Best Products Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Best Products Company, Inc. and Retail Clerks Union, Local 588, Retail Clerks International Asso- ciation, AFL-CIO. Case 20-CA--12517 June 19, 1978 DECISION AND ORDER BY MEMBERS JENKINS. MURPHY, AND TRUESDALE On October 31, 1977, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Re- spondent's suspension of employee Shirley Smith on January 10, 1977, was not discriminatorily motivated and, accordingly, recommended that the complaint be dismissed in its entirety.2 We disagree. For the reasons set forth below, we find that Respondent sus- pended Smith because of her union activity and be- cause she testified in a Board proceeding, and that by this conduct Respondent violated Section 8(a)(4), (3), and (1) of the Act. The facts, as more fully described in the Decision of the Administrative Law Judge, established that during the fall of 1975 the Union commenced an or- ganizational campaign at Respondent's Sacramento store. Smith was an active and open supporter of the Union in that campaign. In due course, the Union filed a representation petition, and an election, which the Union lost, was conducted on November 21, 1975.3The Union filed timely objections to the election The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established polic) not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drv Wall Productrs. Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge also found that the General Counsel failed to establish by a preponderance of the evidence that a supervisor of Respondent unlawfully warned Smith that other employees had been termi- nated because of their union activity. We affirm that finding. 3 The representation petition covered Respondent's Citrus Heights loca- tion as well as the Sacramento facility. Elections were held in both locations and at the Board hearing therein Smith testified re- garding her activities on behalf of the Union. On June 10. 1976, the Hearing Officer's report on the objections issued, finding that Respondent had en- gaged in objectionable conduct, and on October 27, 1976, the Board adopted the Hearing Officer's re- port, and directed a second election in each of the two units. During the last 3 months of 1976, Smith, at various times, was absent from work a total of 13 full and 4 partial days due to illness. Either in late November or early December, in reply to an inquiry as to her health made by Alphin and Goodwin, Respondent's showroom manager and assistant manager, re- spectively, Smith stated that her doctor had advised her to take a couple of weeks off for rest. Their re- sponse was that "We all need 2 weeks rest." On Janu- ary 10, 1977, 4 Smith received a written directive from Alphin and Goodwin ordering her to take a 2-month "leave of absence to hopefully restore you to good health." The same day Smith was called in to Alphin's office where he advised her that she would have "to take two months leave of absence to get over [her] illness." In reply she told him that she had recovered from her illness and that leave should have been granted her in November and December when she needed it. According to Smith's uncontradicted testimony, Alphin insisted that she not discuss her leave of absence with any of the other employees since he was going to announce it to them. The following morning at an employee meeting, Goodwin announced that Respondent "had decided to give her [Smith] a two month leave of absence to restore her good health." Smith, later that same day, told Goodwin that she was "upset" at his comments that morning because he implied that she had re- quested the leave of absence. Smith further testified without contradiction that Goodwin responded that "the company wanted it that way and the employees didn't have to know." On January 17, Smith presented a letter to Re- spondent from her physician stating that she had ful- ly recovered from her illness and was able to work. Despite this letter, however, and after receiving it, Respondent wrote to the state agency processing Smith's claim for unemployment compensation that Smith "has not contracted us that she considers her- self recovered." On March 10, Smith returned to work at Respondent's Sacramento store where she was still employed at the time of the hearing herein. The Administrative Law Judge found that the sus- pension was a disciplinary measure imposed upon Smith because of her absences from work during the pursuant to a Stipulation for Certification lUpCn Consent Election The Union lost both elections. 4 All dates hereinafter are 1977 unless otherwise indicated. 236 NLRB No. 108 1024 BEST PRODUCTS COMPANY fall of 1976. He further found that the suspension "may appear to be harsh, but it was not disparate treatment, and it is well established that the Board cannot substitute its judgment for that of the em- ployer as to what constitutes reasonable grounds for discipline or discharge." In so concluding, the Ad- ministrative Law Judge relied on evidence that in 1976 Smith had received a reprimand for her absen- ces during the fall of 1975 and employee Whittaker had been terminated for excessive absenteeism. He also relied on the fact that employee Horst received a reprimand for absenteeism on the same day Smith was suspended. The Administrative Law Judge therefore found that there was insufficient evidence to establish union animus on the part of Respondent. Accordingly, he concluded that the General Counsel had failed to prove by a preponderance of the evi- dence that Respondent suspended Smith because of her union activity and/or because she testified in a Board proceeding. We disagree. In characterizing Smith's suspension as a discipli- nary measure, the Administrative Law Judge has to- tally disregarded the uncontroverted evidence that Respondent itself did not so designate it.5 Indeed. aside from the acknowledgement statement on the form directing Smith's "leave of absence," i.e., "I ac- knowledge receipt of the above compliment/repri- mand," which was apparently standard language, there is no indication in the record before us that Respondent ever characterized the suspension as dis- cipline. On the contrary, Respondent insisted that the sole purpose of the leave of absence was to re- store Smith's health, not only when directing her to take it but also when it notified the other employees of the measure (despite Smith's protests), and when it communicated with the state agency processing Smith's unemployment compensation claim. Accord- ingly, we find that the Administrative Law Judge er- red in concluding that the suspension was a discipli- nary sanction. We further find that Respondent's asserted reason for the suspension, i.e., Smith's con- tinuing illness, was pretextual. For, despite the letter from Smith's physician certifying her ability to work, Respondent persisted in insisting that her poor health necessitated a leave of absence. Respondent's refusal to reconsider the suspension, in the face of uncontroverted evidence that Respondent's assess- ment of the state of Smith's health was inaccurate, We do not adopt the Administrative Law Judge's finding that Respon- dent did not treat Smith disparately from other employees with poor atten- dance records. Although it is undisputed that Smith's absences from work during the fall of 1976 were due to illness, there is no explanation in the record regarding the absences for which Horst and Whittaker were disci- plined. In the absence of evidence that Horst and Whittaker were absent from work for reasons beyond their control. as was Smith, there is no basis for comparing their attendance records with that of Smith. gives rise to the inference that concern for Smith's physical well-being was not in fact the reason for the mandatory leave of absence it imposed upon her un- willingly, and Respondent has failed to produce any evidence to rebut this inference. The General Counsel contends that the actual mo- tive for the suspension was Smith's union activity and participation in the Board proceeding. We find merit in this contention. In Shattuck Denn Mining Corporation v. N.L.R.B. 362 F.2d 466, 470 (C.A. 9, 1966), the court stated that where the trier of fact finds that an asserted motive for discharge is false he can infer that there is another motive. "More than that, he can infer that the motive is one that the em- ployer desires to conceal-an unlawful motive-at least where the surrounding facts tend to reinforce that inference." We find that the Administrative Law Judge erro- neously refused the General Counsel's proffer of findings in the prior representation proceeding as ev- idence of Respondent's union animus. The Adminis- trative Law Judge concluded that findings in a prior representation hearing are inadmissible as evidence of animus in a subsequent unfair labor practice case. In doing so, he relied on a line of cases 6 which hold that findings with respect to conduct alleged as ob- jectionable in a representation case are not resjudica- ta in a subsequent case where such conduct is alleged as an unfair labor practice. The cases on which the Administrative Law Judge relies are inapposite be- cause the conduct which was litigated in the repre- sentation proceeding was not alleged in the instant case as an unfair labor practice and there is no con- tention here that such conduct violated the Act. Nev- ertheless, as noted by the General Counsel, conduct which may not violate Section 8(a)(l) of the Act may still be used to show union animus on the part of a respondent.' In the representation proceeding, the Hearing Officer found that during the election cam- paign Respondent had interfered with the election by asking Smith, as well as other employees, to remove their union buttons, by interrogating Smith and four other employees, and by discriminatorily enforcing a no-solicitation rule. These findings are evidence of Respondent's union animus which can be "incorpo- rated into the record in the instant case, and may be accorded 'persuasive relevance,' a kind of adminis- trative comity, subject, however, to relitigation upon a showing of good reason, such as newly discovered evidence." 8 Respondent, however, did not offer to adduce any newly discovered or previously unavail- 6 Eidal International Corporation, 224 NLRB 911 (1976); Viking of Minne- apolis, Division of the Telex Corporation, 171 NLRB 1155 (1968). 'See Sun Hardwuare Co., 173 NLRB 973 (1969). See Amalgamated Clothing Workers of America ISagamore Shirt Co., Continued 1025 DECISIONS OF NATIONAL LABOR RELATIONS BOARD able evidence to refute the Hearing Officer's findings which were fully adopted by the Board in its decision on October 27, 1976, only 2 months before Smith was suspended. We conclude, therefore, that Respon- dent's animus towards Smith and the Union may be, and is, clearly established by the findings of the Hearing Officer and the Board in the organizational representation proceeding.9 Consequently, having found evidence of Respon- dent's union animus, and that Respondent's asserted reason for suspending Smith is pretextual, we con- clude that the actual motive for the suspension was her union activity and her participation in the Board proceeding. Accordingly, we find that Respondent violated Section 8(a)(4), (3), and (1) of the Act by suspending Smith. THE REMEDY Having found that Respondent unlawfully sus- pended employee Shirley Smith from January 10 to March 10, 1977, we shall order Respondent to make her whole for any loss of pay she may have suffered by reason of such unlawful conduct, by payment to her of a sum of money equal to that which she would have normally earned as wages during the period for which she was suspended, less her net earnings dur- ing said period, said sum to be computed with inter- est thereon in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).10 Additionally, because Respondent's unfair labor practices go to the very heart of the Act, we shall issue a broad order requiring Respondent to cease and desist from in any other manner infringing upon rights guaranteed to its employees by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). The Board, upon the basis of the foregoing facts and the entire record, makes the following: d/b/a Spruce Pine Mfg. Co.l v. N.L.R.B. 365 F.2d 898 (C.A.D.C., 1966); Heights Funeral Home, Inc. v. N.L.R.B., 385 F.2d 879 (C.A. 5, 1967). 9 Respondent contends that the campaign which occurred in the fall of 1975 and the hearing on objections which concluded on March 15, 1976, were too remote in time from Smith's suspension to constitute evidence that her suspension was motivated by her union activities and her participation in the Board proceeding. It is undisputed, however, that on October 27. 1976, only 2-1/2 months before the suspension, the Board set aside the election because of Rr-pondent's objectionable conduct and directed a sec- ond election. It is also clear that in 1976, as in other years, the last 3 months are Respondent's busiest period, and, as Respondent vigorously asserted, it could not afford to lose employees dunng this peak business period. Under these circumstances, we conclude that Respondent's failure to take action against Smith before Janaury 1977 is not probative evidence of its lack of hostility towards her union activity and her testimony at the hearing which resulted in the 1975 election being set aside. 0 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962) CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(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. Respondent violated Section 8(a)(3) and (1) of the Act by suspending Shirley Smith from January 10 to March 10, 1977, because of her activity in be- half of Retail Clerks Union, Local 588, Retail Clerks International Association, AFL-CIO, the Union herein. 4. Respondent violated Section 8(a)(4) of the Act by suspending Shirley Smith from January 10 to March 10, 1977, because she testified for the Union at a Board proceeding. 5. Respondent did not otherwise violate the Act as alleged in the complaint. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Best Products Company, Inc., Sacramento, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Retail Clerks Union, Local 588, Retail Clerks International Association, AFL-CIO, or any other labor organization, by suspending or otherwise discriminating against its employees in regard to hire, tenure of employment, or any other term or condi- tion of employment because of their union activities. (b) Suspending or otherwise discriminating against its employees because they testified for the above-named labor organization or any other labor organization at a proceeding conducted by the Na- tional Labor Relations Board. (c) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Retail Clerks Union, Local 588, Retail Clerks International Association, AFL- CIO, or any other labor organization, to bargain col- lectively through representatives of their own choos- ing, and to engage in concerted activities for the pur- pose of mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- 1026 BEST PRODUCTS COMPANY ship in a labor organization as a condition of em- ployment as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is designed to effectuate the policies of the Act: (a) Make Shirley Smith whole for any loss of pay she may have suffered by reason of Respondent's un- lawful conduct in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Sacramento, California, store copies of the attached notice marked "Appendix." "t Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. l 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activities on behalf of Retail Clerks Union, Lo- cal 588, Retail Clerks International Association, AFL-CIO, or any other labor organization, by suspending or otherwise discriminating against our employees in regard to hire, tenure of em- ployment, or any other term or condition of em- ployment because of their union activities. WE WILL NOT suspend or otherwise discrimi- nate against our employees because they testify for the above-named labor organization or any other labor organization at a proceeding con- ducted by the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Retail Clerks Union, Local 588, Retail Clerks Interna- tional Association, AFL-CIO, or any other la- bor organization, to bargain collectively with representatives of their own choosing, and to en- gage in concerted activities for the purpose of mutual aid or protection, as guaranteed in Sec- tion 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL make Shirley Smith whole for any loss of pay she may have suffered by reason of our discrimination against her, with interest. BEST PRODUCTS COMPANY. INC. DECISION STATEMENT OF THE CASE JAMES S JENSON. Administrative Law Judge: This case was heard before me in Sacramento, California, on June 28, 1977. The complaint, which issued on March 31, 1977, pursuant to a charge filed on February 23, 1977, alleges an agent of Respondent violated Section 8(a)(X) of the Act by warning an employee the Respondent had recently dis- charged other employees because of their union activities, and violated Section 8(a)(3) and (4) of the Act by suspend- ing Shirley Smith on January 10, 1977, because of her ac- tivities on behalf of the Union and/or because she gave testimony under the Act. The Respondent denies the com- mission of any unfair labor practices.' All parties were giv- en full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. The Respondent and General Counsel both argued orally and filed posthearing briefs, all of which have been carefully considered. Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor, I make the following: In view of my findings and conclusions herein, it is unnecessary to rule on other contentions made by the Respondent. 1027 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. JURISDICTION Best Products Company, Inc., a Virginia corporation, with a facility located in Sacramento, California, is en- gaged in the retail sale of general merchandise in Califor- nia and in various other States. During the past year, Re- spondent received gross revenues in excess of $500,000 and purchased and received materials and supplies valued in excess of $50,000 directly from suppliers located outside the State of California. The Respondent admits and it is found that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits and it is found that Retail Clerks Union, Local No. 588, Retail Clerks International Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. IlI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent is a catalogue showroom merchandiser with two locations in the Sacramento metropolitan area, one in Sacramento and one in Citrus Heights. The Sacra- mento facility is the only one involved in this proceeding. At all times material herein, Darnell G. Alphin was Re- spondent's showroom manager, Kenneth Goodwin was the assistant showroom manager, and Lawrence Solorio 2 was the receiving supervisor in the warehouse. The Respondent admits these individuals were supervisors within the mean- ing of the Act. Shirley Smith, the alleged discriminatee, commenced working for the Respondent in June 1974 and is a cashier/salesgirl in the jewelry department. Her duties also include the jewelry department receiving work. The record shows that during the summer of 1975, Smith contacted a representative of the Retail Clerks Union re- garding the organization of the Respondent's employees. Through her efforts, organizing meetings were held and she was responsible for the distribution of authorization cards to some 15 to 20 employees, who, after completing them, returned them to Smith. On September 25, 1975, a repre- sentation petition was filed covering both the Sacramento and Citrus Heights showrooms. On November 21, 1975, elections were held in both the Sacramento and Citrus Heights locations pursuant to a Stipulation for Certifica- tion Upon Consent Election which had been approved by the Regional Director on October 20, 1975. Smith was the observer for the Union at the Sacramento store election. The Union lost both elections and on December 1, 1975, filed timely objections. A hearing was held on the objec- tions which commenced January 28, 1976, and concluded on March 15, 1976, after II days of hearing. Smith attend- ed each day of the hearing pursuant to subpena and testi- 2 The complaint and Respondent's brief refer to Salerio. while the tr;n- script of the hearing and the General Counsel's brief refer to Solorio. fied regarding her activities on behalf of the Union. Mana- gerial and/or supervisory personnel of the Respondent were present throughout the hearing on objections. On June 10, 1976, the Hearing Officer's Report on Objections issued and on October 27, 1976, the Board, in an unpub- lished Decision, adopted the Hearing Officer's Finding and Recommendations and directed second elections in each of the two units. On November 26, 1976, the Union withdrew its election petition. In the Decision and Direction of Sec- ond Election, the Board stated at fn. 3: We conclude that the Hearing Officer's findings with respect to the Employer's discriminatory enforcement of the no-solicitation rule, its unlawful banning of union insignia in customer areas and its unlawful in- terrogation of employees are sufficient to warrant set- ting aside the election in each unit. Conceding that findings of objectionable conduct do not constitute findings of unfair labor practices because the standards of proof are different, the General Counsel con- tends, citing Sun Hardware Co., Inc., 173 NLRB 973, fn. I (1968), such conduct may still constitute evidence of ani- mus. I conclude, however, that Sun Hardware, which did not involve a related representation case, is not dispositive of the issue. In that case, the Board held that a statement made by the Respondent's president, while not in violation of Section 8(a)(1), showed antiunion animosity on the part of the Respondent. However, in Viking of Minneapolis, Di- vision of the Telex Corporation, 171 NLRB 1155, fn. 1 (1968), the Board found that the Trial Examiner erred in relying upon, and deeming herself bound by, the Board's decision sustaining objections in a representation proceed- ing, as a basis for finding that speeches and no-solicitation and no-distribution rules violated Section 8(a)(l) of the Act. The Board went on to state: It is well settled that the Board's findings and conclu- sions with respect to conduct alleged as objectionable in a representation proceeding are not binding upon the Trial Examiner in a subsequent hearing where such conduct is alleged as an unfair labor practice, since the issues are different in the two types or pro- ceedings. Cf. Dow-Tex Optical Company, Inc., 137 NLRB 1782, 1786-87. If, as the Board has stated, a finding of objectionable con- duct in a representation proceeding is not binding on the trier of fact in a subsequent unfair labor practice hearing where such conduct is alleged as an unfair labor practice, it certainly is not binding where the conduct is not alleged as an unfair labor practice, as in the instant case. The record in the objections hearing is not before me, and the General Counsel in the instant unfair labor practice case was not precluded at the hearing from offering background evi- dence of animus. Accordingly, I reject the contention that the Board's finding of unlawful conduct in the objections hearing is evidence of animus and, in effect, res adjudicata in this proceeding. See, for example, Eidal International Corporation, 224 NLRB 911, 912-913 (1976) and cases cit- ed, particularly the Trial Examiner's analysis of the issue in Wagner Industrial Products Company. Inc., 162 NLRB 1349, 1353-57 (1967). 1028 BEST PRODUCTS COMPANY B. The Complaint Allegations Paragraph VI of the complaint alleges that in mid-De- cember 1976, Solorio warned an employee that Respon- dent had recently discharged other employees because of their union activities. The merit of this allegation depends entirely upon the credibility of two witnesses who tell con- flicting stones. Smith testified that in early December 1976, she had be- come aware that employees Ramos, Rossow, and Walsh had been terminated and that she mentioned the subject to Solorio.3 Her testimony ran as follows: Q. When did you speak to him on this subject? A. It was just a couple days after all of them were gone. Q. Do you recall approximately what month that was? A. I think it was early December. Q. Was that 1976? A. '76. Q. Where were you when you were speaking to Mr. Solorio? A. I was in the jewelry department in the diamond area. Q. And who was present at that time? A. Just him and myself. Q. As best you can recall, what did he say and what did you say at that time? A. We just started talking, and I asked him why the guys were fired. And I said, "Was it because they were for the Union?" And he said that was one of the main reasons. And I said, "Gee, that's funny," I said, "I was an adamant union supporter, and I'm still here." And he said, "That's because you know when to keep your mouth shut." Q. Do you recall anything else that was said on the subject during that conversation? A. He said-well, then he added at the end of our conversation that it was among other things the reason why they were fired. Solorio testified that he had two conversations with Smith regarding the terminations of the three men. The 1 he complaint in Case 20- CA 12663 is part of the formal exhibits, has- ing been consolidated for trial with the instant case by an order dated April 29, 1977. and thereafter severed "pursuant to Respondent's written commrilt- ment to execute a settlement agreement in Case 20-CA 12663 . " by order dated June 27. 1977. That complaint alleged the discharges of Charles Ramos on October 25, 1976, and John VWalsh and William Rossosw on De- cember 10. 1976, as violations of Sec. 8(a)(l), (3). and X4) of the Act. While it appears from the Hearing Officer's Report on Objections that Ramos. Walsh. and Rossow testified on behalf of the Union at the hearing on objec- tions. the basis of the settlement agreement in the unfair labor praticee case has not been made a part of this record. The Board has held that notilce of a complaint "does not yield a conclusion that a violation is contained therein, or that a violation, if found, would automatically establish animus .. Henry Marx and Saul Greenberg. d, b a Rua) Liquor Store. 227 NLRB 1800. 1801. fn 2 (1977). Further, matters disposed of by settlement agree- ment in which a company does not admit that it engaged in any unfair labor practices are not probative of unlawful conduct lItowmel Turbine (iompl- nents Corporation, 230 NLRB 912, 915 (1977) Accordingly. I draw no Infer- ence, by reason of the complaint or settlement agreement in that case. second conversation. according to Solorio, took place about the second or third week of December 1976, at the receiving table in the warehouse and concerned, appar- ently, Walsh and Rossow. Solorio had been sent by Alphin to help out in the jewelry warehouse located behind the jewelry showroom floor because the work was backing up. His testimony regarding the conversation was: A. She asked me how come the employees were ter- minated. Q. Did she mention names? A. She mentioned two of them at the time. Q. Tell us everything that she said, as best as you can recollect, and everything that you replied. A. Well, I came in with their appeals that morning, and she asked me how come they were terminated, and I said, "Do you know why?" And she asked me if it was because of their Union activities, and I said, "No, it wasn't." I said "You know how they work. They abused employees. They used foul language. They mishandled the freight." Things like that. Q. And how long did this whole conversation take place? A. Oh, about half a minute to a minute. It didn't take too long. Q. Did she ever raise that conversation with you again since it may have taken place that time? A. No, she hasn't. He testified he had talked to Smith previously about Ra- mos' termination. His testimony ran: A. One of them I had talked to her previously about. Q. An in what regard was that, sir? A. That was Mr. Ramos. Q. And what happened; will you tell us? A. Oh, I talked to her one day. I was feeling kind of down because some of the employees in the ware- house were- they weren't talking to me, weren't re- sponding to me, because he was terminated. Q. And what did you say to Ms. Smith about it? A. Oh, she asked me what happened. I says, "He was cussing me at the time that I terminated him. So that was one of the reasons why he got terminated." Q. What did he call you? A. Well, I asked him to do a job, and he said, "F- you. Q. Did you tell her he cussed you out? A. Yes. I wrote it down. As noted earlier, Ramos, Walsh, and Rossow were the alleged discrimninatees in Case 20-CA-12663, wherein the complaint alleged that Ramos was unlawfully terminated on or about October 25, 1976, and that Walsh and Rossow were unlawfully terminated on December 10, 1976. If, as the complaint in that case alleges, the termination of Ra- mos preceded by some 6 weeks the termination of Walsh and Rossow, it seems unlikely that Smith talked to Solorio "just a couple of days after all of them were gone," as she claimed. Rather, it is more likely that there were two con- versations as Solorio testified, the first regarding Ramos after he was terminated. and the second regarding Walsh 1029 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Rossow following their termination. In these circum- stances, and as I found Solorio a more convincing witness respecting this aspect of the case, I credit his testimony over that of Smith and find that the General Counsel has failed to prove by a preponderance of the evidence the allegations contained in paragraph VI of the complaint. Paragraph VII of the complaint alleges that on or about January 10, 1977, the Respondent suspended Smith be- cause of her activities on behalf of the Union and/or be- cause she gave testimony under the Act. 1. Events in 1975 As noted, Smith started working for the Respondent as a cashier/salesgirl in June 1974, and during the summer of 1975 contacted the Union about organizing the Respon- dent's employees. Union organizing meetings were held and Smith obtained the signatures of 15 to 20 employees on union authorization cards. On September 25, 1975, the Union filed a petition for an election. Pursuant to a Stipu- lation for Certification Upon Consent Election, an election was held on November 21, 1975, which the Union lost. Smith was the observer for the Union at the Sacramento salesroom. Between the filing of the petition and the elec- tion, the Respondent held a few group meetings with the employees, and Smith testified that at the conclusion of one such meeting: I don't recall the exact date. It was after our show- room meeting, and it was already breaking up. The meeting was already over, and he [Alphin] stated that, "Come hell or high water, there would be no union at Best Products." While Smith testified there were "a lot of employees still around, and there were some managers," no witnesses were called to corroborate her testimony, and Alphin specifical- ly denied making the statement. For lack of corroboration, and in view of Alphin's denial, I do not credit Smith's testi- mony that Alphin made the statement that she attributes to him. On December 1, 1975, following the Union's loss of the election, the Union filed timely objections. 2. Events in 1976 The months of October, November, and December are traditionally the busiest of the year for Respondent, ac- counting for approximately 50 percent of its annual sales.4 During the last 3 months of 1975, Smith was absent from work 10 days. While her yearly evaluation for 1975 shows Smith rated "8" for attendance on a scale of I to 10, which Alphin testified was a "fairly good rating," on January 5, 1976, she was "reprimanded" for "excessive absenteeism" covering the last 3 months of 1975. The reprimand, on a form entitled "Commendations/Correction Interview Form," reads: Subject: Excessive Absenteeism Comments: For the past 3 months your absenteeism 4 January, February, and March are the least busy months. has been exceptionally high. This imposes a severe burden upon your department and the showroom in general because we cannot rely upon you to be at work. For the best interest of the Company and you, we would certainly hope for improvement in the future. I acknowledge receipt of the above compliment/repri- mand. 10 days in 3 months /s/ Shirley P. Smith Employee Signature The hearing on objections commenced on January 28, 1976, and concluded on March 15, 1976, after II days of hearing. Smith attended each day of the hearing pursuant to subpena and testified regarding her activities on behalf of the Union. From the Hearing Officer's Report on Objec- tions, it appears Smith also testified she was harrassed in certain respects during the latter part of 1975. The Hearing Officer, whose Report on Objections issued on June 10, 1976, concluded "that the evidence is insufficient to war- rant a finding that the Employer discriminated against Smith . . ." The record shows that during the last 3 months of 1976, Smith was absent from work because of illness a number of times. In October she missed work the entire day because of illness on October 5, 19, 22, and 29, and went home because of illness on October 18 after working 1.4 hours and on October 21 after working 3.6 hours. During No- vember she was off sick on November 8, 16, 17, 18, 19, 26, and 29, and went home sick on November 24 after working 2.8 hours. She missed work because of sickness on Decem- ber 6 and 20 and went home sick on December 17 after working 3 hours. Thus, it is seen that she missed 13 full days and 4 partial days of work because of sickness during the last 3 months of the year.6 Smith testified she saw a doctor on November 26 and received medication. In late November or early December, in response to a query from Goodwin and Alphin about her health, she stated the doc- tor had advised her to take a couple of weeks off for rest. Their response was that "We all need 2 weeks rest." She testified that at a morning showroom meeting during the latter part of November or early December, Alphin stated he realized that it was the flu season "and he stressed com- ing to work. He said because our showroom was one of the sickest showrooms in California." 3. Events in 1977 Goodwin testified that the attendance records of all em- ployees were reviewed, apparently, after the first of the year, and that while the average time missed by 9 or 10 employees was 3 or 4 days, Claudia McCormick Horst had missed 10 days and Smith 16 days during the last 3 months of the year. On January 10, 1977, a corrective interview form was prepared for Smith which reads: 5 The evidence upon which the Hearing Officer based his findings is not before me. Accordingly, I draw no conclusions based upon his Report on Objections. The reprimand which she received on January 10, 1977, states that she missed "16 days in 3 months." 1030 BEST PRODUCTS COMPANY From: K. Goodwin/D. Alphin Subject: Excessive Absenteeism Comments: For the past 3 months your absenteeism has been exceptionally high, again this year as it was the previous year, during the same time period. This imposes a severe burden upon your department and the showroom in general. We hereby are directing you to take a two month leave of absence to hopefully restore you to good health. Leave to commence 1-10-77 Leave to terminate 3-10-77 I acknowledge receipt of the above compliment/repri- mand. 16 days in 3 months /s/ Shirley P. Smith Employee Signature On the same day, Smith was called to Alphin's office at which time, in the presence of both Alphin and Goodwin, she was advised that she would have "to take 2 months leave of absence to get over my illness." Smith responded that she was over her illness and that the leave should have been granted her in November and December when she was sick and needed it. She testified further that "Mr. Al- phin asked me if I wanted I could get my vacation pay, and I told him that I would have to discuss that with my hus- band. And he also said that the Company could say good- bye to me at that point, but that they didn't really want to, that they wanted to give me the time off to recuperate and to get over my illness, to become a better employee. He also stressed for me not to discuss it with any of the em- ployees, because of the way the rumors . . . fly around there. And he said that he would make a statement tomor- row stating about my leave of absence." Horst received a reprimand the same day for the 10 days she had missed. According to Goodwin, on the following morning, Janu- ary I1, he made a statement in the showroom meeting that the Respondent "had decided to give her [Smith] a two- month leave of absence to restore her good health." Later that day, Smith turned in a written request for transfer to another showroom and told Goodwin she was upset with what he had told the employees that morning because he had made it appear that she had asked for the time off. According to her, his response was to the effect that the Company wanted it that way and the employees didn't have to know. On January 17, 1977, Smith had a physical checkup and obtained the following letter from the doctor which she delivered to Goodwin that day: Dear Mr. Alphin: The above named is a patient of ours and was treated in this office during the months of November and De- cember of 1976 for phrayngitis and flu syndrome. The patient states she is now given two months off so that she may recuperate from this illness. At the present time she is completely recovered from this illness and has no residual effects. She is able to work full time. In retrospect, the patient should have been given the time off during the period when she suffered from the illness and not at this time. If you desire further information regarding her con- dition so she may once again be employed please feel free to contact our office. Sincerely, /s/ G.F. Hoffman, M.D. According to Smith, Goodwin stated he would contact an- other of Respondent's officials and get back to her within a week. Goodwin testified he tried to call her a couple of times later in the week but no one was home. On Sunday, January 24, Smith talked to Alphin in his office and was told the latter had sent Dr. Hoffman's letter to Bragg, Re- spondent's director of personnel in Virginia, but that the Company hadn't changed its position about her coming back to work. The record shows that Smith filed for State of California unemployment compensation stating as the reason "they [Respondent] gave me a leave of absence for 2 mos. They said for me to get well. I was sick in Nov. and Dec. of 1976. I am okay to work now." The explanation given the State agency by the Respondent was "Having many health prob- lems through Oct., Nov., and Dec. Absent excessively so was asked to go on 2 mo. leave of absence to recover her health and thus become a more dependable employee. Her job is open at this time. She has not contacted us that she considers herself recovered. Her leave began 1/10/77. She is expected to return 3/10/77." On March 10, 1977, she returned to work and was still employed at the time of the hearing herein. Conclusions Contrary to the position of the General Counsel, the pro- bative evidence does not establish that Smith was treated disparately because of her activities on behalf of the Union and/or because she gave testimony under the Act. As the Respondent has pointed out, Smith was given a written reprimand in January 1976 for excessive absenteeism, hav- ing been absent for 10 days in the last 3 months of the previous year. Goodwin also testified, without contradic- tion, that Chris Whittaker was terminated in 1976 for ex- cessive absences of 15 or 16 days. Furthermore, the record shows that Claudia McCormick Horst and Smith were the two employees with the highest rate of absences during the final 3 months of 1976, Horst having missed 10 days, for which she was reprimanded as Smith had been a year earli- er, and Smith having missed approximately 16 days, for which she was suspended for 2 months, whereas Whittaker had been terminated the year before for approximately the same number of absences. There is no doubt but that Smith, the senior employee in the jewelry department, was a satisfactory employee, that the Respondent knew she was actively engaged in promoting the Union and that she testi- filed on behalf of the Union at the hearing on objections in early 1976. These circumstances, however, do not give rise to the inference that the Respondent is concealing the real reason for the suspension and that the real reason is an unlawful one, as argued by the General Counsel. Further, 103i DECISIONS OF NATIONAL LABOR RELATIONS BOARD contrary to the General Counsel's position, I decline to attach any significance to the fact Smith's suspension came approximately 6 weeks after the Board's adoption of the Hearing Officer's Findings and Recommendations regard- ing the objections to the election. The attendance records were reviewed in early January 1977, as they had been in early January of the previous year, and corrective action taken right away in both years. As noted, Smith had been reprimanded a year earlier for what the Respondent con- sidered excessive absenteeism; another employee had been terminated in 1976 for having been absent in 1975 approxi- mately the same number of days Smith was absent in 1976; and Horst was reprimanded in January 1977 for having missed the same number of days for which Smith had been reprimanded in 1975. The 2-month suspension of Smith may appear to be harsh, but it was not disparate treatment, and it is well established that the Board cannot substitute its judgment for that of the employer as to what constitutes reasonable grounds for discipline or discharge. Such ques- tion is left to the discretion of the employer. See, for exam- ple, Howmet Turbine Components Corporation, supra. Fur- thermore, mere suspicion cannot substitute for proof of an unfair labor practice. Lasell Junior College, 230 NLRB 1076 (1977). In the absence of probative evidence of union animus, and as the General Counsel has failed to establish by a preponderance of the probative and credible evidence that Smith was treated disparately because of her activities on behalf of the Union and/or because she gave testimony under the Act, I find that the Respondent did not violate the Act as alleged in the complaint. CON LUSIONS OF LAW i. The Respondent is an employer engaged in commerce within the meaning of Section 2(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. The Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] 1032