Mark Twain Marine Industries, Inc.

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mark Twain Marine Industries, Inc. and Johnnie Bowyer. Case 14-CA-5348 September 25, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On May 20, 1970, Trial Examiner Harry H. Kuskin issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are here- by affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the Respondent, Mark Twain Marine Industries, Inc., Herrin, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. CHAIRMAN MILLER, dissenting: While I am normally inclined to give great weight to a Trial Examiner's evidentiary findings, I cannot ' The Respondent excepts to the credibility resolutions made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warranted here Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3) In sec I11, A, 9, par 4 of the Trial Examiner's Decision, reference is made to the fact that " Bright was regarded as a good worker " This statement refers, in fact, to Bowyer and the Trial Examiner's inadvertent error in this regard is hereby corrected agree that here there is substantial evidence, on the record considered as a whole, to support the conclu- sion that the Charging Party was discriminatorily discharged or that any 8(a)(1) violation occurred. The findings of knowledge by Respondent of the dischargee's union activities are totally unsubstantiat- ed by anything other than unsupported inferences, and virtually all of the other findings rest solely upon uncorroborated testimony of the party in interest, which is consistently and repeatedly credited, over Respondent's corroborated denials, to a point where the findings are, in my opinion, highly questionable. I would dismiss the complaint in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H KUSKIN, Trial Examiner. This proceeding was heard at Herrin, Illinois, on March 16, 1970. The complaint, which was thereafter amended before the hearing, issued on December 31, 1969, based on a charge filed on October 18, 1969. The complaint, as amended, alleges, in substance, that Mark Twain Marine Industries, Inc, herein called Respondent, (1) has violated Section 8(a)(1) of the Act by telling an employee that she was being discharged because of her activities in behalf of Textile Workers Union of North America, AFL-CIO, herein called the Union, and by informing an employee that it would not accept the Union or any other union at that time, and that, if forced to do so, it would move the plant; and (2) has violated Section 8(a)(3) of the Act by discharging employee Johnnie Bowyer on or about September 23, 1969, and by thereafter failing and refusing to reinstate her Respondent denies that it has violated the Act in any respect alleged herein Upon the entire record, including my observation of the witnesses, including their demeanor while on the witness stand, and after due consideration of the briefs of the General Counsel and Respondent, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The compliant, as amended, alleges, and Respondent admits, that it is a Delaware corporation with an office and place of business in Herrin, Illinois, where it is engaged in the manufacture, sale, and distribution of fiberglass boats and related products; that, during the past year, which is representative of its operations at all times material herein, it purchased and caused to be transported and delivered to its Herrin, Illinois, plant goods and materials, of which in excess of $50,000 worth came directly from points outside Illinois, and that, during the same period, of its products manufactured at the above plant , it sold and distributed in excess of $50,000 worth directly to points outside Illinois. I find, upon the foregoing, as Respondent also admits , that Respondent is engaged in commerce within the meaning of the Act 185 NLRB No. 101 MARK TWAIN MARINE INDUSTRIES 747 ii. THE LABOR ORGANIZATION INVOLVED The complaint, as amended, further alleges, and Respond- ent further admits, that Textile Workers Union of North America, AFL-CIO, is a labor organization within the meaning of the Act Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Discrimination Against Johnnie Bowyer 1. The nature and duration of Bowyer 's employment and the issues raised by her discharge Respondent started operations at the plant here involved, sometimes referred to as the Ordill plant, in the fall of 1968. The plant was to be operated as a temporary facility while a new plant was being constructed in West Frankfort, Illinois, to incorporate these operations i Bowyer started her employment with Respondent on December 16, 1968 Except for a leave of absence during the following June, July, and part of August, Bowyer worked at all times in the final assembly department, patching and repairing fiberglass boats 1 It was her job, as well as that of the other girls similarly employed, "to patch and repair any bad places in the boat, either in the making or mishandling," by filling in any holes and doing the necessary sanding and painting.' Bowyer's discharge was effected by William A Brinkley, an admitted supervisor, at about 8 o'clock on the morning of September 23, 1969.° Brinkley told Bowyer that he was discharging her because "You are not doing your work." Thereafter, Brinkley wrote on Bow- yer's separation slip, "did too much visiting Also workman- ship was very poor." The issue thus posed is whether these were the true reasons for Bowyer's termination, as Respondent contends, or whether they were mere pretexts to mask her termination for union activity, as the General Counsel contends. I shall, accordingly, set forth hereinafter the relevant details of Bowyer's tenure of employment with Respondent. 2. Bowyer's union activity Upon learning in early January, a little more than 2 weeks after her hire, that the Union was interested in representing Respondent's employees, Bowyer,became active in the distribution of authorization cards in behalf of the Union among these employees. She succeeded in passing out about 25 such cards during early January. This organiza- tional drive did not attain its goal, however, as the Union's petition to the Board for an election among Respondent's production and maintenance employees,' filed on January The West Frankfort facility apparently will be a much larger plant with a much larger employee complement The boats manufactured by Respondent are primarily 15 to 18 feet in size Three girls were already in patch and repair work on December 16, 1968 Bowyer was one of six new girls who started to do such work on that date During Bowyer's employment, there were as many as 15 girls in the patch and repair complement ' All dates hereinafter are in 1969, unless otherwise indicated Case 14-RC-6113 6, was dismissed by the Regional Director for Region 14 because the Union did not represent a substantial and representative segment of the contemplated work force. Beginning in early February, Bowyer began to serve on a union committee consisting of five employees, with each employee representing a department of Respondent. The function of the union committee members was to keep track of developments at the plant and to solicit new hires in their respective departments to join the Union. When the next organizational campaign of the Union began in February, Bowyer again circulated union authorization cards among the employees and obtained signed cards from about 20 of them. The record shows, in this connection, that during the latter part of February, and during March, April and early May there was pending against Respondent an unfair labor practice proceeding initiated by the Union.' Thus, on February 17, the Union filed an unfair labor practice charge against Respondent, alleging violations of Section 8(a)(1) and (3) of the Act. Thereafter a complaint issued based on this charge, and a hearing was begun thereon starting on May 6. On May 7, Respondent and the Union entered into an informal settlement agreement, with a non-admissions clause attached. It was not until May 16, a week after this informal settlement, that the Union filed its second petition with the Board for an election in the same employee unit.' This petition, like the first petition, was dismissed by the same Regional Director and for the same reason During the period begin- ning in February until the end of May, when, as already found, she went on a leave of absence, Bowyer's union activity, aside from the above-mentioned distribution of union authorization cards, consisted of attendance at union committee meetings and talking to employees in the plant about the Union. Although Bowyer was scheduled to return to work on September 2 from her leave of absence, she requested permis- sion to return, and did return, to work on August 14.8 There were then no organizational activities in progress at the plant However, about the second week in September, there occurred a resurgence of union activity. Authorization cards were being circulated among the employees in behalf of Laborers' International Union of North America, AFL- CIO, herein called the Laborers. Bowyer was then one of the two remaining members on the aforementioned union ' Case 14-CA-5007 Case 14-RC-6204 The leave of absence was granted in the form of a letter, dated May 28, from Respondent to Bowyer, it read as follows As you have requested you are granted a leave of absence for personal reasons to be effective this date You are granted this request with the understanding that you will return to employment on September 2, 1969 There is testimony by Bowyer to the effect that ( 1) when she first asked for a leave of absence, she was assurred by Fred D Claxton, the Director of Industrial Relations , that he could work out something for her, (2) that on the day she was to be advised whether her request for leave had been granted, she was not so advised, and (3) that she encountered considerable difficulty before she did get leave, with the condition, which she attached, that she would still have her job at the expiration of her leave However, even granting that this episode occurred in the manner testified to by Bowyer, I am unable to find, on this record, that the difficulty encountered by Bowyer derived from the fact that Bowyer was active in the Union poor thereto In these circumstances, I draw no inferences adverse to Respondent therefrom 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee and she proceeded to pass out authorization cards among the employees in behalf of the Union Bowyer was able to get six of these cards signed by employees. The rival union activity included the distribution of union literature by at least three representatives of the Laborers to employees at the gates of the plant and on the parking lot as they were leaving the plant at 4 p.m on September 15.9 This rival union activity extended beyond the date of Bowyer's discharge on September 23.10 However, insofar as Bowyer is concerned, it would appear, and I find, that this rival union activity triggered a considerable amount of discussion in the plant concerning these unions between Bowyer and employees of Respondent, up to the time of her discharge " 3. Bowyer's conversations with management before her leave of absence Bowyer testified that she had three conversations relating to her union activity with Claxton, the industrial relations manager. The first two occurred in March and the third occurred in late March or early April." According to Bowyer, the first conversation occurred in the final assembly department where she worked. Claxton then asked her why she thought she needed a union and what did she expect to gain from a union . Her response was she expected to gain "protection and benefits." She testified further that, in the second conversation, which occurred during the second week in March in the same department, Claxton inquired from her, "why [she] didn't play on their team," adding that "[she] was up front where several of the people were, [she] had a chance to listen and to see what was going on and what was wrong, and [she] could be of benefit to them." Whereupon she asked Claxton whether he was asking her "to be a company snoop", and Claxton answered in the negative and said that she had misunder- stood his interpretation, that he merely meant that she might be able to help the people there As to the third conversation, Bowyer testified that she was also in the final assembly department on that occasion when Claxton asked what her opinions were of the Union. Her response was that she "believe[s] in it , southern Illinois was a union country . . [she] certainly would be one that would vote for one if the time came and [the employees] were allowed the privilege." Also, according to Bowyer, she added that when the plant reached West Frankfort it probably would be unionized; she spoke about her determination not to cross a picket line at the plant; and, in the latter connection, when Claxton mentioned the risk of replacement for refusing ' The Laborers had distributed its union literature to plant employees once before, in February or March 10 Thus, on September 29, the Laborers filed a petition with the Board for an election among the production and maintenance employees of Respondent (Case 14-RC-6204) The Union intervened in this proceed- ing and an election was thereafter held on October 16, which the Laborers won The Laborers was certified as the bargaining agent of these employees on October 24 11 I rely, in this connection , on the undemed testimony of Bowyer and on the inherent probabilities of the situation 13 As these conversations occurred more than 6 months before the filing of the charge herein , they are of significance here only as background See 10(b) of the Act to cross, she said she still would not cross a picket line. The testimony of Claxton concerning the foregoing is at odds with that of Bowyer According to Claxton, he had two conversations with Bowyer during this period and, on each occasion, he was stopped by Bowyer in the plant. Claxton testified that the following occurred on the first occasion: Bowyer inquired about employee wages and bene- fits, and his reply was that, as Respondent's training efforts progressed, the employees would become more efficient and would increase their production, and only then could wages and benefits be discussed Bowyer then commented that some employees were afraid to come to talk to manage- ment on these matters, but since they knew that "on a previous job, she had been the union steward they would come to her with suggestions or complaints or griev- ances or gripes and they would ask her to present these to the Company." Bowyer said further that "[she is] not pushing a union here," but that she wanted him "to under- stand that if [she] had a chance [she] would certainly vote one in " Bowyer also made the point that "her husband had instructed her to have nothing to do with the union organization, she was to stay out of it " He then explained to Bowyer that he did not care to discuss or comment on anything relating to union activities, that "this was the sole prerogative and decision of the employee group." Claxton's testimony as to the second conversation was merely that Bowyer told him, on that occasion, that Richard Ford, the business agent of the Union, had some nice things to say to her about him His reply was that he had enjoyed a business relationship with Ford in which he was a company representative and Ford was a union representative and that they had bargained over terms of labor contracts In this connection, he denied that he ever asked Bowyer "to spy on the activities of other employ- ees or in any way advise [him] of what their desires or actions or activities were as related to their protected activi- ties " Revealing on the question of Claxton's reliability as a witness is his testimony as to his knowledge of the extent of union activity at the plant and Bowyer's participation therein If he is to be believed, such knowledge was only peripheral Thus, while admitting that he was familiar with the several petitions for an election filed during 1969, and with the fact that Ford was the representative of the Union in respect to the Union's petitions, he denied that he knew of Bowyer's activities with respect to obtaining signed union authorization cards from employees, that he ever saw an employee sign a union authorization card in the plant, or that he knew on September 23 of a resurgence of organizing efforts in the plant. Claxton's claimed unaware- ness, as the industrial relations manager, of any union activity in and about the plant at times when he admittedly knew of the Union's pending representation petitions before the Board, and his claimed unawareness of the resurgence of union activity in September when, as I have found, representatives of the Laborers distributed union literature outside the plant gates and on the parking lot as the employees were leaving the plant at the end of the workday, taxes ones credulity Accordingly, I find that Claxton did not testify forthrightly in the foregoing respects. In these circumstances, including the fact the Bowyer impressed MARK TWAIN MARINE INDUSTRIES 749 me as a reliable witness, I am persuaded, and find, that Claxton was also less than forthright at times in his testimo- ny as to what transpired during his conversations with Bowyer in March and April. Accordingly, I conclude, and find, that Bowyer testified credibly as to these conversa- tions with Claxton and that, in the course thereof, Claxton interrogated her as to her views concerning the Union and her union activity, and sought to dissuade her therefrom and to get her "to play on [Respondent's] team," instead. And I infer, and find further, on the basis of all the foregoing and on the entire record, that Claxton was aware of the union activity at the plant during the several organiza- tion drives in 1969, and of Bowyer's active role therein. 4. Bowyer's conversations with management after her return from her leave of absence on August 14 On the day that Bowyer returned to work from her leave of absence, and before she went onto the plant floor to work, Jack Bright, an admitted supervisor, told Bowyer to repair to his office as he wanted to explain something to her about working conditions Bright was line supervisor of the final assembly department, including patch and repair work, he was Bowyer's supervisor during her entire period of employment with Respondent. According to the uncon- tradicted testimony of Bright, he then told her that he "wanted her to stay out on the floor, stay on her job and not to drift away from her particular boat . . . . He also reminded Bowyer that "on a couple of other occasions" he had to "call [her] down" about drifting away from her assigned boat and "discussing things with other people."" Bowyer thereupon asked for the assignment so that she could go to it. It is apparent, too, that Respondent endeavored during this period to capitalize on Bowyer's leadership role among the employees, by seeking her aid in making certain improve- ments in working conditions In this connection, Bowyer testified that about the first part of September Claxton spoke to her at her place of work and brought up the subject of establishing a safety committee in the plant. Claxton then said, according to Bowyer, that this would be a good time to do so and asked her to "circulate among the people and talk to them and sort of pick out a committee" to meet with him and discuss safety conditions. Also according to Bowyer, Claxton discussed with her the establishment of a credit union in the plant on two occasions at her place of work, namely, during the first week of September and about a week before her discharge on September 23. Bowyer testified as follows in respect to these conversations: On the first occasion, Claxton approached her and said that the rates which were being charged by commercial loan companies had recently come to his attention in the case of an individual and that he thought it would be a good idea if the employees 11 Although Bright testified, on direct , that he did not know about the union activity at the plant, and denied knowing about Bowyer's union activity, he thereafter testified , on cross, that he was aware of general talk of efforts to organize the employees , and that Bowyer had talked to him about the Union in December 1968 Accordingly, I infer, and find, that he, like Claxton , was aware of the union activity at the plant and of Bowyer's active participation therein had their own credit union Claxton then asked her "to discuss this with different ones and see if anybody else would be interested," and she agreed to do so. On the second occasion, Claxton approached her and inquired whether she had talked to some of the people about the credit union, and when she answered that she had, Claxton said that "they were going to have to get together discuss those things " Claxton's testimony in regard to the safety committee was that "at some time" Bowyer made a sugges- tion to him concerning the need for a safety committee but that he "had never discussed with her any mechanics or procedures as to how this might be established," that such procedures were first discussed at a meeting which Plant Superintendent Frakes and he had with the employees at the Holiday Inn in Marion, Illinois, in June or late May.14 And so to the credit union discussions, Claxton referred in his testimony to only one conversation, on or about April 20, in which he suggested to Bowyer, when he met her in the plant, the establishment of a credit union for the employees and asked her to inquire among the employees if they were interested in such a program. 1I It is apparent from all the foregoing that Bowyer's and Claxton's testimony are not in serious conflict over the content of the conversations between them as to estab- lishing a safety committee and a credit union, but that in the case of the safety committee they differ as to who first raised the matter, and in the case of the credit union they differ as to whether there were one or two such conversations, and in respect to both subjects of discussion they differ as to whether they occurred at various times in the spring of 1969 or in September. As I have heretofore found Bowyer to be a more credible witness than Claxton, and as her testimony in regard to these matters had the ring of truth, I credit her and find that these conversations occurred at the times and in the manner testified to by her. 5. Bowyer's accident on September 17, the resulting absence from work, and her return to work on September 22 There is uncontradicted testimony by Bowyer that on Wednesday, September 17, the day after the abovementioned meeting at the Holiday Inn, she was stepping from inside 14 According to Claxton, the meeting was the outgrowth of a discussion between him and employees Robert Yow and Charles Lingle, who said that they would have to quit if they did not get a wage increase, and asked that Respondent justify why it was unable to give such an increase Claxton testified further that, at the meeting , Frakes and he dwelt on the decline in production at the plant and the need for "quite a reversal in production" before wages could be increased , and also, at some time during the meeting, the suggestion for a safety committee was made, which met with his approval, and this was followed by the employees designating from their ranks as a safety committee, Yow, Pauline Spillman and Joe Killman Bowyer's testimony agreed with that of Claxton as to the appointment of the committee at the meeting and as to the members thereof, and that wages were discussed during that session However , she placed the meeting at the Holiday Inn on September 16, and pointed out that she there took the issue with a boat bonus plan proposed by Claxton, arguing that the employees would be unable to meet the quota he indicated because of the bad materials, notably Jelcoat, which were being furnished to the employees 11 Claxton said that this inquiry was sparked by a garnishment against an employee's wages because of a loan indebtedness , and by the fact that he thereby became aware of the terms of that loan 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a boat, where she was working, onto a 5 gallon can which served as a footstool," and tripped and fell to the floor. After going to the restroom for a while, she returned to her job. She found Bright, her supervisor, standing there In answer to his questions, she told him that her fall "knocked the wind out of her," that she did not think she was hurt, and that she did not then wish to go to the doctor but would go, if she began to feel worse, and would let Bright know She worked the rest of the day but did not work the next 2 days i.e. Thursday and Friday, because she "was too sore." When she alerted Respondent on Thursday to her condition of soreness, to the difficulty she was having in getting up or down, and to her desire to see a doctor, she was given permission to see her own doctor and to furnish Respondent with all the bills. She reported for work again on Monday, September 22. According to Bowyer, she was still sore on September 22 and, while working, was having difficulty in bending down In response to an inquiry on that day by Frakes as to her condition, she indicated that she was "just sore and bruised", and, in answer to a similar question by Bright, she replied that she was sore "but otherwise [she] guess[ed] [she] was all right, nothing was broke." Bright testified, in this connection, that Bowyer did not complain to him of dizzy spells, nor did she ask for favored treatment or to be excused in any respect. 6. Bowyer's discharge on September 23 The testimony of Bowyer and of William Brinkley, an admitted supervisor, is in conflict as to what occurred on the morning of September 23, immediately before Bow- yer's discharge." According to the testimony of Bowyer, she clocked in at 7:30 a.m , the regular starting time. She then followed the customary routine at the start of the workday of gathering her supplies and took the usual 10 minutes in this work preparation process.1e Thereafter, she resumed, with the aid of Frances Sloan, a new girl recently assigned to her, the sanding of a side of the boat which they had worked on the day before. The sanding, however, did not result in a good job as the Jelcoat used was bad. Whereupon, she asked the supply girl for some 16 Although Bowyer also testified that there were not enough footstools for all the girls in patching and repairing, and some of the girls were using cans to stand on, I find it unnecessary to, and do not, here decide whether she was, nevertheless, at fault in proceeding to use a 5-gallon can as a footstool 1' Only these two individuals gave such testimony Bright, who was Bowyer's regular supervisor, was absent on September 23 because of illness and Brinkley was in charge of the patch and repair employees Brinkley was assigned to Respondent's Ordill plant in February as a foreman in a troubleshooting role with respect to production in any department where he was needed He had, on at least one prior occasion, taken Bnght's place when Bright was ill At that time, Frakes told the employees of Bright's absence and that Brinkley would be in charge According to Brinkley, he has supervised Bowyer on "2 or 3 different times sometimes maybe for two weeks, maybe sometimes a month, sometimes one day" and that, during some of these times, Bright was present in the plant 11 This entailed getting two containers, and putting water which was outside the plant into one and putting acetone in another , and getting such equipment as hose, compounds, sanding papers and rags new Jelcoat. While the supply girl was on this mission, she proceeded to sand the other side of the boat. The spot to be sanded was at the bottom of the boat towards the edge. Instead of squatting, which she was unable to do because of her soreness, in order to get at this part of a boat, she bent over. Upon raising herself, after standing in this bent over position for a while, she "was quite dizzy." After commenting about this to Sloan, she went to the restroom" about 25 feet away. She was there no longer than 10 minutes. As she left the restroom, she met Brinkley standing outside the hallway onto which the doors of the men's and ladies' restroom face Brinkley then said to her, "Clock out and go home." When she asked for the reason, Brinkley said, "Because you are not doing any work." When she asked who had told him this, he replied "George [Frakes]." At this, she said "I will talk to George." In contrast to the foregoing, Brinkley testified, on direct, that, at 7.30 that morning, he was standing about 5 feet away from Bowyer and observed that she was "standing there with a rag wiping," when she should have been sanding;20 that he saw Bowyer doing this for "probably ten minutes"; that he left this station for a while and was not observing Bowyer; that, when he returned to where Bowyer had been working," she was not at her work station; that, according to his watch, "she finally came back" to her area at 8 o'clock, stayed there for a minute and then went "around the other side of the parts crib" stopping to talk to the other girls for "about 10 minutes or so"" and then going on to the break area; that he met Bowyer in the break area where he discharged her. As to the discharge itself, Brinkley testified that he said to Bowyer "Johnnie, I cannot use you no longer, I am going to have to let you go" And when she asked for the reason, he replied, "You are not doing your work." She, in turn, said she wanted to talk to George Frakes and he replied that he did not know Frakes' whereabouts. They went in different directions at this point; as for himself, he went directly to the timeclock, punched her card, and prepared her termination slip and turned it into the office The record shows that, on the slip, Brinkley wrote as the reason for her termination, "Did too much visiting. Also workmanship was very poor." Yet, when asked, on cross-examination, after being shown the actual separation slip, what it shows as to the reason for the dismissal, he answered, "Too much talking." I note further that, during cross-examination, Brinkley testified to a different timetable from that in his direct testimony with respect to Bowyer's movements that morning. Thus, he acknowl- " Apparently the restroom has a chair in it but there are no chairs in the plant itself 30 According to Brinkley, wiping with a rag is done occasionally, as it is necessary only to see what one is doing after one sands the spots. Brinkley did not fix the precise time of his return " At another point in his direct testimony, Brinkley had the other girls standing at Bowyer's work station about 6 feet from her work And he testified further, in this connection, that Bowyer was watching him during this approximately 10 minute period and every time he "would come in the room she would wipe the boat and watch [him] at the same time," doing this about three times. MARK TWAIN MARINE INDUSTRIES edged that when the buzzer sounds at 7:30 a in., the patch and repair employees go for their supplies and for buckets of water, that he observed Bowyer go for supplies that morning21 and that she took about 5 minutes in doing so It follows therefrom, contrary to Brinkley's testimony on direct, that Bowyer was not ready to begain productive work until 7:35 or so, and that she cannot be faulted for the period between 7:30 and 7:35. And further, since Brinkley testified, on direct, that at 7.40 he was not at a station from which he was in a position to observe Bowyer, it follows also that he observed her, at most, for 5 minutes rather than for the 10 minutes claimed by him, on direct Significantly, too, although Brinkley testified, on direct, in substance, that he did not observe when Bowyer went to the restroom, his testimony, on cross, was that he did see Bowyer leave, and that he looked at his watch at the time she left and it was 7:45. Additionally, although Brinkley fixed Bowyer's return from the restroom, during his direct testimony, at 8 o'clock on the basis of his own timepiece, he varied therefrom, during cross examination, and fixed her return at 8:05, after being in the restroom for "about 15 minutes, 20 minutes, somewhere in that area." I note, too, in the latter connection, that Brinkley acknowledged that, in his prehearing affidavit to a Board agent, he swore that Bowyer was in the restroom for 35 minutes and that he had timed Bowyer during this period; and that, upon being pressed, during cross examination , as to the truth of the matter, he answered that "he could have been" wrong in his prehearing affidavit. In all these circumstances, and from my observation of Brinkley' s demeanor on the witness stand, particularly during cross examination , I find that he is not a reliable witness. Accordingly, as I have heretofore found Bowyer to be a reliable witness, and as her testimony set forth above was given in a forthright manner, I credit her version of the events on September 23 leading up to her discharge2 and of the discharge conversation between Brinkley and her. 7. Bowyer's conversations with representatives of management in the wake of her discharge The record shows that, after Bowyer left Brinkley that morning, she went to see Frakes25 and Claxton, in that order. Frakes was adamant on the matter of Bowyer's discharge and insisted that Brinkley's decision was final. In the case of Claxton, upon being told by Bowyer that she had been discharged by Brinkley and that, in her just-completed talk with Frakes, Frakes had told her that the reason for the discharge was her inefficiency, he asked Frakes to come to his office. There, in the presence of Bowyer, according to a composite of the credible testimony of Frakes, Claxton and Bowyer, Frakes stated that Bright " Although Brinkley could not recall the time she went for supplies, it is apparent from his other testimony and the probabilities of the situation that she did so at the established time, i e , at 7 30 a in. '" It follows therefore, and I find, that, contrary to Bnnkley's testimony, Bowyer did not do any visiting with other employees in the department before he discharged her " There is uncontradicted testimony by Bowyer that the clock in the office then occupied by Frakes registered 8 10 a in 751 and he had been talking about terminating Bowyer because she was spending too much time visiting others during working time and, while at work, was spending too much time rubbing the boats rather than sanding, buffing, and polishing The record further shows that, after Frakes left, Claxton and Bowyer had further conversation Bowyer gave the following account, in substance, of the conversation: She protested to Claxton that she did as much as, or more work than, anyone else in her section. Thereupon, Claxton asked her what she thought was the reason for her termina- tion. She admitted not being "sure," but referred to the desires of the employees for an election, and added, "I think I'm being fired over union activities " This brought a denial from Claxton and the comment that "some people were under the illusion because they had a union representa- tive backing them, that they couldn't be fired." He then referred, inter aka, to the prior discharge of employee Oakley,26 to his belief that Ford, the business agent of the Union, could not be of any help to her in this matter, and said that, at this time, Respondent will not accept the Union or any labor organization. In the latter connection, Claxton said, "before we accept the Union in here we will lock the door and leave." In addition, Claxton reminded her "on several occasions" during their two-way discussion, that she "had been asked to play ball on their team and that [she] turned it down . So it was only [her] doings that [she] had been fired." Further, in answer to Claxton's question as to whether Bright had ever warned her about her work, she answered that Bright had not done so and that the only thing Bright had ever said to her was that she was talking too much and to stay at her boat and not help any of the others. Towards the close of the conversation, Claxton said that she should have been warned before being fired and that he would inquire from Bright and, if Bright had not warned her, she would have the right to return to work. Claxton testified as follows, in substance, in respect to the above: After Frakes had commented upon Bowyer's work habits, he asked Bowyer whether that was so and she answered "something to the effect, `Well, I don't know.' " He, in turn, told Bowyer that he was not able at that point to change the decision, or substitute his decision for that of Brinkley. Bowyer, however, took the position that she was not going to accept Brinkley's discharge and would stay on the job until Bright terminated her But when she saw that this did not avail her , she began to talk about her trip to the restroom that morning and attributed it to an attack of diarrhea To his inquiry as to why she had not reported this to anyone, she replied that she thought that people would understand that this condition was the result of her accident and it would be necessary for her to be away from her job 27 She also "became quite emotional and began to cry." He allowed Bowyer to sit in the office for several minutes, even though he had already indicated that he was not going to change Brinkley's decision. At one point thereafter, while still crying and still sitting there, Bowyer threatened to quit l" Oakley, as well as Bowyer, was on the union committee 1 7 Employees are not required by management to get permission before going to the restroom 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if she was not wanted at the plant She added, "they have been looking for an opportunity to get rid of [her] for a long time anyway," and that "because of union activities again, they had been after her." He asked her, without success, to name names and to amplify her claim that Respondent had a union-related reason for wanting to get rid of her, he also disputed her claim that anyone wanted to get rid of her and pointed, in refutation thereof, to the fact that she was granted her leave of absence in May, through her persistence, even though there was no provision for this type of leave He did, however, tell Bowyer that if it was true, as she claimed, that "she had been summarily discharged with no warning" then he thought that she was entitled to reconsideration on the dismissal and that he would check this out with Bright when Bright returned to work. In assessing the differing versions of Bowyer and Claxton as to what occurred in Claxton's office after Frakes took leave of them that morning, I note that both agree that, in the course of the discussion, Bowyer mentioned the Union and indicated that she thought that her discharge was connected with her union activity. In this connection, Claxton did not specifically deny testimony by Bowyer to the effect that he then said, inter alia• (1) that some people were under an illusion, because they had a union representative backing them, that they could not be dis- charged; (2) that, in her case, the support of Ford, the business agent of the Union, would not be of any help to her; and (3) that "[Respondent would] lock the door and leave," rather than accept a union at that time I note, too, that Claxton failed specifically to deny Bowyer's testimony that, "on several occasions" during their two- way conversation, Claxton reminded her that "she had been asked to play ball on their team and that she turned it down So it was only [her] doings that [she] had been fired " In all these circumstances, and as I have heretofore found that Bowyer was a more credible witness than Claxton, I credit this undenied testimony by Bowyer and find that Claxton made the above remarks attributed to him by Bowyer. As to the remainder of the two-way conversation, it suffices to find, on the basis of such testimony of Bowyer and Claxton as is mutually corroborative, that Claxton indicated to Bowyer that he could not do anything at the time to reverse Brinkley's decision but that if, upon inquiry, he learned from Bright, her regular supervisor, that Bowyer had theretofore not been warned, this would be grounds for reconsideration of Brinkley's decision and he would advise her of Respondent's final decision. Claxton testified that he did not call Bowyer thereafter because he had talked to Bright and "found out that [Bright] had warned her, and that the reason for Brinkley's discharging her was in line with those warnings." However, this information became known to Bowyer when she tele- phoned Claxton about the first of October and asked him concerning what he had ascertained from Bright. 9. Analysis of Respondent's reasons for Bowyer's discharge It is apparent from the foregoing (1) that Frakes, in his criticism of Bowyer's work to Claxton, faulted Bowyer for doing too much visiting and for wasting too much time in unnecessary work while she was at her work station; and (2) that, although Brinkley's testimony faulted Bowyer's work during the short period before her discharge on the morning of September 23 on the same grounds, he listed on her termination slip the first mentioned of these two reasons and gave as a second reason that her workmanship was very poor. On the matter of visitation by employees away from their work stations, Bright testified as follows: He has had occasion, before Bowyer took leave of absence in late May, to speak to Bowyer and the rest of the women in the final assembly department in a group and individually about their moving around the department and talking with other women 28 And subsequent to August 14, the day on which Bowyer returned from her leave of absence, he spoke to Brinkley on three or four occasions29 about this type of conduct by Bowyer and other30 and then followed this up by talking to them personally. I note, however, that Bright admitted, when pressed under cross examination, that his last discussion with Bowyer as to visiting away from her job occurred on August 14, just before she resumed work after her leave of absence In all these circumstances, including Bright's acknowledgment that visiting by employees "was considered a little problem," (underscoring supplied) and my finding heretofore that, contrary to Brinkley's testimony, Bowyer did not do any visiting before he discharged her on the morning of Septem- ber 23, I conclude, and find, that the claimed visiting of Bowyer was not an operative factor in her discharge. As to the matter of Bowyer's alleged wasting of time at the job doing unnecessary tasks, Frakes testified that Bowyer would spend too much time rubbing the boats rather than sanding, buffing, and polishing them And Brinkley testified that on the morning of September 23, Bowyer was doing unnecessary work by wiping the boat to which she was assigned instead of doing any sanding However, I have discredited Brinkley's above testimony and have credited Bowyer, instead. Bowyer's credited testi- mony shows that she was actively engaged in sanding first one side and then the other side of a boat during the time interval that morning between obtaining supplies and leaving to go to the restroom. And as to Frakes' testimony, it is rendered suspect in view of the testimony of Bright, the regular supervisor of Bowyer, which I credit, that, during Bowyer's entire tenure, he never advised her that she was not performing a sufficient quantity of work. In all these circumstances, I find here that Respondent has not established by a preponderance of the evidence that Bowyer wasted time at the job doing unnecessary tasks And I find further that this asserted reason for discharging Bowyer is lacking in merit 3° Bowyer admitted that, before her leave of absence, there were two such occasions On one occasion, Bright told her, "Why don't you stay at your own boat and work, and quit running around" On the second occasion, Bright told her she was talking too much and should stay at her own boat S9 Bright was unable to furnish specific dates J' Bright named employees Mae Cook and Frances Sloan but indicated that they were not the only ones MARK TWAIN MARINE INDUSTRIES As to the quality of Bowyer's work, I have heretofore found that Brinkley wrote on Bowyer's termination slip as the second reason, "workmanship was very poor." Brink- ley testified that this reason was based on the fact that "the job that we checked she had to do over again";" and that Bright had checked her work, too, and found it to be below par. At another point, Brinkley characterized Bowyer's work as "not very good." This testimony of Brinkley is at odds with Bright's testimony concerning the quality of Bowyer's work. Thus, Bright testified, on direct, that he "had no real complaints against [Bowyer's] work Her work was average quality " And when asked about Bowyer's work, on cross, Bright said that he never had any occasion to criticize Bowyer about the quality of her work and he described her work variously as "average" and "good quality " I note, too, that Bowyer testified, without contradiction, as to favorable comments from management about her work. According to Bowyer, Claxton told her, during a visit to final assembly, about March or April, that she "was a good worker; they needed more that was just as good" And, on another occasion in final assembly, when she inquired from Claxton about rumors of impending discharges circulating in the plant and if she was to be discharged, Claxton's answer was, "Why, no, why would you be?.. 'You are a very good worker . I think a lot of you, Johnnie." Also according to Bowyer, during a conversation with Frakes in May, in final assembly, she expressed concern over whether wages would be increased and spoke of an offer of a job from her former employer. At this, Frakes assured her that things would get better and that there would be better wages, asked her not to be hasty, and commented, in part, "You are certainly a good worker, and we need you here " In all these circumstances, including my finding heretofore that Brinkley was not a credible witness, I do not credit Brinkley, and find, on the basis of the testimony of Bright and Bowyer, which I do credit, that Bright was regarded as a good worker and that Brinkley's claim that Bowyer's workmanship was very poor or unsatisfactory is lacking in merit. It follows from all the foregoing that the only respect in which Bowyer had ever been properly faulted by Respond- ent was for visiting other employees and being away from her work station. And while it is true that she was warned by Bright on August 14, when she returned to work from her leave of absence, against engaging in such conduct thereafter, Bright did not find such visiting as she did subsequent to his warning sufficient cause for discharge. Thus, he testified that he did not talk to her about this matter after August 14, and that there was no consultation between Brinkley and him on the day before Bowyer's discharge, or during the week preceding it, about discharging her. In these circumstances it follows, and I find, that Brinkley's discharge of Bowyer on September 23, during Bright's absence on that day, was precipitate and was not provoked by any disregard on her part of Bright's warning to her on August 14. To recapitulate, I find herein that (1) Bowyer was regarded as a good worker, (2) nothing untoward in respect to " The reference apparently was to a number of such occasions 753 her work or work habits warranted her precipitate and summary discharge on September 23, about a half hour after work began; (3) Respondent was aware of Bowyer's active role in the Union's organizational drives," (4) Director of Industrial Relations Claxton reminded Bowyer during his post-discharge conversation with her that she had there- tofore resisted his importuning "to play ball on [Respond- ent's] team," and that "it was only [her] doings that [she] had been fired";" (5) during the same conversation Claxton informed Bowyer, in effect, that Respondent would not accept the Union or any other labor organization at that time, and, if forced to do so, Respondent would move; (6) the discharge of Bowyer coincided with the resurgence of organizational activity at the plant, and (7) the claimed visiting with employees by Bowyer was not an operative factor in her discharge, nor was there any merit to the other reasons given for her discharge In the light of the above and on the entire record, I infer, and find, that in discharging Bowyer on September 23, 1969. and in thereafter refusing to reinstate her, Respondent was motivat- ed, at least in part, by a desire to rid itself of a staunch adherent and leader of the Union, and Respondent hereby violated Section 8(a)(3) and (1) of the Act. B. The Alleged 8(a)(1) Violations I have heretofore found that, during Bowyer's post-dis- charge conversation with Claxton on September 23, Claxton told her (1) in a veiled reference to her prounion activity that "it was only [her] doings that she had been fired", and (2) that Respondent would not accept the Union or any other labor organization at that time, and, if forced to do so, Respondent would move. As these statements were clearly coercive, they violated Section 8(a)(1) of the Act, and I so find Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer 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 threatening an employee that, if it were forced to accept the Union or any other labor organization at that time, it would move the plant; and by telling her, in a veiled reference to her prounion activity, that she was discharged therefor, Respondent has interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of Johnnie Bowyer by discharging her on September 23, 1969, and by thereafter refusing to reinstate her, because of her activities on behalf of Textile Workers Union of " Although Brinkley denied that he had knowledge of any union activity at the plant, I do not credit this denial I have heretofore found that Bowyer's union activity was known to ClAton and to Bright In all these circumstances, I infer, and find, that her activity was known to Brinkley also 11 The veiled reference, I infer, and find, was to her prounion activity 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD North America, AFL-CIO, Respondent has engaged, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that a broad order issue designed to protect the employees of Respondent. I shall also recom- mend affirmatively that Respondent, in order to remedy its unlawful discrimination against Johnnie Bowyer, 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, privileges, or working conditions, and make her whole for all earnings lost by reason of the discrimination against her, by paying to her a sum of money equal to the amount she would have earned from the date of her discharge to the date of a proper offer of reinstatement, less her net earnings during such period Backpay, with interest at the rate of 6 percent per annum, shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289; and Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that A. Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees that, if it is forced to accept the Union or any other labor organization at a time unsuit- able to it, it will move the plant (b) Threatening employees, in a veiled or direct reference to their prounion activity, that they will be discharged therefor. (c) Discouraging membership in the Union, or any other labor organization of its employees, by discriminatorily discharging, or refusing to reinstate, or in any other manner discriminating against any employee in regard to his hire, tenure, or any other term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act 2. Take the following affirmative action which will effectu- ate the policies of the Act (a) Offer to Johnnie Bowyer immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights, privileges, or working conditions, and make her whole for any loss of earnings she may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) Notify Johnnie Bowyer if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Service and Training Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary or useful to determine or compute the amounts of backpay due, as herein provided. (d) Post at its facilities in Herrin, Illinois, copies of the attached notice, marked "Appendix "1° Copies of said notice, on forms provided by the Regional Director for Region 14, after being signed by a representative of Respond- ent, 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 said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.35 " In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusion, recommendations , and Recommended Order herein shall, as provided in Sec 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 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." " In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that, if we are forced to accept Textile Workers Union of North America, AFL-CIO, or any other labor organization at a time unsuitable to us, we will move the plant. WE WILL NOT threaten our employees, in a veiled or direct reference to their prounion activity, that they will be discharged therefor. WE WILL NOT discourage membership in the above- named Union, or any other labor organization of our MARK TWAIN MARINE INDUSTRIES employees, by discriminatorily discharging , or refusing to reinstate, or in any other manner discriminating against any employee in regard to his tenure or any other term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment , as authorized in Section 8(a)(3) of the Act. WE WILL offer Johnnie Bowyer 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 and other rights and privileges, and make her whole for any loss of pay suffered as a result of the discrimination against her. All our employees are free to become or remain, or refrain from becoming or remaining, members of Textile Workers Union of North America, AFL-CIO, or any other labor organization, except to the extent that this right may be affected by an agreement executed in conformity with Section 8(a)(3) of the Act, as amended. Dated By MARK TWAIN MARINE INDUSTRIES, INC. (Employer) (Representative) (Title) 755 Note We will notify Johnnie Bowyer 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. 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 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314-622-4167.