and unlawful promises of benefits and were "within [the Company's] rights in making its posi- tion and sentiment known to its employees [yet] its expressed attitude is one of the factors which must serve to measure its motivation " in determining the legality of the discharge of an active union ad- herent . Cf. Revere Camera Co. v. N.L.R.B., 304 F.2d 162, 165 (C.A. 7). See also N.L.R.B. v. General Electric Co., 418 F.2d 736 (C.A. 2); Darlington Manufacturing Company v. N.L.R. B., 397 F.2d 768, 769 (C.A. 4). b. The record shows that Siino was the driving force behind the union movement. She had been regarded as and acted as the employees' spokesman in pressing grievances and, just prior to the or- ganizational drive, discussed with fellow employees their dissatisfaction with McDermott's failure to grant them insurance benefits. It was she who con- tacted Union Representative Adams and asked him to unionize the plant. She kept in constant touch with Adams during the campaign, reviewing with him the progress of the drive, including the em- ployees' reactions to the Union's leaflets. While the active role of an employee in a union drive and an employer's opposition to the drive are not in them- selves sufficient to establish a discriminatory discharge, "[s]till, where the discharge in question involves the `key' employee in an organizational 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drive, it may supply shape and substance to other- wise equivocal circumstances." N.L.R.B. v. Davidson Rubber Co., 305 F.2d 166, 169 (C.A. 1). c. To be sure, there is no direct evidence that Respondent actually knew of Siino's union sym- pathies prior to her discharge. However, Respon- dent ignores the well-settled proposition that "A finding of knowledge of union participation may be based on circumstantial evidence." N.L.R.B. v. Schill Products, Inc., 340 F.2d 568, 572 (C.A. 5). "[I]t need not be established by direct evidence; in- ferences may be drawn from the surrounding cir- cumstances." N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 110 (C.A. 2). Here, I infer that Respon- dent suspected and correctly surmised that Siino was the employee leader of the union drive from the totality of the circumstances shown: that she had been active in the old union (IBEW Local 3); that subsequent to that union's decertification she was the recognized spokesman in pressing em- ployee grievances; that Respondent knew she was the sister of a paid union official; that involved in this case is a small closely held family shop with close personal contact between company represen- tatives and the 20 to 25 employees;3' and that Com- pany President McDermott had actually singled out Siino for questioning as to whether she "was invol- ved" with the Union and as to "who was giving out all the information" on what he said at a shop meeting, indicating that Siino must have been feed- ing the information since, in his phrase, she was "the smartest one to remember all that was going on in the meeting." d. Also significant is the timing of the discharge. The Union came on the scene around April 10. Within the next 2 weeks it distributed two leaflets and shortly thereafter (April 28 or 29) Company President McDermott addressed the employees to remind them about "the trouble" they had had with the old union and to question the new Union's abili- ty to secure its wage demands. On May 1 or 2, the Union distributed another leaflet, and on May 6 Respondent issued to the employees two letters re- minding them, among other things, that they had a "good working organization" without "threat" of strikes, violence, fines, etc., and he exhorted them to "keep it that way." The very next morning (May 7) Vernon McDermott (Company President Julian McDermott's son and Siino's foreman) precipitate- ly and without warning or notice, notwithstanding 15 years of employment, discharged her. Surely, "the coincidence in time ... would seem somewhat significant." (N.L.R.B. v. Geraldine Novelty Co., Inc., 173 F.2d 14, 18 (C.A. 2). See also I. C. Sutton Handle Factory v. N.L.R.B , 255 F.2d 697, 698 (C.A. 8). e. Also relevant is the manner in which Respon- dent effected the discharge. Vernon McDermott testified that he decided to discharge Siino in the ° Cf Angwell Curtain Company v N L R B, 192 F 2d 899,903 (C A 7), N L R B v Melrose Processing Co , 351 F 2d 693, 697-698 (C A 8), N L R B v Dove Coal Co, 369 F 2d 849,851 (C A 4) morning or early afternoon of May 6 because she had neglected to call in. He testified that prior to leaving the plant that night (May 6) he pulled her card from the rack and sent out the telegram of discharge. According to Vernon, Siino would still be working in the plant if she had reported her absence. To me, Respondent's failure to ascertain the reason for Siino's unreported absence (a bona fide visit to the dentist for extraction of an im- pacted tooth), prior to taking the drastic discharge action, seems somewhat remarkable when it is con- sidered that Siino had been in Respondent's employ continuously for 15 years, was its senior employee, had seldom called in prior absences, and admittedly was never warned that failure to call in an absence would or could result in discharge. Nor can I over- look what appears to be the runaround Julian Mc- Dermott gave Siino in promising to take up the discharge with Vernon in expectation or at least contemplated possibility of recalling her. Thus, while Julian testified that he told Siino in at least two postdischarge telephone conversations that he could not discuss the matter with Vernon because of illness in Vernon's family, Vernon testified that he had already discussed the situation with his father-moments after Siino left the plant in the morning of May 7-prior to the telephone conver- sations. According to Vernon, he had already told his father that he was unwilling to take her back un- less she agreed to "certain conditions," i.e., com- pliance with company "rules"-a conversation Ju- lian never relayed to Siino. At the same time, Julian advised Siino "to take another job some place else and maybe [she] would like it better." f. Respondent's explanations for the discharge fall far short of overcoming the prima facie case of discriminatory motivation established by the evidence. As to Siino's breach of a company rule to call in or report absences in the morning, the record shows that Respondent had ignored this breach for years. As to her absences, even aside from the fact that they may have been for the best of reasons or for acceptable reasons, it is clear that absenteeism was rife in the plant, that Respondent has retained employees with comparable or worse attendance records, that in no instance was Siino's excuse on absentee slips treated as unacceptable, and that no one from management had singled her out (let alone criticized or warned her) for any such infraction. Nor is there any credible evidence that Respondent had regarded Siino's "latenesses" seriously, even Vernon McDermott indicating that he talked to her only once or twice on this subject. Although Respondent established that Siino failed completely to heed Vernon McDermott's instruc- tions to fill out timesheets, it appears that other em- ployees were also derelict in this regard, without in any way being disciplined; and again , it appears that Siino was never warned of possible discharge for such conduct. The same is true with respect to Siino's smoking by her workbench; furthermore, an extenuating circumstance appears to be Siino's ina- JULIAN A. McDERMOTT CORPORATION bility to utilize the ladies' dressing room for this purpose due to the "disgusting" habits of one of the women frequenting it, resulting in the latter's discharge. That the reasons advanced to justify Simo's discharge were not the sole motivating cause for the discharge is indicated by Julian McDermott's testimony that although Vernon, Simo's superior, had complained to him about her alleged infrac- tions in the past, nothing was done about them until the advent of the Union. Indeed, as late as March 1969, Julian McDermott rewarded her with an in- surance policy because (in McDermott's own words) she was one of the "critical" people and "essential part[s] of the operation." Thus, under all of the circumstances it would seem that Siino's behavior "apparently became intolerable only" (N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3)), when the need for a plausible defense appeared. As in Magnolia Petroleum Co. v. N.L.R.B., 200 F.2d 148, 149-150 (C.A. 5), "until the union issue arose, these complained of acts of [hers] were all condoned and would have con- tinued to be condoned and ... the straw that broke the back [of Respondent's] tolerance and condona- tion was the union activity in the plant." g There is, of course, in this case, as in others of this type countervailing evidence tending to negate discrimination. Thus, as indicated, Siino was not free from fault as regards completing necessary timesheets and as to smoking by her bench. Furthermore, the fact is that she had a record of absences as well as of failing to call in. However, giving full weight to these countervailing factors, I am nevertheless persuaded that they are out- weighed by factors supporting a finding of dis- criminatory motivation. Cf. General Electric Com- pany, 155 NLRB 208, 221-222; Alton Box Board Company, 155 NLRB 1025, 1039; General Tire & Rubber Company, 149 NLRB 474,480-48 1. "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was un- lawful, unless the discharge was predicated solely on those grounds. . ." N.L.R.B v. Symons Manu- facturing Co., 328 F.2d 835, 837 (C.A. 7). "And a justifiable ground for dismissal of an employee is no defense to an unfair labor charge if such ground was a pretext and not the moving cause " N.L.R.B. v. South Rambler Company, 324 F.2d 447, 449 (C.A. 8 ). Nor have I overlooked the fact, stressed by able counsel for Respondent, that the record is devoid of evidence of independent 8(a)(1) violations, such as systematic interrogations, threats, and promises of benefits-often, if not usually, found in dis- criminatory discharge cases. The answer to this has been aptly stated by my colleague, Trial Examiner Frederick U. Reel, in Terry Industries of Virginia, Inc., 164 NLRB 872, 874, enfd. 403 F.2d 633 (C.A. 4): In the ordinary case, the General Counsel is able to point to other antiunion conduct of the 501 employer as support for the inference that union activity was the real reason for the discharge which the employer sought to ex- plain on false grounds. In this case ... I find that apart from the discharges. themselves, the Company engaged in little overt antiunion con- duct. But just as the showing of other antiunion conduct is of some support, but is not conclu- sive, in establishing that a particular discharge was for union activity, so the comparative absence of such conduct is not conclusive in establishing that a discharge was not for union activity. A contrary rule would mean that an employer could discharge union leaders with impunity if he refrained from other acts of hostility to the union. The ultimate question is what was the reason for the discharge, and the presence or absence of other antiunion actions is an aid to answering the question, not an answer in itself. [Footnote omitted.] Accord: N.L.R.B. v. Mrak Coal Company, Inc., 322 F.2d 311, 313 (C.A. 9), where the court held that it could not "accept the respondent's theory that proof or lack of proof of prior anti-union animus is controlling," explaining that "[s]uch a rule would automatically always insulate the first unfair labor practice charged against an employer " For all of the foregoing reasons, I find that the reasons advanced for Siino's May 7, 1969, discharge are pretextuous. I conclude that the discharge was, at least in controlling substantial part, motivated by Respondent's desire to rid itself of the suspected employee leader in the union drive, thereby to thwart union organization in viola- tion of Section 8(a)(3) and (I) of the Act. CONCLUSIONS OF LAW 1. By discharging Mary Siino on May 7, 1969, and thereafter failing or refusing to reinstate her, in order to discourage union activities, Respondent has discriminated in regard to hire and tenure of her employment, in violation of Section 8(a)(3) and (I) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The Recommended Order will contain the con- ventional provisions in cases involving findings of interference, restraint, coercion, and discriminatory discharge, in violation of Section 8(a)( I) and (3) of the Act. These will require Respondent to cease and desist from the unfair labor practices found, to offer reinstatement with backpay to the employee discriminated against, and to post a notice to that effect. In accordance with usual requirements, rein- statement shall be to the discriminatee's former or substantially equivalent position, without prejudice to her seniority and other rights or privileges. The 427-835 0 - 74 - 33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminatee shall be made whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she normally would have earned from her date of discharge (May 7, 1969), to the date of offer of reinstate- ment , less net earnings if any during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended, in view of the na- ture of the unfair labor practices Respondent has engaged in , that it cease and desist from infringing in any manner upon the rights guaranteed em- ployees by Section 7 of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclu- sions of law , and the entire record in the case, and pursuant to Section 10(c) of the Act, it is recom- mended that Respondent , Julian A . McDermott Corporation , its officers , agents, successors , and as- signs, shall. 1. Cease and desist from: (a) Discouraging membership and activities in Plastic , Moulders & Novelty Workers Union, Local 132, International Ladies Garment Workers Union, AFL-CIO, by discriminating in regard to the hire and tenure of employment of Respondent's em- ployees, or by discriminating in any other manner in regard to any term or condition of their employ- ment in order to discourage membership or activi- ties therein. (b) In any other manner interfering with, restraining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action , which is deemed necessary to effectuate the policies of the Act: (a) Offer Mary Siino immediate and full rein- statement to her former or substantially equivalent position , without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay she may have suffered as a result of her discharge , in the manner set forth in "The Remedy " section herein. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of her 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. (c) Preserve and, upon request , make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Ridgewood , New York, copies of the attached notice marked "Appen- dix."36 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.31 '" In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board " shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 'r In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, it has been decided that we , Julian A. McDermott Corporation , have violated the Na- tional Labor Relations Act, and we have been or- dered to post this notice. The National Labor Relations Act gives you, as employees , certain rights , including the right to self-organization ; to form , join, or help unions; and to bargain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT do anything that interferes with any of your rights listed above. WE WILL NOT fire or take any reprisal against any of you because you have joined or sup- ported , support, or will support the organiza- tional campaign of Plastic, Moulders & Novel- ty Workers Union , Local 132, International Ladies Garment Workers Union , AFL-CIO, or any other union. WE WILL offer to give Mary Siino back her job, with full seniority and all other rights and privileges, since she was found to have been JULIAN A. McDERMOTT CORPORATION discharged because she supported the or- ganizational campaign of the above-named Union. WE WILL also make up all pay Mary Siino lost, with 6 percent interest. All of you are free to become , remain, or refrain from becoming or remaining , members of Plastic Moulders & Novelty Workers Union , Local 132, International Ladies Garment Workers Union, AFL-CIO, or any other labor organization. JULIAN A . MCDERMOTT CORPORATION (Employer) Dated By (Representative ) (Title) 503 This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board 's Office , 16 Court Street, Fourth Floor, Brooklyn , New York 11201, Telephone 212-596-3535.