Owens-Corning Fiberglas Corp.

OWENS-CORNING FIBERGLAS CORP Owens-Corning Fiberglas Corporation and General Drivers, Warehousemen and Helpers Local Union 509, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 11-CA-3896 August 25, 1970 DECISION AND ORDER BY MEMBERS FANNING, MCCULLOCH, AND BROWN On November 9, 1969, Trial Examiner John F. Funke issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel, Respond- ent, and Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and recommendations of ' In his decision the Trial Examiner struck certain testimony on the grounds that it tended to establish violations of the Act not specifically alleged in the complaint, and the Respondent was therefore not prepared to rebut such testimony This ruling was erroneous The testimony was not offered to prove an independent violation, but only as corroborative evidence of motive with respect to other violations alleged in the complaint In such circumstances, there is no requirement that the nature of such testimony and the individuals involved be specified in a complaint Further, though the Respondent objected to the introduction of the testimony, it did not request a continuance to prepare a defense to matters testified to nor did it indicate in what way, if any, it was alleged to be prejudiced by introduction of such testimony In these circumstances, and as the testimony was not stricken until after the close of the hearing, we reverse the Trial Examiner's ruling striking the testimony of Strickland and Debose and part of that of Hillis, and find that this testimony may, when appropriate, be relied on in making our findings herein See, Local 18 Bricklayers, Masons and Plasterers (Union County Building Contractors Association and the Johansen Company), 170 NLRB No 4, same case at 159 NLRB 303, 310, fn 17 "The Trial Examiner, in striking this testimony, stated that the General Counsel's introducing it without specific notice to Respondent closely approached sharp practice " We have, of course, found the introduction of the testimony proper Even if it had been improper, the worst that 75 the Trial Examiner.2 with the following additions and modifications. 1. The Trial Examiner correctly found that Grimes was an authorized agent of Supervisor Bonnet for purposes of carrying messages to employees and, con- sequently, that Respondent was responsible for Grimes' statement to the employees. Nevertheless, the Trial Examiner found no violation in Grimes telling the employees-a majority of whom had recent- ly voted for the Union-that Bonnet had stated that the men would have to wait 5 years to get the Union in. The Trial Examiner concluded that even if Bonnet had made the statement he had not made it to an employee nor had he directed that it be delivered to any employees and that Grimes' authority to bind Respondent would not extend to relaying remarks overheard in management's office. Whether or not Bonnet made the remark is here irrelevant, for it is clear that Grimes in the normal course of his duties while delivering "authorized" messages stated to employees that Bonnet had made the remark. In such circumstances, the employees were clearly in no position to determine which of Grimes' state- ments were "authorized" and which were not. Rather, we find that Respondent having clothed Grimes with the authority to deliver messages was responsible for Grimes' statement that Bonnet said it would be 5 years before the Union got in. We further find that such comment made in a context of unlawful threats of onerous working conditions for voting in favor of the Union violated Section 8(a)(1) of the Act. 2. Foreman Richard Davis' statements, in a talk ,:o employees the day after the Union won the election, hat they would have to tighten up on their work and that they would have to get to work on time were, we find, made because the employees voted for the Union. Similar threats had been made by Foreman Bonnet and were found by the Trial Examin- er to be violative of Section 8(a)(1). Contrary to the Trial Examiner, we find that the statements by Davis were not merely cumulative but rather that they constituted further violations of Section 8(a)(1). We also disagree with the Trial Examiner's conclu- sion that Davis' statement that henceforth only one man would be on the glass truck when it went to the dump was not coercive. That statement was a part of the above-mentioned talk in which Davis made various unlawful comments about tightening up working conditions. Thus, in view of its timing and context, we find that the statement limiting to could have been said was that the General Counsel had erred The additional pejorative characterization is wholly unwarranted, and we reject it We do not pass on the Trial Examiner's comments in fn 2 of his Decision, as we fail to perceive their relevance to this proceeding 185 NLRB No. 21 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one the glass truck employees was not made solely for economic reasons but rather was a part of Respond- ent's unlawful conduct in retaliation for the employees voting for the Union. We, therefore, find that this statement also violated Section 8(a)(1) of the Act.' 3. We disagree with the Trial Examiner's finding that the discharge of Jean Wilder on February 11, 1969, did not violate the Act. It is conceded that before the November 1968 election Wilder was extremely active on behalf of the Union and that Respondent was aware of such activity. The record also shows that after the election the daily packing quota for yarn was raised from 900 to 1,400 bobbins, that some employees by working extremely hard could and did make the new quota, and that Wilder, during the February 1969 check on her production, only once reached the new quota, though her production did exceed on all occasions the previous 900 quota. Wilder was assertedly discharged for her poor job performance; and between the date of the election and date of her discharge she was "written up" six times, that is, was given six reprimands, for poor quality or for low production. With respect to low production, Wilder testified that from the time of the election until February 14, she was frequently transferred from packing one type of yarn to another and that such transfers adversely affected her produc- tion. Wilder's supervisor conceded she was transferred to some extent but with respect to the effect of the transfer on her production stated only she was not transferred "that much." Wilder also testified that at least in late November when she was written up by Arnold for poor production she was receiving bad yarn which interfered with her doing a proper job; that she told Arnold the yarn was bad; but that he was not concerned. She further testified that on this occasion when she left Arnold's office she met the day supervisor, Schultz; that she showed Schultz the yarn she was working on; and that Schultz conceded it was bad, stated in effect that an employee could not make production with such yarn, and added that the Company was working on its yarn. Wilder's testimony concerning the bad yarn and Schultz's com- ' In view of the Trial Examiner's apparent credibility resolution, we have adopted his conclusion that Davis ' remarks concerning a wage increase did not violate the Act We reject however, as wholly unwarranted, his concurrent statement that the inclusion in the complaint-of an allegation concerning such remarks reflects an apparent continuation of the General Counsel's alleged "damned if you do, damned if you don't" policy The complaint alleged in substance that Davis told employees they would not receive a wage increase because they supported the Union The complaint thus alleged conduct which if proven would clearly violate the Act The fact that the Trial Examiner chose to disbelieve the testimony supporting this allegation and to credit Davis' contrary testimony cannot, however, under any circumstances ex postfacto convert a proper allegation into a condemned policy ments with respect to the quality and impossibility of making production was corroborated by packer Hillis. Schultz did not testify. On January 6, 1969, Wilder was again written up for an excessive number of reject bobbins-22 out of 90-on one pallet. However, at the discussion with her supervisor on the writeup, Wilder stated that the pallet involved had been partly loaded by the shift previous to hers and also by another employee who worked with her on the pallet. She was told that as her clock number was on the pallet, she was responsible for it. On January 17 and February 1 Wilder was again written up for poor production, and then on February 7 she was written up for putting the wrong label on some pallets. She testified, however, that there had been an argument between inspector Smith and control operator Barksdale over what was the proper label; that she attached the one Barksdale directed her to put on the pallet; that she related the above facts at the writeup discussion; and that Barksdale, who was there, conceded he had ordered her to attach the particular label. Nevertheless, she was held responsible for the mislabeling. Neither Smith nor Barksdale was called to testify. Finally on February 11 Wilder was written up again on the basis of her individual production figures for the first 10 days of the month showing, as already indicated, that she had reached the 1,400 minimum only once. Wilder's request on this occasion that she be returned to a job she had done previously on frames was denied and she was discharged for "poor job performance." In sum, this case involves the discharge of an employee, extremely active in the Union, who had worked satisfactorily for Respondent for 4 years, yet whose work as reflected by the "write ups" markedly deteriorated after the Union won the November 1968 election, to the extent that it assertedly necessitated her discharge in February 1969. However, the undis- puted testimony shows, as outlined above, that with respect to one of the "write ups" Wilder was being reprimanded for conduct-mislabeling-for which she clearly was not responsible; and with respect to two others, she was reprimanded for low or poor produc- tion when there were good reasons for doubting that the fault was really hers. Furthermore, in each of these instances , Supervisor Arnold showed no interest in Wilder's excuses for her poor job performance, and made no move to ascertain the validity of what were prima facie justifications of her performance; rather, he seemed solely concerned with holding her responsible for matters that very well may have been beyond her control. With respect to Wilder's low production figures tallied by Respondent dunng the OWENS-CORNING FIBERGLAS CORP first 9 working days of February 1969,° these may well have been prejudicially affected by bad yarn and by Respondent's transferring her from machine to machine during this period as well as earlier.' Thus, the production figures as to Wilder are not wholly reliable, possibly being adversely affected by a variable under management's control. In view of the foregoing, we reject the Trial Examin- er's conclusion that Wilder was discharged for poor job performance, for the evidence shows that the Respondent was primarily concerned with creating the appearance of poor job performance by Wilder rather than with ascertaining whether she was in fact a poor employee. Consequently, in view of the threats and other coercive conduct found above which were directed against its employees for supporting the Union, we are persuaded that Respondent's assert- ed reliance on Wilder's job performance as the reason for discharging her was a pretext and that the dis- charge of Wilder, a staunch union activist, was a discriminatory act against Wilder for supporting the Union and, thus, violated Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent unlawfully dis- charged Evelyn Jean Wilder on February 14, 1969, we shall order it to offer her immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that she normally would have earned from the date of the discharge to the date of Respondent's offer of reinstatement, less her net earnings during such period. The backpay shall be computed in accordance with the remedial relief policies set forth in F W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., Inc., 138 NLRB 716. As we have found that Respondent has violated Section 8(a)(3) as well as Section 8(a)(1) of the Act, we shall order that Respondent cease and desist from ' During the period for which records were kept only 6 out of 16 employees reached the minimum every workday ' Supervisor Arnold explained that he moved Wilder from machine to machine in hopes a spot could be found where her production would increase We do not accept this explanation in view of Wilder's uncontested testimony that production control clerk Barksdale told her she was being transferred because she was needed at the various machines and in view of Arnold's refusal at the time he discharged Wilder even to consider reassigning her to frame work which she had previously done successfully at the plant 77 in any other manner interfering with , restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Owens- Corning Fiberglas Corporation, Aiken, South Caroli- na, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Telling its employees because a majority support- ed the Union that they would have to tighten up and increase production or be discharged after their second writeup reprimand. (b) Telling its employees it would hire no more colored people because they had supported the Union. (c) Discharging or otherwise discriminating against employees because they support and are active on behalf of the Union or any other labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Evelyn Jean Wilder immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges and make her whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay due Wilder. (d) Post at its plant at Aiken, South Carolina, copies of the attached notice marked "Appendix."' Copies of such notice on forms provided by the Regional Director for Region 11, after being duly signed by an authorized representative of Respondent, ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National 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 " 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that all allegations of the complaint not specifically found to involve viola- tions of the Act be, and they hereby are, dismissed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD AN AGENCY OF THE UNITED STATES GOVERNMENT WE WILL NOT tell our employees that because General Drivers, Warehousemen and Helpers Local Union 509, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has won the election we will tighten up, require more production, and fire employees after a second writeup. WE WILL NOT tell our employees that we will not hire anymore colored people because we think the Negroes had gotten together to give the black folks to the Teamsters. WE WILL NOT discharge any employee because of his or her membership in, or activity on behalf of, the Union or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights protected by Section 7 of the Act. WE WILL offer Evelyn Jean Wilder immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position with all of her rights, without prejudice to her seniority and make her whole for any loss of pay she may have suffered as a result of our unlawfully discharging her. Dated By OWENS-CORNING FIBERGLAS CORPORATION (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Tel- phone 919-723-2300. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: Upon a charge filed May 12, 1969, by General Drivers, Warehousemen and Helpers Local Union 509, herein the Union, against Owens- Corning Fiberglas Corporation, herein the Respondent, the General Counsel issued complaint dated July 30, 1969, alleging Respondent violated Section 8(a)(1) and (3) of the Act.' The answer of Respondent denied the commission of any unfair labor practices. This proceeding, with all parties represented, was heard by me at Augusta, Georgia, on September 23. At the conclusion of the hearing the parties were given leave to file briefs and briefs were received and have been duly considered. Upon the entire record in this case and from my observa- tion of the witnesses while testifying , I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation engaged in the manufacture of fiberglas products at its plant in Aiken, South Carolina, the only plant involved in this proceeding. During the past 12 months Respondent sold and shipped products from Aiken valued in excess of $50,000 to places outside the State of South Carolina. Respondent is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts 1. Background Counsel for the General Counsel stated in his opening remarks that an election had been held at the Aiken plant in 1967 in which both the Union and the Glass Bottle Blowers appeared on the ballot. The Glass Blowers was ' The complaint was amended at the heanng to allege additional violations of Sec 8(a)(1) OWENS-CORNING FIBERGLAS CORP 79 eliminated in this election and a runoff election was held in February 1968, which was won by Respondent. This election, however, was set aside on objections filed by the Union An election held November 12 and 13, 1968, was won by the Union but certification has been withheld pending Board determination of objections filed by Respond- ent. Some 1800 employees voted in this election. On October 20, 1969, and after the hearing closed, the Board overruled the objections and the Union was certified.' 2. Violations of Section 8(a)(1) Thomas Jenkins testified that he had been employed by Respondent since January 1967. He was employed as a fiber control repairman on the D shift. Foreman of the shift was Gene Bonnet. On November 14, 1968, a meeting of the shift employees was called by Bonnet prior to the start of work which was attended by 45 or 50 employees. At this meeting, according to Jenkins, Bonnet told them most of them knew the Union had won the election and told them they would have to tighten up, get to work, or be "written up" and the second time fired.' Prior to this time Jenkins did not know of any rule regarding discharge following a writeup. Jenkins then testified that on January 3, 1969, he and another employee were told by Charles Grimes, an HFO`, that Bonnet told him to tell them that they would have to come in with a higher medium production five times out of a 7-day workweek or be written up and on the second occasion be fired Again, Jenkins had heard of no such rule prior to this warning from Grimes. Jenkins then testified that Grimes told them, apparently during this same talk, that Bonnet, in his office, had made the statement that the boys in the D wing thought the Union would do them some good but that it would be at least 5 years before the Union came in' Grimes was not called as a witness. Bonnet testified that he called a meeting of his employees after the election because he had heard rumors that there would be changes in jobs and a tightening up and that he wanted to tell his men that everything would operate at normal procedure He told them they would still get a 10-minute coffee break and 30 minutes to eat, would run the same jobs, and that no more work would be required of them. As to Grimes, Bonnet stated he was not a supervisor but kept Bonnet posted on what went on in the plant and relayed messages from Bonnet to the employees. In For a comprehensive and cogent review of the relative advantages to the parties of certainty versus delay in Board elections and their ultimate resolution see "NLRB Elections Certainty and Uncertainty" in Volume 117, No 2, University of Pennsylvania Law Review by Bernard Samoff, Regional Director for Region 4 The writing up procedure consisted of an interview between an employee and his supervisor to discuss a problem it would then be written up by the supervisor in the form of a report which the employee could either sign or refuse to sign Jenkins stated that Gnmes' job was to repair bushings and to relay messages from Bonnet to the men who worked on the tanks Grimes was not a foreman and did not substitute for Bonnet at any time The record does not establish that Grimes was directed to relay this statement to the employees , nor that it was intended for the employees January Bonnet had a conversation with Grimes in which he told Grimes that production was low in the D wing and asked him to find out what was going on. He denied that he told Grimes that more strenuous production stand- ards would be required. George Johnson testified that he was employed at Owens since November 1968, and that he was hired by James Gardner, employed in personnel. On January 14, 1969, he talked to Gardner about the employment application of his brother, who had been denied employment on the ground that he had only a sixth grade education Johnson argued that other employees had less education, specifically referring to colored employees in the forming department. Gardner's reply was that "they" were not hiring any more colored people because they felt the Negroes had "got together and give the black folks to the Teamsters." Gardner testified that he was in charge of personnel on January 14, that there were some 60 to 70 applicants, and that, since he was alone at the time, he asked them to turn in their applications so he could weed them out. Later that day he had a complaint from an employee (Johnson) concerning the rejection of his brother's applica- tion and went over the application, pointing out that the applicant had less than an eight grade education. Johnson told him he knew of employees working with less education and were "dumber" than his brother. He also stated that Johnson mentioned Negroes as a class with less education. He did not deny that he told Johnson that Respondent was not hiring more colored people because they were giving the "black folks to the Teamsters." On cross-examination, Gardner testified that he had been told it was company policy, though not a fixed policy, not to hire anyone with less than an eighth grade education. Gene Smith testified that he was employed by Respondent from 1964 until November 27, 1968 His supervisor was Richard Davis On November 14, he talked to the employees of the maintenance department (about 25 to 30) and told them it looked like the Union was in and that they would have to tighten up on their work, stay on the job, and get to work on time. He also, according to Smith, told them that only one man would be on the glass truck when it was going to the dump and the other man would stay and clean up. Davis also told them to let the foreman know when they would take their breaks which would be for 10 minutes. Prior to this the employees were allowed 10 minutes but "sometimes we would take a little longer and there wasn't nothing said about it." Davis told them if they took longer they would be written up; that they would have to change clothes and be ready to go to work at 8 a.m.; that there would be no standing around; and that they would have to stay on the job. Davis also told them that if they were out on working time they could not come in and make up the time-the time they lost would be lost time and that only three employees in the D wing would get raises. Davis testified that within 3 days after the election he told his employees that the Union had won but that their jobs had not changed and that the plant would operate as it had in the past. All employees including those whose jobs required clothes changes would be ready to go to 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work at 8 a.m. He warned them that it was only necessary for one man to drive the glass dump truck and that the helper who assisted the driver in loading it was not to make the ride to the dump As to raises, Davis told them "nobody had the authority to honor a raise while a company is negotiating for a contract." As to makeup time Davis testified: Q. Was the other question about work load? A. The other questions were not pertaining to the work load. It was pertaining to a privilege that they have- it's hard to get through to the people it is a privilege that everybody in the plant cannot have. We work from Monday through Friday, and each man has a specific job to do. Now, if this man comes to me and tells me that he has an uncontrollable condition, through no fault of his own, that he has got to be off, and if he is off as much as three hours in a work week, Monday through Friday, regular schedule, and I can find where his particular job, the time that he was off, had gotten behind, I will allow him to make up that time. I stressed this, and told them, "Now, don't get me over a barrel. This does not mean that you are going to take advantage of me. I'm giving you every opportunity in the world to make 40 hours a week, but you cannot come in here with a toe ache or call me at 6:00 o'clock in the morning and say you have a toe ache or a toothache, and come in here at 8:00 o'clock, in the morning and say at 2:00 o'clock, I forgot I've got a dental appointment. "Well, if you leave there at 2:00 o'clock, you have got 21/2 hours, and I'll let him have his tooth pulled but there's no way I can let the man makeup that time. It's just not fair." Q. Was that any change? A. That's no change. The General Counsel introduced testimony from two witnesses, Bobby Strickland and Eulalie DuBose, not to establish violations of Section 8(a)(1) (the conversations and changes in working conditions to which they testified were not alleged as violations of the Act) but to show the discriminatory motive of the Respondent with respect to the violation of Section 8(a)(3). The difficulty with this procedure, as I see it, is that Respondent has nowhere been advised that such testimony would be offered and is therefore unprepared to rebut it Had it been offered as a violation of Section 8(a)(1) (and the testimony prima facie establishes such violations) the General Counsel would have been required to name the offending supervisors and specify the nature of the violation in his complaint. Decision on the motion of Respondent to strike such testimony was reserved. The motion is hereby granted.' The testimony ' The General Counsel's citation of The Rubberoid Company, 167 NLRB No 144, is inapposite There the Trial Examiner reluctantly took evidence not specifically alleged in the complaint on the ground that it might be adduced within the allegations of the complaint and stated "that it would have been better practice to formally and specifically allege the matters asserted, it certainly cannot be held that Respondent was not on notice of the issue nor does it appear that Respondent was in any way prejudiced " Here there was no notice to Respondent as to specific testimony not alleged in the complaint and Respondent, of Melissa Jane Hillis, insofar as it would establish violations of Section 8(a)(1) not set forth in the complaint, is likewise stricken. The Examiner has, on the other hand, taken administrative notice of the Board's decision in Owens- Corning Fiberglas Corporation, 172 NLRB No. 70 enfd. 407 F.2d 1357 (March 17, 1969, C A. 4) in which the Board found Respondent at its Aiken plant guilty of viola- tions of Section 8(a)(1) and (3) of the Act. 3. Violation of Section 8(a)(3) Evelyn Jean Wilder was employed by Respondent as a packer from November 1965, until February 11, 1969, when she was discharged. Her supervisor was Charlie Arnold. During the Union's organizing campaign in 1967 she wore a T-shirt (G. C. Exh. 2)with slogans favoring the Union. Respondent stipulated that Wilder passed out handbills and was known to be an ardent union supporter. According to her testimony, Wilder solicited support for the Union from 1967 until the last election in November 1968. Prior to the 1968 election Wilder never had received a warning about her productions records, although her supervisor, either Bobby Barksdale' or Charlie Arnold, would tell the employees they had to speed up and get more production.' Immediately after the election of November 1968, accord- ing to Wilder, she was moved around in the packing room, sometimes from coarse to fine yarn and vice versa. Her testimony as to this changing of assignment after the election reads: Q And how often would you say you were moved? Were you moved every night or every other night, or once a week, or what? A. Well, he would move me like tonight, and maybe tomorrow night, he would move me again, and then he would leave me two days, and then he would move me again, and maybe leave me on that one for a week, and then move me again the next night. Q Did he tell you why he was doing this? A No, sir, but I asked him Q. Can you tell us, please, when you asked him? A. Well, after I got kind of tired because I was not making production all the time, and I said, "Bobby, what do you want to move me for? Move someone else sometime." Q. What did he say to that? A. He said, "We've got somebody out and I need you to work over there." And that's all he would say. without notice that it would be called upon to defend against it, would certainly have been prejudiced The conduct of the General Counsel in this specific instance closely approaches what would, when the practice of law bore some relations to ethical standards, have been considered sharp practice ' The complaint does not allege Barksdale was a supervisor According to Wilder, Barksdale gave them a "pep talk" at a preshift meeting and assigned employees to work stations and relayed instructions from Arnold I do not find that Barksdale was a supervisor within the meaning of the Act ' Respondent's records indicate that Wilder had received a writeup in July 1968, but that this was not directed to her production OWENS-CORNING FIBERGLAS CORP 81 Q. Now, did this moving around affect your produc- tion in any way? A. Yes, sir. Q. In what way? A You have to get the feel of the yarn because it's different weights. These bobbins, some of them weigh two pounds and some weigh up to seven pounds, and you have to put so many pounds all the same weight in one box, etc all down the line. And unless you were familiar with this yarn, it would slow you down, because you would have to weigh them until you would get familiar, and before you would get familiar with it, then he would move me off again. In late November 1968, Barksdale told her Arnold wanted to see her and she received her first "write up" concerning rejects. Arnold told her they had pulled her pallet and found 22 of 90 rejects Wilder claimed she had not worked on this pallet alone and that she was not, therefore , responsi- ble. Arnold claimed that since her number was on the pallet she was responsible Later in her testimony she identified this incident as occurring in January 1969. She did sign the write up given her at this time because her name was on the pallet. After refreshing her recollection from her pretrial affidavit Wilder testified that she was called to Arnold's office in November 1968, and told her she was not making produc- tion. She said she could not because her yarn was bad. She did, however, sign the write up. On leaving Arnold's office she met Gary Schultz, day supervisor, showed him her yarn, and he remarked that "it sure is bad "' Prior to the election , according to Wilder, the employees had a quota of nine to ten pallets as a standard of production, with 90 bobbins to a pallet. After the election the quota was changed from pallets to bobbins and the quota was fixed at 1400 to 1700. This, Wilder's figures are accepted, was a substantial increase in quota. On January 17, following the rejected pallets interview, she was called to Arnold's office and told she was not meeting production and she replied that she was making 9 to 10 pallets a night. Told that the quota had been raised, she stated that the quota was too high and that "you can't hardly get them." On February 1, she was again called to Arnold's office and told she was not making production . Her reply this time was that other girls were getting good stock and that she was getting the trash . Since her testimony on Her testimony as to her conversation with Schultz reads Q Please tell the Court what that conversation was A Well, I had lust been written up and Gary Schultz came through, and I stopped him, and I showed him this yarn , and he told me, he said, "Goodness, it sure is bad" And I said , "Yes, sir, so bad that I have lust been written up , and I can't help it, with yarn like this " And Gary Schultz said, "Charlie wrote you up9" And I said, "Yes, sir, he did " And I said "Now, I can't make production on this stuff" And I said, "Look, the whole truck is this way" and he told me, he said, "Well, anybody with any sense could see that you couldn't make production with this bad yarn" And he told me that they were working on the yarn, that it had been bad, and that they were working on the yarn, and to lust do the best I could And I said, "Yes, but the damage has been done I have been written up for something I can't help " this point is difficult to summarize it will be quoted. It reads: Q You have testified that Becky Bass and James Bush had also been working and getting all the good bobbins, is that right? A Yes. Q And did you tell this to Mr Arnold9 A. Yes Q. What did he say to that, if anything? A. Well, I told him that Becky and them was taking the bobbins that they wanted from it to make theirs and pushing the remainder to the rail, and then they would claim the whole trucks, and I would be working the trucks and only get so many bobbins And I said, "If you don't believe me, you watch her " And he said, "All right, I will." So she was about completed with a truck, and she pushed it out, and I told Charlie, I said, "You just watch her " And he said, " 0 K " So he walked up toward the front of the room, and to me it appeared- Q Well, don't tell us what it appeared, dust tell us the facts as you know them. A. All right. He walked to the front of the room and he didn't bother to look at her She pushed the truck right back out again and he didn't do anything about it And James Bush would get the good packing trucks-if you don't get the packing trucks, you don't get the pallets and bobbins-and he would let James Bush pull trucks up against the rail, then hold two or three and put two trucks inside the packing room; therefore, it made it difficult for me to get any stock to pack, good stock I would have to wade through the trash to get what I was getting And it took longer and I couldn't make production and I told him On February 7, she was called to Arnold's office and told she had put the wrong Daytex label on a box. Wilder admitted this but was also told she was not the only one who had made this mistake. Wilder stated this was her first mistake on labels and that she did not deserve a writeup for it. Her last trip to Arnold's office was on February 11.10 This time Arnold told her she had made production only once in her last 8 days and that she was fired. She told him she was being fired because of her union activity and asked to be returned to her old work on the frames. The discharge stuck without, apparently, further discussion. Melissa Jane Hillis was employed by Respondent as a packer since 1965. She testified that in December 1968 Barksdale told the employees they would be on a new quota basis and would be expected to turn out between 1400 and 1700 bobbins, although their previous quota, set in September 1968 had been 10 pallets or 900 bobbins. No explanation was given the employees-they were told they would meet the new quota or be replaced. Hillis testified that she could meet the new quota but had to work hard - "I mean work in a sweat and stay that way all day to get it." She corroborated Wilder's testimony 10 Each time she was summoned it was Barksdale who advised her and who went to the office with her where he remained during the discussions 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that in November 1968 Wilder was working on poor yarn and that Schultz admitted the yarn was poor. On February 7, she too was reprimanded along with Wilder and Majorie Cook for putting the wrong label on boxes. The testimony by both Wilder and Hillis as to whether the wrong label was put on under directions from Barksdale contributes little to the discharge issue. On cross-examination Hillis admitted that she had been among the first to wear a union button and a T-shirt. The witness did testify, although her testimony on this point is not free from some confusion, that in February she averaged between 1400 and 1700 bobbins, thus making the quota. Hillis also testified that if an employee was "moved around" her production would necessarily drop and that this had happened to her in September 1968 and that when Wilder was being moved around she was given bad yarn to handle. For Respondent, George Brelsford, personnel manager of the Aiken plant, testified that in December 1968 the production record of the "A" shift in the packing room, the shift on which Wilder was employed, was very slightly below the record of the other shifts and that in January 1969 it was considerably below the other shifts. This produc- tion review was made as a part of Respondent's investigation of the discharge of Wilder." Also as a result of this investiga- tion it was shown that four other employees on the "A" shift were written up during January. They were Hilda Morris, reprimanded for poor performance, Sadie Simpkins, Bernice Lewis, and Frances Hutton." Charles Arnold testified that he had been supervisor of the "A" shift for about one year and a half prior to the hearing and that production on that shift declined during January, 1969 As a result Arnold started keeping production records of individual employees in February. (Resp. Exh. 7)" According to Arnold, Jean Wilder had, until her discharge on February 11, the worst production record of any individual employee on her shift." This summarizes those portions of the testimony which I consider relevant to the discharge of Jean Wilder. B. Conclusions 1. Violations of Section 8(a)(1) I credit the testimony of Thomas Jenkins that, immediate- ly following the election, Foreman Bonnet told his men that they would have to tighten up, and get to work and that they would be discharged after a second writeup. This is a clear statement that discipline would be stricter and, in view of its timing, taken in reprisal for the employees' prounion vote. I also credit his testimony that the employees " This production resume was received as Resp Exh 2 2 Resp Exh 3, 4, 5, and 6 Of these Sadie Simpkins and Frances Hutton were discharged, Bernice Lewis went on maternity leave, and Hilda Morris was still in the employ of Respondent at the time of the hearing " A summary of this exhibit was received as Resp Exh 8 " On rebuttal General Counsel offered testimony of Hillis, who had started to keep her own production records, to show discrepancies with those kept by Respondent The records kept by Hillis were too fragmentary to serve any purpose in Bonnet's department would have to meet higher levels of production. Although this order was relayed from Bonnet through Grimes the record establishes that Grimes was an authorized agent of Bonnet for the purpose of carrying messages to the men and Respondent must, therefore, accept responsibility. On the other hand there is no evidence that Grimes was authorized to tell any employee that Bonnet had stated that the men would have to wait 5 years to get the Union in. This remark, if made, was not made by Bonnet to any employee nor, on Jenkins' testimony, was it intended to be conveyed to any employee. There must be a limit to Grimes' authority to bind Respond- ent and I would not extend that limit to the relaying of remarks overheard in management offices. I also credit, because it is uncontradicted, the testimony of George Johnson that Gardner told him that the Respond- ent was not hiring any more Negroes because it thought they had turned the black employees over to the Teamsters. This, too, indicates a reprisal against an entire class of employees for having been suspected of voting pro-Union. As to the testimony of Gene Smith that his foreman, Richard Davis, also told his men on the day after election that they would have to tighten up, stay on the job, and get to work on time, I find this, to the extent that it constitutes coercion or restraint, merely cumulative to that of Jenkins, supra. I do not regard the statement of Davis that only one man would ride the dump truck to the dump thereafter as coercive. I credit Davis that this had been a recurring problem which he had been trying to solve and, union or no union, he was entitled to resolve it. Like Davis, I believe it may be necessary for two men to load a dump truck but not for two men to unload it. Davis' explanation of his remarks regarding make-up time were logical rather than coercive. As to the statement by Davis that Respondent could not grant a wage increase during negotiations, I thought this, until the General Coun- sel alleged it as a violation, a simple statement of acknowl- edged and time-honored Board law. It would appear that the General Counsel intends to continue his "damned if you do, damned if you don't" policy condemned by the court in N.L.R.B. v. Dorn's Transportation Company, 405 F.2d 706 (C.A. 2). 2. Violation of Section 8(a)(3) The case for the General Counsel rests on the assumption that Respondent, by discharging one admitted union adher- ent some 3 months after the last election held at the plant, sought thereby to discourage union membership in a plant of some 1800 unit employees. Stated as a naked proposition it has little rational appeal. The testimony con- cerning good and bad yarn, moving the dischargee around, and cheating in the selection of materials by other employees I find unsusceptible of factual resolution. I find those facts which are subject to proof do not sustain the allegations of the complaint. Wilder had been, as had her friend Hillis, and early and ardent advocate of the Union. Nevertheless she had not been subject to harassment of any kind during the years of 1967 and 1968 when the union campaign was presumably in full swing. Since her activity was open she OWENS-CORNING FIBERGLAS CORP 83 was never interrogated about it nor was she ever warned to restrain it or threatened if she pursued it. She was discharged solely for the reason that her record for produc- tion was the poorest of any employee on her shift in the packing room during the period in February when she was still employed. I cannot reject the Respondent's production records for either shift production during Janu- ary nor individual production during February without some evidence of error or falsification . Wilder, in fact, admitted poor production blaming it either on the quality of her yarn or on excessively high standards. Hillis and other employees, however, were able to meet those standards, although Hillis testified it required diligent effort. There is nothing in the Act which forbids an employer to require diligent efforts of his employees whether or not they have engaged in union activity . Further dissertation would involve surplusage. I find Respondent did not discharge Jean Wilder in violation of Section 8(a)(3) and (1) of the Act. IV. THE REMEDY Having found the Respondent engaged in certain unfair labor practices it shall be recommended that it cease and desist from the same and take certain affirmative action necessary to effectuate the policies of the Act. While it might be argued that the unfair labor practices found herein are neither flagrant nor widespread and were addressed to small groups of employees out of a unit of some 1800, I believe that, following the unfair labor practices found by the Board in Owens-Corning Fiberglas, supra, a remedial order is warranted CONCLUSIONS OF LAW 1. By telling its employees on the day after the election that they would have to tighten up and that they would be fired after the second wnteup; that they would have to increase production or be fired after a second wnteup; and by telling an employee that Respondent was not hiring any more colored employees because it felt the Negroes had gotten together to give the black folks to the Teamsters, Respondent violated Section 8(a)(1) of the Act. 2. Respondent did not violate Section 8 (a)(3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]