McGraw-Edison Co.

188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McGraw-Edison Company and District Lodge No. 9 International Association of Machinists & Aero- space Workers, AFL-CIO. Case 17-CA-3323 October 16, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS , AND ZAGORIA On June 7, 1968, Trial Examiner Sydney S. Asher, Jr. issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not discriminated against employee Merlin Stroppel in violation of Sections 8(a)(1) of (3) of the Act, as alleged in the complaint, and recommended dismissal of that portion of the complaint. Thereafter the Charging Party and the General Counsel filed exceptions to the Trial Ex- aminer's Decision, together with supporting briefs, and Respondent filed cross-exceptions to the 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross- exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified herein. We agree with the Trial Examiner that the nature of Campbell's belatedly discovered misconduct is such that it would not effectuate the policies of the Act to order his reinstatement. We are also of the view, however, that the same considerations preclude any backpay award for Campbell. Accordingly, we do not adopt the Trial Examiner's Recommended Order insofar as it contains affirmative remedial provisions predicated upon the discriminatory discharge of Campbell. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its, Order the Recommended Order of the Trial Examiner, as modified below, and orders that Respondent, McGraw-Edison Company, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Paragraphs 2(a) and (b) of the Recommended Order are deleted and paragraphs 2(c) and (d) are respectively renumbered as 2(a) and (b). 2. Delete the fifth indented paragraph of the Appendix. TRIAL EXAMINER'S DECISION SYDNEY S. ASHER, JR., Trial Examiner On September 1, 1967, District Lodge No. 9, International Association of Machinists & Aerospace Workers, AFL-CIO, Kansas City, Missouri, herein called the Union, filed charges against McGraw-Edison Company, Macon, Missouri, herein called the Respondent. After the filing of three amended charges, the General Counsel of the National Labor Relations Board issued a complaint on October 31, 1967.1 This alleges that since on or about June 11 the Respondent has interfered with, restrained, and coerced its employees by certain specified conduct, that it discharged Merlin Stroppel on or about August 30 and Ivan Campbell on or about September 23, and since these dates has failed and refused to reinstate these two employees because they joined or assisted the Union or engaged in other union or concerted activity. It is alleged that this conduct violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq ), herein called the Act. Thereafter the Respondent filed an answer admitting certain jurisdictional facts but denying the commission of any unfair labor practices. Upon due notice a hearing was held before me on December 19, 1967, at Macon, Missouri. All parties were represented and participated fully in the hearing. During the hearing the General Counsel was permitted to dismiss that part of the complaint which alleged that since on or about March 1 the Respondent has maintained and enforced an illegal no-solicitation rule. After the close of the hearing the General Counsel and the Respondent filed briefs. These have been duly considered. Upon the entire record in this case,2 and from my observation of the witnesses, I make the following- FINDINGS OF FACT The complaint alleges, the answer admits, and it is found that the Respondent is, and at all material times has been, an i All dates herein refer to the year 1967, unless otherwise noted. 2 The transcript of testimony was amended on May 7, 1968, and again on May 24, 1968. 173 NLRB No. 33 McGRAW-EDISON CO employer engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards,3 and that the Union is, and at all material times has been, a labor organization as defined in the Act. A. The Setting The incidents with which this case is concerned occurred in 1967 in the Respondent's Macon, Missouri, plant. Approxi- mately 500 workers are employed there in the manufacture of electric toasters, steam irons, and percolators. The plant manager is Dale Bufkm and the plant superintendent is Wilbur Yount, Both are admittedly supervisors within the meaning of the Act. The Macon plant operates on two shifts. B. The Incident of June 13 On June 12, during a break, Merlin Stroppel, a punch-press operator employed on the night shift at the Macon plant, handed a blank union authorization card to another employee, Raymond Shebelbon. Shebelbon put the card in his shirt pocket but it stuck out and was plainly visible. About 12 25 a.m. on June 13, as the two employees were getting ready to punch out at the end of their shift, Francis Moncrief, supervisor of the pressroom on the night shift, pulled the card from Shebelbon's pocket and asked where he got it. Shebelbon replied that he had received it from Stroppel. Moncrief turned to Stroppel and inquired whether he was passing out union cards and Stroppel admitted that he was Moncrief asked where Stroppel had obtained them and Stroppel responded that he got them from an agent of the Union, whom he named. Moncrief then stated that "there would be no more of it" or else Stroppel "would have to be released." Stroppel replied "I don't think so as long as I don't do it on company time." Moncrief offered to return the card to Shebelbon, but Shebelbon declined it, whereupon Moncrief threw it away. Moncrief reported the incident to Yount. After this, Stroppel continued to pass out union authorization cards to his fellow employees during nonworking time. The complaint alleges, and the answer denies, that by this conduct Moncrief "interrogated an employee about his union activities" and "threatened to discharge" him because he "became or remained a member of the Union or gave support to it." I agree, Moncrief not only removed the card from Shebelbon's person, but he interrogated Shebelbon as to the source of the card, inquired of Stroppel if he were passing out cards, questioned Stroppel about the source of the cards, and warned Stroppel that he would be discharged if he continued passing them out. There is no doubt, and it is found, that such conduct was violative of Section 8(a)(1) of the Act.5 3 The Respondent is, and at all material times has been, a Delaware corporation engaged in the manufacture of electrical appliances with factories in Moberly , Boonville, Kirksville , Jefferson City, Macon, Clarence, and Columbia, Missouri The Respondent annually ships products valued at more than $ 50,000 from its Missouri plants to destinations outside the State of Missouri. C. The Discharge of Merlin Stroppel 1. Facts 189 Stroppel began working for the Respondent on March 6, 1967. Throughout his employment he worked as a punch-press operator on the night shift under Moncrief's immediate supervision. On June 9 Stroppel signed a card authorizing the Union to represent him. He was one of three employees on the night shift who passed out union authorization cards to other workers during nonworking time As related above, Moncrief learned of these activities on June 13 and notified Yount. However, Stroppel continued to pass out authorization cards during the remainder of his employment Although Stroppel's guaranteed wage, herein called day rate, was only $1.60 per hour, through piecework incentive pay his earnings during the first 5h months of his employment (excluding vacation) invariably exceeded this figure. His average hourly earnings during this period were Week ending Average hourly earnings Week ending Average hourly earnings 3/12/67 1.84 6/4/67 2.12 3/19/67 1.93 6/11/67 1 85 3/26/67 2.14 6/18/67 2.07 4/2/67 2 23 6/25/67 1.88 4/9/67 2.39 7/2/67 1.556 4/16/67 2 33 7/9/67 1.606 4/23/67 2 35 7/16/67 2.08 4/30/67 1.77 7/23/67 2.20 5/7/67 2.88 7/30/67 1 84 5/14/67 2.33 8/6/67 2.33 5/21/67 2 08 8/13/67 2.17 5/28/67 2 13 8/20/67 2.30 That his actual earnings substantially exceeded his day rate during this period is further illustrated by his daily earnings from July 31 to August 18, inclusive, shown below- Date Piece rate Hours Average Earnings Worked hourly Date Piece rate Hours Average Earnings Worked hourly 7/31/67 13.23 8 1.65 8/10/67 13 33 8 1.66 8/1/67 19.65 8 245 8/11/67 15 66 7 2.24 8/2/67 19.80 8 2 47 8/14/67 16.99 7 243 8/3/67 18.27 8 2 28 8/15/67 17.58 8 2 20 8/4/67 20.30 8 2.54 8/16/67 18.96 8 2.37 8/7/67 Absent 8/17/67 17.38 7 1 2.45 8/8/67 15.80 7.9 2 00 8/18/67 14.56 6.9 2.11 8/9/67 20.03 8 2.50 Total 241.54 107.9 2.24 4 The findings of fact regarding the incident of June 13 are based on the testimony of Stroppel and Moncrief , who substantially agreed with one another . Shebelbon did not testify. 5 Presto Manufacturing Company, 168 NLRB No. 144, fn. 2 6 Vacation. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On Monday, August 21, Stroppel worked a full 8 hours, all on piecework. Here his production figures show a marked departure from the past His piecework earnings were only $6.48, or $.81 per hour-approximately half his day rate 7 On August 22 Stroppel was assigned to rerun some defective pump valve bodies Moncrief told Stroppel to produce 2,500 of them, and that he would be paid for this in accordance with his day rate Moncrief added. "As soon as you get them done, you punch out and I have a piecerate job for you." However, it took Stroppel the full workday, 8 hours, to complete the 2,500 reruns. On the following day, August 23, Stroppel was again assigned to rerunning defective pump valve bodies on his day rate, and again produced 2,500 pieces in the full 8 hours. On August 24 Stroppel continued this assignment for 4.1 hours, during which he produced 1,280 pieces. In the remaining 3.9 hours he worked on piecework and earned $4.15-an average of $1.06 per hour. On August 25, Stroppel spent the full 8 hours on piecework, earning $8 76-$1.09 per hour. On August 28 Stroppel was once again assigned to rerun defective pump valve bodies for the full 8 hours, on day rate; he completed 2,500 pieces On August 29 Stroppel spent 2 hours on piecework, earning $1 .29 in that period. The remaining 6 hours were spent in rerunning defective pump valve bodies on day rate, during which he produced 2,160 pieces. This drop in Stroppel's production did not, of course, go unnoticed by management. On several occasions between August 20 and Stroppel's discharge, Moncrief discussed the subject of production with Stroppel. According to Moncrief's credited testimony, Stroppel said. "What is the use of working my ass off, I'm just going to make 40 or 50 cents above my $12, that they are going to pay me." It was also reported to Billy Aurig, foreman in the pressroom on the day shift, that Stroppel had stated that, in his opinion, 2,500 pieces was "a pretty night's work in eight hours " About August 26 Aurig reported Stroppel's poor production to Yount. Yount replied that Aurig should "let him work three or four days more yet and see if he increased." Yount discussed the matter with Bufkin. On August 30, before Stroppel was due to report for work, although Aurig wanted to give Stroppel one more chance, Yount decided that Stroppel had already been given enough time and should be discharged Yount related this decision to Bufkin, stating that Stroppel had been warned; Bufkin concurred. When Stroppel reported for work that afternoon he was summoned to the office of Orin James Lamb, purchasing agent and personnel manager for the Macon 7 On this day , Stroppel was assigned to part 33 -2-4, operation 7, on which the piecework rate was $2.14 per 1,000. To earn his guaranteed rate of $ 1.60 per hour , he would have to produce 5,980 pieces in a day, or average 747 per hour He completed only 3,025 pieces in 8 hours (378 per hour), although on August 10, working on the same assignment, he had completed 6,230 pieces (779 per hour) Thus his production dropped to less than half. Other employees who performed this operation prior to Stroppel 's discharge averaged from 462 to 1,207 pieces per hour , none had averaged as low as Stroppel did on August 21. 8 The General Counsel introduced evidence pertaining to two conversations Aurig had after Stroppel's discharge -one with Clayton Swallow and the other with Paul Spencer . Assuming that these conversations took place as described , they are of questionable value in determining the motive for the discharge . I will therefore make no findings with regard thereto. 9 This refers to an incident in April or May when Moncrief orally plant. In the presence of Aurig, Lamb told Stroppel• "We are discharging you because of a slow-up of work and lack of production." Stroppel answered "All right." A short while later Stroppel was paid off, and left the plant.8 A payroll change notice was made out and placed in the Respondent's files on which "Production" is checked as "poor," and on which Aurig wrote as the reason for discharge: Warned about leaving his machine to talk to other operators and keeping them from work9 and not putting out production himself for past two weeks. To this Lamb added I discharged Merlin Stroppel at 4.30 p.m. on August 30, 1967 for a slow up in work and a let down in production parts. 2. Contentions of the parties The General Counsel does not appear to contend that Stroppel's assignment to rerun work on defective pump valve bodies itself was discriminatory or punitive. Nor could he do so successfully, for there is undenied documentary evidence that on August 29 Mike Behrman, another employee not shown to have engaged in union activities, was similarly assigned to rerun work on defective pump valve bodies for a full 8-hour day. But the General Counsel contends that Stroppel's alleged drop in production was a mere pretext seized upon to conceal the Respondent's actual reason- Stroppel's known support of the Union. The Respondent, while admitting that it discharged Stroppel at a time when it knew of his union activities, insists that his low production was the only reason for his discharge 3. Conclusions Moncrief's conduct on June 13, described above, clearly reveals the Respondent's union animus.10 Moreover, on that date the Respondent first learned of Stroppel's interest in the Union. Yount, who made the decision to discharge Stroppel, admittedly knew of it In order to sustain the General Counsel's theory that Stroppel's discharge was discriminatory, it would be necessary to show that the Respondent laid in wait until August 30, seeking all this time for a pretext to discharge him. Such a conclusion would be speculative As the Respon- dent was not shown to have acquired knowledge of any further union activity during the 11 weeks between June 13 and August 30, it is equally logical to assume that, by the later reprimanded Stroppel for going into another department during working hours . This was reported by Moncrief to Aurig and Yount at that time . They testified that this past incident had no effect upon the decision to discharge Stroppel, and I therefore deem it unnecessary to make any findings with regard thereto 10 This finding is not meant to be critical of the Respondent, but is merely a statement of fact . The Respondent had, of course , a legal right to display antagonism toward the Union, so long as it took no action proscribed by the Act. N.L R B. v T. A. McGahey , Sr., et al., d/b/a Columbus Marble Works, 233 F 2d 406, 409 (C A 5) But, as the United States Court of Appeals for the Fifth Circuit has said "antiunion bias and demonstrated unlawful hostility are proper and highly significant factors for Board evaluation in determining motive " N.L R.B. v. Dan River Mills, Incorporated, Alabama Division , 274 F.2d 381, 384 (C.A. 5). McGRAW-EDISON CO. date, the Respondent felt confident that Moncrief's warning on June 13 had had its intended effect, that is, had succeeded in entirely eradicating the Union, and that the Respondent therefore had nothing more to fear from retaining Stroppel in its employ.' i The General Counsel appears also to contend that Stroppel's production did not actually fall off enough to disturb management. I cannot agree. Aurig testified When he first started he was a real good hand His piece work was up to the rest of them. He kept up his line and his production was good. Then ... in August, he just kind of seemed to slow down. It was cut in half to what it had been. [Emphasis supplied.] The figures bear this out During his last 7 workdays, Stroppel spent a total of 34 1 hours on rerun work, completing 10,940 pieces, an average of about 321 pieces per hour. Aurig testified about pump valve bodies as follows: Q. How long should it take him to run 2,5007 A Normally, we will run on this particular job between 6,000 and 7,000 in eight hours. So, 2,500 would be about three to four hours. Furthermore, Moncrief testified that he did not expect Stroppel to spend an entire 8-hour shift rerunning 2,500 pieces and that he had a piecework job waiting for Stroppel when the rerun was finished. Also, on August 29, Stroppel's last day of work, employee Mike Behrman reran defective pump valve bodies for 8 hours and completed 6,000 pieces-an average of 750 pieces per hour-more than double Stroppel's average production rate that week and the week before on the identical rerun job. But this is not all During the remaining 21.9 hours of his last 7 workdays, Stroppel earned $20.68 on piecework, an average of $ 95 per hour-less than half his previous average. Because of his day rate he was, of course, actually paid at the rate of $1.60 per hour for this 21 9 hours, totaling $35.04-or $14.36 extra. I conclude that Stroppel's dramatic drop in production did, indeed, furnish management with adequate cause for concern. The General Counsel further maintains in his brief that the April or May incident, when Moncrief orally reprimanded Stroppel, was "originally relied upon . as a factor supporting Stroppel's discharge" and this "reveals an attempt to seize upon any possible pretext." This contention is, no doubt, based on part of the wording of the payroll change notice quoted above But this part was inserted by Aurig, who did not himself make the decision to discharge Stroppel. Moreover, Yount-who did make the decision-testified that this incident had no effect on the decision. I therefore deem the matter of questionable significance in determining the Respondent's true motivation. The General Counsel stresses the Respondent's "total failure to warn him [Stroppel] that his production was low," pointing out that the Respondent's general policy favored such advance warning before discharge. However, Moncrief discussed the matter of production with Stroppel several times before his discharge.i 2 In the light of Stroppel's highly uncooperative attitude ("What is the use of working my ass off," etc.)i 3 a failure to spell out in so many words the possible consequences 11 Compare.S. H. Lynch and Company, Inc , 167 NLRB No. 67 12 This finding is based on Moncrief's testimony.-To the extent that Stroppel disputed this, Moncrief's testimony is credited as more reliable than that of Stroppel 13 Lest it be thought that such an attitude was justified by the assignment to him of day-rate work and its consequent absence of incentive, it must be recalled that , had he completed this assignment 191 of continuous low production is not, in my opinion, neces- sarily suggestive of bad faith or an attempt to entrap Stroppel. In this connection it should be noted that in the past other employees had been discharged for low production and the Respondent could reasonably assume that Stroppel knew this. In any event Yount, who made the decision to discharge Stroppel, did so under the impression that Stroppel had been warned, for Yount so informed Bufkm. Finally, the General Counsel points out that "while it is Respondent's policy to consult with an employee's immediate supervisor before any discharge ... there is no evidence that Stroppel's immediate or first-line supervisor was so consulted. For Stroppel's immediate supervisor was Moncrief " However, neither was there clear and convincing proof that Moncrief was not consulted, and the burden to show such departure from custom was on the General Counsel. In any event, the fact that Moncrief was not consulted, if shown, is not necessarily decisive. On this subject, Lamb testified. TRIAL EXAMINER IS it customary to consult the im- mediate supervisor of a man before he is discharged? THE WITNESS I would say not in all cases. [Emphasis supplied.] Under all the circumstances, although the matter is not entirely free from doubt, I conclude that the General Counsel has failed to establish, by a preponderence of the evidence, that Stroppel's discharge was motivated in substantial part by his support of the Union. D. The Discharge of Ivan Campbell 1 Facts Campbell began working for the Respondent in October 1965 as night watchman and maintenance helper. As watch- man, his hours were from 11 30 p.m. to 7.30 a.m. On September 18, 1967, between 8-30 and 11 am., Campbell came to the plant and asked his immediate superior, Russell Cook. "Do I still have a job?" Cook asked Campbell: "Do you want to work?" When Campbell answered affirma- tively, Cook directed him to report that night at his regular time.14 About 4.30 or 5 p.m. that day, Campbell signed a union authorization card. Campbell reported for work that night at his usual time, about 11 30 p.m. A little more than an hour later, about 12 30 or 12:40 a.m. on September 19, Marvin Christensen, the mght supervisor at the plant, smelled liquor on Campbell's breath According to Christensen's credited testimony, the odor of whiskey was "very strong." Christensen wrote a note to Yount, his immediate superior, which read: Macon 9, 19, 67 Wilbur Ivan had been drinking when he came in last night I didn't know it until after Henery [sic] ' S left or I would have had him stay & would have sent Ivan home. He claimed the grate on the big maintenance door was locked on his first round & was unlocked on his second round. Marvin more rapidly , as anticipated, a piecework job was waiting for hun. 14 Yount, who was present , testified that Campbell "smelled of whiskey pretty strongly at that time ." I deem this to be immaterial, and make no finding with regard thereto. 15 This refers to the second-shift night watchman , whom Campbell relieved, and whose first name is Henry. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yount arrived at the plant about 7 a m on September 19 and received this note. He confronted Campbell with the note, but Campbell denied that he had been drinking Yount responded "I know you have been drinking, because I can smell it on you." Although Campbell claimed that he had been eating peppermint, Yount told him that he (Yount) "knew the difference between peppermints and drinking liquor." Campbell answered "0 K., Wilbur, I promise I'll never do it again." According to Yount, the conversation concluded as follows "I told him then I was going to put a warning in his file and that was the end of our discussion "16 Before noon that day, September 19, Yount discussed the matter with Cook who, according to Yount's undenied testimony, "said Mr. Campbell should have been discharged before then, because he knew he had been drinking on the job before " A little later that day, about 3 30 or 4 p.m., Yount conferred with Christensen. Yount stated "he could smell liquor that morning on Mr. Campbell." He asked Christensen whether Campbell had been staggering. Christensen replied. "No, he wasn't but he smelled real strong of liquor." Christensen voiced his opinion "that somebody with liquor on his breath should not have the responsibility of a night watchman." Also on that day, September 19, Yount discussed Campbell's conduct with Bufkin and showed Bufkin Christensen's note. According to Bufkin they decided to "wait a couple of days and talk it over with Jimmy Lamb." Accordingly, on September 21 or 22 Yount and Bufkm conferred with Lamb. Lamb stated that "we couldn't afford to have any man on a watchman's job that had a habit of corning in with liquor on his breath." Campbell carried out his duties without further incident on the nights of September 19, 20, and 21. Either during a coffeebreak late on September 22 or when employee Jack Epperson was leaving the plant at the end of his shift, about 12.30 a m., September 23, Campbell gave a blank union card to Epperson About 12 35 a.m. on September 23, Campbell told Moncrief he had "signed up with the Union." Moncrief responded- "You're crazy .. you'll get your damned ass fired."i 7 Campbell offered Moncrief a union card, which Moncrief declined, stating that he would have to report the incident.' 8 Moncrief then "made out one of those yellow slips on him . . I guess you call them a warning slip" and put it in Yount's desk. It is a fair presumption from Yount's testimony,' 9 and I find, that Yount received the slip when he got to the plant about 7 a.m. on the morning of September 23. When Campbell (who had left the plant about 7 30 am.) returned a few hours later, at 11:30 am, to go to work, Yount met him at the timeclock and told him. "You're fired." Campbell asked why. Yount answered "Well, we're afraid of your drinking." Campbell was paid off-including an extra 3 16 Campbell placed the date of this conversation as the morning of September 22 However , his testimony as to dates impressed me as unreliable. 17 This finding is based on Campbell's credited testimony . Moncrief denied making such a threat. His denial in this respect was not convincing and is not credited. 18 Moncrief testified that at that particular hour "in my estimation he [Campbell ] should have been at the door." Moncnef located the conversation as having taken place in the washroom , but Campbell placed it at Moncrief's desk. I deem it unnecessary to resolve this conflict . Nor do I feel called upon to decide where Campbell should have been. 19 Yount testified "I report to work about 7 00." He also testified: Q. It had been brought to your attention , had it not, that he hours pay-and left.20 Yount then made out and placed in the Respondent's files a payroll change notice, on which "conduct" is checked as. "fair" and the reason for separation is shown as "Discharged, too many reports of drinking " 2 Contentions of the parties The General Counsel maintains that Campbell's drinking was only a "sham excuse" used to cloak the Respondent's real reason for the discharge, namely, Campbell's union activities Yount, who made the decision to discharge Campbell, admit- ted that he knew of Campbell's union activities at the time of the discharge. Nevertheless, the Respondent in its brief maintains that "Ivan Campbell was discharged because of his propensity for strong drink ... Union activity had nothing to do with their [the Respondent's officials'] decision." 3. Conclusions Clearly Campbell's conduct, as brought to Yount's attention by Christensen's note on the morning of September 19, afforded ample cause for discharge. However, the issue before me is "not whether there existed a valid ground for discharge, but whether the stated ground was the real one."21 Let us start this inquiry as to the Respondent's true motivation by determining when the decision to discharge Campbell was made. The Respondent, in its brief, points out that "It all came to a head on the night of September 18." It would be more accurate to set the time as early on the morning of September 19. Christensen's note galvanized Yount into action. First he confronted Campbell, got Campbell's side of the story, and warned him that a written reprimand would be put in his file At this point there was no mention of possible discharge, and it is reasonable to assume that discharge was not uppermost in Yount's mind. Later that day Yount also conferred about the matter with Cook (who did mention discharge as a suggested solution), Christensen, and Bufkin In short, Yount had made an extensive investigation by the end of the workday on September 19, all of which pointed to Campbell's misconduct and incompetence. Bearing in mind that 6 or 7 years previously a drunken night watchman at the plant had been discharged "right on the spot," one might have expected Yount to have discharged Campbell before the end of the workday on September 19. But he did not do so On the contrary, Campbell was permitted to work a full shift on September 19, another full shift on September 20, another full shift on September 21, and a fourth full shift on September 22. He was also allowed to report for duty on September 23 at 11 30 a.m. During these four full shifts he performed his [Campbell] had signed a card? A. Yes, I had heard of it. Q. It had also been brought to your attention , had it not, that he had asked employees to sign cards, didn't Francis Moncrief bring that up? A. Yes. I believe that's right. 20 The General Counsel introduced evidence of conversations which Campbell had thereafter with Bufkin and Yount. This testimony in my opinion has no bearing on the Respondent's motivation in discharging Campbell. I therefore will not base any findings thereon , except to the extent that it affects the recommended remedy, as set out below. 21 J. P. Stevens & Co. v. N.L.R.B., 380 F.2d 292, 300 (C.A. 2), quoted with approval in N.L.R.B. v Ulbrich Stainless Steels, Inc , 393 F.2d 871 (C.A. 2). McGRAW-EDISON CO. duties, so far as this record shows , in a satisfactory manner The Respondent in its brief urges : "The short delay in effecting the discharge was occasioned by discussion among the responsible officials at the plant." This explanation is not convincing . All the officers in question were located at Wren, and Yount had conferred with all except Lamb by the end of the workday on September 19. Lamb, when approached by Yount and Bufkin on or about September 21 or 22, told them "that we couldn't afford to have any man on a watchman's job that had a habit of coming in with liquor on his breath." Still no action was taken. It is concluded that, by 7 30 am. on September 23, when Campbell went home expecting to return to work at 11 30 a in. that morning, Yount either had decided that the written reprimand had been sufficient , or else was still undecided as to whether to discharge Campbell. This conclu- sion is based on the fact that , despite the contrary testimony of Bufkrn and Yount, which I do not credit, the decision was not made in Lamb 's presence , for Lamb admitted that he first learned of this "final decision " from Campbell himself, after the discharge had been consummated . Moreover , had the decision been reached on September 21 or 22, as Yount and Bufkin testified, it is doubtful that the protection of the plant would have been entrusted to Campbell the night of September 22, or that he would have been allowed to report for work at 11 30 a.m. on September 23 and then discharged with 3 hours' extra pay-required or paid because he was called in. Surely if the decision to discharge him had been reached at an earlier time , management would not so readily have placed the plant's safekeeping once more in his hands on September 22, and would not needlessly have wasted an extra 3 hours' pay by failing to notify him in advance not to return. Finally, discharge was not mentioned to Campbell in advance , but only at the very moment of discharge . It is accordingly found that the decision to discharge Campbell was not made by Yount until September 23, between 7 30 and 11 30 a.m. Having determined when the decision was made, we turn our inquiry to the Respondent's motivation. After Campbell was warned at 7 a.m. on September 19 that a written reprimand would be placed in his file , his job performance gave the Respondent no further cause for concern. Yount testified that he received other reports of Campbell 's misconduct and incompetence from Alvin Benedict, a foreman , and Erwin L. Brandt, manager of the heat tube section. These had to do with incidents which took place as far back as 4 or 5 weeks before Campbell's discharge . Although Yount placed the date of the receipt of these reports as between September 19 and 23, it is difficult to believe that they waited so long to make the reports . Indeed , Brandt testified credibly, contrary to Yount, that he (Brandt) made his complaints to Yount about Campbell "on two occasions , a month or two months prior to his discharge ." When asked by the Respondent's counsel "Did you discuss it with him again, just prior to the discharge?" Brandt answered : "Not right close to the discharge, no sir." Thus the Respondent's witnesses disagreed . Brandt impressed me as a reliable witness. I do not credit Yount's version of the time when he received these complaints Accordingly it is found that these complaints reached Yount before September 19, and that between September 19 and 23 he received no new information concerning Campbell other than Moncrief's "yellow slip" which Yount received only a few hours before Campbell's discharge. It obviously was not Campbell's job performance , then , which tipped the scales against him, although that might have been taken into consideration. But 193 the decisive and determining factor was surely the report which Yount received from Moncrief about 7 a.m. on September 23 concerning Campbell's union activities. The swift descent of the axe within hours after Moncrief warned Campbell "You 'll get your damned ass fired" was not, in my opinion, a meaningless coincidence . I conclude that the decision to discharge Campbell was motivated in substantial part by Campbell 's newly discovered aid to the Union Upon the basis of the above findings of fact and upon the entire record in this case , I make the following CONCLUSIONS OF LAW 1. McGraw-Edison Company, is , and at all material times has been, an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 District Lodge No. 9, International Association of Machinists & Aerospace Workers, AFL-CIO, is, at all material times has been , a labor organization within the meaning of Section 2(5) of the Act. 3 By discriminating with respect to the tenure of employ- ment of Ivan Campbell, thereby discouraging membership in the above -named labor organization , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the conduct described above, and by otherwise interfering with, restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The above-described unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 6. The General Counsel has failed to establish by a preponderance of the evidence that the Respondent discrimi- nated against Merlin Stroppel within the meaning of Section 8(a)(1) or (3) of the Act. THE REMEDY The Respondent argues in its brief that Moncrief's conduct on June 13 "should be disregarded as an isolated occurrence and the 8(a)(1) portion of the complaint dismissed ." Contrary to the Respondent's contention , however, it has been found above that the Respondent discriminatorily discharged Ivan Campbell in violation of Section 8(a)(1) and (3) of the Act. In the light of that finding it cannot successfully be maintained that Moncrief's conduct on June 13 was "an isolated occur- rence " The Respondent's request that the 8(a)(1) portion of the complaint be dismissed is therefore lacking in merit. As the unfair labor practices found to have been committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, the danger of their commission in the future is to be anticipated from the Respondent's past conduct . It will therefore be recommended that the Respondent cease and desist, not only from the unfair labor practices found , but also from in any manner infringing upon the rights of its employees guaranteed in Section 7 of the Act. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having found that Campbell's discharge was an unfair labor practice, it would normally be recommended that he be reinstated with backpay. The Respondent, however, has adduced convincing evidence that the normal remedy of reinstatement should be withheld in this case. About a month or a month and a half before Campbell's discharge, a fire extinguisher had disappeared from one of the Respondent's lift trucks. At that time, the Respondent "did a little investi- gating" but failed to find the fire extinguisher. After Campbell's discharge, on September 25 about 9.30 a.m., Campbell conferred with Yount and Bufkin at the plant in an unsuccessful attempt to obtain reinstatement. During that conference, Campbell asked "You remember that fire extin- guisher that came up missing?" When Yount answered affirma- tively, Campbell continued. "I know where it went. A fellow told me he needed a fire extinguisher, I told him that I wouldn't be watching him, therefore the fire extinguisher disappeared."22 It thus appears that, since September 25, about 9 30 a.m., the Respondent has been under the impres- sion that Campbell had been involved in the disappearance of the fire extinguisher. Under these circumstances, I do not believe that it would effectuate the policies of the Act to require the Respondent to restore Campbell to his former position.2 3 However, it will be recommended that the Respon- dent make Campbell whole for any loss of pay he may have suffered by reason of the discrimination against him, by paying to him a sum of money equal to the amount he would normally have earned from 11.30 a.m. on September 23 1967, the time of the discrimination against him, until 9 30 a m. on September 25, 1967, when the Respondent obtained information on which it could reasonably presume his complic- ity in a past theft, less the 3 hours' extra pay he received, and also less his net earnings during this period, plus the payment of 6 percent interest as set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In addition, it will be recommended that the Respondent preserve and make avail- able to the Board, upon request, all records necessary to compute the amount of backpay due hereunder, and post appropriate notices. It will further be recommended that the complaint herein be disnssed, insofar as it alleges that the Respondent discrirru- nated against Merlin Stroppel. Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, I make the following: RECOMMENDED ORDER It is recommended that McGraw-Edison Company, Macon, Missouri, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of District Lodge No. 9, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organiza- tion, by discharging employees or by discriminating in any other manner in regard to their hire, tenure of employment, or any term or condition of employment. (b) Threatening its employees with reprisals if they aid or support the above-named or any other labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as amended. 2 Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Make Ivan Campbell whole for any loss of pay suffered by reason of the discrimination against him, in the manner provided above (b) Preserve and, upon request, make available to the National Labor Relations Board and its agents, for examina- tion and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due hereunder. (c) Post at its plant in Macon, Missouri, copies of the attached notice marked "Appendix."24 Copies of said notice, on forms provided by the Regional Director for Region 17, shall be posted by a representative of the Respondent, after being duly signed by its representative, 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 Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.2 5 IT Is FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges that the Respondent discriminated against Merlin Stroppel. 22 This finding is based on Yount's testimony. Although I do not find all of Yount's testimony to be credible , I do credit this part. Campbell denied that there was any mention of a fire extinguisher, but his denial was not convincing and is not credited. 23 Virginia Electric & Power Company, 44 NLRB 404, 438-439 24 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words " a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 25 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES (c) Interrogating its employees concerning their union Pursuant to the Recommended Order of a Trial Examiner of sympathies, activities, or membership, or that of their fellow the National Labor Relations Board, and in order to effectuate employees, in a manner constituting interference, restraint, or the policies of the National Labor Relations Act, as amended, coercion. we hereby notify our employees that. McGRAW-EDISON CO. After a trial in which all parties had the opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to keep the promise that we make in this notice. WE WILL NOT discourage membership in or activities on behalf of District Lodge No. 9, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other union, by discharging employees or otherwise discrimi- nating against them. WE WILL NOT threaten our employees with reprisals if they aid or support a union. WE WILL NOT question our employees about their union membership, activities, or sympathies, or those of their fellow workers, in a manner which violates Section 8(a)(1) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form unions, to join or assist any union, 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, and to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a 195 condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL reimburse Ivan Campbell for any loss of pay he suffered as a result of the discrimination against him, with 6 percent interest. Our employees are free to become or remain or to refrain from becoming or remaining members of any union, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. M cG RAW- E DISON COMPANY (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 374-5181.