FTS Corp.

FTS CORP. 787 FTS Corp. (Division of Hitco) and International As- sociation of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO. Case 27-CA-2785-2 August 3, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS MCCULLOCH AND BROWN On April 21, 1970, Trial Examiner James R. Hemingway issued his Decision in the above-enti- tled proceeding, 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 affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter, the Respondent and the General Coun- sel filed exceptions, supporting briefs, and answer- ing briefs. 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 the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified below. The Trial Examiner found that employees Ottis Boyd, Jr., and Ralph Leonard were not, as Respon- dent urged, discharged because of Boyd's having been away from his assigned station on August 26, 1969, and because of Leonard's attitutde. Instead, the Trial Examiner found that the reason for Boyd's and Leonard's discharges was because of their con- versations with other employees in which a walkout was discussed. Nevertheless, the Trial Examiner concluded that their discharges were not in viola- tion of Section 8(a)(1) or (3) of the Act as their activities were not concerted, union-related, or pro- tected. He found that their activities were not con- certed because Boyd and Leonard were not work- ing together in talking about a walkout and were not even of the same mind on that subject, nor was there proof that other employees were acting in concert with either one. Moreover, he also found that they were not engaged in union activities because of the absence of union approval for the walkout. The Trial Examiner was also of the opinion that the walkout, had it occurred, would have been for an illegal objective; i.e., to force recognition of the Union which had lost an election only 6 months before. Since he was of the further opinion that the Respondent believed, not without some grounds, that the walkout would have been for that purpose, he concluded that the discharges for engaging in such activity would not have been for the purpose of discouraging either union mem- bership or protected, concerted activity. We be- lieve that the Trial Examiner 's 8(a)(1) dismissal in this respect is in error. Boyd and Leonard were without question discussing with other employees the possibility of a walkout. It is well established that such discussions about the feasibility of a strike are concerted activi- ties,' and the fact that a minority group of em- ployees proposes engaging in a strike to achieve recognition for a union which had earlier lost an election is not, without more, unprotected, con- certed activity and a violation of Section 8(b)(7) of the Act.2 What is of critical importance is that there is an absence of evidence in the record that the sug- gested strike, even if it had come to fruition, would have involved employee picketing for the alleged unlawful purpose. In the absence of such showing a strike for the purpose indicated is not an unpro- tected activity.' Since it is clear that the activities of Boyd and Leonard were of a concerted nature and protected we find that the Respondent by discharg- ing them for such conduct violated Section 8(a)(1) of the Act. THE REMEDY We have found, contrary to the Trial Examiner, that the Respondent engaged in certain additional unfair labor practices in violation of Section 8(a)(1) of the Act, by discharging Ottis Boyd, Jr., and Ralph Leonard for engaging in protected, con- certed activity. In our opinion, it is necessary in order to effectuate the purposes of the Act that the Respondent be ordered to cease and desist from en- gaging in such unlawful activity and to reinstate these employees with backpay. ' Rogers Brothers Company of California, 169 N LRB 830. = National Packing Company, Inc v N.LR.B., 377 F.2d 800 (C A. 10) Id. at 804. 184 NLRB No. 91 427-835 0 - 74 - 51 788 DECISIONS OF NATIONAL Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the fol- lowing amended conclusions of law which we shall substitute in place of the Trial Examiner's sixth conclusion of law and number as the sixth and seventh conclusions of law. The present seventh conclusion of law should be renumbered as the eighth conclusion of law: AMENDED CONCLUSIONS OF LAW Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaran- teed in Section 7 of the Act by discharging Ottis Boyd, Jr., and Ralph Leonard, thereby violating Section 8(a)(1) of the Act. Respondent has not discouraged membership in a labor organization by discriminating in regard to the hire or tenure of employment of Martin Sutton in violation of Section 8(a)(3) and (1) of the Act. 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, FTS Corp. ( Division of HITCO), Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner 's Recom- mended Order, as so modified: 1. Substitute the following for paragraph 1(b ) and reletter the present paragraph 1(b) as 1(c ): "(b) Interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act by discharging Ottis Boyd, Jr., and Ralph Leonard because they had engaged in protected, concerted activities." 2. Substitute the following for paragraph 2(b) and reletter the present paragraph 2(b) and sub- sequent paragraphs accordingly: "(b) Offer to Ottis Boyd, Jr., and Ralph Leonard immediate and full reinstatement of their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay which they may have incurred by reason of the Respondent's dis- crimination against them by payment to them of a sum of money equal to that which they normally would have earned as wages from August 26, 1969, the date of the discrimination against them to the date of the Respondent's valid offer of reinstate- ment. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, LABOR RELATIONS BOARD with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716." 3. Add the following as paragraph 2(d): "(d) Notify Ottis Boyd, Jr., and Ralp Leonard if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 4. Add the following paragraphs after the last in- dented paragraph of the Appendix: WE WILL NOT interfere with, restrain, or coerce employees in the exercise of rights guaranteed in Section 7 of the Act by discharg- ing or by otherwise discriminating against any employees because of their protected, con- certed activities. WE WILL offer to Ottis Boyd, Jr., and Ralph Leonard immediate and full reinstatement with backpay. WE WILL notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Milita- ry Training and Service Act, as amended, after discharge from the Armed Forces. CHAIRMAN MILLER, concurring in part, and dissent- ing in part: I would adopt the findings, conclusions, and recommendations of the Trial Examiner in all respects. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: Upon a charge filed on August 27, 1969, an amended charge filed on September 9, 1969, and a second amended charge filed on October 15, 1969, by In- ternational Association of Machinists and Aerospace Workers and its District Lodge No. 86, AFL-CIO, herein called the Union, against FTS Corp. (Division of HITCO), herein called the Respondent, a complaint issued on October 31, 1969, alleging that Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) and Sec- tion 2(6 and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. In substance , the complaint alleges that since on or about March 1, 1969, and continu- ing to date, the Respondent had interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act FTS CORP. 789 by certain verbal statements made by named representatives of the Respondent to employees; that the Respondent on or about June 17, 1969, in- itiated, formed, sponsored, and promoted the Com- mittee and since that date has assisted, dominated, contributed to the support of, and interfered with the administration of said Committee; and that on or about July 23, 1969, Respondent terminated the employment of Martin E. Sutton, and about August 26, 1969, terminated the employment of Ottis Boyd, Jr., and Ralph Leonard and thereafter failed and refused to reinstate them. On November 10, 1969, the Respondent filed an answer to the complaint in which it admitted the ju- risdictional allegations, admitted the discharges of Boyd and Leonard only, but denied the commission of the alleged unfair labor practices. The Respon- dent's answer also alleges that the events men- tioned in the complaint as specific acts of violations of Section 8(a)(1) of the Act occurred more than 6 months prior to the filing of any charge relating thereto and therefore that the limitation in Section 10(b) of the Act would preclude a complaint based thereon. Pursuant to notice, a hearing was held in Denver, Colorado, between January 22 and 27, 1970. At the conclusion of the hearing, the parties requested and were granted time in which to file briefs with the Trial Examiner. On the appointed day, briefs were received from the General Counsel and from the Respondent. From my observation of the witnesses and upon the entire record in the case, I make the following: ing a Stipulation for Certification Upon Consent Election, dated January 17, 1969, an election was held on February 14, 1969, which the Union lost. III. SIX MONTHS' LIMITATION UNDER SECTION IO(B) Respondent's position appears to be that neither in the original nor in either of the amended charges is there any specification of the acts which are set forth in the complaint as violations of Section 8(a)(1) of the Act. The printed form of the charge used for both the original and the amended charges contains the printed allegations of 8(a)(1) viola- tions as they appear in section 1(h) of that charge, and at the end of section 2 thereof (which is a statement of the basis of the charge). Hence, the first listing of specific acts alleged to be a violation of Section 8(a)(1) of the Act is to be found in the complaint. The issue raised by the Respondent's answer is no longer new or unsettled. The Board long since has held the allegation on the printed form of the charge-"By the above and other acts, the above- named employer has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. "-to be suffi- cient to support the more particular allegations of interference, restraint, and coercion contained in the complaint.' IV. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation organized under and existing by virtue of the laws of the State of California. At all times material hereto, the Respondent has maintained an office and principal place of business in Denver, Colorado, where it is engaged in the manufacture and sale of machine and fabricated metal parts. In the course and con- duct of its business operations, Respondent an- nually ships products valued in excess of $100,000 from its place of business in the State of Colorado directly to points in States of the United States other than the State of Colorado. There is no issue as to jurisdiction, and I find that the Board has ju- risdiction and that it will effectuate the purposes of the Act to assert jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization , admitting to membership employees of the Respondent. Follow- ' Sam Klatn and Sons, 127 NLRB 776, Kohler Co, 108 NLRB 207, affd on this point in 220 F.2d 3 (C.A. 7), Kohler Go, 128 NLRB 1062, The complaint alleges that in March 1969 the Respondent, by certain supervisors, Jack Shipp (Respondent's industrial relations manager) and Albert Fazekas (assistant machine shop super- visor), made statements which interfered with, restrained, and coerced its employees. To prove these allegations, the General Counsel called Duane Marshall, who, in March 1969, was a cost accountant (also called a payroll supervisor) for Respondent doing payroll work, but who was not employed by the Respondent at the time of the hearing. Marshall testified, by way of background, that at a meeting of supervisors and management personnel held about 2 weeks after the election which the Union lost, President Donald Smith told those present that the Union had lost the election and that the supervisors should take it easy and not cause any trouble and not "get on" any union people, because they were still in critical times when the Union could step back in. A week or two later, Marshall testified, he had a conversation with Jack Shipp, the industrial rela- tions manager, as Shipp was coming out of his of- fice about 7 or 8 p.m. when no one else was 1097-98; Texas Industries, Inc, 139 NLRB 365, affd on this point in 336 F 2d 128 (C.A 5), Star Expansion Industries, 164 NLRB 563, 566 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present. He testified that he had asked Shipp "how the union thing was going" and if they were having any more trouble . He quoted Shipp as replying that "They knew the people that had worked for the Union ... that they were trouble makers and wouldn't be around long." Shipp flatly denied that there was any such conversation with Marshall and testified that the nearest he would come to Marshall 's desk when he was leaving after hours would be an estimated 25 to 40 feet. A finding on the issue of credibility will be made hereinbelow. Marshall also testified that about 5 :30 p.m., a day or two after his conversation with Shipp, he had had a conversation with Assistant Machine Shop Supervisor Albert Fazekas. He testified that Fazekas had come to him to ask about a payroll matter and that he had asked Fazekas how things were going regarding the Union . He testified that Fazekas had answered , saying: ... he knew the people that had worked for the union , were pushers of the union , wanted to get the union in, this type of thing. Well, he didn't especially care for them, that he wanted to get rid of these people and would in time; but that he couldn't do it, you know, go out and fire all these people or it would bring the union back in. And he would more or less make it hard on them until they quit or could be gotten rid of. The whole conversation , Marshall testified, lasted 10 or 15 minutes. Fazekas, who was not in Respon- dent's employ at the time of the hearing, testified at one point that he had had only one conversation, other than about business, with Marshall and that was on an occasion when Marshall had lost his coat and he had helped Marshall find it . However, Fazekas' testimony , when he was called by the General Counsel, was somewhat confused . There is one place in the transcript where Fazekas is shown as answering "yes" to the question , "Did you perchance discuss [the Union] with Duane Marshall?" Counsel for the General Counsel ap- parently understood the answer to be "no," because, after one intervening question, counsel asked Fazekas , "It is your testimony you never discussed the Union or he [Marshall ] never raised the subject with you?" Fazekas answered, "No." His meaning is not too clear . Literally, he was say- ing that that was not his testimony , implying that he had perhaps spoken with Marshall about the Union as he had answered the earlier question . When he was called as a witness on the Respondent 's case, Fazekas testified merely that he could not re- member having spoken with Marshall about the Union. Marshall's credibility was attacked by the Respondent. The following facts were brought out: Marshall had been employed by the Respondent for a period between August 1968 and May 1969. He supervised no employees in his work . Among other functions he initialed and put through slips for va- cation pay for employees . These slips were sup- posed to be approved by Marshall's supervisor be- fore being processed . Early in May 1969, Marshall gave Respondent a 2-week notice of his intent to quit and, at the same time, he put through a slip for vacation pay for himself, although he had been em- ployed less that 1 year, the qualifying period. Marshall 's supervisor, Vince Dietrick, was not present at the time this slip was sent to the IBM computer and he did not , therefore, initial the slip. However, later that morning, all the adjustment slips that had gone to the IBM computer operator from Marshall that morning were taken by another party, who looked them over individually. In the process, the slip for vacation pay Marshall had put through for himself was discovered . This was called to the attention of Dietrick when he returned that afternoon and Dietrick discharged Marshall.2 After his discharge , Marshall made claim for unemploy- ment compensation, which was opposed by the Respondent , and he filed suit for overtime pay, which case was pending at the time of the hearing. When Marshall returned to the Respondent for his paycheck, after his discharge, Shipp told Marshall that his checks would be held until Marshall had paid what he owed to the credit union at the Respondent . At that time , according to Marshall, Shipp said he had heard that Marshall was going to file a complaint (the nature of which was not re- lated by Marshall) against the Respondent, and asked if this were true . Marshall told Shipp that it was. Shipp according to Marshall , then said that if he filed any complaints or charges, he would blackball Marshall in the State of Colorado. Shipp was not questioned about this. Marshall testified that he had contacted the Union and volunteered to testify to the conversa- tions with Shipp and Fazekas as hereinabove re- lated after he had noticed a newspaper article about picketing by some discharged union sym- pathizers in which Shipp was quoted as saying: "We would never terminate someone attempting to or- ganize unless he was doing it on company time." The General Counsel argues that Marshall has more to lose than gain by testifying untruthfully, because an adverse finding in this case could adver- sely affect his overtime pay suit against the Respon- dent. I have taken this into account as well as the possible influence of bias on Marshall 's testimony. From my observation of Marshall's demeanor on the stand and the form of his testimony, I find that he was not fabricating . But I am, nevertheless, con- cerned to some degree with the clarity of his memory and his interpretation of words spoken, because it was apparent that he did not remember ' Marshall sought to justify his act on the ground that the 1 -year rule was not mflexible and that other exceptions had been made. I make no finding on the collateral issue FTS CORP. precise words and that he was relating his un- derstanding of them. Examining Marshall's testimony on direct ex- amination as to Shipp's alleged answer to his question about how the union thing was going, I notice that Shipp's alleged answer, as related by Marshall, appears to go much farther than needed in order to answer the question alledgedly put by Marshall, and it also has marked similarity to Marshall's version of Fazekas' alleged answer to a similar question. However, after Marshall had given his testimony on direct examination for the General Counsel, he was asked on cross-examination by the Respondent to repeat the conversation he testified he had had with Shipp. This time he testified that he had asked Shipp how things were going with the Union and that Shipp had replied that "things were coming along, but there was a time period that the union found any reason or something like this, I guess could come back and demand a new election. ." He testified that Shipp then went on to say that "they knew the people that had worked for the union, that they were trouble makers and they wouldn't be there at all. "3 The first part of the above-quoted conversation, according to this version, given on cross-examina- tion, sounds more probable than that given on direct examination, especially since it indicates that the conversation took place between the date of the election, February 14, 1969, and the date of the certification of the results of the election, February 26, 1969. But for Shipp's denial, I might find that at least the first part of the conversation took place. But Shipp did not impress me as a man who would perjure himself by making a false denial of Marshall's testimony. . Even Marshall's own testimony of his conversation with Shipp was not too convincing especially since the last portion of Marshall's quotation of Shipp, the implied threat that union supporters would be eliminated by the Respondent, appears to hang in midair with mothing to show context. Of course, Marshall might not have remembered that part of the con- versation which led up to his statement, if it was made; but I have noted the similarity between this quoted statement and the one Marshall testified was made by Fazekas. Without some showing of context in which Shipp is shown to have spoken the words, I am inclined to believe that the vagaries of memory might have produced a transposition of words from one conversation to the other in Marshall's memory. Even if something like that had been said by Shipp, I am not satisified that he was quoted accurately. Furthermore, I cannot overlook the fact that Marshall had personal reasons for disliking Shipp and might have allowed his bias to influence his memory. I credit Shipp's denial. 3 This is the way the testimony appears in the transcript I believe the wlt- -ness closed with the word "long" (as he had on direct examination ) rather than with "at all." However, no motion was made to correct the transcript. • There is not sufficient evidence to show that Marshall would, in any event, be excluded from a unit of office clericals as a managerial employee 791 I am convinced that Marshall was not fabricating all his testimony out of spite and since I find that his testimony concerning his conversation with Fazekas was plausible and that Fazekas' memory was not too good, I find that Fazekas did, in sub- stance, make the statements quoted by Marshall. Respondent argues that, even if such statements had been made by Fazekas, it was made to a payroll supervisor and not to an employee in the unit sought to be represented by the Union. However, a payroll supervisor is not a supervisor of employees; he is an employee, albeit not in the unit then sought to be represented by the Union. But the fact that he was not in the unit does not mean that Marshall could not have been in an appropriate unit of cleri- cal employees.' The tendency of the statements made to Marshall would be to restrain and coerce him in his freedom to choose whether or not to be represented by a labor organization. Although Marshall started the conversation about the Union, Fazekas went farther than was necessary to answer Marshall's question. I find that, by Fazekas' state- ment to Marshall, as quoted above, the Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. The only other interference, restraint, and coer- cion alleged in the complaint was a statement (on two occasions) by a supervisor that an employee should get rid of a union pencil clip which he car- ried in his pocket. Martin Sutton testified that shortly after he was transferred to the day shift in March 1969, he had had a conversation with Daniel Steward, then a line supervisor over the inspectors. Sutton testified that Steward told him that, when Sutton was transferred to the day shift, it had been the Respondent's plan to keep him for only a cou- ple of weeks, that Sutton asked if this was because of his work, and that Steward had replied, "You know damn well what it is." According to Sutton, Steward reached over and flicked Sutton's union pencil clips and continued, "Why don't you let things cool down. Maybe you will be here a lot longer." Steward's denial was limited to portions of Sutton's testimony, specifically that part regarding the pencils. Sutton further testified that in another conversa- tion with Steward in or about June 1969 Steward had asked Sutton for his stylus. Sutton testified that he did not have one with him but handed Steward a pencil with a union clip on it, since (Sutton testified) such clips were used by some of the em- ployees as styluses. Steward, according to Sutton, looked at the union symbol and said, "I thought I told told you to get rid of these damn things." Then, according to Sutton, Steward reached in his desk drawer and said, "Here, I keep those around On the evidence available , I find that he was not a managerial employee See for inclusion in unit - Locomotive Firemen & Engineers, 145 NLRB 1521 (paymasters); Westinghouse Electric Corp , 138 NLRB 778 (senior in- dustrial auditor); Newark Stove Co, 143 NLRB 583 (assistants to payroll and data processing manager) 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for just such occasions like this. . . . Just take them [referring to the ones Sutton had] and throw them away." Steward testified that there was only one incident involving a discussion of pencils to his recollection. According to him, he and his assistant, Kiernan, were walking down the aisle when Sutton walked up to ask a question. Steward testified that there was at that time "a little aggravating going on between the employees toward supervision as far as wearing union buttons," that Sutton had pulled pencil clip out of his pocket and asked, "do you like my pencil clip." He testified that, in reply, he had pulled a pencil from his own pocket and of- fered it to Sutton and commented that he'd keep the one he had. When asked what he meant by "Aggravating," Steward answered, "Well, they would always seem to expand their chests when they came up with their pencil clips with IAM, make sure you saw them." I am convinced that this was not a third conversation but was, in fact, the same one Sutton had placed as occurring in Steward's office. Although there were indications that some of the management personnel might have had stronger an- tiunion sentiments than others, Steward gave the impression of a fair-minded supervisor. Sutton was an easygoing man who laughed readily. Steward ap- peared to be not without a sense of humor himself, although he was businesslike, and I sensed that Steward did not dislike Sutton and was not inclined to treat him harshly because of his union activities. I would be more inclined to believe Sutton's testimony if it were not for the fact that, in a later portion of his testimony, he related a strikingly similar conversation which he claimed he had had with the night-shift plant manager, Mihely Szabo, while Sutton was working on the night shift. Sutton testified that, in January 1969, Szabo had called him into his office, looked at all the union insignia on Sutton's chest, and commented that "you are going to fall over with all that junk," that Szabo took one (union button, I infer) off of Sutton's coverall and put it on the other side, commenting: "That will balance you up a bit, and even better still, why don't you take all of it off and throw it away.... What do you think you will get by getting the Union in." Sutton went on to relate a conversa- tion in which he had told Szabo why he thought the Respondent needed a union. Sutton also testified that Szabo had asked him, "Who all is the head of all this?" and that he (Sutton) "might have said `Me' if I remember, or `Go out in the shop, and pick anybody."' This portion of Sutton's testimony was given for the first time on redirect examination by the General Counsel. There was no allegation concerning it in the complaint. Szabo denied that there was any such conversation. I credit his denial. The conversation related by Sutton, especially that part about shifting union buttons to put Sutton in balance is the type of humor I could expect of Fazekas but not from Szabo, who gave the ap- pearance of one without levity. I consider it not un- likely that Sutton confused the identity of the per- son with whom he had the conversation. B. Domination and Assistance to the Committee On June 17, 1969, the Respondent, over the signature of President Don Smith, issued a bulletin stating as follows: From: Don Smith [President] c The attached Employee-Employer Communi- cation Policy Procedure is effective Monday, June 23, 1969. I would like to point out that the new em- ployee communications program is an exten- sion of the informal program that we have had in the past, and I request we continue to solve all differences and problems on the 1st level and hopefully in an informal manner. How- ever, I encourage any of you with significant problems to use this program so that we the management can have the opportunity to become knowledgeable of our problems. Your supervisor will call you together very shortly to review the program with you and ac- cept nominations for you employee representa- tive. If you have any questions concerning the program, your supervisor will be happy to answer them for you at this time. I also wish to announce to you at this time two other scheduled completion dates for projects previously announced. 1. Our employee lunchroom which has been delayed because of our necessary physical expansion, had been started and is scheduled for completion approximately August 12. 2. Work has been substantially completed on our wage and job classifica- tion program and your supervisor will review this with you in approxiamately 1 month. I wish to thank you for your patience regarding the above programs which have been previ- ously discussed with you. Our continued expansion and additional production requirements have delayed us in some of these areas. Your cooperation has been appreciated. Accompanying this letter was an outline of an "employee-employer communications policy state- ment and procedure." This commences with the following paragraphs: In every company, there can be and are, honest differences of opinion about working conditions, discipline, rules and other em- ployee problems. The management of FTS Corporation does not want you to keep these problems to yourself but sincerely desires that we discuss the problems and arrive at an FTS CORP. equitable settlement . We, of course, cannot rectify any situation unless it is brought to our attention. We, therefore , encourage any employee who thinks or feels that any condition affecting him is unjust, inequitable, a hindrance to effective operation, or creates a problem , to use the fol- lowing procedure for the solution of such problem without fear or [of?] recrimination. An Employee Representative will be elected from each shop unit to assist and represent em- ployees in that unit in complying with the procedures set forth in this policy. Following this statement there is an outline of five steps for the bringing of complaints to the at- tention of management . The first step is bringing the complaint to the attention of the employees's immediate supervisor orally . The employee is enti- tled under this procedure to have his employee representative appear with him when he presents his complaint . The plan requires that the supervisor give his reply within 3 days after the day on which the complaint is registered . The second step is the presentation of the complaint by the employee or the employee representative to the industrial rela- tions manager, who attempts to set up a meeting within 3 working days. The meeting as set up is to consist of the employee , the employee 's representa- tive, if requested , the supervisor, and the industrial relations manager , who acts as chairman . The third step, if the employee is not satisfied, requires a written explanation of the employee's reason for re- jecting the answer of the industrial relations manager and provides for a meeting set up for this hearing, which is attended by the department head in addition to the industrial relations manager and the others involved in the second step , but the in- dustrial relations manager again serves as chairman. The decision rendered at the third step may be ap- pealed . In step four the industrial relations manager notifies those who attended the meeting in step three that an appeal has been made and he provides the "appropriate company officer" with a record of the problem to date. The appropriate company of- ficer then conducts an investigation , in which he talks with the parties and gives the employee either alone or, if the employee desires, with his employee representative , a chance to express his problem. The appropriate company officer is required to give his judgment in writing within 7 days, and again the employee may, in writing , reject the decision. Fol- lowing such rejection , the case proceeds to step five in which the president of the Company receives all the facts and renders final judgment. Following the outline of the five steps just described, the bulletin proceeds with a section called "Employee Representatives." This describes the units of employees that are to be represented by an elected representative . The units and the super- visors in such units are listed thereunder . The du- ties of the representative are stated to be working 793 with employees on problems or complaints to assist in determining if they are justified, and to sit in and assist in representing an employee in part or all of the steps of the communications procedure. The outline further states that the unit super- visor will call his employees together within 24 hours after notification that representatives are to be selected and at this meeting the supervisor is to review the communications program and notify the employees that an election will be held within 48 hours. The employees, the outline states, are per- mitted to nominate two or three persons at this meeting. The election , which is stated to be held within 48 hours after the first meeting , is stated to be handled verbally, and the unit supervisor is to notify the industrial relations manager of the name of the employee representative selected from the unit. The outline provides for a term of 1 year for the representative and for a special election in the event he terminates his employment within that period of time . The outline further provides that an election is to be held at the end of each term to elect new representatives, and provides also that no employee may serve two consecutive terms. The final paragraph in this outline sets forth the require- ments that an employee , to be eligible to serve as a representative , must have been employed by the Respondent for at least 18 months . The employees campaigning for or serving as employee representa- tives are prohibited from making any promises to employees. As announced in the bulletin , the supervisors of the various units got their employees together in the meetings provided for, made the announce- ments, gave the names of employees who were eligible to be elected as representatives , called for nominations, and conducted an oral vote . There is evidence that the representative procedure operated with some success to bring complaints of individual employees to a solution. About 2 weeks after the representatives were elected, a meeting was called of the elected representatives in the conference room at the plant. At the meeting, John Shanks, employment manager, went through the various steps in the Respondent's plan to acquaint the representatives with their responsibilities , and asked them whether or not they had any questions . The meeting was held during working time and it lasted about 45 minutes. A second meeting of employee representatives was called about 2 or 3 weeks after the first one. Employment Manager Shanks and Industrial Rela- tions Director Shipp were there. The meeting was held in the conference room during working hours. The stated purpose of the meeting was to learn how the employee representative program was working. The representatives were told that if they felt that an employee's grievance was not "legitimate" they should tell the employee not to file it. Albert Lobato, an employee representative at that time and a screw machine operator testified that, at this 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting "I brought up the fact that the sulphur and oil used on screw machines caused dermatitis and suggested that the operators should have some kind of protective ointment to put on their hands before they started working." As a result, the operators were later given some ointment to use. This matter dealt with a condition of work affecting more than one employee. A third meeting of employee representatives was held in August 1969, during working time and at the same place. This one was attended by President Smith, who asked the opinion of the employee representatives as to the desirability of holding a company-sponsored picnic. The representatives concurred that a picnic would be desirable, and they proceeded, pursuant to directions of Smith, who appointed Employment Manager Shanks as a committee chairman, to select committees. That day, the Union was distributing literature outside the plant and Smith asked what was going on. He said he was not for or against the Union but he wanted to know why the men wanted a union. Several of the representatives told him that one of the reasons was the new wage classification which contained an overlap of 50 or 60 cents in all clas- sifications and told him that none of the employees liked that. Smith explained that this was customary in all wage classifications. Although this exchange might not be called collective bargaining, ' it does constitute a "dealing with," within the meaning of Section 2(5) of the Act. At a meeting of employee representatives in December, according to Smith, he asked the representatives if they felt it was appropriate to put their annual floating holiday on the day after Christmas. Once when the Respondent received an order for new business, he called the representa- tives together to notify them. Smith testified that he told the representatives that he was not there to negotiate anything but to express the Company's policy. I do not question but what the Respondent was motivated by a desire to eliminate the causes of em- ployee dissatisfaction in the interest of smoother operations when it instituted its employee represen- tation plan. The Union had lost an election and was not privileged to petition for a new election, under the Act, for a year. Yet, there were still many union supporters in the plant and there were still, ap- parently, grounds for employee dissatisfaction with employment conditions. Whether or not the Respondent would have instituted its employee representative plan had the Union not continued to be active may not be known, but although I assume that the Respondent was not using the plan as a means of eliminating employee dissatisfaction which might be grist to the Union's mill, I find this to be immaterial. The Act does not, in Section 8(a)(2), confine itself to situations where an em- ployer is motivated by union animus. However pure the employer's motives, therefore, he may violate the Act if he sets up what is defined as a labor or- ganization. The real problem here is not whether or not the Respondent dominated the employee representa- tive plan. This can scarcely be argued. The Respon- dent set up the provisions of the plan, outlined the organization thereof, and determined its operation. It decided who could be a representative for what group of employees, and for what group of em- ployees, and for what period of time. Although em- ployees were given a chance to vote, they had to do so publicly as directed by the plan. It could scarcely be called a spontaneous employee movement. After the prescribed election of the representatives, the latter were guided by the.Respondent as to what kind of grievances to process and what kind of to refuse to process. They met only when called together by the Respondent, during company time, and on company property. All this adds up to domination in the formation and administration of the plan.' The real issue in this case is whether or not what the Respondent set up was actually a labor or- ganization2 within the meaning of the Act. The Respondent argues strenuously that its representa- tion plan did not amount to a labor orgganization or even to a committee, but it does not, in its brief, discuss the meaining of the word "plan" in the definition of "labor organization" in Section 2(5) of the Act. In its brief, the Respondent cites two decisions as supporting its contention that the plan was not a labor organization.' I have examined these decisions and find that they are inapposite. Whether or not the court's logic in those cases is sound, neither case dealt with the definition of a labor organization. Each dealt with an admitted labor organization. The question involved in each was whether or not the allegation of domination was supported by substantial evidence where Sec- tion 10(b) of the Act had precluded evidence of the employer's original domination and assistance at the time the labor organization came into ex- istence. Without that evidence, all that remained, the court held, was evidence that the admitted labor organization was a weak and ineffective one and that, alone, did not establish domination. The definition of labor organization in the Act is: ... any organization of any kind, or any agen- cy or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. This definition has remained unchanged since its ' Pacemaker Corporation , 120 NLRB 987 6 Modern Plastics Corporation v N.L.R.B, 379 F 2d 201 (C A 6) and Federal-Mogul Corp. v. N.L R B., 394 F 2d 915 (C.A. 6). FTS CORP. 795 first appeared in the Wagner Act. In Senator Wag- ner's original bill introduced in February 1934 (S. 2926), the words "employee representation com- mittee or plan" did not appear. In introducing this bill, Senator Wagner stated: "The bill which I am introducing today forbids any employer to foster or participate in or influence any organization which deals with problems that should be covered by a genuine labor union."' In the course of extensive hearings, Edwin E. Witte, a witness, pointed out that the language of that bill did not cover em- ployee committees, and he asserted that employee representation committees were the most prevalent form of company union. He suggested as an addi- tion to the definition of "labor organization" given in S2926 that "This term shall include every plan for the selection of employee representatives for purposes of collective bargaining, although there is no definite organization of employees."' He further suggested a definition of "employee representation committee" as "any committee or group of representatives of employees not a labor organization, who are elected to confer with the employer or representatives of the employer con- cerning grievances, labor disputes, wages, or hours of employment."9 Although this language was not adopted in haec verba, its thought was adopted by Senator Wagner, for in his second bill introduced in February 1935 (S. 1958), Senator Wagner defined "labor organization" (except for the later addition of the final phrase-" or conditions of work") as it later appeared in the enacted law, as heretofore quoted. That Congress did not intend or alter the purpose of the Wagner Act, insofar as the problem in this case is concerned, is evident from the failure of Congress to amend the language of the definition of "labor organization" in any later amendment to the Wagner Act. The word "plan" in Section 2(5) of the Act was used with a purpose and cannot be ignored in favor of other examples of labor or- ganizations, and it is broad enough to cover the type of employee representation se up by the Respondent in this instance, regardless of the Respondent's careful avoidance of the word "com- mittee." The use of the disjunctive in the statutory words "committee or plan" makes it plain that the existence of a committee is not an essential factor. The Respondent, however, also argues that it did not negotiate concerning wages or any agreement and that this prevented the plan from being a labor organization within the meaning of the Act. Again, it will be noticed that the language of Section 2(5), the definition of labor organization, is in the disjunctive as to its purposes also. It covers any plan in which employees participate (as they did here) which exists for the purpose, in whole or in part, of dealing with employers concerning "greiv- ances of" (not "and") certain other matters not necessarily involved here. It cannot be denied that the Respondent's plan was set up for the pur- pose of dealing with grievances. That is spelled out in President Smith's written outline of the plan. Since it is a plan in which employees participate and which is for the purpose of enabling them to deal with the Respondent concerning grievances, this would constitute it a labor organization. 10 One circuit court of appeals has expressed the view that a plan to deal only with the individual grievances is not within the definition of the Act.l With this I cannot agree, because not only does it disregard the history of the Act but it also overlooks the fact that the settlement of individual grievances in many cases establishes a precedent or a rule governing hours, rates of pay, or other conditions of work or employment of other employees. This is evident in two of the grievances testified to having been set- tled under the Respondent's plan. In one instance, an employee, through his representative, carried to the fourth step a grievance under the Respondent's new classification and rate schedule. The grievant had gone through a training school and had received top honors. He had been doing setup work, but he was classified as an A-operator and was not even being paid the top rate. He claimed he should be getting either setup man's pay or top rate in the A-operator's bracket. His claim for higher pay was granted. Since this grievance would involve an interpretation of the classification and rate schedule, the settlement of this grievance could have affected the rights of others. Another em- ployee, through his representative, carried to the second step a grievance that the grievant, based on seniority, should be assigned, in preference to a ju- nior employee, to a machine which was being used for overtime work. Again, the settlement of the grievance in his favor could establish a rule based on seniority and thus could have affected the rights of other employees. - It appears, however, although this was not spelled out in the plan, that the Respondent was utilizing the employee representatives not merely as representatives of individual employees on in- dividual grievances but also, when they were sum- moned by the Respondent to a meeting, to act as a conduit to discuss matters of interest to employees generally. The Respondent demonstrated concern with any situation that gave rise to dissatisfaction with terms or conditions of work. In calling the em- ployee representatives together on repeated occa- sions to learn about such complaints or dissatisfac- tion, the Respondent was utilizing the assembeled representatives as an advisory committee concern- ing employees' work problems, rates of pay, vaca- tion, and other conditions of work. It once asked the group's opinion of setting a floating holiday as 'Legislative History of the National Labor Relations Act 1935 ° Ibid (published by the National Labor Relations Board, 1949), p 16 Thompson Ramo Wooldridge, Inc, 132 NLRB 993 ° Id. at 272 "NLRB v Associated Machines, Inc , 219 F 2d 433 (C A. 6) 796 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD the day after Christmas. The absence of any bar- gaining in the usual sense of the word is immateri- al12 The Respondent calls attention to the fact that employees, in presenting their grievances, may do so individually , and need not use an employee representative. This fact, however, does not prevent the plan from being a labor organization . 13 Even where employees are represented by an un- dominated labor organization , Section 9(a) of the Act gives them the right to present their grievances individually at their option.'' I find, therefore, that the Respondent dominated the formation and administration of a labor or- ganization within the meaning of the Act. I find, also that Respondent contributed to the support of the plan, since it paid individual representatives at their hourly rate of pay while working both on in- dividual grievances and while attending meetings of representatives called by management, and also because the Respondent furnished the place of the meetings.15 C. Discrimination 1. Martin Sutton's employment history Martin Sutton was hired by the Respondent as an inspector on the night shift on January 3, 1968. He continued on the night shift until March 1969. Sut- ton took an active part in the Union's campaign starting in December 1968. While on the night shift, Sutton wore a union patch on his coveralls and carried union pencil clips. Night Superinten- dent Mihely Szabo saw union literature in Sutton's toolbox, and the Respondent knew that Sutton was an active union man. Sutton was often away from his work station during breaks or at times when he claimed he needed to get a gauge checked or wanted to step out for a breath of fresh air or for some other reason. According to Szabo, he received calls from foreman in other departments reporting that Sutton was in another department bothering employees there. Fazekas, at that time assistant machine shop supervisor, once saw Sutton in Fazekas' department, away from Sutton's as- signed place of work. Fazekas testified that Sutton had come there ". . . early before the shift started and bothered my people." Fazekas told Sutton to leave. In this instance, the objection appeared to be to Sutton's presence at all, even before shift time. After Szabo had observed or heard through foremen of Sutton's peregrinations during the period before the election, he had given Sutton in- structions not to leave the forge shop, where he was stationed, without the permission of his immediate supervisor, Foreman Cliff Bowles, even during his lunch period or coffeebreaks. This did not mean that Sutton was denied permission to leave for proper purposes but only that Szabo wanted Sut- ton s foreman always to know where Sutton was and why. The Respondent brought out the fact that Sutton was the only inspector at that place and it was important that he should not absent himself at will. Szabo testified that, following this instruction, Sutton continued to wander and so he went to In- dustrial Relations Director Shipp to ask advice. Shipp suggested that Szabo give Sutton a written warning. Szabo, whose English was not proficient, requested Shipp to write up the written warning. The following warning was then prepared on Janua- ry 21, 1969, and was given to Sutton by Szabo: Employee has continued to repeatedly wander around the plant into areas where his duties have no concern. He has been verbally warned several times about bothering other employees during working hours. One more violation of this policy will result in termination. Sutton signed this written warning in the space for the employee's signature. The General Counsel argues that Szabo's con- finement of Sutton was a clear attempt to curtail Sutton 's union activities . But Sutton never admitted that he was visiting other departments on union business. Sutton indicated that he had legitimate business reasons when he went to other depart- ments. I find it more difficult than it appears to the General Counsel to infer that Szabo's limitations on Sutton's movements were motivated by desire only to keep Sutton from engaging in union activity. Although such an inference might be drawn in the instance involving Fazekas, I find the evidence in- sufficient to warrant such an inference from Szabo's actions. Once, in February or March 1969,16 when Sutton was in the restroom, Sutton testified, he was asked by a new employee who was selling magazines if Sutton wanted to buy any. Sutton, saying that he read a great deal, took the magazines and looked through them. While he was doing so, Foreman Bowles saw him but said nothing. However, when Sutton returned to the machines on which he was an inspector, he discovered that his logsheets were missing . Logsheets show the result of periodic in- spections. He continued his inspections , using a plain piece of paper. Later Bowles took Sutton to Szabo s office. Wayne Wendell, the chief inspector, was there, and Bowles told Wendell to get rid of Sutton, that he did not want him around any more. When Wendell asked why, Bowles said that Sutton spent all his time in restrooms reading and did not '2 N L.R B v Cabot Carbon Company, 360 US 203, Indiana Metal Products Corp. v N L R B , 202 F 2d 613 (C A 7), Sea Life Incorporated, 175 NLRB 982, Pruden Products Co, 170 NLRB 193, Hammond Organ Company, 149 NLRB 997, Certain-Teed Products Corporation , 147 NLRB 1517 "NLRB v Thompson Ramo Woolridge , Inc , 305 F 2d 807 (C A 7) 14 Reed Rolled Thread Die Co , 179 NLRB 56, St Joseph Lead Company, 171 NLRB 541 United States Railway Equipment Company, 172 NLRB No 51. 18 Sutton put the date as in April 1969, but he was on the day shift by that time, and this incident involved his night supervisor, so I infer that it was in February or March FTS CORP. 797 keep up his logs. Sutton testified that he had been gone from his machines for 10 minutes altogether and that during that time he had made an inspec- tion, in the course of his duties, of the thermostats on the ovens. After hearing Sutton's explanation, Wendell transferred Sutton to the day shift. While in Szabo's office, Sutton saw his original logsheets there. Despite all the evidence about Sutton 's wander- ing, during his period on the night shift, the only su- pervisor called to testify that he had actually seen Sutton disturbing other employees in their work was Fazekas, and since Fazekas had indicated that this incident had happened before the start of the shift, there is no actual proof that Sutton had inter- fered with the production of other employess. Nor is there any direct evidence that Sutton had failed, on the night shift, to perform his assigned duties. Even in the case where Bowles had removed Sut- ton's logsheets, the evidence does not clearly show that Sutton had failed to make the periodic inspec- tions required before the removal of those logsheets . However, there is at least some evidence to raise a question concerning this . Sutton's ten- dency to leave his department whenever he chose to do so could raise apprehensions that Sutton would not be on duty when he should be. On all the evidence, I hesitate to conclude that Respondent's supervisors (Bowles and Szabo ) were necessarily motivated by antiunion considerations in their treatment of Sutton. I have heretofore related Sutton 's conversation with Foreman Steward after he was transferred to the day shift. Later, during the same month , Sutton heard that an employee who had been hired a day ahead of Sutton had received a raise in pay. Sutton went to Steward and said that he had heard that this employee had received a raise and asked, "why not me?" Sutton testified that Steward had replied, "Marty, they would laugh at me in the front office if I tried to put you in for a raise . There is no sense for me trying to put you in for a raise for at least six months.... Things have got to settle down for at least six months. They would never give you a raise." Steward admitted that he had had a couple of conversations with Sutton about a raise and that he had refused , but he attributed his refusal to Sut- ton's record , which was known to the men who would have to consider his recommendation of a raise. He testified that he told Sutton "what areas I thought he was weak in as far as utilizing time...." Steward testified that he had cautioned Sutton about being out of work areas, "standing talking to operators, with his foot on a box," and he testified that this was not on a coffeebreak. Steward testified that another supervisor by the name of Young had told him that Sutton had been stopping in his area for a coffeebreak and had then had another one in the coffeebreak room, and that Young had asked Steward if he was aware of it. Steward testified that a day or two later he had noticed Sutton in Young's area at 9 : 30 a.m. when that area took its break . At or about 9:45 a.m. on the same day , Steward testified, he had seen Sutton sitting in the coffeebreak room having another cup of coffee . Steward summoned Sutton from the room and told him that he had seen him at 9:30 having a coffeebreak in the fin blade line and had asked for an explanation . Steward could not re- member Sutton's reply. He could remember only that Sutton had "acted like he had been caught." Sutton conceded that Steward had cautioned him about taking too long a coffeebreak , but testified it was a caution delivered to all the inspectors. About the occasion when he was found by Steward in the coffeebreak room , Sutton testified that he had left his job 5 minutes late, after the break had begun, because he was finishing a job and that he had run his break 5 minutes over into the next break period. Coffeebreaks were for 10 minutes . Without see- ing what went on from day to day, I feel unable to determine how strict the Respondent was in limit- ing the duration of the coffeebreaks to 10 minutes. I am inclined to infer that other employees would stretch their coffeebreaks past the 10 minutes al- lowed and that Sutton was not the only exception. Whether or not he was worse than the others is a problem posed in the long coffeebreak incident re- lated hereinafter. On May 23, 1969 , Sutton was assigned to inspect manufactured parts on a line of eight or more machines. The normal time to make the inspection round was about 2 hours . For the whole day, one machine, which was performing a different opera- tion on the same part, was having mechanical trou- ble keeping in tolerance , and it was necessary for the production man to shut the machine down and pull the head . Each time the machine was started up again Sutton had to make a first-piece inspec- tion, which took 10 to 15 minutes. This interrupted his regular inspection of parts coming off the other machines . Sutton testified that he spent the better part of his time that day on the machine which was down periodically, and, as a result, he was falling behind on his inspection on the other machines. He testified that he called this to the attention of Steward and Gene Kiernan , a leadman under Steward, separately, and that each had told him to do the best he could. Kiernan verified that Sutton had so informed him and he testified that he had helped Sutton in the morning . Later-the time of the day was not fixed-the chief inspector, Dan Collins, was informed by George Brown, manager of quality control and Collins ' superior, that Sut- ton's logsheets showed that he had missed some in- spections . Collins called Sutton into his office and asked why he was not fulfilling his cycle . Sutton told Collins of the problem on the one machine which was down periodically during the day. Col- lins asked why Sutton had not informed him or Steward so that they could pull someone off another area that was less critical in order to sup- 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plement him . Collins testified that he could not re- call Sutton 's reply. Sutton testified , however, that he had told Collins that he had informed Steward and Kiernan of his difficulties. Steward, on the other hand, testified that Collins had called him in and told him that it had been re- ported to him that there had been missed inspec- tions on one of the Barnes machines and asked him to check into it. Steward thought that this was about 4 p .m. He testified that he went and checked it the log himself, saw that the operator had checked it but not the inspector, had then asked Sutton for an explanation , and Sutton had said he was tied up on the broaches. Steward asked Sutton if he had notified Kiernan . According to Steward, Sutton replied that he had not attempted to notify either Kiernan or Steward . This testimony is at variance not only with Sutton 's testimony but possibly also with Kiernan 's if the question put by Steward to Sutton was meant to cover the whole day. How- ever, the question might have been asked and been understood to refer only to the afternoon when the missed inspection had occurred , if that was the case. Neither Collins nor Sutton mentioned the facts related above as testified to by Steward. The logs, themselves , were not produced at the hear- ing. Following Steward 's conversation with Collins, the latter prepared a written notice of a week's layoff and called Sutton to his office to read and sign it. This notice reads: The employee was instructed by his supervisor to inspect Parts Produced at the Barnes Machine at least a minimum of once every in- spection tour. Accomplishment of this tour requires about 2 hours. Therefore at least three inspection of Parts at this Location were missed from about 08:30 to 16:00. Employee admitted to his supervision that inspections were missed, & the missing of inspections was further verified because no entries of inspec- tion were made on the inspection Log sheet. This employee Normally Makes these entries upon inspection of Parts. Sutton refused to sign in the space for the em- ployee's signature on the form . He testified that he had not missed as many inspections as shown and that, in cases where the machines were producing uniformly well, he had used ditto marks instead of writing in each instance the same entry, implying that Collins had failed to count these marks. (Col- lins was not asked about this.) Sutton did not, how- ever, testify as to how many inspections he had, in fact, missed. " A heavy sampling ( 600 pieces ) of the parts from the machine on which there was at least one missed inspection was made, checked , and found ac- ceptable On examination by Respondent's counsel, Steward testified that the sample could have included some that Sutton had checked The number selected for check constituted 1 hour 's production The evidence is not clear as to who made the inspection or if Sutton was one of the in- spectors who did it Although the parts being produced on the Barnes machines were important parts, made to exacting specifications, Collins conceded the operators themselves are responsible for maintaining correct tolerances and that none of the parts which had been run that day were rejected ." He testified merely that it could have happened that parts would not have passed inspection. Collins also con- ceded that this was the only time he knew of were Sutton or any inspector had been tied up so much on one machine that he would miss a regular in- spection tour, but he testified that because of the importance of the particular parts being produced he had decided to give Sutton a 1-week layoff in- stead of a mere verbal warning.18 This layoff was not contended by the General Counsel to be discriminatory . However, because it was on Sutton 's record, it was used , in part, in deciding upon the longer layoff of Sutton in July, which layoff the complaint ( calling it a discharge) alleged to be discriminatory . Collins' testimony that he did not remember Sutton 's informing him that he had told Steward and Kiernan that he was falling behind conceivably could be a convenient lapse of memory of a fact which might place some of the fault on Sutton's supervisors . It could be that Brown was not informed of all the facts by Collins and that Collins had given Sutton the layoff because Brown had expected him to and because Collins had to make a choice of putting the blame on his supervisory employees or on Sutton and that he had made that choice at Sutton 's expense. On the other hand, the evidence does not show that Kiernan or Steward knew that Sutton still needed help in the afternoon . It might have been Sutton's failure to request help in the afternoon that Collins felt was the conduct for which Sutton was to blame. The record is not as clear on this as it might have been . But whatever the true facts, since Sutton's layoff of 1 week was not alleged to be discriminato- ry, it is not my function to pass on the fairness of the penalty in that instance. For about 2 months after his week's layoff, Sut- ton worked without any serious incident, although it may be that Steward's reproval of Sutton for tak- ing a split coffeebreak fell into this period . On July 25, 1969 , Sutton was performing a job called preplate inspection . On a table in front of him he would place 25 manufactured pieces which he would select from a batch of 600 pieces which was rolled up in a box resting on a carrier frame or cart. He would then run the 25 parts through various gauges and, if they were approved , he would so note on a log, put the pieces back in the box, roll 18 Another employee (M. L Smith, a maintenance mechanic) was given a 3-day suspension starting on February 10, 1969, "for negligence of specified duties and direct violation of his supervisor's instructions which could have resulted in serious property damage." No other circumstances of Smith's case were show , so it cannot be inferred that he had also received a poor written warning The disparity in length of the suspensions raises a suspicion of possible discrimination but it does not establish it FTS CORP. the box to the aisle, and take the next box . Inspec- tors customarily stand to perform this work but, because Sutton had injured his knees in some kind of sport, Steward had permitted Sutton to do his in- spection work sitting on a stool . As Sutton, himself, testified, however, when he had asked Steward's permission to sit, Steward had approved "as long as I didn't get caught by the wrong people or didn't sit there all the time . . . if I sat there like I was asleep, this would be bad." The weld shop where Sutton's table was located gave its employees a coffeebreak at 9 a .m. and Sut- ton testified that he took his at the same time although he did not have to take it then . The coffee machine was across the room by Steward 's office. On that day, July 25, Sutton got his coffee and took it back to his table. When he reached the table, a machine operator whom Sutton described as a friend, was sitting on Sutton's stool , so Sutton sat on the table. This friend finished his coffee and returned to his job about 9:10 a.m. Sutton testified that he then resumed sitting on his stool and started measuring the pieces which he had laid out for in- spection before he had gone for his coffee. But this testimony was contradicted by Steward. When the operator had left, an inspector named Suvada, who had just started a coffeebreak , came and sat on Sut- ton's table . The evidence is somewhat at variance as to the position of the two men. According to Steward, Sutton sat on the table throughout the period of about 30-35 minutes with his foot on the stool. This would put Sutton on the side of the table nearest to Steward , since that was where the stool was. Steward testified that Sutton was facing in the direction where he was and that Suvado was also facing in this direction. This is not easy to envision, because it would place the two coffee drinkers on opposite sides of the table, each presumably with one leg off the table. This position would place the men in a position where it would be difficult to look at each other. Be that as it may , Suvada remained until about 9:25 or 9:30 a.m. and might have remained longer if he had not been interrupted by Steward. Meanwhile , according to Marion Snyder, the quality control manager, he had passed Sutton's post at 8:55 a.m. Synder testified that Sutton was then on his table having coffee and doughnuts. Ac- cording to Snyder, he, himself, was on his way to the quality assurance area to look at some parts. As best I can determine, if Sutton had been sitting on his stool facing the table, he would have been fac- ing north and Snyder would have been to the southwest of Sutton with an approximate 45-degree rear view of Sutton . However, if Sutton was sitting on the table, he could have been facing west in the general direction of Snyder. Steward , having been summoned by Snyder, joined Snyder at the quality assurance area at 9:10 a.m. According to Snyder, Sutton was at that time still sitting on the table and was facing Snyder, who was about 50 feet away. Snyder asked Steward how long inspectors got for a 799 coffeebreak. When Steward told him 10 minutes, Snyder commented that Sutton had already had 15 minutes. I deduce that Steward started to go over to speak to Sutton in order to get him back to work but that Snyder had detained him, not only because this was quoted by Sutton as something that Steward had told him but because Snyder, himself, testified that he had told Steward, "Wait here. We will finish what we are doing," and that when they were through at 9:30 a.m. he had told Steward to go "break this up," and take appropriate disciplina- ry action. Steward quoted himself as saying, "I think I'd better go break it up," but he placed the time when he said this as at 9:30 a.m. I am of the opinion that this remark of Steward was made when Snyder had called his attention to Sutton and Su- vada and that that was when Snyder had detained him by telling him to "wait here." At 9:25 a.m., according to Sutton (9:30 a.m., ac- cording to Steward), Steward, accompanied by his leadman, Joe DiNapoli, came to Sutton's table and began to berate him and Suvada. According to Sut- ton, Steward told them that Snyder had made him stand "on the other side of that wall" (the quality assurance area was behind a 4- or 4-1/2 foot high screen) and watch Sutton and Suvada, that he (Steward) had tried to catch their eye but that neither one would look in his direction. According to Sutton, Steward said he had been chewed out, presumably by Snyder. Steward denied having tried to signal Suvada or Sutton. He testified that he had told Sutton that he had taken a 30-minute cof- feebreak and that Suvada had taken a 20-minute break, that he had asked Suvada if they were talk- ing about business and that Suvada had replied that they were not. Sutton testified that Suvada protested that he had not taken a 20-minute break but had admitted that it might have been 15 minutes. Sutton also testified that he had told Steward that he had inspected the parts while he was conversing with Suvada. It is not too clear on all the evidence whether Sutton told this to Steward at this time or later. In any event, Steward told him that that was not the way it looked to him-that it looked to him as if Sutton were merely twirling a part with one hand. Neither Suvada nor DiNapoli was called as a witness. As a result of Snyder's request that Steward made a report to him, Steward went to Snyder's office. Snyder told Steward to give each of the men a written reprimand. Later, Steward called Sutton and Suvada, separately into his office and handed each a written reprimand. Sutton's reprimand read: Employee was observed by department manager and immediate supervisors taking a thirty minute coffee break on the morning of 7-25-69. As stated in Employee Hand Book coffee breaks are ten minutes. This occurence [sic] is being forwarded to the Personel [sic] Dept.'for further action. This warning was introduced in evidence, and it shows the signatures of Snyder, Steward, and Sut- 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ton. Sutton testified that he had refused to sign this until Steward had, in effect, threatened him with termination if he did not sign . Steward denied that he had said any such thing. I credit Steward's deni- al. I note that no one made Sutton sign the slip he had previously received for 1-week layoff on May 23, 1969, and, since disciplinary action was taken nevertheless, I do not believe that the employee's signature was so indispensible that Steward would threaten Sutton in order to induce him to sign. The evidence of disciplinary slips given other employees also shows action taken despite lack of the em- ployee's signature . The fact that an employee signs may, I deduce, be taken to signify acceptance of the facts stated as correct. Otherwise, if his signa- ture meant merely that he acknowledged seeing it, I see no reason for Sutton's refusal to sign the May 23 notice. Sutton testified that when Steward had told him he looked like he was just twirling the parts around, he had told Steward that he could not have seen the parts from where Steward was, presumably intiinat- ing that he , himself, or the box on the cart was between Steward and the table on which the parts lay and obscured the table surface. But Steward was not convinced. Steward testified that he had had a clear view for the full time and that the box was on the other end of the table where it would not have obscured his view. Sutton, at another point, testified that he had told Steward that he had laid the parts out before the break, that it takes about 15 minutes to complete the full sample, and that he had them all done. Steward, in his account, did not mention any such conversation as this. If it occurred, however, I believe that it must have oc- curred in Steward's office and not at Sutton's table, because, if it had taken place at the table, it seems likely that Steward would have looked at Sutton's logsheet; but he did not do so. Whether or not it would have been too late to check the logsheet later and thus check Sutton's claim after Steward had had Sutton in his office, I cannot determine. I infer, however, that, in any event, Steward preferred to believe his own eyes and that he was not convinced that Sutton had been working. After telling Steward to give Sutton and Suvada written reprimands, Snyder talked with Jack Shipp, manager of industrial relations, and recommended Sutton's discharge. Shipp testified that the matter was then discussed with Vice President Grady Gill and finally with Respondent's legal counsel, Leo Colowick. Following this, Shipp testified, it was de- cided, rather than terminating Sutton, they would give him a 30-day suspension. Shipp testified that the reduction in penalty was influenced by Respon- dent's awareness of Sutton's union activities and an anticipation of legal consequences. Thirty days is 'H The slip which would show the personnel action was not produced, so it is impossible to verify the date Y0 Because the institution of the Respondent's grievance plan could have the longest suspension ever given by the Respon- dent. The next longest was 7 days. At or about 4:20 p.m. on the following Monday, July 28,19 according to Sutton, Steward summoned Sutton to his office and took him to Shipp's office. According to Sutton, the office was empty when they entered. When Shipp arrived, Sutton testified, Shipp had asked Steward if he had told Sutton about his suspension, that Steward had looked at Shipp and said, "No," that Shipp had then left the room for about 5 minutes, that while Shipp was gone, Steward had remarked to Sutton that he had not known about any suspension. When Shipp returned, he had a written suspension slip which he had Steward sign . Sutton asked for a copy but was denied one by Shipp, who told him it would be in his personnel file. Shipp told Sutton he could sign it or not-that it did not make any difference. Sutton presumably did not sign but left, and Steward clocked him out. There was some question about whether the 30- day suspension meant 30 working days or 30 calen- dar days. However, the Respondent attempted un- successfully to reach Sutton by telephone on Sep- tember 8, 1969, and then sent him two telegrams, one on September 10 (which was not delivered) and another dated September 12 (which was delivered) offering Sutton substantially equivalent employment, which Sutton refused. 2. Conclusions regarding Sutton's suspension A determination of whether or not Sutton's suspension was discriminatory depends largely on what inferences should be,drawn from the known facts and from other facts inferred. That Sutton was an active union supporter and that this was known to .the Respondent is conceded. It is also apparent that Sutton had violated or was believed by the Respondent to have violated rules or had acted in a way which could subject him to criticism. Although the Respondent had not, during the Union's cam- paign or thereafter, engaged in any flagrant antiu- nion conduct,20 it is fairly inferable that the con- tinuation of union activity following the date of the election was a source of irritation to the Respon- dent. The weight to be given Fazekas' statement that management knew who the union supporters were and that they would get rid of them is a matter upon which there could be a difference of opinion. Fazekas was not involved in the circumstances that resulted in Sutton's supervision, and at the time that Fazekas made that statement, he was not high on the management scale. But he was in a position to associate with management people and he could have been parroting what he had heard rather than merely expressing a personal attitude. Before decid- been motivated by a desire to improve the lot of its employees, I cannot consider this, even though a violation of the Act, to be flagrant antiunion conduct FTS CORP. ing the weight to give to this, however, I deem it ad- visable to look at other facets of the picture. There is no rule in the employees ' handbook which restricts employees to their work area, and yet Sutton apparently was so restricted by Szabo. Even without a written rule , however, it may be ac- cepted as understood that working time is for work and that when one employee is on his free time- lunch or coffeebreak-he should not detract the at- tention of other employees from their work. But at Respondent 's plant some employees, such as opera- tors of automatic machines, do not constantly use their hands in working . Once their machines are operating, they often engage with nearby operators, with inspectors, or even with supervisors in small talk. The restraint placed on employees who are on their own time from going to other departments (which itself is not in violation of any rule ) and en- gaging in conversation with employees there might better be limited to situations where actually or potentially such talking would interfere with production. It is obvious that Fazekas did not limit himself to such a test in sending Sutton back to his own department on the occasion hereinbefore re- lated. And in the first written warning given Sutton (January 21, 1969), the criticism was that the "em- ployee has continued to repeatedly wander around the plant into areas where his job duties have no concern." It was not stated whether or not he had done this during his nonworking time and it was not stated specifically that he had interfered with production of other employees on the day when this warning was given. It is merely suggested by the added statement that on other occasions Sutton had been verbally warned "about bothering other em- ployees during working hours." It was not even stated in this warning slip that the "bothering" had been keeping other employees from performing their duties. Yet this warning was a black mark on Sutton's record which was apparently used to give him more severe penalties thereafter. Coming now to the incident leading to Sutton's 30-day suspension, I have concluded either that Sutton was idle for a period of 30 minutes or that he gave that appearance, an appearance he had been cautioned by Steward not to give . But for one factor, the case might appear to have been routine disciplinary action , and that is the fact that Snyder had detained Steward, who would have broken up the conversation between Sutton and Suvada and set the men to work . Snyder's attitude appeared to be to let Sutton hang himself, in effect, and then seek his discharge. The General Counsel argues that this is evidence of a discriminatory motive. Although I deem it possible that Snyder was trying to get rid of Sutton because he was a union man, there is an equally logical explanation for Snyder's conduct, and that was a desire to determine whether Sutton had any self-discipline or whether 801 he always had to be driven. Granted that this con- duct of Snyder, along with the other evidence which I have attempted to relate as favorably as I felt I could to Sutton, raises a suspicion that the Respondent would not have penalized him so heavi- ly absent a desire on the Respondent 's part to rid it- self of an active union man (which a 30-day suspen- sion was likely to, and did, do), I am unable to con- clude that Sutton's union activity motivated the Respondent to suspend him, especially since Sutton had previously been verbally warned about taking too long a coffeebreak and had had other warnings or disciplinary action shown on his record. As the court said in N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725 (C.A. 2): ... if an employee is discharged for neglect or delinquency , there is no violation [of the Act] simply because he was engaged in organizing and the employer sheds no tears at his loss.... The General Counsel must at least provide a reasonable basis for inferring that the permissi- ble ground alone would not have led to the discharge, so that it was partially motivated by an impermissible one.21 Has the General Counsel met that burden by showing, in addition to Snyder's conduct, that a su- pervisor of the Respondent (Fazekas ) had said that he looked upon union advocates as troublemakers whom he would like to discharge but could not do so all at once because it might bring the Union back in, but he would "more or less" (as Marshall put it, showing his uncertainty of the exact words) make it hard on them until they quit or could be gotten rid of? To me this merely adds fuel to suspi- cion but does not show that other supervisors would make it hard on union men , harder than on nonunion men, especially since the Respondent's president had, in effect, told the supervisors not to do so. And I find no evidence that Steward had been harder on Sutton than on other employees. The evidence warrants an inference that had Snyder not taken the initiative in attempting to get Sutton discharged , Steward would probably have gone no further than to issue a written warning notice. But neither does this evidence adequately establish that Snyder was motivated , even in part, by antiunion sentiments, in recommending Sutton's discharge . Higher management officials, having less personal contact with employees, are less likely to be as empathic toward individual employees as are the immediate supervisors who work with the em- ployees on a daily basis. Furthermore, the upper level of management is conscious of the policy desired to be maintained and may be viewing the individual case as one in a field, wherein a failure to discipline could affect the overall policy . Barring a showing, therefore , that Snyder or the Respondent generally had theretofore differentiated between union and nonunion sympathizers in such cases, the 41 See also Associated Retailers' Suburban Delivery Company, 181 NLRB 456, Astro Container Co , 1 80 NLRB 815 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence, I find, is not sufficiently substantial to make out a case of discrimination by the Respon- dent against Sutton. 3. The discharges of Boyd and Leonard a. History of Boyd's employment The Respondent conceded in its opening state- ment that it was aware of the fact that Ottis (pronounced Otis) Boyd and Ralph Leonard as well as Sutton were union adherents or were interested in union activity. Boyd was hired by the Respondent in May 1968. In the fall of 1968 , his leadman noticed Boyd away from his station socializing and sent him back to his station, but, during his term of employment, Boyd received no written warnings . For a time prior to August 18, 1969, Boyd had been an inspector in the fin blade area inspecting the work on milling machines. On or about August 18, 1969 , because another inspector had quit, Boyd was transferred to the machine shop inspecting the work on the screw machines. These machines were not far from the Kingsbury machines on which Leonard was work- ing. A few days after Boyd's transfer , there began to be rumors among employees about a walkout to take place on Wednesday, August 27 , at 4 p.m. Early in the morning of August 26 , Boyd and Leonard engaged in a conversation in which the possible walkout and the percentage of employees it would take to possible walkout and the percent- age of employees it would take to make it effective were discussed. This conversation was overheard by at least one other inspector , and, according to Leonard, by two operators . Later in the morning, at coffeebreak time, Boyd and Leonard engaged in another conversation in which Leonard asked Boyd why the latter had not been at the union meeting the night before. Leonard told Boyd that, at that meeting, the employees had been told that the Union would not back such a walkout and that the employees could lose their jobs if they walked out at 4 p.m., half an hour early , as they had planned.22 These finding are based on Leonard's testimony. Boyd appeared to avoid any reference to the sub- ject matter of his conversation with Leonard in his testimony. When Boyd had been transferred from the fin blade area to the screw machines in a different building on August 18, Kiernan, his inspection su- pervisor, had told him to leave his toolbox where it was in the fin blade area until it was determined how Boyd would make out on the screw machines, and Boyd had done so . The only thing Boyd needed from his toolbox while inspecting on the screw n Neither the reason for the proposed Walkout nor the basis for the Union's advice was revealed. Counsel, for whatever reason, chose not to ask questions about it Because of the timing of the walkout, it could be that it might have had something to do with Sutton or his possible reinstate- ment Some hearsay evidence suggested that it was an attempt to force recognition of the Union There are at least two possible bases for the machines, Boyd testified, were his verniers, i.e. calipers (mispelled Verneers in the record), which he usually picked up in the morning after punching the timeclock. Boyd was under the impression that starting time on the day of his discharge was 6 a.m., but it was established at the hearing that starting time on August 26, 1969, the day of Boyd's discharge, was 7 a.m. On that morning, Boyd testified, he did not pick up his verniers until about 8:30 a.m. "because I went and checked with the other [night] inspector." Later he fixed the time he went to pick up his verniers as 7 or 7:30 a.m. The latter time was fixed on the basis of Boyd's assump- tion that he had started at 6 a.m. Boyd's estimates of time were obviously not reliable. It would be un- likely that Boyd would be detained for 2-1/2 hours or even for 1 hour while checking with the other in- spector, even if that incident had taken place. Boyd testified on cross-examination that he had talked with the night inspector for one-half hour. How- ever, the Respondent's evidence disclosed that the Respondent on August 26, 1969, was operating on two 9-hour shifts and that the night shift finished at 2 a.m. I conclude, therefore, that Boyd did not speak with the night inspector at all. As Boyd related it, when he went to the fin blade area to get his verniers from his toolbox, "two Spanish fellows" came to him (inferentially leaving their machines) and asked him if he had heard anything about the walkout. He testified, "I told them exactly what I heard.... That there was going to be a walkout ... Wednesday at four o'clock." Boyd testified that this conversation has lasted about 5 minutes and that about 10 minutes later (after the conversation or after he left to get his verniers is not clear) he returned to his job of in- specting on the screw machine line but was soon told by Kiernan to go to Steward's office, that, when he and Kiernan reached there, Steward had told him that rumors were going around that Boyd had been talking about the Union, that Steward had asked if he liked working there and, when he said he did, that Steward had told him to "shut my god- damned mouth about the union" and, further, had said, "Go back out there and cool it. You will be watched, but it will blow over." Boyd estimated that he was with Steward for about 20 minutes, that he then went back to the screw machines but ap- parently had not gotten back to work when he was paged over the loudspeaker to come to the office of John Shanks, employment manager, and that he had arrived there at 10 a.m. Steward had already arrived when Boyd got there. Steward took Boyd to an office where Shipp and Snyder were. Boyd quoted Shipp as saying that there had been rumors that Boyd had been going Union's advice that the employees might lose their jobs One is a Colorado law which makes it an unfair labor practice for an employee to take part in a strike which had not been voted by secret ballot by a majority of the em- ployees, the other is that the Union might have believed that the walkout, for the cause relied on, would not be a protected, concerted activity under the Act. FTS around to different buildings talking about the walk- out that was going to occur and asking why Boyd was in the other buildings-the weld shop and the fin blade area. Boyd testified that he had told Shipp that he had had business in the weld shop, but although he testified that that was where Steward's office was and where the blueprints were kept, and that that was where he punched in, he did not testi- fy that he had gone to the weld shop for any purpose except to punch in that morning. He testified that from the weld shop he had gone to the fin blade area where he kept his tools. According to Boyd, Shipp asked him what he knew about the walkout and that he had said, "Only what I heard from two fellows on the screw machine lines that there was going to be a walkout at four o'clock Wednesday" (August 27) and that he had not then known the names of these two. Boyd quoted Shipp as saying that they did not need Boyd causing trou- ble and organizing a walkout and that Snyder had agreed and said that Boyd's check would be ready at 4 p.m. that day. Boyd went home and returned at 4 p.m. for his check. The discharge slip made by Respondent for Boyd's file contains the following explanation: " causing disturbance and work slow- down in numerous areas." Other evidence differed materially from Boyd's testimony. Inspection Manager Snyder testified that on the morning of August 26, 1969, he was making his rounds and that about 7:30 or 7:45 a.m. when he was in the fin blade area, an inspector named Mrs. Faye Ketner had told him that Boyd had been in the fin blade area, talking to operators and caus- ing a slowdown. Ketner (called as a witness by the General Counsel) placed the time Snyder was there as an hour or an hour and a half after Boyd had been there and testified that an operator on a drill (a Hungarian) had come to her during the morning coffeebreak and told her that Boyd had told him "that they were all going to walk across the street at four o'clock and the union was coming in." Ketner testified that this was what she reported to Snyder. She also testified that Boyd had talked to several operators. She further testified that several days earlier she had told Snyder that Boyd had been in the fin blade area. 23 After receiving Ketner's report, according to Snyder (although he could not recall, without refreshment of his memory by his prehearing af- fidavit, Ketner's telling him what Boyd had been talking about), he had contacted Steward and asked if he was aware that Boyd had been out of his assigned work area that day and also on the day be- fore (Monday) and on the Friday before. When Steward had replied that he was unaware of this, Snyder testified that he had asked him to look into " Ketner (the wife of a supervisor) did not speak English as lucidly as might be desired, and as a result , I am not sure that her meaning was that her report to Snyder had been made several days earlier or that on August 26 she had reported to Snyder about seeing Boyd on the earlier occasions also. CORP. 803 the matter. Steward placed the time of this conver- sation as about 7:30 a.m., an estimate which ap- pears to be too early. Steward next called Kiernan in and asked him if he was aware that Boyd had been out of his area. Steward then quoted Kiernan as saying "not that he could recall." Steward then sent for Boyd and asked him if he had been out of his work area on Monday. He testified that Boyd had replied that he had just gone over to pick up his vernier calipers, that he had then asked Boyd how long that had taken and that Boyd had said about 20 minutes. According to Steward, Boyd told him about an argument Boyd and Leonard had had about a union meeting which had been held on Monday night, August 25. Steward testified that, at this point, he told Boyd to go out to the line, to keep his nose clean, and to let Steward do some further checking. Meanwhile Snyder reported to Shipp what he had learned from Ketner'24 and they called Ketner to the office so that Shipp could question her. Shipp testified that Ketner told him that Boyd had twice been back in the fin blade area talking with em- ployees at their machines while they were working and that one Hungarian man had come over and told her what Boyd had been talking about, that Shipp had asked her if any one else had seenn Boyd and that Ketner had given him the name of an em- ployee named Elsie Crum, a cleaning woman. Shipp called Crum in and she told him, according to Shipp, that on August 26 Boyd was talking to her while she was cleaning, that he told her that there was going to be a walkout the following day, and that she had seen him talking to employees at other times during working time . According to Crum, Boyd had approached her where she was cleaning in the weld shop a few days before August 26 and had said to her, "We are going to get the Union in." She asked what he was talking about, but Boyd had left without saying any more. According to Crum, Shipp had asked her if she had been talking to anybody about the Union and that she had told him what Boyd had said to her. On cross-examina- tion by the General Counsel, Crum testified that the conversation with Boyd had lasted only a mo- ment and that it was rather generally known that she did not favor the Union. Crum was very vague about the time of the conversation with Boyd and thought that it might have taken place before the election, but she did not remember whether the conversation with Shipp had been before or after the election. Ketner's reference to Crum when she was called in by Shipp and Shipp's testimony are, however, sufficient to fix the questioning of Crum as occurring on August 26, 1969. Shipp testified that, after he had spoken to Crum, he had also _' Shipp's testimony was that Vice President Grady Gill had called him and told Shipp what he had learned about Boyd's actions and had asked Shipp to get in touch with Snyder, that he had done so and that that was when Snyder made his report to him 427-835 O - 74 - 52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spoken with Del Porter, the department manager in the fin blade area, and that Porter had told him that he had seen Boyd several times "recently" in the fin blade area but that he had not then known that that was not Boyd's work area.25 Shipp testified that when Boyd was summoned and was asked about being out of his area, as Shipp put it, or asked what he knew about the walkout, as Boyd put it. Boyd admitted that he had been out of his area and informed Shipp that there was going to be a walkout but he also said, according to Shipp, that he was trying to talk people out of walk- ing out at 4 o'clock instead of at 4:30 so that "the company wouldn't have any recourse." Shipp testified that Boyd had said that he was not trying to organize a walkout-that it was Ralph Leonard in the screw machine area who had done so. This was at variance with Boyd's testimony, where he did not mention Leonard's name, but if Boyd did say that, I do not believe he was telling the truth. Shipp was called as a witness by the General Counsel on his case, and Shipp later testified on the Respondent's case and gave a somewhat changed version of what he had said to Boyd at Boyd's exit interview. I do not accept the latter, which sounded more rehearsed than Shipp's testimony on the General Counsel's case. The main issue of credibility is as to Boyd's ex- planation of why he had been in the fin blade area at the time he was there talking to employees. Since it was shown that Boyd's testimony with regard to his conversation with the night inspector could not be true, an explanation which Boyd advanced for his being in the fin blade area later than usual in the morning, I conclude that Boyd's testimony on this and certain other matters cannot be credited. On all the evidence, I find the Respondent had reason to believe that Boyd had gone to the fin blade area to talk to employees there about the walkout. I shall, however, reserve judgment on the merits of Respondent's defense to the alleged dis- crimination until after Leonard's case has been re- lated. b. History of Leonard's employment Ralph Leonard started working for the Respon- dent in October 1966 as a trainee operating a punch press in the fin blade area. He worked up to milling machines, both straddle and contouring, and finally to the Kingsbury machines. For a period of time between March and July 1969, when the regular setup man was too busy to handle all the machines, Leonard served in that capacity on the Kingsbury machines. The General Counsel con- tends that Leonard had the duties of a leadman as well as setup man. Leonard did coach the operators and sometimes changed them from one machine to another, in addition to the traditional setup work. His pay, however, remained that of an operator. Leonard's account of his conversation with Boyd has been relied on in making my findings hereinbe- fore. Leonard testified that the two operators who had listened to his conversation with Boyd were named Patterson and Labato. Neither, however, was called as a witness. The inspector who over- heard the two arguing was Gary Wagner. Wagner testified that he did not hear what Leonard and Boyd said to each other but concluded that they were "more or less arguing." One of the topics of discussion was how many employees would have to join the walkout to make it effective. I consider it not improbable that Wagner heard more than he revealed, because the Respondent obviously learned of Leonard's participation in a discussion of a walkout to make it effective. I consider it not im- probable that Wagner heard more than he revealed, because the Respondent obviously learned of Leonard's participation in a discussion of a walkout and I would doubt that the Respondent would rely only on what Boyd claimed to be the facts. Boyd had approached Leonard, according to Wanger, and Leonard had continued inspecting parts while conversing. The first conversation, according to Wagner, lasted about 3 minutes. The second took place during the coffeebreak about 9:30 a.m. After Boyd had told Shipp that Leonard was the one who had been trying to organize the walkout, hipp telephoned Leonard's department manager, Bill Kottkamp, and asked him if he knew anything about Leonard's being away from his work station that day or previous days. Presumably, Shipp's question was prompted merely by suspicion, since no one had told him up to that time that Leonard had been away from the Kingsbury area, so far as the evidence shows. According to Shipp, Kottkamp told him that he had not seen Leonard out of his work area that morning but had not spoken to Leonard's supervisor because he was busy. He told Shipp that he would investigate and call Shipp back. Later, according to Shipp, Kottkamp called him and reported that "Leonard apparently was out of his work area that morning" and that Leonard and Boyd had engaged in several heated discussions in Leonard's work area. Kottkamp was no longer employed by the Respondent at the time of the hearing, and he did not testify. Leonard's immediate supervisor, Emmett Stirn, gave Kottkamp no infor- mation about Leonard, according to Shipp. Stirn did not testify either. Hence, it is not apparent who might have seen Leonard out of his area or under what circumstances. As the record stands, therefore, the Respondent's own evidence was no more than double hearsay that Leonard had been seen away from his work area. Furthermore, the Respondent offered no evidence to show that Leonard was im- I Even when he had worked in the fin blade area , Boyd would not have been under Porter because the inspectors had their own supervisor. FTS CORP. 805 properly away from his work station or that he had disturbed any working employees. Leonard, him- self, however, testified that he was away from his work area during working time only once that day, but he testified that this was when he had had to go to the tool grinding department to pick up necessa- ry tools in connection with his setup work. There, he testified, he had talked with the foreman and with the man who ground the tools. This apparently occurred early in the day because, when asked if he had left his area again , he answered "only for cof- feebreak at 9:30 [a.m.]." During his coffeebreak that day, Leonard sat at a table in the lunchroom and several employees came to the table to ask Leonard about the walkout. Leonard explained to them what he knew. If any of those employees gave the Respondent information about Leonard or what he said, the Respondent did not disclose it at the hearing. About 10 a.m., Leonard's supervisor, Stirn, came to Leonard and told him that Shipp and Kottkamp wanted him in Shipp's office. Leonard asked if he knew what it was about and Stirn said that he did not. Shipp testified that, after Boyd had brought Leonard "into this" and after he had received Kott- kamp's report, he had sent for Leonard. In relating what had been said once Leonard came to his of- fice, Shipp testified: "We asked Mr. Leonard if he had been away from his work area . He said he had been several times during the day, but again he was trying to talk the employees out of a walkout." The latter part of this quotation leads me to believe that something was omitted, since the answer obviously goes beyond the question put by Shipp. It is a fair inference that Shipp , in some fashion, brought the talk of a walkout into the discussion. According to Leonard , the first thing Shipp said to him when he reached Shipp's room was, "We are terminating you as of now." Leonard testified that he had asked Shipp why and that Shipp had replied that Leonard had had some reprimands and that his attitude was not the company way of thinking, that Leonard had been talking of work stoppage or slowdown. Leonard testified that he had asked whom he was supposed to have been talking to and that Shipp had replied that they did not have to give that infor- mation . Leonard quoted himself as asking if he was being terminated because of his union activities and testified that , after beating about the bush, Kott- kamp had said that it was because of Leonard's ac- tivities, but that Shipp had corrected Kottkamp and said that it was not because of Leonard 's union ac- tivities but because of his attitude because of the work stoppage. I doubt that either Shipp or Leonard would be able to quote accurately everything that was said in Shipp's office , but I am satisified that mention was made of Leonard's talk- ing about the work stoppage . Leonard testified that he offered to bring in witnesses to the fact that he had been telling people not to walk out because they could be terminated but that Shipp had refused and reiterated that Leonard was being discharged because of his attitude and not because they questioned his explanation of what he was telling people. Leonard asked if they would not give him a 30-day probationary period before deciding to terminate him. Shipp said he would leave that to Kottkamp but Kottkamp refused because it would set a precedent which would apply to everyone. c. Conclusions regarding Boyd and Leonard Respondent's defense is that Boyd was discharged because of his having been away from his assigned station on August 26, 1969, and that Leonard was discharged because of his attitude. In each case, the Respondent has avoided placing the discharge on the ground that Boyd or Leonard had engaged in a discussion about a walkout; yet, in each case, it is difficult to believe that their talk about, or possible promotion of, a walkout, had nothing to do with their discharge. If Boyd's being out of his assigned area had been the only reason for Boyd's discharge, it would appear, at the very least, to be harsh treatment in view of the fact that he had not received a written warning theretofor. The treatment is obviously harsher than in Sutton's case , because Sutton had received more than one written warning, and one of them concerned his being out of his assigned area . The Respondent ad- mitted treating Sutton more leniently but gave as a reason that it had leaned over backward because Sutton had been such a prominent union advocate. Boyd had not, perhaps, been so obviously active in union activities as Sutton, but the Respondent knew that he was a union supporter. To prove that Boyd's discharge was not a devia- tion from the norm, the Respondent adduced evidence concerning the discharge of other em- ployees who had received no prior written warning. But this evidence was limited to what was recorded on termination slips. In all but one or two of these cases, where there had been discharges without prior written warning, the reason for the em- ployee's discharge involved something different from, or more than, just being away from the em- ployee's work area in the plant. In the two cases where additional grounds were not involved, the evidence shows the following: James Grimland was discharged on November 4, 1967, the record show- ing the reason to be: "Left his machine despite prior verbal warnings." Alan Weaver was discharged on July 12, 1968, the record showing: "Left job without prior approval." No further evidence of the circumstances was offered in either case. Hence, it is not known how many verbal warnings Grimland had received or how long he was away from his machine, but, in any event, the comparison with Boyd's case is not of the best, for ordinarily a machine operator is required to stay closer to his machine than an inspector is to his area. In the case of Weaver , it is impossible to determine whether "left job" means that he merely 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD left his machine or that he left the plant.26 On the basis of such sketchy evidence , I am unable to find that those cases are evidence that Boyd's termina- tion was analogous. Furthermore , in Boyd's case, I am persuaded that the reason for his discharge was not merely being away from his assigned area but that the subject matter of Boyd 's conversation with other employees in the fin blade area was a materi- al factor. If other evidence was insufficient in itself to warrant this inference , any remaining doubt would be dispelled by the fact that when Snyder received Ketner's report about Boyd and what he was talking about to employees in the fin blade area, Snyder reported the matter first to the Respondent's vice president. This means that Snyder was concerned with the possibility of a walk- out more than merely with disciplining a wayward employee . If the matter had been an ordinary case of an employee away from his assigned area, and if Snyder had merely intended to recommend a discharge, the procedure would have been to refer the matter directly to Shipp. Yet it was not until the vice president directed Shipp to make an investiga- tion that the latter was brought into the picture. In Leonard's case, I am also persuaded from all the evidence that the Respondent discharged him because of his participation in talking about a walk- out. The Respondent went to some lengths to bring in evidence designed to show that Leonard had a poor attitude toward his work , that Leonard was capable of good production but that his production would not often reach his capabilities, and that Leonard had once thrown some manufac- tured parts into a box and damaged them. Leonard had explained to his supervisor, when he was criticized for not keeping up to the production ex- pected of him , that he could only explain it on the ground that he would get tired on a 6-day week. I note also, however , that Leonard could likely have had days when he might have had more difficulty than on other days keeping the machine within the proper tolerance and he might have had to retool more often on some days than on others. Leonard denied that he had thrown any parts at all, and he explained that the employees who deburred the parts he manufactured on his machine were unable to keep up with his output and that he would set the parts on the edge of his parts-supply box until the deburrer could get to them. On one occasion some of the parts fell into the box. Leonard testified that he had inspected them and that he found no damage had been done. But even if there might have been some sub- stance to the Respondent's claim about Leonard's attitude toward his work, I would not give it much weight, because Leonard had been retained for 3 years, during which time the Respondent ap- parently tolerated his alleged poor attitude and even valued his ability enough to give him setup work, yet on the day of Leonard 's discharge the only conduct which the Respondent could claim was a demonstration of Leonard 's "poor attitude" was his talking to other employees about a walkout. It was obviously this that triggered Leonard's discharge. If poor attitude generally had been the real cause, with no immediate incident on August 26, 1969, one might expect that the Respondent would have teerminated Leonard at the end of the week or, at the least, at the end of the day, but the Respondent chose to discharge him immediately after it had discharged Boyd, about 10 a.m. on Au- gust 26, 1969. This haste is consistent only with the conclusion that the immediate reason for the Respondent 's discharge of Boyd and Leonard was a belief that they were promoting a walkout for the end of the next day and a decision to discourage it by the discharges. The Respondent, in its brief, argues that, assum- ing that this was in fact the immediate reason for discharging Boyd and Leonard, nevertheless the evidence shows that the strike was for an illegal purpose-to force recognition of a union which had lost an election only 6 months before. The Respon- dent argues, in its brief, that "the Board holds that a recognition strike within one year of an election is illegal." It cites no cases in support of this state- ment, however, but goes on to argue that the walk- out would be illegal for another reason , that it was intended to be a "quickie " strike. In either case, the Respondent , in effect, is rais- ing an issue as to whether or not the actions be- lieved to be an attempt to cause a walkout were protected, concerted activities. If there were in fact concerted activities in this case, the purpose was, so far as the sketchy evidence shows, to get recogni- tion, not for members only, but for the Union, which not only had lost an election only 6 months earlier but which still claimed no majority and which had advised its members against a walkout. The walkout, if it had occurred, would , therefore, have been by a minority group to gain an unlawful objective. The Respondent apparently believed, not without some grounds, that this is what Boyd and Leonard were doing during working hours. Their discharge under such circumstances would not have been for the purpose of discouraging either union membership or protected, concerted activity.27 But legality of a strike aside , the evidence as a whole, I find, is insufficient to show that Boyd and Leonard were working together in talking about a walkout, and there is no proof that others were act- ing in concert with either one . Judging by the argu- ment between Boyd and Leonard on the morning of their discharge, I deduce that they were not of the 18 One employee, William Dice, was discharged without prior warning when he clocked out before quitting time. 27 Cushman Motor Delivery Co., 141 NLRB 146. FTS CORP. 807 same mind. Since the Union had not approved of a walkout, I am led to conclude that Boyd and Leonard were not engaged in union activity on Au- gust 26, 1969. If the General Counsel's theory was that Boyd and Leonard were engaged in protected, concerted activity, the burden was on him to show it. I find that the evidence as a whole falls short of proving either concerted or protected, concerted activity on their part.28 Whether or not I should have reached the same conclusions as the Respondent as to credibility of Boyd, Leonard, and other employees it interviewed before discharging Boyd and Leonard is im- material. Even if the Respondent was mistaken in its conclusions, this would not convert the discharges into a violation of the Act. It may discharge an employee for a good cause, a poor cause, or no reason at all so long as the discharge is not in violation of either Section 8(a)(1) or (3) of the Act. I find that the discharges of Boyd and Leonard were not a violation of either Section. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, to the extent found in sec- tion IVA of this Decision, Respondent has violated Section 8(a)(1) of the Act. 4. The Employee Representation Plan, established by the Respondent, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 5. Since on or about June 17, 1969, and at all times thereafter, Respondent has dominated and in- terfered with the administration of said Employee Representation Plan in violation of Section 8(a)(2) and (1) of the Act. 6. Respondent has not discouraged membership in a labor organization by discriminating in regard to the hire or tenure of employment of Martin Sut- ton, Ottis Boyd, or Ralph Leonard within the mean- ing of Section 8(a)(3) of the Act. 7. To the extent that unfair labor practices have herein been found to have been committed by Respondent, such unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact, conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, it is hereby ordered that Respon- dent, FTS Corp. (Division of HITCO), its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the adminis- tration of, or contributing financial or other support to, the Employee Representation Plan or to any other labor organization of its employees. (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act (a) Withdraw and withhold recognition from and completely disestablish the Employee Representa- tion Plan as the representative of any of its em- ployees for the purpose of dealing with it in respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment. (b) Post at its Denver, Colorado, plant copies of the attached notice marked "Appendix."29 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.30 IT IS RECOMMENDED that the complaint be dismissed insofar as it contains allegations of unfair labor practices not herein found. 28 See Kennecott Copper Corporation, 121 NLRB 801 Neither Boyd nor Leonard admitted doing more than repeating rumors I do not regard such gossip as protected, concerted activities 2B 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 " -1 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 27, 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 We hereby notify our employees that: WE WILL NOT dominate or interfere with the 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD administration of, or furnish financial or other support to, the Employee Representation Plan, or any other labor organization. We hereby withdraw all recognition from and completely disestablish the above-named labor organization as the representative of any of our employees for the purpose of dealing with us con cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collective- ly through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the exxtent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8(a)(3) of the Act. FTS CORP. [DIVISION OF HITCO) (Employer) Dated By (Representative ) (Title) 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, 260 New Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551.