Owens-Corning Fiberglas Corp.

148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Owens-Corning Fiberglas Corporation and General TRIAL EXAMINER'S DECISION Drivers, Warehousemen and Helpers Local Union 509, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case 11-CA-3460 June 24, 1968 DECISION AND ORDER By Members Brown , Jenkins, and Zagoria On April 9, 1968, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in cer- tain other unfair labor practices and recommended that such allegations of the complaint be dismissed. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. The Charging Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 briefs , and the entire record in the case, and hereby adopts the findings , conclusions, and recommenda- tions of the Trial Examiner as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent , Owens-Corning Fiberglas Corporation , Aiken , South Carolina, its officers , agents, successors , and assigns, shall take the action set forth in the Trial Examiner 's Recom- mended Order, as so modified: Change the periods at the end of paragraph 1(b) of the Order and the third indented paragraph of the Appendix to semicolons and add the following: "provided , however, that the Respondent is not required to revoke any such benefits that it has granted." FREDERICK U. REEL , Trial Examiner: This case, heard at Augusta , Georgia , on February 15, 1968,1 pursuant to a charge filed the preceding October 16, and a complaint issued December 26, presents questions as to whether Respondent, herein called the Company, violated Section 8(a)(1) of the Na- tional Labor Relations Act, as amended , by certain threats to, and interrogation of, employees , by mak- ing certain changes in working conditions while an election to determine a bargaining representative Was pending, and by discharging two employees for what the complaint alleges was protected concerted activity. Upon the entire record, including my observation of the witnesses , and after due consideration of the briefs filed by the Respondent and the Charging Party, I make the following: Findings of Fact 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Delaware corporation, with a plant at Aiken, South Carolina, where it manufac- tures fiberglas products, and from which it annually ships over $50,000 worth of goods to points outside the State, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Glass Bottle Blowers Association (herein called GBBA ) and the Charging Party ( herein called the Teamsters ) are both labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Alleged Interrogation , Threats, and Changes in Working Conditions 1. Background For a number of years prior to the events here in question the GBBA had made repeated but unsuc- cessful attempts to organize the Company 's Aiken plant. In 1967 both the GBBA and the Teamsters waged organizing campaigns . In an NLRB-con- ducted election in August 1967 none of the con- tending parties (GBBA, Teamsters , and "no union") received a majority . A runoff election was therefore necessary between the two highest con- tender, Teamsters and "no union."2 Most of the events here in question occurred within a few weeks after the election of August 1967. At that time the Company had over 1,000 employees at the I All other dates herein refer to the year 1967 except when otherwise in- dicated. ' Such an election was held the day before the hearing, and the Team- sters lost by a narrow margin. 172 NLRB No. 20 OWENS-CORNING FIBERGLAS CORP. 149 Aiken plant. The Company also operates nine other plants in the United States and has bargaining rela- tions with unions in most of those plants. 2. Changes in working conditions The complaint alleges that in September 1967 (i.e., after the inconclusive first election ) the Com- pany initiated certain benefits in working condi- tions, and thereby , it is alleged , violated Section 8(a)(1) under the theory of N.L.R.B. v. Exchange Parts Co., 375 U .S. 405 . The two matters alleged in the complaint are (1) "increasing and improving hospital payment benefits and maternity leave benefits," and (2 ) "implementing wage differentials for various shifts." The evidence establishes with respect to the hospital benefits that the changes at Aiken were part of a companywide change, made simultaneously at all plants . General Counsel stipu- lated that the company brochure advising the em- ployees of the medical insurance program "was dis- tributed in due course without any attempt to affect unionization at the Aiken plant ." The allegation of violation with respect to that matter must therefore be dismissed. Cf. Champion Pneumatic Machinery Co., 152 NLRB 300. As to the shift differentials, the record establishes that the Aiken plant operates on what may be termed a rotating shift , under which certain em- ployees will work the daytime shift for 1 week, then the afternoon shift for 1 week, and then the night shift. When working the latter two shifts, these em- ployees have always received a 5- or 10-cent-per- hour shift premium . Other employees, however- approximately one-tenth of the working force-did not work on rotating shifts but nevertheless often had to work more than their regular hours . Prior to September 1967, when working this overtime, they did not receive a higher hourly rate , and hence dur- ing these hours they were working at a lower rate per hour than other employees working at the same time who received the shift premium . In September the Company changed its policy at Aiken3 and began to pay the "shift premium" to the nonrotat- ing employees when they worked beyond their regular hours into "shift premium " time. Company Personnel Manager Brelsford testified that this change was made because the former method "became a strong point of dissatisfaction among some of our day-workers." In a letter to all employees dated August 30, 1967, dealing primarily with the Company 's "sur- prise" that so many "Fiberglas people " voted for union representation in the election , Plant Manager Lockhart stated, in part: As a result of the closeness of the vote, I asked each of your supervisors to review the major reasons why so many people voted for unionization. During the past week, I met with each department's supervisory group to frankly discuss any major sources of dissatisfaction and asked for their recommendations as to what should be done to correct present conditions. Many fine suggestions were made at these meetings.... In addition , there are some policies that many Fiberglas people regard as unfair. These policies include ... maternity leave of absence . shift premium for day people working out- side of their regular hours.... We are now reviewing these policies and , wherever possi- ble, plan to make changes which will serve the best interests of everyone. Lockhart's letter certainly warrants the inference, which I draw, that the change in shift premium pol- icy was made for the purpose of inducing the em- ployees to vote against the Teamsters in the runoff election which was pending at the time of the letter and of the change in policy. The Company there- fore violated Section 8(a)(1) by making the change. Exchange Parts, supra. Finally, with respect to the maternity leave benefits, the record does not disclose precisely what the Company's policy was, but a letter from Lockhart to the employees dated September 13, 1967, contains the following paragraph: As I wrote in a previous letter, we have been reviewing many of our plant policies . We have already made changes in our maternity leave of absence and shift differential pay policies, and plan to make several other major revisions in basic policies in the weeks ahead . (Emphasis supplied.) In the light of Lockhart's letters of August 30 and September 13, I find that the Company granted some benefit with respect to maternity leave of absence during the period between those dates, that it did so for the purpose of inducing employees to vote against the Teamsters in the then impending runoff election, and that it therefore violated Sec- tion 8(a)(1) of the Act. 3. Threats and interrogation The allegations of the complaint that on May 1, 1967, Foreman Tabor threatened to discriminate against employees wearing union badges, and that on May 15 he interrogated employees as to why they were wearing union badges, rest on the testimony of employee James Raley. According to Raley, who had left the Company's employ by the date of the hearing, he overheard Tabor make such a threat in a conversation between Tabor, Super- visor Baker, and Control Operator Hitt.' Raley further testified that he thereafter bet another em- ployee that he (Raley) could wear a badge and that ' The record does not reveal what practice is followed at the other com- pany plants, but the change was instituted at Aiken by local management, and there is.no suggestion that it was companywide 4 Raley was "not completely sure" the other participants with Tabor were Baker and Hitt. 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tabor "might make the work a little tougher, but that was all he would do." According to Raley, he wore the badge one day, and Tabor sent for him and asked why he was wearing the badge, at which time Raley told Tabor of the bet, and Tabor replied that he intended to get a full day's work out of any- one wearing a union badge. Baker denied ever discussing union badges with Tabor, or hearing Tabor discuss such a matter with Hitt. Tabor likewise denied that aspect of the matter, and it was stipulated that Hitt, if called to testif , would corroborate Baker. Tabor further testif ed: Q. Did you ever speak to a man named Raley about a badge, a Union badge? A. No, sir, he talked to me. Q. When was this? A. When the GBBA tried to start a petition for an election. He came to the office one night, and he said "Harold, I want to talk with you," and I said "What do you want to talk with me about?" He said "I want to tell you why I am wearing this badge-this Union badge," and I said "Jimmy, I am not interested in why you are wearing this Union badge, it's none of my business . As far as I'm concerned, it's part of your clothes." And he said "Well, a fellow bet me $20 I wouldn't wear it in front of you eight hours," and I said "Why would they do that," and he said "I don't know, but they bet me $20 I wouldn't wear it in front of you eight hours." And, I said "Jimmy, if you want to make $20"- I said "You go ahead and wear it from now on." And when he left the office he was very nice and he said "No hard feelings." Q. Do you recall whether anything was said about working 7 hours and 10 minutes, or not? A. Well, I believe I did tell him that that badge would not allow him any special privileges-that he would have to work 7 hours and 10 minutes just like anyone else that wasn 't wearing one. Q. Did you ask that he come see you? A. No, sir. He come to my office himself; I didn't send for him. The record establishes that the wearing of union badges was common about the plant. In the light of all the circumstances, I am inclined to credit Tabor, and to dismiss these allegations for failure of General Counsel to prove them by a preponderance of the evidence. B. The Discharges of McClain and Robinson On September 13 the Company suspended, and on September 19 it discharged, employees Walter McClain and James Robinson because of their ac- tivity in sponsoring and disseminating in the plant a petition which they and other employees signed. The question in the case is whether their respective activities in connection with this document con- stituted concerted activity for mutual aid or protec- tion within the meaning of Section 7. A relatively full statement of the unusual facts is required. 1. The Hewitt tragedy and McClain's proffer of assistance About 2:40 a.m. on Monday, September 11, em- ployee Jimmy Hewitt, at work on the midnight to 8 a.m. shift, received an emergency telephone call in which he learned that his wife had just been killed in an automobile accident near Macon, Georgia. The call was from Hewitt's wife's cousin, one Jackie Ray Beasley, in Augusta, Georgia, and Hewitt asked Beasley to come to the plant to pick him up.' Hewitt promptly advised Foreman Tabor, who asked if he could be of assistance, but Hewitt told Tabor that someone was on his way to the plant to pick Hewitt up, to which Tabor replied, "go on home." Various other employees, learning of the tragedy, offered Hewitt their cars (he himself had come to work as part of a carpool), but he declined their offers, explaining that a car was com- ing for him from Augusta, some 20 miles away. About 3:30 a.m. employee Walter McClain, on his way to the plant cafeteria during a "lunch break," saw Hewitt in the hall, and asked why no one had come for him. Hewitt explained that a ride was on the way, and declined McClain's offer of a ride. A few minutes later McClair left the cafeteria and rejoined Hewitt. While they were conversing, McClain again offered Hewitt a ride, and Hewitt declined. McClain then asked if there was anything else he could do to help, and when Hewitt asked for a loan , McClain loaned him $5. The two men then walked toward the parking lot, and were still talk- ing when the guard summoned Hewitt back to take another telephone call. McClain accompanied Hewitt back to the guard shack. Present there in addition to Hewitt and McClain were Foreman Tabor, Control Operator Neal McCormack, and one or two guards. The testimony of both Hewitt, a company witness, and McClain is in substantial ac- cord as to this conversation. To quote McClain: A. I could hear Mr. Hewitt's conversation. 0. Please tell the court what you heard of that. A. He said "evidently"-he said "oh, no," and then he carried on this conversation find- ing out the names of the others that was killed-I presume that was what he was doing, and then he said, "well, nobody hasn't come and got me yet," and evidently they said "no," because he took the phone away from his ear, ' At the time Hewitt was given to understand that his children had also been killed , but he learned an hour or so later that they were safe at home. OWENS-CORNING FIBERGLAS CORP. 151 and he said " Mac, can you take me home?" I didn't say anything-I looked at Mr. Tabor- 0. Please tell the court who Mr. Tabor is? A. Mr. Tabor is my foreman-was my foreman at that time at that plant. Q. All right, what did- TRIAL EXAMINER: Where was Tabor at this time? THE WITNESS: He was sitting- TRIAL EXAMINER: Right next to the phone? THE WITNESS: He was in the guard shack too. Q. (By Mr. Connor) Please tell the court what Mr. Tabor said, if anything. A. Mr. Tabor turned around to Mr. McCor- mack, which is our Control Operator. Q. Is he a supervisor, sir? A. Supervisor of Control Operator, and so he said "what about it," and Mr. McCormack said "Well, I need him mighty bad here, and we are behind with our work." Q. What happen then with that? A. Well, Hewitt said-he put the phone back to his ear and he said "well, tell someone to come on and get me." Q. Thank you. What did you do next, Mr. McClain, if anything? A. Well, it was approximately-by that time, it was approximately between five minutes to four and four o'clock, and I had to be back on the job at four, so I went back to work. Hewitt's version is as follows: It's just like I said there. When I got the second phone call, I said "Jackie, you haven't left to come and get me yet?" He said "no, people have been calling and everything, and we have called back to verify it was true," and I turned around to Mac and I said "Mac, didn't you say that you had your car," and he said "yeah," and I said "well, I may need a way home." Well, then he turned around and he asked Mr. Tabor about taking me home. Well, Mr. Tabor turned around to Mr. McCormack and just nodded his head there, and Neil said "well, Jimmy's going to be going and that's going to throw us short" and he said "I don't know what we'll do without him if we let two go." He said "we'll be short of help." Moreover, Hewitt gave substantially identical testimony under oath on December 7, 1967, at a hearing conducted by the State Employment Security Commission.6 At this hearing, and in the presence of company officials who were also wit- nesses in that proceeding and in this, Hewitt not only testified to the above effect (see General At the hearing before me Hewitt testified that the testimony he gave in the earlier hearing was the truth , and that he would testify to the same ef- fect if asked the same questions in the hearing before me 7 Apparently one of the matters which upset the men was the failure of Counsel's Exhibit 10, page 30) but also testified twice (pages 34 and 35) that if McClain had been given permission Hewitt "probably would have" left the plant with McClain right then. Also at that hearing Hewitt testified, as did McClain before me, that after Tabor and McCormack refused to let Mc- Clain go, he (Hewitt) turned back to the telephone and said, "Jackie, come on and get me now ... Can you come get me now?" As noted, McClain was denied permission and returned to work. Hewitt waited another 30 minutes, and then his relatives came for him. 2. Early employee reaction to the Hewitt-McClain episode; the signing of the petition When McClain returned to work, he told two of his fellow employees, packing room inspectors, about the episode. These two and another packing room inspector shortly thereafter confronted Tabor, who told them that of course he permitted Hewitt to go home, and continued: ". . . as far as having a plant policy, we don't have a plant policy to take a person home ... but human decency would see that he got home if he didn't have a way." The three employees asked Tabor to talk to Fabrication Supervisor Timmons or to someone in management about getting a plant policy on this matter. Tabor agreed to do so, and spoke to Tim- mons later in the morning, but as Timmons said, "It will probably take some time to try to get answers on it," Tabor never reported back to the three packing room inspectors. The packing room inspectors reported their con- versation with Tabor to employee James Robinson. The following night, nothing having been heard from Tabor, Robinson discussed with a group of other employees, including McClain, the possibility of circulating a petition among the employees which, to quote Robinson, was to be "just a short petition objecting to the fact that [the Company] didn't have a policy set up to cover a situation to take a bereaved man home."7 Robinson finished work at 8 a.m. that Tuesday, September 12, and went to the Teamster office, where, with the assistance of a Teamster represen- tative, he drafted the following document: We, the undersigned, wish to protest the refusal of the O.C.F. Company to allow a co- worker to be driven home by one of his co- workers, when he received a telephone call telling him about his wife being killed in an ac- cident. Robinson took this document back to the plant that night, signed it, and obtained the signatures of Mc- Clain and of eight other employees. He told them that "there was going to be an attachment on the the Company to take Hewitt home at once, using one of the guards and the company station wagon for that purpose See the affidavit which employee Spivey later gave the Company , which the Company introduced into evidence as its Exh. 5a 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other side of the petition , explaining the incident that had happened." At that time he did not know exactly how the "explanation" would be worded. 3. The embellishment and distribution of the petition After Robinson obtained the 10 signatures, in- cluding his and McClain's, to the petition, he took the document back to the Teamster office , and with the assistance of the Teamster representative com- posed a handbill , which was then sent to Columbia, South Carolina, for reproduction in bulk. The document as finally reproduced consisted of a sheet of legal-size paper with matter on both sides. On one side appeared the original petition , with the fol- lowing additions : the names of the signers were typed opposite their signatures ; a caption appeared above the petition proper, reading "We Saw It Hap- pen"; at the foot of the petition, after the signa- tures, the following remarks were added in a space enclosed by asterisks : "Deepest sympathy is ex- tended to the employee concerned in the above situation . In-Plant Organizing Committee & Of- ficers of Teamsters #509"; and two signatures ap- peared toward the bottom of the page , those of the president and of the secretary-treasurer. At the very bottom of the page appeared the legend "(Please See Other Side!)." The material on the other side of the sheet ap- peared under the printed letterhead of the In-Plant Organizing Committee, and over the signature of that organization . Under the heading "Lockhart Speaks Out Of Both Sides Of His Mouth," the document reads as follows: In the Lockhart "Loveletter #3" to you on August 30, 1967, after the election, he states, "It has always been our wish to see that all em- ployees are treated fairly." "To accomplish this, we are now preparing a detailed step-by- step complaint procedure-." " I asked each of your supervisors to review the major reasons why so many people voted for unionization." So now what happens??? On September 10, 1967, only 11 days after Lockhard pleads ignorance and asks for another chance, (to do what?) the following took place: In the packing room of fabrication, on "C" shift, one of the workers was notified by telephone that a tragedy had struck his family in or about Macon , Georgia. This man was in a car pool and therefore , asked one of his co- workers to drive him home, so he could find out about his wife and other members of his family being reported killed. His co -worker was ready to drive him home . But, his control operator, with the supervisor listening, and hearing the entire conversation, refused to let this mans co-worker take him home. Certainly I Hewitt in the hearing before the Employment Security Commission testified that he was a "company" rather than a "union " man. McClain, by the supervisor standing right there , seeing and hearing the entire situation, obviously made the decision. The excuse given was that a man could not be spared. About three hours before this hap- pened, Shift Supervisor-Foreman Harold Tabor told the people in the packing room that they were working with an extra man. The workers in the packing room are riled up because company policy and rules did not allow the supervisor to permit a man whom tragedy struck to be driven home. The workers had to call someone from Augusta , Georgia to come to the O.C.F. plant to take this man home. On Thursday morning, September 14, Robinson and other employees distributed this handbill, together with another piece of Teamster campaign literature not related to the Hewitt matter, to the employees as they came to or left the plant. 4. The Company obtains from Hewitt and distrib- utes a statement countering the petition -handbill Company officials saw the Teamster handbill and read the "petition " on the morning of September 13, and were so disturbed by its contents that they told Tabor he would be discharged if the allegations therein were true . Tabor denied that the allegations were true , and the Company decided to obtain a statement from Hewitt as to what had occurred. Accordingly, during the morning on September 14 Fabrication Supervisor Timmons called Hewitt at his mother's home (his wife's funeral had been held the day before), told Hewitt that there had been "very serious charges made against [Tabor] con- cerning the way [Hewitt] had been treated the night his wife was killed," and asked if he (Tim- mons ) could come to see Hewitt to find out exactly what had happened. Hewitt willingly consented, and Tabor, Timmons, and another employee called on him later that morning. To quote Timmons: I gave Jimmy the sheets of paper with the peti- tion and attachments on it , and I said "Jimmy, these are the accusations that have been made" and I gave Jimmy time to read it, and he threw it down, I believe, on the coffee table and had a few rather derogatory comments to make concerning it. Jimmy said "Paul, that's not how it happened at all." He said , "that didn't happen a bit" he said "what are these boys trying to do."" So, I said this is why I am talking with you, and I the way, was also opposed to the Union, at least at the time of the events here in issue. OWENS-CORNING FIBERGLAS asked Jimmy, if he would, to sit down and talk with me in the presence of Harold and Frank and to tell me exactly what had transpired that evening from the time he was notified of his wife 's death , up to the present time . So, he did, and we talked and Jimmy would talk, and I would write down his statements and read them back to him and ask him if these were correct, and he said "yes" they were, until we completed the statement. Upon its completion, I asked Jimmy to read it, and Jimmy's Mother, I believe, also read it, and then I asked Jimmy if he would sign it and he did , and Harold , Frank Hughes, and myself also signed it. Later that afternoon, at the Company's request, Hewitt signed and swore to a typewritten copy of his statement. Hewitt agreed that the Company could distribute his statement to the employees, as to quote Company Personnel Manager Brelsford, Hewitt "thought it might clear matters up, and he was sorry the whole thing had come up." The Com- pany accordingly had Hewitt's statement reproduced in bulk, and supervisors distributed co- pies to the employees on September 15. The document distributed by the Company was captioned "The Truth About the Latest Teamster Handbill." The opening paragraph , set out in sin- gle-spaced type to distinguish it from the balance of the handbill, read as follows: The following statement was made by Jimmy P. Hewitt in answer to the recent handbill dis- tributed by the Teamsters. We feel it is dis- graceful that the Teamsters have seen fit to make an issue of the circumstances involving his wife's tragic death at a time when only sym- pathy and understanding should be given. Here are the true facts in this matter in Jimmy's own words. There followed Hewitt's detailed account, covering three pages, of which the following two paragraphs are most pertinent here: After I hung up the telephone, I got a cup of coffee and Harold Tabor came to the guards' desk and asked if there was anything he could do to help me. I told him no, that my ride was on its way to get me. At 3:30 A.M., the boys from the Packing Room came up on their lunch break and several of them asked if I wanted to use their car and go home. Again, I told them no; that my ride was on its way. A few minutes later, Jackie Ray Beasley called me back and verified again that my wife had been killed and I asked him if Robert Stan- dridge ( my wife 's uncle) was coming to get me and he said yes. Walter McClain asked Harold if he could take me home and Neal said that he needed Walter in the plant and I didn't feel the necess- ity of McClain taking me because I already had someone on the way to get me . McClain asked CORP. 153 a couple of other times, but there was no need for this and I didn't want him to take me. I told McClain several times that there was no need for him to take me, that the boy had loud muf- flers and maybe had been stopped, but I was sure he would be there and that if he didn't show up in a little bit I would ask Harold to get me home. At no time did I have any doubt, whatsoever, that Harold would not have gotten me home if I had in any way indicated that I wanted him to. Hewitt's statement concluded: Throughout the entire time, since I received the first telephone call, I was treated with ut- most respect and consideration by Harold Tabor, Neal McCormick, George Brelsford and other OCF personnel, and at no time was I refused anything I requested they do for me. 1 further feel that no one could ask or expect any better treatment or more consideration than I received. 5. The discharge of McClain and Robinson As noted above, the Company obtained Hewitt's version of the events on the same day that the Teamster handbill appeared, September 14. That night when the signers of Robinson 's petition came to work (all but one, who was absent), the Com- pany directed each of them to report to the cafeteria. There Timmons addressed them, stating that "there had been serious charges made against one of his supervisors," that "he was going to get it straightened out," and that if the charges were true "he would take disciplinary action against one of his supervisors." The employees explained to Tim- mons the differences, detailed above, between the petition they had signed and the handbill as circu- lated. Timmons then requested each of the em- ployees to write out his own independent statement of the pertinent events beginning on the night of the Hewitt tragedy. Each employee did so, and the Company had each statement notarized. The Com- pany then suspended the individual employees, and conducted a further investigation into the matter. It eventually reinstated all, without loss of pay, except McClain and Robinson, whom it discharged on September 19, telling them that they were being discharged "for causing extreme discord throughout the entire plant, both verbally and in writing, by having taken a major role in the gather- ing and dissemination of false information which, if true, would have resulted in the most serious disciplinary action against a supervisor." Personnel Director Brelsford testified as follows with respect to the decision to discharge the two men: Well, the investigation boiled down to a credibility between McClain and several other people who said that what Jimmy Hewitt con- tended that he hadn't asked him to take him 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD home , plus what they had heard that Jimmy Hewitt had never asked him to take him home, and this was the thing, of course, that started the whole petition and everything that we had through the plant. The other thing that was a very obvious thing, there were two complete distortions in the petition, one of them deals with the people had to call Augusta to get him taken home, which was not the case , and the other case being that he asked McClain to bring him home. All of the people, including James Robinson , said that they, in fact, had not heard Jimmy Hewitt ask anyone to take him home. All the other people that said "We saw it hap- pen" mean they saw him refuse to go home, and their statements show that they didn't see it happen, but were told. Robinson, on the other hand, got together a petition, brought it into the plant, had it signed, and circu'ated to all our people-a petition that contained serious charges against our company policies and one of our super- visors. This is the basis for the discharge of McClain and Robinson Q. Why was there a difference in disciplina- ry action between Robinson and McClain and the others? A. Well, I felt-I answered again , basically McClain was the person who claimed that Jimmy Hewitt asked him to take him home. This is the thing that stirred everything up; Robinson was the one who circulated the peti- tion, made the direct accusations against Harold Tabor and against our Company policy, and all the others said the only reason they signed was because of what they had been told, and we didn't feel that they should be held responsible. Earlier, in the hearing before the State Employment Security Commission, Brelsford had testified to similar effect. There he stated in part: . the critical issue became , number one, at least as we looked at it-did Jimmie Hewitt ask Walter McClain to take him home. . .. So we have this, Jimmy says he did not ask him, Walter says that he did. When you get down to it, this is the crux, this was the cause of the disturbance that we had at the plant. The second major issue at stake in this campaign, and in this investigation, was who did it, or who got it into circulation and circle it around the plant. Who picked up, what we considered a false statement, and circulated it, and created all the disturbance.... Therefore, McClain was discharged because of the untruth that came from him as we saw it against one of our supervisors , and Robinson was discharged as we saw it for spreading it.... Q. You say that the real crux of the matter boils down to the factual situation as to whether or not Jimmie Hewitt asked McClain to take him home. A. Sure does. . Had Jimmie asked McClain to take him home and had Harold Tabor refused to let him go home under the circumstances, we would not have fired McClain, but we would have fired Tabor. Q. All right, then, would you have fired Robinson? A. I do not know, I just do not know, how- ever I doubt it. Q. ...[if] the fact actually showed that Jim- mie, in effect, did ask McClain to take him home that night and that he was not permitted to take him home by Mr. McCormick and Mr. Tabor. If that were the truth neither McClain nor Robinson would have been fired, would they? A. Probably not, and definitely not Mc- Clain. Probably not Robinson. At the hearing before me, Hewitt's testimony at the above hearing did not come into the record until after Brelsford had left the witness stand. I asked Timmons, who was then on the witness stand, whether the Company gave any consideration9 after the State proceeding to reemploying or reinstating McClain or Robinson, and whether there was "some feeling that there had been some misun- derstanding or mistake, rather than a deliberate fal- sification." The witness replied in the negative. 6. Concluding findings The activity of McClain (a) in telling the packing room inspectors about his abortive effort to take Hewitt home, (b) in joining with other employees to urge the preparation of a petition on the matter, and (c) in signing the petition, and the activity of Robinson in preparing and circulating the petition, was "concerted activity for mutual aid or protec- 9 The transcript , page 157 , lines 13-14 , erroneously reads "compensa- tion" and is hereby corrected OWENS-CORNING FIBERGLAS CORP. tion."10 The Company contends that because of false statements the otherwise proper activity lost the statutory protection which normally attaches to concerted activity. As to McClain , the record is clear that he made no false statements whatsoever , and it was the Company ( however unwittingly ) and not McClain that disseminated false information . The critical question as to McClain was whether Hewitt had asked him for a ride home that night . Hewitt's sworn testimony on two occasions corroborates McClain that Hewitt did . More specifically, after McClain had offered a ride, and while Hewitt was talking on the telephone , he turned to McClain and said , "Didn 't you say that you had your car.... I may need a way home ." Moreover, at the Employ- ment Security Commission hearing Hewitt testified that after Tabor and McCormack refused McClain permission, he (Hewitt ) turned back to the telephone and said , "Jackie , come on and get me now.... Can you come get me now ?" Hewitt also testified that had McClain received permission, Hewitt "probably would have " gone with him at that time. To, be sure Hewitt also gave the Company a sworn statement in which he said "I didn 't feel the necessity of McClain taking me" and " I didn't want him to take me." The inconsistency in Hewitt's statements may spring from many sources . He gave the statement to the Company the day after his wife's funeral , in the presence of Supervisor Tabor, knowing that the Company considered the accusa- tion against Tabor to be a serious one, and he was apparently irritated over the attempt of the Team- sters to use his personal tragedy to discredit the Company . But the issue here is not what caused Hewitt to mislead the Company, nor whether the Company acted in good faith .11 The issue is whether McClain was protected by the statute in his activity . The facts establish that he told the truth , that the Company erred in believing other- wise. Under well-settled principles, laid down by the Fourth Circuit in N.L.R.B. v . Industrial Cotton Mills, 208 F .2d 87, 89-93, and adopted by the Supreme Court in N.L.R.B. v. Burnup and Sims, 379 U.S. 21, when an employee has engaged in ac- tivity protected by the Act , and is discharged because of his employer 's good-faith but mistaken belief that he has engaged in misconduct, the discharge violates Section 8(a)(1) of the Act. See also Cusaono v. N.L.R.B., 190 F.2d 898 , 902-903 (C.A. 3). Somewhat similar principles control the case of Robinson. To be sure , he must bear some responsi- bility for the misstatement in the handbill that "the workers had to call someone from Augusta, Geor- gia to come to the O.C.F. plant to take this man 10 Company counsel in an opening statement said: "It was perfectly proper, the petition in itself, and the affixing of the names." 11 It is conceivable that even Tabor did not hear Hewitt 's remarks to Mc- Clain. 155 home." The fact is, as noted above, that Hewitt was already on the telephone when he (not "the work- ers").asked someone to come for him after Mc- Clain was refused permission. 12 But the Company made it clear, and Brelsford particularly emphasized at the hearing before the Employment Security Commission, that the critical " misstate- ment," so far as the Company was concerned, was the accusation against Tabor. (One may well wonder why the Company, once it secured and published to all employees Hewitt's repudiation of the story, did not rest therewith, but it is unnecessa- ry to speculate on whether the fact that the Team- sters were involved played any part in the Com- pany's carrying the matter further. I note in passing that no violation of Section 8(a)(3) is alleged, but that the circumstances of Robinson's discharge were fully litigated. Cf. American Boiler Manufac- turers Assn. v. N.L.R.B., 366 F.2d 815, 821 (C.A. 8), and the cases there cited.) The "additional" misstatment as to the necessity of employees' calling Augusta was apparently of less critical im- portance. In any event, the law is clear that not every miss- tatement uttered in the course of concerted activity forfeits the statutory protection. That protection is lost where the employee engages in deliberate or malicious untruths, but not where his inaccuracies may not be so characterized. See, e.g., Schnell Tool and Die Corp. v. N.L.R.B., 359 F.2d 39, 44 (C.A. 6), enfg. 144 NLRB 385, 404-406; Walls Manufac- turing Company v. N.L.R.B., 321 F.2d 753, 754 (C.A.D.C.), cert. denied 375 U.S. 923, enfg. 137 NLRB 1317, 1318-19; N.L.R.B. v. Illinois Tool Works, 153 F.2d 811, 815, 817 (C.A. 7); Marlin Firearms Company, 116 NLRB 1834; El Mundo Broadcasting Corp., 108 NLRB 1270. In the instant case there is no suggestion that Robinson's misstatement was malicious or was deliberately false. Indeed, it more closely ap- proached the truth than Hewitt's misstatement cir- culated by the Company, for it was necessary for the employee (though not employees) to ask (not to telephone) someone in Augusta to come for him after Tabor refused to let McClain leave. Robin- son's misstatement was therefore not of such a na- ture as to forfeit the statutory protection inherent in his concerted activity, and his discharge was therefore a violation of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Company by granting benefits (wage dif- ferentials for employees working beyond their nor- mal workday and an improved maternity leave of absence) shortly before a Board election interfered with their employees' free choice in that election 12 The caption "We Saw It Happen" placed over the petition was likewise untrue as to all but McClain. As the contents of the petition were correct, however , the "misrepresentation " in the caption is scarcely material 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and thereby committed unfair labor practices af- fecting commerce within the meaning of Sections 8(a)(1) and 2 (6) and (7) of the Act. 2. The conduct for which the Company discharged Walter McClain and James Robinson was concerted activity protected by Section 7 of the Act, so that the discharges were unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and ( 7) of the Act. THE REMEDY I shall recommend that the Company cease and desist from its unfair labor practices, that it offer to reinstate McClain and Robinson with backpay com- puted in accordance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, and that it post appropriate notices. Accordingly, upon the foregoing findings and conclusions, and upon the entire record in this case, I recommend , pursuant to Section 10(c) of the Act, issuance of the following: ORDER Respondent Owens-Corning Fiberglas Corpora- tion, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees for having engaged in concerted activity for mutual aid or protection. (b) Granting benefits to employees for the pur- pose of inducing them to vote against a labor or- ganization. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Offer to reinstate Walter McClain and James Robinson to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make each of them whole in the manner described in the section of the Trial Examiner's Decision entitled "The Remedy" for any loss of earnings suffered by reason of the discrimination against them. (b) Notify Walter McClain and James Robinson if either or both are serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the: amount of backpay due under the terms of this Decision. (d) Post at its plant in Aiken, South Carolina, copies of the attached notice marked "Appen- dix."13 Copies of such notice, on forms provided by the Regional Director for Region 11, shall be posted by the Respondent, after being duly signed by an authorized representative of the Respondent, immediately upon receipt thereof, and shall be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply herewith."' " 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." " 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 Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer Walter McClain and James Robinson their former jobs and pay them for wages they lost as a result of their discharge in September 1967. WE WILL NOT discharge or threaten to discharge any employee because of his having engaged in concerted activity for mutual aid or protection. WE WILL NOT grant benefits to employees for the purpose of inducing them to vote against union representation. WE WILL NOT in any like or related manner interfere with the right of our employees to join or assist labor unions, to bargain collec- tively through representatives of their own OWENS-CORNING FIBERGLAS CORP. 157 choosing, or to engage in other concerted ac- Service Act and the Universal Military Training and tivities for mutual aid or protection . Service Act, as amended, after discharge from the Armed Forces. OWENS-CORNING FIBERGLAS CORPORATION (Employer) This is an official notice and must not be defaced by anyone. Dated By This notice must remain posted for 60 consecu- (Representative ) (Title ) tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- Note: We will notify the above-named employees pliance with its provisions may be directed to the if presently serving in the Armed Forces of the Board 's Regional Office, 1624 Wachovia Building, United States of their right to full reinstatement 301 North Main Street, Winston-Salem, North upon application in accordance with the Selective Carolina 27101, Telephone 723-2300.