Gooch Packing, Inc.

GOOCH PACKING, INC. 351 Gooch Packing, Inc., and Amalgamated Meat Cutters and Butcherworkmen of North America, AFL-CIO. Case 16-CA-3850 December 18, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On July 29, 1970, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. 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 hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner with the modification noted below. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) of the Act by interrogating employees about their union activities and violated Section 8(a)(3) and (1) by discharging employees Arredondo and Villalovos because of their union activities. In the case of Villalovos, discharged allegedly for having violated Respondent's no-solicitation rule, the Trial Examiner found that Villalovos did not in fact violate the rule, and that the real reason for his discharge was his activities on behalf of the Union. He further found that Respondent discriminatorily ap- plied the rule to discourage union activities and that in any event the promulgation of the rule itself constitut- ed a violation of Section 8(a)(1). While we agree with the Trial Examiner's finding that Villalovos' discharge violated Section 8(a)(3) and (1) and that the Respon- dent's application of the rule discriminatorily to effect i Respondent has excepted to some of 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 the discharge further violated Section 8(a)(1), we do not adopt the Trial Examiner's finding that the promulgation of the rule was in violation of the Act. The facts show that since 1968 and at all times material Respondent has maintained the following no-solicitation rule in its employee handbook: Solicitation: There shall be no solicitation or buying or selling of any kind during working time unless prior permission has been obtained from the Personnel Manager. This includes, but is not limited to, any form of solicitations such as contributions to charities, contributions to em- ployee funds, selling of tickets or membership in service clubs, membership in labor organizations, collection of bills, collections of debts, etc. The Trial Examiner found the rule inherently discrim- inatory because of the proviso that employees seek management approval before engaging in solicitation for the Union during worktime. In reversing this finding, we consider the following factors. Although the rule required prior permission for worktime union solicitation, the same requirement was made for all other forms of worktime solicitation. Moreover, it is clear from the record that the employees and the Union did not view the rule as requiring permission for solicitation during nonwork- time and engaged in nonworktime solicitation on company property in working areas without interfer- ence from management. While the record reveals instances of permission being granted for other forms of worktime solicitation, there is no evidence that an employee or a union request to engage in worktime solicitation for membership in a labor organization would have been refused. Further, the record affirma- tively shows the Union had no difficulty in reaching employees during nonworking hours. Accordingly, under the circumstances of this case, we do not view the requirement that management approval be ob- tained before engaging in worktime solicitation as, by itself, rendering the rule invalid. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Gooch Packing, Inc., Abilene, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. preponderance of all the relevant evidence convinces us 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) 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: This case was heard in Abilene, Texas, on April 23, 1970, pursuant to charges duly filed and served,' and a complaint issued on March 19, 1970. The complaint presents questions as to whether the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. In its answer, duly filed, the Respondent conceded certain facts with respect to its business operations, but it denied all allegations that it had committed any unfair labor practices. All parties appeared at the hearing and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally at the close of the hearing and to file briefs. On May 25, 1970, the General Counsel submitted a brief and on May 28, 1970, the Respondent submitted an answering memorandum. Upon the entire record in the case, including the briefs of counsel, and from his observation of the demeanor of the witnesses when they appeared and testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation, maintains an office and plant in Abilene, Texas, where it is engaged in the business of killing and processing beef and other meats and related products. During the year prior to the issuance of the complaint, a representative period, the Respondent received goods valued in excess of $50,000 that were transported in interstate commerce directly to its plant in Abilene from outside the State of Texas. During the same period, the Respondent sold and distributed products valued in excess of $100,000, of which amount products valued in excess of $50,000 were shipped in interstate commerce directly to States of the United States other than the State of Texas. Upon the foregoing facts, the Respondent concedes, and I find, that Gooch Packing, Inc., is engaged in commerce within the meaning of the Act. H. THE LABOR ORGANIZATION INVOLVED Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called Union, or Meat Cutters, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Respondent 's No-Solicitation Rule In November 1969 the Union began an organizational campaign among the Respondent's employees. On January 8, 1970, employee Felix Villalovos was discharged and on February 13, 1970, employee Richard Arredondo was terminated. The Respondent averred that Villalovos was discharged for having violated a company no-solicitation rule which read as follows: "SOLICITATION: There shall be no solicitation or buying or selling of any kind during working time unless prior permission has been obtained from the Personnel Manager. This includes, but is not limited to, any forms of solicitations such as contributions to charities, contributions to employee funds, selling of tickets or membership in service clubs, membership in labor organizations, collection of bills, collection of debts, etc." The General Counsel alleges that the foregoing no- solicitation rule was proscribed by the Act, that it was discriminatorily enforced, and that the discharge of both Villalovos and Arredondo were in violation of Section 8(a)(3) and (1) of the Act. These allegations are denied in their entirety by the Respondent. In December 1966 the Board, in an earlier case, found that the Company had a valid oral rule against solicitation, but that during a union organizational campaign the rule had been discriminatorily enforced. Gooch Packing Compa- ny, 162 NLRB 1. The rule quoted above was published in an employee handbook that appeared in 1968. It was republished and reissued in identical form in the employee handbook for 1970. The requirement that permission to solicit be obtained from the personnel manager first appeared in the 1968 version of the rule. In a letter, dated February 13, 1968, Robert Gooch, personnel manager, at the time, notified all supervisors of this new provision. In the letter he stated that the addition of this requirement prior to any plant solicitation was to meet a criticism of the old rule which appeared in the Board decision of 1966. There the Board found that whereas the Company had permitted solicitation for the United Fund, flower funds, and sports pools, it had discriminatorily enforced the rule against solicitation for unions. In this letter Gooch stated that employees who requested permission to solicit for a union during working hours would be given the same length of time as the Company allowed for solicitations on behalf of the United Fund. At the hearing in the instant case, Gooch, by then a vicepresident, testified that since the rule had been in effect no employee or union agent had requested permission to solicit on behalf of any union. At the same time he conceded that the aforesaid letter had been sent only to the supervisors and that no attempt had been made to circulate it among the employees. According to Gooch, the only charitable solicitation which he had authorized had been the United Fund. He 1 The original charge was filed on January 16, 1970 A first amended charge was filed on March 16, 1970 GOOCH PACKING, INC. 353 also testified that while he had been personnel manager he had refused such permission to life insurance agents and bill collection agencies. Mike Peeples, the personnel manager at the time of the hearing, testified that in addition to the United Fund, he had given permission to "a few flower funds." However, there was some testimony that football and baseball pools had been conducted during worktime on various occasions during the year. On the other hand, this testimony was somewhat inconclusive and there was no convincing evidence that the employee sport pools had been observed by supervision.2 On the other hand, employee Antonio Rodriguez testified, credibly and without contradiction, that while at work during the Christmas season of 1969 he had been solicited to contribute to a Christmas present for his supervisor, Burl Owens. The General Counsel contends that the current no- solicitation rule is invalid because of the requirement that permission to solicit is conditioned upon approval by the personnel manager. The Respondent contends that the rule is valid and that, in any event, since it was first promulgated in 1968, the finding of an unfair labor practice violation is barred by the 6 months' limitation of Section 10(b) of the Act. There is no merit to the last mentioned defense raised by the Respondent. Whereas the rule was initially published in the handbook for 1968, it was republished in a revised handbook for the employees which was distributed in January 1970. Since the original unfair labor practice charge in this case was filed on January 16, 1970, and an amended charge was filed on March 16, 1970, the issuance of the revised handbook in January constituted a readoption and reissuance of the rule tr. question which clearly brought it within the scope of the charges filed herein. The Board and the courts have held that an employer may not prohibit employees from soliciting for a union on their own time in nonworking areas of a plant unless it can be shown that special circumstances made the rule necessary in order to maintain production or discipline. Ridgewood Management Company, Inc. v. N.L.R.B., 410 F.2d 738, 740 (C.A. 5); Stoddard Quirk Manufacturing Company, 138 NLRB 615, 616-623. Similarly, a rule prohibiting union solicitation by employees during non- worktime in work areas is presumptively invalid. Furnas Electric Company, 183 NLRB No. 1. On the other hand, a rule against solicitation during worktime in any plant area is presumptively valid. Ibid. Here the Respondent did not ban all solicitations during working time, as it clearly might have. Peyton Packing Company, Inc. 49 NLRB 828, 843-844, enfd. 142 F.2d 1009 (C.A. 5), "Working time is for work.", and cases cited, supra. Instead, the rule in question permitted solicitations during working time for, inter alia, charities, employee funds, and membership in labor organizations, but only on condition that permission for such solicitation was first 2 Employee Felix Villalovos testified that he had observed the operation of such pools dunng the world serves and in connection with football games Among the supervisors whom he identified as having taken part was Jack Skipworth, foreman of the pork cut and cure department Skipworth denied that he had seen any such pools in operation and specifically denied having taken part in one about which Villalovos secured from the personnel manager. Moreover, the Respondent made no attempt to establish any special circumstances which justified the establishment of this rule. Although a plant memo to the supervisors advised them that if any employees sought permission to solicit for a union, such employees would be authorized to do so for the same length of time as allowed the United Fund and similar appeals, this memo was never distributed to the employees. Nor was there any evidence that the employees had been notified of any likelihood that public solicitation for a union during working time would ever be authorized under any circumstances. As found earlier, Gooch conceded that no such request had ever been made by any employee. In view of the unfair labor practices during the period in question, as found later herein, it is not surprising that no employee had the temerity to ask the Respondent's personnel manager for permission to solicit for the Union during working time. As the General Counsel states in his brief, correctly, the guarantees of the Act are designed not only for the "bold and fearless employees, but .. . also .. . the timid soul who desires the fruits of collective bargaining but remains docile because of the restraint of manage- ment" The Respondent could have banned all solicitations during working time. But this it did not do. Rather, it established a rule and practice whereby solicitations during working time were permitted, but restricted the use of this privilege to those who had first secured permission from the personnel manager. Under the circumstances presented by this case, the latter proviso was inherently discriminatory as to those who desired to exercise the privilege on behalf of a union organizational drive. For this reason, I conclude and find that the Respondent's readoption and promulgation of its no-solicitation rule in the employee handbook issued in January 1970, and its subsequent enforcement of that rule, constituted interference, restraint, and coercion within the meaning of the Act, and a violation of Section 8(a)(1) thereof. Lexington Metal Products Company, 166 NLRB 878, 880-881; General Electric Company, 169 NLRB No. 155; Talon, Inc., 170 NLRB No. 42. B. The Discharges 1. The union campaign The Union's organizational campaign began in mid- November 1969 when Franklin Garcia, an organizer for the Meat Cutters, contacted employee Felix Villalovos. On the following Sunday, a group of approximately six employees, including Villalovos, met with Garcia at a local church. There, Garcia explained the advantages of unionization and those present agreed upon the date for another organizational meeting. This was held the following Thursday with approximately 40 employees present. At this time, the employees decided upon a full scale organization- al attempt among their coworkers at the Respondent's testified Whereas Villalovos was a generally credibly witness, in connection with this issue, Skipworth's denials were the more credible. Consequently, I conclude that whereas there may have been some participation in such pools by the employees, management knowledge of their existence was not as extensive as Villalovos' testimony would indicate. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant. An organizational committee was selected, with Villalovos as the chairman and with employees Richard Arredondo and Antonio Rodriguez as members. On about December 20, 1969, Villalovos received several hundred union authorization cards for distribution among the employees. In an accompanying letter, Garcia cau- tioned Villalovos that "the cards are to be signed during lunch hour, break time and after and before work." Villalovos testified that his principal job as chairman of the committee was to collect authorization cards which the employees signed. There was some testimony as to management interroga- tion of the employees as the union campaign progressed. Hector Ramos was an employee who returned to work on December 22, 1969, after being absent from the plant for 19 weeks because of an injury he had sustained. Ramos testified that shortly after he returned to duty, Personnel Manager Peeples approached him at work, questioned him about the union activity of several employees, and asked him whether any of them were leaders in the organizational campaign . According to Ramos, Felix Villalovos was one of those whom Peeples mentioned. Ramos testified that after telling Peeples that he knew nothing about the union activities of those who had been named, the personnel manager promised him a raise if he secured such information for him. Ramos testified that on the morning of December 24 he reported to Peeples that Terry Tackell and Tommy Rodriguez, two of the employees, were for the Union. According to Ramos, although Peeples told him that he did not believe the last two named employees would be for the Union, a few days later he was notified that his wage rate was being raised 8 cents an hour. The Respondent conceded that Ramos received an 8-cent raise, effective on January 5, 1970, and Peeples conceded that he had a conversation with Ramos on the day that the employee returned to the plant. Peeples described the raise which Ramos received as a merit increase, but could not recall any employee other than Ramos who had received a similar wage raise immediately after returning to the plant subsequent to an absence as extended as Ramos' had been.3 Peeples' account of the conversation with Ramos on December 22, did not include any mention of a raise and he denied having had any conversation with Ramos at the plant on the afternoon of December 24. Ramos, however, had not testified to a conversation with the personnel manager at that time. While on the stand, Peeples conceded that he had been at the plant on the morning of December 24. Ramos, of course, had testified that his conversation with the personnel manager occurred on the morning of the day before Christmas. Ramos gave his testimony in a frank and convincing manner, and it withstood an able and extended cross- examination by counsel for the Respondent. It is my conclusion that Ramos was more credible than Peeples on this issue and that the testimony of the former was a substantially accurate account of what occurred during the conversations in question. 3 Ramos testified that an 8-cent raise was very unusual because the Company usually gave only 4-cent raises Peeples conceded that the Company customarily gave raises in increments of 4 cents an hour The 2. Felix Villalovos Felix Villalovos was an employee in the pork cut and cure department. He started work for the Respondent in 1967 and was discharged on January 8, 1970. His starting wage was $1.54 an hour. At the time of his termination he was earning $1.94. As found earlier herein, Villalovos was one of the original sponsors of the Union and in December he was designated to act as chairman of the organizing committee. On January 8, 1970, Personnel Manager Peeples discharged Villalovos, allegedly for having violated the no-solicitation rule. The Respondent had no criticism of the employee's work record. Both Villalovos and Peeples testified as to the conference which took place in the personnel manager's office on the day that the employee was terminated. There is no substantial variance in the testimony of these two witnesses. According to Villalovos, the following occurred: Shortly before 4 p.m., and at the end of the day shift on January 8, he was called to the personnel manager's office where Peeples told him that there had been complaints that Villalovos had been stopping employees in the halls and keeping them from their work in an effort to get them to sign union cards. Peeples asked if Villalovos was aware of the rule against solicitation. The latter acknowledged that he was and denied that he had violated it in any way. Peeples thereupon read the rule to him. When he had finished, Villalovos asked for the names of any employees who had complained, but Peeples refused to disclose their identity. According to Villalovos, after he denied having bothered any employee at work, or having solicited any employee on the job, Peeples told him "Well, I am going to have to enforce these rules, Felix. I am going to have to discharge you." I said, "Sir, are you discharging me for union activities?" He said, "I am afraid so." At the hearing Villalovos testified that he was fully aware of the Company's rule on solicitations and he denied that he had ever tried to secure an employee's signature on a union card during company time. Peeples testified that prior to discharging Villalovos, he had received reports from employees Herman Lomas and Lewis Henry that Villalovos had endeavored to secure their signatures on authorization cards while they were at work. According to Peeples, after getting these reports from Lomas and Henry he called Villalovos to his office, questioned him as to his knowledge of the rule, told him that he had evidence that Villalovos had violated the rule and that, since he believed these accounts, he was discharging him at once. At the hearing, Peeples testified that Lomas had telephoned him at his home on January 4, a Sunday, to tell him that one of the employees had contacted him about the Union on working time and that the next day Lomas came to his office at the plant and told him that the employee in question was Villalovos. According to Peeples, thereafter he secured a statement from Lomas as to the circumstances of the alleged solicitation.4 Peeples further testified that on January 8 he heard from Respondent, however, also offered evidence of several situations where the employees involved received raises of 8, 12, or 16 cents an hour. 4 At the hearing, a statement signed by Lomas, and dated January 7, GOOCH PACKING, INC. 355 one of the foremen that Villalovos had also solicited employee Lewis Henry on worktime and that he thereupon left orders with Henry's foreman directing this employee, a driver, to report to him upon returning from his truck route. Peeples testified that he talked with Henry about 3 p.m. that afternoon and that Henry told him that Villalovos had contacted him about the Union that morning while he was on duty.5 Both Henry and Lomas testified at the hearing. Their testimony was in serious conflict with that given by Peeples. Thus, whereas Peeples testified that he interrogated Henry prior to the discharge of Villalovos, Henry testified that he did not see Peeples until the next day, January 9. According to Henry, on returning from his truck route on January 8, he was given the message that the personnel manager desired to see him, but when he endeavored to do so, Peeples had left for the day. Henry testified that , as a result, it was not until the morning of January 9 that he was able to see Peeples. By this time, of course, Villalovos had been terminated. Lomas' testimony is a maze of contradictions. On direct examination he testified that on January 2, while both he and Villalovos were at work, the latter had solicited his signature on a union card. According to Lomas he reported this matter to Peeples by telephone the following Sunday, visited Peeples in the office of the latter on January 5, and gave his written statement to the personnel manager on January 7. At the outset of his cross-examination, when asked if he had ever signed a union card, Lomas testified in the affirmative and stated that he had done so about 2 weeks after his talk with Peeples on January 5. This, of course, would have been in mid-January. Thereafter, he was shown a union card which bore has signature and which he acknowledged having signed. The card was dated January 8, and, after identifying it, Lomas was asked to reconcile this date with his earlier testimony about the time he had signed a card. The witness thereupon testified that he had signed the card for Villalovos in a plant restroom while on breaktime, that Villalovos was in the restroom with him and that the latter told him that he would put a date on the card later. In the statement which Lomas gave to Peeples he had stated that Villalovos sought to get his signature on a card on January 2, but that he had refused to sign. On the other hand, during the latter part of his cross- examination , Lomas testified that he had signed a card prior to this date. Even later in his cross-examination, however, he testified that he signed the card about a day after the incident on January 2. It was apparent, and Lomas finally acknowledged, that, before he telephoned the personnel manager to protest about Villalovos' alleged misconduct he himself had signed an authorization card. Apart from the numerous contradictions in Lomas' testimony about his card signing, other evidence offered as to his background reflected even more seriously on his credibility in this matter. Thus, Lomas conceded that sometime during the fall of 1969 he had been accused of having stolen meat from the plant, that he had initially denied the theft, but that after taking a lie detector test, he had admitted his guilt. However, the Respondent did not discharge him. Instead, after Lomas promised to make restitution, he was, in effect, put on probation. At the time of the hearing he was still paying for the meat which had been stolen. Vice President Gooch testified that whereas immediate discharge was the customary penalty for stealing, this punishment had not been meted out to Lomas because the latter was told that if he "cooperated" he could avoid dismissal. Presumptively, Lomas' subsequent con- duct had been sufficiently "cooperative," for at the time of the hearing he was still on the payroll. The evidence set forth earlier herein established that just before Christmas, and shortly after Villalovos became chairman of the Union's organizational committee, Person- nel Manager Peeples questioned employee Ramos about Villalovos' connection with the union campaign. Hardly 2 weeks thereafter, on the basis of hearsay and without any warning, Peeples summarily discharged Villalovos, an employee with an unblemished work record. At the hearing, Peeples testified that he took this action on January 8 after getting complaints about the employee from both Henry and Lomas. From Henry's testimony, however, it is apparent that Henry did not discuss the matter with the personnel manager until the morning of January 9, by which time Villalovos had already been terminated. From this sequence, it is obvious that when he summoned Villalovos for what was to be his exit interview, Peeples had discussed Villalovos' alleged breach of the no-solicitation rule only with Lomas. It is my conclusion, in view of the numerous contradictions in Lomas' testimony, and his demeanor on the stand, that Lomas was not credible. Moreover, his status at the time in question hardly made him a trustworthy witness to support the charge that he voiced to the personnel manager about Villalovos. The celerity with which Peeples acted on Lomas' uncorroborat- ed allegation in effecting the immediate discharge of Villalovos, an employee with a satisfactory work record, for a single, alleged breach of the no-solicitation rule is in sharp contrast with the treatment accorded Lomas, several months earlier, for admitted thievery on the job. At the hearing, Villalovos denied that he had ever broken the no- solicitation rule in the plant. His testimony in this regard was credible. Likewise credible was Villalovos' account of his last meeting with Peeples on January 8 when, informed that he was being terminated, he asked whether this was because of his union activities , and Peeples answered this question in the affirmative. On the basis of the foregoing findings, it is my conclusion that the real motive for the discharge of Villalovos was not his alleged breach of the no- solicitation rule, but the fact that he was a prominent leader in the campaign to organize the Respondent's employees. Accordingly, his discharge under these circumstances constituted a violation of Section 8(a)(3) and (1) of the Act. The Trial Examiner likewise concludes and finds that Peeples' enforcement of the no-solicitation rule in this was received in evidence According to this exhibit, an unsworn document, purportedly the one which the employee gave to Personnel Manager on January 2, during working time at the plant, Villalovos asked Lomas to Peeples at this time It bears the date of January 8, 1970, and in it Henry sign a union card, and when Lomas refused to do so, Villalovos told him relates that Villalovos had contacted him about 6:30 a in that day, while he was "chicken" and that he would be "sorry " both were on duty, and sought to get his signature on a union 5 An unsworn statement of Lewis Henry was received in evidence, authorization card. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instance was discriminatory and constituted a further violation of Section 8(a)(1). 3. Richard Arredondo Arredondo was hired in February 1959. Thereafter he worked continuously for the Respondent until his termina- tion on February 13, 1970. Arredondo spent most of his time on the kill floor, and during the course of his employment received numerous merit increases. Pete Flores, his supervisor, testified that Arredondo was a good worker. Arredondo was active in the union campaign and a member of the organizational committee. He testified that during this period he secured signed authorization cards from about 12 of his fellow employees. In the organization- al campaign out of which the earlier Board case arose (Gooch Packing, Inc., 162 NLRB 1), Arredondo had been active on behalf of the Union and had been the union observer at a representation election. In mid-December 1969, and in a conversation with Vice President Gooch, Arredondo asked that he be transferred from the kill floor, where he had worked for many years, to the sausage department. Gooch promised to take the request under consideration and shortly thereafter told the employee that the transfer was possible. At that point, Arredondo told Gooch and Peeples, both of whom were present, that he wanted to quit at the end of January. About a week later, however, Arredondo changed his mind and decided that he did not want to quit. He thereupon sought out Vice President Gooch and explained this change of plans. Gooch told him to give this information to Peeples. According to Arredondo, the latter was not at the plant that day and it was not until several weeks had gone by that he again saw the personnel manager. Late in January, Peeples called Arredondo to the personnel office and told him that in view of his earlier announcement he was surprised to see him still at work. Arredondo told Peeples that he had changed his mind and that he then wanted to remain at work for the Respondent. Peeples, however, refused to accept this statement and told Arredondo that since he had considered quitting he was obviously dissatisfied with his job and that the Respondent did not want any dissatisfied employees at the plant. Arredondo endeavored to persuade Peeples that he should be kept, but was unsuccessful . After Arredondo told him that his wife was expecting a baby, Peeples told him that he would allow him an extra 2 weeks, but that he would be terminated as of February 13. It was undenied that Arredondo then requested that he be allowed to remain at work until he found another job, but that Peeples told him this was impossible. Arredondo testified that about a week before being laid off on February 13, Pete Flores, his supervisor, approached him at work and told him that he planned to talk with Peeples in an effort to keep Arredondo on his crew. Flores further told him that in the meantime he would like to know if Arredondo had been to any union meetings. According to Arredondo, he answered this question in the affirmative, and then told Flores that he would appreciate his talking with Peeples because he did not want to quit working for the Respondent, even though the personnel manager had told him that he would have to do so. Arredondo's testimony as to his conversation with Flores was credible and it was never denied by Flores when the latter was on the stand. At the hearing, Peeples testified that he terminated Arredondo because the latter was dissatisfied with the Respondent and that even though Arredondo had been "a good hand" in the past, he was fearful that with this attitude "eventually [Arredondo] is going to injure himself." It is apparent to me that Peeples was well aware of the employees' organizational campaign long before he gave Arredondo notice that he was being terminated. Earlier herein it was found that shortly before Christmas, Peeples solicited the assistance of employee Ramos in securing information about union activities in the plant and early in January, Peeples discriminatorily terminated Villalovos. Thereafter, when questioned by Supervisor Flores, Arre- dondo acknowledged that he had attended union meetings. The General Counsel has the burden of proving discrimination and the Respondent does not have the burden of establishing the contrary. N.L.R.B. v. Soft Water Laundry Co., 346 F.2d 930, 936 (C.A. 5). It is likewise well established that the burden of proof never shifts from the General Counsel and that the Respondent does not have the burden of proving that it discharged an employee for the reason which it asserts. As a court of appeals once said in an early case, so long as the provisions of the Act are not violated, an employer may discharge an employee for "a good reason, a poor reason or no reason at all." Budd Mfg. Co. v. N.L.R.B., 138 F.2d 86, 90 (C.A. 3), cert. denied 321 U.S. 773. At the same time, it is also true, that employers do not ordinarily discharge an employee for "no reason at all," and that support for a finding of unlawful motivation "is augmented [when ] the explanation of the discharge offered by the respondent [does] not stand up under scrutiny." N. L. R. B. v. Bird Machine Company, 161 F.2d 589, 592 (C.A. 1). The explanation which Peeples offered for Arredondo's termination is not supported by the evidence in the record and does not "stand up under scrutiny." Whereas Arredondo had once announced an intention to quit, in subsequent conversations with Gooch and Peeples he revoked that notice and asked that he be permitted to stay at his job. Flores, who obviously thought highly of Arredondo as a workman, testified that he went to the personnel manager about the matter and told him that Arredondo "was a good worker and I didn't want him to leave." Before Supervisor Flores went to Peeples on Arredondo's behalf he had questioned the latter about his attendance at union meetings. Manifestly, Flores felt that the matter of whether Arredondo was active, or inactive, in the union campaign would be significant when he sought to plead the employee's cause with the personnel office. Unfortunately for Arredondo's tenure with the Respon- dent, he answered Flores' inquiry honestly and acknowl- edged having attended union meetings . Thereafter, Peeples adamantly insisted that Arredondo was a dissatisfied employee who, for his own safety, had to be terminated. On the foregoing findings, and those set forth earlier herein, most particularly, Arredondo's long and satisfacto- ry work record, his prominence in the union campaign as a GOOCH PACKING, INC. member of the organizational committee , the Respondent's knowledge of that activity, Peeples' obviously pretextual explanation to Arredondo that he was being terminated because the employee was "dissatisfied," and the Respon- dent's demonstrated antipathy to union activity among its employees, I conclude and find that Arredondo was terminated for his activities on behalf of the Meat Cutters. In so doing, the Respondent violated Section 8(a)(3) and (1). Finally, I conclude and find that the Respondent further violated Section 8(a)(1) of the Act by: (1) Personnel Manager Peeples' interrogation of employee Hector Ramos in December when , as found earlier, Peeples questioned Ramos about his knowledge of the union campaign, promised him a raise if he supplied information on the organizational activities of his coworkers, and thereafter granted Ramos such a raise; and (2) Supervisor Flores' interrogation of Arredondo in February, when he ques- tioned the employee as to whether he had attended any union meetings. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. By discriminating in regard to the hire and tenure of Felix Villalovos and Richard Arredondo, thereby discour- aging membership in the Union , the Respondent has engaged , and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. By applying discriminatorily a rule against solicita- tion during working hours in order to discourage union activity among its employees, and by questioning its employees as to their union activities and those of their fellow employees, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thereby committed unfair labor practices affecting commerce within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily terminated Felix Villalovos on January 8, 1970, I will recommend that the Respondent be ordered to offer Villalovos immediate and full reinstatement without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered from the time of his discharge to the date of the Respondent's offer of reinstatement. I likewise found that the Respondent discriminatorily terminated Richard Arredondo on February 13, 1970. In a letter dated March 25, 1970, the Respondent advised Arredondo that he could 357 have his old job back at the same rate of pay he had been receiving at the time of his termination. The letter further requested that Arredondo indicate his desires in this connection by April 6, 1970. Arredondo conceded that at some point prior to the latter date he visited the plant and told Peeples he would return if the Respondent would give him an 8 cent an hour raise . According to Arredondo, Peeples declined to offer him a raise, but renewed the offer of reinstatement to his old job at the rate he had been receiving at the time of termination . In view of this sequence of events, I will recommend that the Respondent's backpay liability as to Arredondo be cut off as of April 6, 1970. The backpay for both of the foregoing employees shall be computed in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289, with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721. It will also be recommended that the said Respondent be required to preserve and make available to the Board, or its agents, on request, payroll and other records to facilitate the computation of backpay due. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Upon the foregoing findings and conclusions and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER Gooch Packing, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or in any other labor organization, of its employees by discharging employees, or in any other manner, discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (b) Coercively, or otherwise unlawfully interrogating its employees as to their union activities or about the union activities of other employees. (c) Applying discriminatorily a rule against solicitation during working hours in order to discourage union activity among its employees. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form labor organizations , to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protec- tion, and to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Felix Villalovos immediate and full reinstatement to his former or substantially equivalent 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position, without prejudice to his seniority or other rights and privileges. (b) Notify Felix Villalovos, if presently serving in the Armed Forces of the United States, of his right to full reinstatement upon application in accordance with the Selective Service and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole Felix Villalovos and Richard Arredondo in the manner set forth in the section of this Decision entitled "The Remedy." (d) 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 or appropriate to analyze the amount of backpay due. (e) Post at its plant in Abilene, Texas, copies of the attached notice marked "Appendix."6 Copies of the said notice, on forms provided by the Regional Director for Region 16, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the said Regional Director, in writing, within 20 days from the date of this recommended Order, as to what steps have been taken to comply herewith.7 mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or in any other labor organization of our employees, by discharging any of our employees, or by discriminating against them in any other manner in regard to their hire or tenure , or any other term or condition of their employment. WE WILL NOT coercively, or otherwise unlawfully question employees as to their union activities, or about the union activities of other employees. WE WILL NOT apply discriminatorily our plant rule against solicitation during working hours in order to discourage union activities among our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Felix Villalovos immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of discrimination against him. WE WILL make whole Richard Arredondo for any loss of earnings he may have suffered as a result of discrimination against him. 6 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the 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." T 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 the 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 discourage membership in Amalga- Dated By GOOCH PACKING, INC. (Employer) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this Notice or compliance with its provisions, may be directed to the Board's Office, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.