Selwyn Shoe Manufacturing Corp.

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Selwyn Shoe Manufacturing Corporation and Ear- lene Reinhold and Evelyn Craig Selwyn Shoe Manufacturing Corporation and Mil- dred Solter United Shoe Workers of America, Local No. 235, AFL-CIO and Earlene Reinhold United Shoe Workers of America , Local No. 235, AFL-CIO and Mildred Solter. Cases 17-CA-3170, 17-CA-3204, 17-CB-525, and 17-CB-532 June 27, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On March 25, 1968, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondents had en- gaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. He also found that Respondents had not engaged in certain other unfair labor practices al- leged in the complaint and recommended that those allegations be dismissed. Thereafter the Respondent-Employer and the General Counsel filed exceptions to the Trial Examiner's Decision together with supporting briefs. 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 herein modified. 1. Among other things, the Respondent-Em- ployer excepts to the Trial Examiner's failure to dismiss the consolidated complaint in its entirety as to it on the ground that the counsel for the General Counsel had engaged in misconduct which frus- trated the Board's subpena process and deprived the Employer of the right to cross-examine a wit- ness as a result of which the Employer was denied a fair hearing and due process of law. The con- solidated complaint alleged that the Employer had violated Section 8(a)(3) and (1) of the Act by un- lawfully discharging three employees, Section 8(a)(4) and (1) by conditioning the rehire of one of the alleged discriminatees upon her dropping charges filed with the Board, and Section 8(a)(1) by issuing a disciplinary report to another of the al- leged discriminatees for engaging in protected ac- tivities. Violations of Section .8(b)(1)(A) and (2) were also alleged against the Union. As in its mo- tions filed during and subsequent to the hearing, the Employer contends that "the frustration of ... [its] right to adduce evidence and to cross examine taints the entire proceeding upon the consolidated complaint." We cannot agree with the Employer that the General Counsel's delay in producing the steward notebook to be used for purposes of the cross-ex- amination of witness Solter taints the entire proceeding and warrants dismissal of the con- solidated complaint. We note that the only testimony respecting the steward book elicited dur- ing Solter's direct examination by the General Counsel was to the effect that the steward book was similar in appearance to that in which the petition was contained and that both books were on her work table at the time she was discharged, the peti- tion book being positioned to the right of her machine and the steward book to the left. Although she testified at length regarding the petition and it was marked and introduced into evidence, she did not testify as to the nature or contents of the steward book which was not marked or introduced during her direct examination. She testified only as to the steward notebook's appearance and position in relation to the petition. Moreover, it is clear that the Employer had completed his cross-examination of Solter without showing the slightest interest in the steward notebook until after it had been perused by the Union's counsel during a recess and thereafter requested to be produced for use in the latter's cross-examination of the witness. Although the General Counsel offered to introduce the steward notebook into evidence himself, he admit- tedly refused to produce the book for use during Solter's cross-examination, as a result of which Respondent-Employer both at the close of the hear- ing and subsequent thereto moved for dismissal of the consolidated complaint in its entirety. Later, the Trial Examiner reopened the hearing, the steward notebook was produced, and Solter was cross-examined thereon. The Trial Examiner found that Solter had added material to the notebook sub- sequent to the time she was notified of the reopened hearing as a result of which he dis- 172 NLRB No. 81 SELWYN SHOE MFG. CORP. 675 credited all testimony of Solter except that which was corroborated by other witnesses.' Respondent-Employer contends that the steward notebook constituted a "statement" within the meaning of Section 102.11 of the Board's Rules and Regulations which the General Counsel was required to produce upon timely demand, that the circumstances here surrounding the production of the notebook are tantamount to a failure to produce, and that the Trial Examiner erred in fail- ing to strike Solter's testimony. We find no merit in this contention . Although it is clear that the Trial Examiner did not consider the notebook to be a "statement," he nevertheless, after the cross-ex- amination of Solter, based on the notebook, found her unreliable and discredited all of her testimony given in both the hearing proper and the reopened hearing not corroborated by another witness. In these circumstances, it is clear that the production of the notebook, whether such production be viewed as belated or timely, has resulted in the im- peachment of Solter, a factor which necessarily rebounds to the benefit of Respondent. Moreover, our review of the Trial Examiner's findings reveals that all of the violations which he found and which we hereinafter affirm are sup- ported by substantial evidence on the record as a whole through the testimony of witnesses other than Solter. Thus the Section 8(a)(4) and (1) viola- tions found by the Trial Examiner to the effect that the Respondent-Employer had conditioned the rehire of employee Craig upon her withdrawal of the unfair labor practice charges she had filed with the Board are substantiated through the credited testimony of witnesses Minor and Burks who con- veyed the Employer's message as well as through the credited testimony of employee Craig herself who received the offer. Similarly, the Section 8(a)(1) violation found in the Employer's discharge of employee Reinbold, which occurred when Solter was not present, perforce is substantiated by the testimony of witnesses other than Solter, principally that of Superintendent Mize who effectuated the discharge, employee Perkins who was present when it occurred , as well as that of Reinbold herself. The Union's refusal to process Reinbold's grievance was found to be a violation of Section 8(b)(1)(A), prin- cipally upon the testimony of Union President Minor who admitted that the Union had deter- mined to suspend action on Reinbold's grievance after receipt of a copy of the charge filed by Rein- bold with the Board. This action of the Union was corroborated by Reinbold as well as witnesses other than Solter. With regard to the final violation found by the Trial Examiner, namely that the Employer violated Section 8(a)(1) by disciplining Solter in such a manner as to interfere with her right to en- gage in protected shop steward activities, we find, for reasons indicated below, that this allegation of the complaint should be dismissed. Thus, inasmuch as the testimony of Solter is not relied upon in finding the aforesaid violations of the Act, we find that the Respondent-Employer was not prejudiced by the events surrounding the cross-ex- amination of witness Solter. We note also that un- like Harvey Aluminum v. N.L.R.B.,2 the principal case relied upon by Respondent-Employer, wherein the testimony of three witnesses whose statements were not produced was found by the court not to be severable from other evidence substantiating the violations found, the present case involves the questionable testimony of one witness which is severable and not relied upon in affirming the viola- tions found. Inasmuch, therefore, as the Respon- dent-Employer has in fact received the protection of the Jencks rule under the principles of Harvey Aluminum and related cases, even assuming the steward book were to be considered a "statement" of witness Solter, we find the Respondent-Em- ployer's exception seeking dismissal of the con- solidated complaint in its entirety based upon the alleged misconduct of counsel for the General Counsel and the related conduct of witness Solter to be without merit. 2. The Trial Examiner found that the Respon- dent-Employer had violated Section 8(a)(1) by disciplining employee Solter in such a manner as to interfere with her right to engage in protected shop steward activities. We cannot agree that this viola- tion may be sustained without crediting Solter's un- corroborated testimony. Moreover, the testimony of Foreman Bentley, a witness whom the Trial Ex- aminer credited, directly contravened Solter's testimony in this regard. The Trial Examiner found, based upon the testimony of Solter, that on March 10, 1967, during a period of layoff, she had gone to the plant to work on her shop steward cards. She testified that Superintendent Mize, upon learning of her presence in the plant on that day to engage in union activities, first instructed her to punch in her timecard and then later reversed himself, and she was instructed to leave the plant. She testified that after she had gathered up her things, Foreman Bentley handed her a copy of a disciplinary notice I We do not take as harsh a view of Solter 's actions as did the Trial Ex- more of the nature of a tablet on which to jot down personal reminders and aminer, who found she was "prepared to manufacture evidence to support reimiscences than of an official union business record her case." The testimony disclosed that the notebook in question partook 2 335 F .2d 749 (C.A 9, 1964) 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dated January 24, 1967, which she had refused to accept when it was first handed to her on that January date. Foreman Bentle, on the other hand, testified that at Superintendent Mize's instructions he had given Solter the disciplinary notice on January 24, and that although he recalled Solter being at the plant on March 10 and being asked to leave, he denied that he had handed her a second copy of the disciplinary report at that time. In- asmuch, therefore, as the Trial Examiner's finding of this violation of Section 8(a)( I) is substantiated only through the testimony of the discredited Solter and is in fact contradicted by the testimony of Foreman Bentley, whom the Trial Examiner credited , we shall dismiss this allegation from the complaint. 3. The General Counsel excepts to the Trial Ex- aminer's finding and conclusion that Mildred Sol- ter's "discharge was occasioned by her conduct which impinged upon working time" and to the failure to find that Solter's discharge was in viola- tion of Section 8(a)(3) and (1) of the Act. We be- lieve the exception has merit. Initially, we note that Respondent has not promulgated a rule prohibiting solicitation by em- ployees during their working hours, the conduct for which Solter assertedly was discharged . Of course, the absence of such a rule does not mean that Respondent-Employer could not have discharged Solter for failure to work during working time, or for creating disorder or interfering with the work of other employees while she was engaging in activi- ties for or against the Union . But in the absence of a valid no-solicitation rule prohibiting the activities which led to Solter 's discharge , it is not a sufficient defense to the allegations of the complaint that Sol- ter's solicitation of signatures on her antiunion peti- tion "impinged on working time." There must be also a showing that the discharge flowed from Sol- ter's abdication of her working duties rather than from the fact that she engaged in solicitation against the Union. No such showing emerges from the record. Clearly, the Employer was aware on Friday, March 17, 1967, of Solter 's solicitation activity. During the period of the solicitation, employee Horst informed Superintendent Mize that she had just signed the petition and he suggested that she remove her signature , which she did immediately. Foreman Bentley, apparently unconcerned about working time missed by Solter on that day, testified that had Solter been away from her machine for any length of time on that afternoon, he surely would have noticed it. Thus, on the afternoon that Solter ac- tually engaged in the solicitation of which the Com- pany was aware, there was no official concern that Solter's activities had interfered with production or discipline in the plant. In this connection , it also must be noted that the immediate and precipitating cause of Solter's discharge was occasioned not by what had occurred on Friday but by the action of three employees who, on the Monday following the signing of the petition, left their departmental sta- tion without permission to go to another depart- ment in violation of a company rule in order to remove their signatures from the petition which was located on the table next to Solter's machine at a time when Solter was in fact working. Superinten- dent Mize, apprised of the intention of the three employees, failed to stop them from leaving their department and instead followed them and wit- nessed their removal of the signatures from the petition. Although the three employees were not disciplined for violating the rule against leaving their department, Mize discharged Solter at the very moment after the last of the three had removed her signature because Solter was "solicit- ing on company time." Inasmuch as Solter was not warned, reprimanded, or otherwise disciplined on the previous Friday when she actually solicited the signatures on the petition and because she was clearly not engaged in solicitation on the morning of her discharge and was in fact working, we are persuaded that the Respondent-Employer's real concern was not with Solter's negligible misuse of company time , but rather with the nature of the specific activity in which she was engaged. Thus, in the absence of a no-solicitation rule prohibiting the conduct complained of as well as a lack of evidence indicating any concern on the part of the Employer that working time was being inter- fered with when the solicitation actually occurred on Friday, the fact that Solter was allegedly discharged for soliciting on Monday when in fact she was working and not soliciting, while at the same time the three employees who violated a com- pany rule in order to remove their signatures from the antiunion petition were not disciplined, compels us to conclude that the operative reason for Solter's discharge was in fact her engagement in protected activities , namely the forming or organizing of a group of employees in opposition to the recognized Union, rather than the purported reason asserted by the Employer.3 For this reason and because the 3See, e.g., Talon, Inc., 170 NLRB 355; Taylor Instrument Companies, 165 NLRB 843; National Steel & Shipbuilding Corporation , 126 NLRB 900, 902, and Friend Lumber Company, 121 NLRB 62 SELWYN SHOE MFG . CORP. 677 Employer regularly permitted members and officers of the recognized Union to engage in union activi- ties during working hours, we find that- Solter's discharge violated Section 8(a)(3) and ( 1) of the Act. 4. The General Counsel excepts to the Trial Ex- aminer's failure to find a Section 8(a)(3) and (1) violation in the discharge of employee Craig. The General Counsel contends that employee Craig was laid off temporarily for a lack of work, but that when she attempted to have shop steward Solter in- tercede on her behalf, the layoff was made per- manent. Although , it is true that foreman Bentley had at first informed Carag through Floorlady Meredith that the layoff was to be temporary and later, and after Solter had interceded on Craig's be- half, issued the instruction , again through Meredith, that the layoff was permanent, the evidence sub- stantiates that Bentley had issued the first instruc- tion incorrectly . The Respondent 's industrial en- gineer, Bertrand , testified that he had determined that the hand taping job with which Craig was em- ployed was inefficient and he had directed the hand taping to be eliminated and the work transferred to another department . Bentley had been under the impression that Craig had merely run out of work, and had thus instructed Meredith that Craig be in- formed that she was temporarily laid off. Upon learning from superintendent Mize shortly thereafter that the elimination of the job from his department was permanent , Bentley issued instruc- tions through Meredith that Craig be informed that the layoff was permanent . It should also be noted that although shop steward Solter testified that Meredith had stated that the layoff was made per- manent because Craig had consulted Solter, Craig testified that Meredith had only informed her that the temporary layoff was now a permanent one. Thus, we agree with the Trial Examiner that there is substantial evidence to indicate that Craig's discharge was not transformed from a temporary to a permanent one solely because she consulted shop steward Solter , as the latter's discredited testimony seemed to imply . Rather we find that the layoff was in fact a permanent one, which initially had been inadvertently misinterpreted as a temporary one by Foreman Bentley. Accordingly, we find this excep- tion of the General Counsel to be without merit. THE REMEDY Having found that the Respondent-Employer en- gaged in unfair labor practices in violation of Sec- tion 8 ( a)(3) and ( 1) of the Act in addition to those violations found by the Trial Examiner, we shall order Respondent-Employer to cease and desist therefrom and take affirmative action necessary to .ffectuate the policies of the Act. Having found that the Employer unlawfully discharged Mildred Solter, we shall order that she be reinstated to her former or substantially equivalent position of employment, without preju- dice to her seniority or other rights and privileges, and be made whole for any loss of earnings suffered as a result of the Employer's unlawful conduct. Backpay for Solter shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Amended Conclusions of Law 1. Amend the Trial Examiner's third Conclusion of Law as follows: 3. By engaging in certain described conduct referred to hereinabove, in section III, B, hereof, the Respondent-Employer interfered with, restrained , and coerced its employee Earlene Rein- bold in the exercise of rights guaranteed to her in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. Add the following as the fifth Conclusion of Law: 5. By discharging Mildred Solter for discourag- ing membership in a labor organization , Respon- dent-Employer has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. Renumber the Trial Examiner's fifth, sixth, and seventh Conclusions of Law as numbers 6, 7, and 8, respectively. 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, as modified below, and hereby orders that the Respondent, Sel- wyn Shoe Manufacturing Corporation , Boonville, Missouri, its officers, agents, successors, and as- signs, and the Respondent Union, United Shoe Workers of America, Local No. 235, AFL-CIO, St. Louis, Missouri, its officers, agents, and representa- tives, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as herein modified. 1. Substitute the following for paragraph A, 1, (b), of the Trial Examiner's Recommended Order: 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "(b) Discharging or discriminating against em- ployees because of their activity in processing or discussing grievances under the collective-bargain- ing agreement or because they engage in activities which discourage membership in a labor organiza- tion." 2. Substitute the following for paragraph A, 2, (a), of the Trial Examiner's Recommended Order: "(a) Offer to reinstate Earlene Reinbold, Evelyn Craig, and Mildred Solter to employment with the Company, in the manner described in the portion of this Decision entitled `The Remedy' and make them whole in the manner described in `The Remedy' for any loss of earnings suffered by reason of the discrimination against them." 3. Substitute the following'for paragraph A, 2, (b), of the Trial Examiner's Recommended Order "(b) Notify the above-named employees, if presently 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." 4. Amend the first indented paragraph of Ap- pendix A to read as follows: WE WILL NOT discharge or in any other way discriminate against employees because they discuss or insist upon their grievances filed under the Union contract or because they en- gage in activities which discourage member- ship in a labor organization. 5. Amend the fourth indented paragraph of Ap- pendix A to read as follows: WE WILL offer immediate employment to Evelyn Craig and offer Earlene Reinbold and Mildred Solter their jobs back and give them backpay to make up for the wages they lost because we refused to give them work. 6. Add the following immediately below the signature line at the bottom of Appendix A to read as follows: NOTE: We will notify the above-named em- ployees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement, upon application, in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. IT IS HEREBY FURTHER ORDERED that the allega- tion appearing in paragraph 6(a) of the complaint which alleges that Mildred Solter was disciplined for engaging in union or other concerted activities be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION ARTHUR M . GOLDGERG , Trial Examiner : Pursuant to an order of the Director of the Board 's Region 17 a hearing was held in Boonville, Missouri, on September 18 through 21, 1967,' on the con- solidated amended complaint issued on July 28, al- leging that Selwyn Shoe Manufacturing Corpora- tion (herein called the Company or the Respon- dent-Employer ) violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended ( herein called the Act) and that United Shoe Workers of America, Local No. 235, AFL-CIO ( herein called the Shoe Workers or the Union ) violated Section 8(b)(1)(A) and (2) of the Act. Based on the amended charge filed on June 20,2 by Earlene Reinbold and Evelyn Craig in Case 17-CA-3170, the complaint alleged that the Com- pany had unlawfully discharged Craig on February 9 and Reinbold on February 27 and that the Com- pany had failed to reinstate Craig because she exer- cised rights guaranteed to her by the Act. On the amended charge filed on June 223 by Mildred Solter in Case 17-CA-3204 the complaint alleged that the Company unlawfully discharged her on March 20. Additionally, the complaint alleged that the Company had issued disciplinary reports to Solter because she had engaged in union activities and that the Company had stated Craig would be reinstated if she withdrew the charges she had filed with the Board. As to the Union, based on the amended charges filed by Reinbold in Case 17-CB-525 on June 19 and by Solter in Case 17-CB-532 on June 22,4 the complaint alleged that the Shoe Workers had failed to fairly and properly represent the three alleged discriminatees since the time of their discharges. Further, the Union was alleged ' to have violated Section 8(b)(1)(A) of the Act by advising Craig she could be reinstated to her job if she would drop the charges she had filed with the Board. fhe answers filed by the Company and the Union denied all of the material allegations of the com- plaint. All parties were represented at ana participated in the hearing in Boonville, Missouri. During the course of that hearing Solter was questioned by General Counsel about the contents of certain notebooks which were in her possession at the time of her discharge on March 20. She examined and had in her possession those notebooks during the course of direct examination . However, when coun- sel for the Union requested that those same notebooks be produced during his cross-examina- tion of Solter they were withheld from him despite Unless otherwise noted all dates herein were in 1967 ' The original charge was filed on March 3 ' The original charge was filed on April 10 The original charges filed against the Union were filed on the same days as the original charges against the Company SELWYN SHOE MFG. CORP. 679 issuance of a subpoena duces tecum . Various mo- tions were made during the course of hearing and after its close to strike all or part of Solter's testimony and to dismiss all or part of the com- plaint . 5 On December 17, I issued an Order To Show Cause why, in the event General Counsel did not offer to produce Solter and the notebooks to permit Respondents to cross-examine Solter, an order should not be entered striking all of Solter's testimony concerning the events of March 17 and March 20 and rejecting all exhibits received during such testimony. The effect of such an order would have been to strike all testimony by Solter necessa- ry to establish that her discharge had been in viola- tion of the Act. Following General Counsel's agree- ment to produce Solter and the notebooks the hear- ing was reopened on February 13, 1968, in St. Louis, Missoouri, to permit examination of Solter pursuant to the aforesaid Order To Show Cause. As a result of their participation in the original hearing on September 18 through 21 and the reopened hearing on February 13, 1968, all parties have been afforded full opportunity to be heard, to introduce evidence , to examine and cross-examine witnesses, to present oral argument , and to file briefs . Oral argument on the merits was waived, a brief was filed by General Counsel and various memorandums were filed by the Respondents in support of their motions to strike or to dismiss. Upon the entire record in the case, my reading of the General Counsel 's brief and the Respondents' memorandums and from my observation of the wit- nesses and their demeanor , I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The complaint alleged , the answers admitted, and I find that Selwyn Shoe Manufacturing Corpora- tion , an Illinois corporation , is engaged in the manufacture, sale, and distribution of shoes at its plant in Boonville , Missouri, which is the only facility involved in this proceeding. During a representative 12-month period the Company sold and shipped shoes valued in excess of $50,000 directly to customers located outside the State of Missouri and in the course and conduct of its busi- ness operations purchased goods and services valued in excess of $50,000 from points outside the State of Missouri. I find that the Company is, and has been at all times material herein; an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act and meets the Board's standards for the assertion of its jurisdiction. II. THE LABOR ORGANIZATION INVOLVED United Shoe Workers of America, Local No. 235, AFL-CIO, is, and has been at all times materi- al herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE A. Evelyn Craig 1. Discharge Evelyn "Judy" Craig was discharged by the Com- pany on February 9. Craig had returned to the Company as a new employee on about December 19, 1966, after having filed a new application on November 28, 1966. Some time before Craig had worked for the Company but had left voluntarily for family reasons. Prior to her discharge on February 9, Craig was employed in the prefitting department hand taping the toes and seams of shoes. While so employed she did not earn the Federal minimum wage on the basis of her piece- rate production and was being "made up" by the Company to the minimum wage. At the recommen- dation of Howard Bertrand, the Company's indus- trial engineer, hand taping was eliminated and the work was transferred to another department. Ac- cordingly, Wilson Bentley, foreman of the prefitting department, sent word by the floorlady, Meredith Arnold, that Craig was to be laid off temporarily. At about the same time , Charles Mize, the plant su- perintendent, advised Bentley that since the work was being transferred out of the department the layoff should have been made permanent. Bentley so advised Craig. Craig had not been employed the minimum 60 days required by the probationary period of the collective-bargaining agreement to secure to her the protection of the grievance procedures in the contract.6 Accordingly, she could not and did not file a grievance protesting her discharge.? Other than filing her charge of unfair labor practice Craig made no effort to secure reem- ployment with the Company. She had applied for membership in the Union pursuant to the 30-day ° Those motions were renewed at the reopened hearing on February 13, 1968. Ruling was reserved at that time . They are disposed of in accordance with my findings below. The collective -bargaining agreement provides as to probationary em- ployees If an employee has been in the continuous employment of the com- pany for a period of sixty ( 60) days or less, he shall have no seniority, such a period shall constitute a probationary period . During such orobationary period , such employee shall be considered a temporary employee only , and his employment may be terminated at will during this period, and is not a matter for consideration under Article XIII of this agreement Article 13 details the grievance procedures to be followed by the Company and Union 'The complaint alleged at paragraph 1 I, " . the Respondent-Union has failed and refused to fairly and properly represent [Craig) in the processing of [her] grievance "What grievance9 I shall recommend dismis- sal of this allegation Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, lBT (Interstate Air Service Corp.), 167 NLRB 135. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union-security clause of the contract. Other than that she had no contact with the Union. The complaint alleged that Craig had been discharged because she had "engaged in protected and concerted activities in connection with the Respondent-Union." There is not a scintilla of evidence to support this allegation and I shall recommend its dismissal.8 2. The refusal to rehire Craig filed her original charge against the Com- pany9 on March 3. Thereafter, in the latter part of March , Ruth Minor, the Union 's president, met with Plant Superintendent Charles Mize in the tat- ter's office . Mize brought up the subject of Craig. Minor had gone to the office on another matter. Mize said that he had a job on which he could use Craig if she would drop the charges she had filed with the Board against the Company. 10 During the evening of March 27 Minor and Annie Burks, the Union's secretary-treasurer, visited Craig's home . Minor explained what the term "permanent layoff" meant and then trans- mitted Mize's message that there was a job avail- able for Craig if she would drop her charge with the Board . Craig said that she would talk over the sug- gestion with her husband and let them know. The complaint alleged and I find that the Respondent-Employer violated Section 8 (a)(4) and (1) of the Act by conditioning Craig 's reemploy- ment upon her withdrawal of the unfair labor prac- tice charges she had theretofore filed. An em- ployer's refusal to rehire an employee because he has filed charges violates the Act . Dubin-Haskell Lining Corporation, 154 NLRB 641, 652-653, enfd. 375 F.2d 568 (C.A. 4). It is further alleged in the complaint that Section 8(b)(1)(A) of the Act was violated when Minor and Burks , union officials, transmitted Mize 's offer of reemployment conditioned upon Craig's relinquishing statutory rights . I shall recommend dismissal of this allegation of the complaint. Craig had not filed charges against the Union and it is clear from her testimony that Minor was acting only at Mize's behest and was serving as a conduit for the Company in delivering the message. B. Earlene Reinbold 1. Discharge Earlene Reinbold was hired by the Company in June 1964, and at the time of her discharge on February 27 was working in the prefitting depart- ment where Bentley was foreman and Solter was union shop steward . In January Reinbold had filed a grievance under the collective -bargaining agree- ment complaining that during Saturday overtime work had been assigned out of seniority . The union officials present at the meeting to discuss this grievance , Crane , the international representative, and Minor , the union president , concurred in the Company 's interpretation of the seniority provision and the grievance was not settled to the satisfaction of Reinbold and Solter. When she reported for work on February 27, Reinbold found that she had insufficient work to last the day and by 10 a.m. was completely out of work. Reinbold asked Floorlady Meredith Arnold if there was any other work which she could perform. Arnold referred Reinbold to Department Foreman Bentley. It was Bentley's testimony , which I credit, that Reinbold told him she was caught up on her work but would not clock out as long as Ola Mae Schrader, an employee with less seniority than Reinbold, was working . Bentley called for Plant Su- perintendent Mize. The ensuing conversation between Reinbold and Mize is dispositive of the allegation that Reinbold's discharge was violative of the Act . Bentley reported to Mize that Reinbold had refused to clock out because she had more seniority than others who were still working . Reinbold repeated to Mize her refusal to take a layoff while less senior workers were still employed . Mize told her to ring out and go home. She again refused and Mize told her there was no work for her to do, again Reinbold refused to leave. At this point Mize said to her: Where did you get the authority to run the fac- tory . It is not temporary, tomorrow or the next day. She went into a little storm , cussing around." Reinbold then called Mize a son -of-a-bitch and Mize walked off and left her. Reinbold testified that Mize had said she was discharged before she uttered the insult. Martha ' Mildred Solter , another of the alleged discrimmatees , attempted in her testimony to provide a nexus between Solter's union activity and Craig's permanent layoff Thus , it was Solter 's testimony that Craig 's layoff became permanent only after Solter , the shop steward, interceded on her behalf Further, Solter sought to connect Ruth Minor , the Union's pre- sident, with the discharge For reasons fully explicated in section III, C, of this Decision , wherein Solter's discharge is discussed, I do not credit Solter unless she is corroborated by a credited witness. Moreover , material aspects of Solter 's testimony concerning the Craig incident are con- troverted by Wilson Bentley , foreman of the prefitting department, a cler- gyman , and a totally credible witness. ' Case 17-CA-3170 1s This account of the meeting in Mize 's office is based on Minor's credited testimony. Mize denied telling Minor that he had a job for Craig if she would drop her charges. He first testified that he had no discussions concerning Craig after receiving a copy of her charge filed with the Board He then testified to a discussion with Minor in which he had stated that he knew Craig needed a job, basing this knowledge on the belief that everybody needs a job Finally Mize recalled a conversation with Gerald Crane, union representative , in which, Mize claimed, Crane suggested that Craig might withdraw her charge if she was spoken to. I do not know which of Mize 's accounts I should believe . I discredit his testimony on this point. 11 This is a direct quotation from Mize 's testimony in this proceeding SELWYN SHOE MFG CORP. 681 Perkins, who is still in the Company 's employ and who was working nearby corroborated Reinbold. Bentley, who as I have earlier noted was a credible witness, testified that he did not recall Mize discharging Reinbold before her use of the exple- tive . However, I find that Mize 's testimony quoted above can only mean that he had discharged her, telling her to leave and that "it is not temporary, tomorrow or the next day." Accordingly , I find that Mize had discharged Reinbold before her unfortu- nate choice of language. In any event , I would not find that Reinbold's language had removed her from the Act's protec- tion which cloaks an employee 's assertion of rights under a collective-bargaining agreement , even if the claim is urged in a manner offensive to the em- ployer. Dr. J. C. Campbell, Dentist, et at., 157 NLRB 1004. Article XIII of the collective-bargaining agree- ment entitled Grievances provides at section 2: If any controversy, claim , dispute, or grievance arises between the Company and the Union , or the Company and any of its em- ployees covered hereunder, in regard to questions of operation of the factory or the ap- plication or construction of any provision of this Agreement, there shall be no stoppage of work with respect to the same, but it shall be settled in the following manner, by negotiation: (a) It shall first be presented by the ag- grieved employee or the shop steward to the foreman of the department involved, within three ( 3) days from date of occurrence. Accordingly, Reinbold was following the grievance procedure of the contract when she protested, first to Arnold and then to Bentley, the necessity of going home for lack of work. And it was in the context of the contractual grievance procedure, that Mize angrily discharged Reinbold when her insistence upon the grievance exceeded his patience. Thus, the discharge interfered with Reinbold's Section 7 right to present grievances and violated Section 8(a)(1) of the Act. Trailmobile Division , Pullman Incorporated, 168 NLRB 230; Thor Power Tool Company , 148 NLRB 1379, enfd. 351 F.2d 584 (C.A. 7). Following her confrontation with Mize, Reinbold left the factory , without clocking out, to seek the aid of Shop Steward Solter who was not at work that day. Reinbold preferred to turn to Solter, who lived two blocks from the factory , rather than speak to the Union 's president or secretary-treasurer who were at work that day. While Reinbold was out of the plant, Bentley, who at that time as when he testified in this proceeding was unaware that Reinbold had already been discharged, told Union President Minor of the incident. Minor, whose understanding of the shared work provision of the contract was different from that of Reinbold, offered to examine Reinbold's work record for the year and then to explain to the disgruntled employee her error in applying the seniority clause to her own situation. Minor checked the payroll records but when Reinbold was sent for so that her contractual rights could be ex- plained to her, it was discovered that she was not in the factory although her timecard was still in the rack. Shortly thereafter Reinbold returned to the plant and was told by Mize with finality that she was discharged not only for her uncomplimentary reference to him but because she had left the plant without clocking out. Reinbold filed a written grievance protesting her discharge which was discussed at a meeting the following day with Mize, Union Representative Crane, Minor, Solter, and Reinbold present. Despite Crane's best efforts to secure Reinbold's reinstatement, including his suggestion that Rein- bold make a public apology for her unfortunate choice of words and his efforts to mollify Mize's ruffled feelings by assuring him that the Union would take a dim view of a supervisor addressing an employee in the way Reinbold had spoken to the plant superintendent, the discharge stood. In view of my finding that Mize had discharged Reinbold during the course of their first conversa- tion, her subsequent failure to clock out before leaving the plant cannot legitimatize the discharge. Having first discharged Reinbold for her vigorous presentation of a grievance under the contract, a right protected by the Act, the Company cannot save itself from a reinstatement and make-whole remedy by virtue of her subsequent violation of a plant rule.12 2. The Union's refusal to process Reinbold's grievance Following his failure to secure Reinbold's rein- statement at the grievance meeting on February 28, Crane suggested that the next step would be ar- bitration. He suggested that the matter be referred to the Union's executive board which was em- powered to invoke the arbitration procedures under the contract. The next meeting of the executive board was scheduled for Monday, March 6. On Friday, March 3, Union President Minor met in the plant with the members of the executive board, explained to them that arbitration of Rein- bold's grievance would be on the agenda of the next executive board meeting, and gave them the "Having found that the Company 's discharge of Reinhold for her presentation of grievance violated Section 8(a)( I ), and since the remedy for a violation of Section 8(a)(3) would be the same, I find it unnecessary to decide whether the Company 's conduct was also violative of Section 8(a)(3) and shall recommend dismissal of the complaint insofar as it al- leges the Comoany violated the latter section of the Act. Gibbs Corporation, 124 NLRB 1320, 1321 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD facts of the case so that they would be in a position to pass on the matter the following Monday. That same day Reinbold filed unfair labor practice charges against both the Company and the Union. Reinbold and Solter , along with prospective wit- nesses for the arbitration , appeared at the executive board meeting on Monday , March 6. Rather than proceed immediately to arbitration , the executive board decided to refer the matter to Company Pre- sident Tober in an effort to secure Reinbold's rein- statement without resorting to arbitration. Reinbold agreed to this procedure. However , the following morning , March 7, Minor received a copy of Rein- bold's charge against the Union and determined to take no further action on Reinbold's grievance while her charge was pending with the Board. In June, various union officers met with Tober in St. Louis and informed him that the Union was keep- ing Reinbold 's grievance open until after a Board decision on the charge. The complaint alleged and I find that the Union has failed to fairly and properly represent Reinbold in the processing of her grievance because she had filed charges against it under the Act . By refusing to process her grievance because Reinbold had sought to invoke the Board processes , the Union violated Section 8(b)(1)(A) of the Act. W. J. Graham , et al., d/b/a Graham Engineering, 164 NLRB 679. The fact that I have found above that Reinbold's discharge was violative of the Act and shall recom- mend an order reinstating her to her former posi- tion does not make the Union 's refusal to process her grievance after her charge was filed any less violative of the Act. Neither does the fact that, to that point in time when the Union suspended action on her complaint, there was no apparent failure on its part to properly represent her, exculpate the Union from the violation found here . Employees, whether right or wrong, have the right to invoke the processes of the Board . To deny to them the Union's good offices in the protection of rights under a collective -bargaining agreement because they have turned to the Board as well will naturally not only inhibit those employees who have resorted to the Act's protection but will interdict as well other employees who may learn of the Union's con- duct. Cf. Locall38, International Union of Operat- ing Engineers (Charles S. Skura), 148 NLRB 679; H. B. Roberts of Local 925, Operating Engineers v. N.L.R.B., 350 F. 2d 427 (C.A.D.C.). C. Mildred Solter 1. Background Mildred Solter was hired by the Company in Au- gust 1962, and discharged on March 20, 1967. For a number of years Solter served as shop steward in the prefitting department. Solter ran for the office of union president on two occasions , losing the first time by a vote of 43 to 13 and failing by a closer margin in the second vote in June 1966. When the Company and Union negotiated terms for a new collective-bargaining agreement in December 1966, the proposed contract was presented to the em- ployees for their approval on two questions, first the collective agreement itself and second a proposed insurance program . The basic agreement was adopted unanimously and Solter cast the only vote against the insurance program. As earlier noted , Solter, as shop steward, had assisted Reinbold in processing her grievance con- cerning the distribution of work during Saturday overtime . A meeting between company and union representatives on that grievance was held on January 23 . During that session Solter challenged the union officials to present their views on job bumping to the membership of the local. The fol- lowing day, January 24, Solter was handed a writ- ten warning for "Improper Conduct" by Bentley, foreman in the prefitting department. The warning itself read: She seems to have become indifferent to her work in the department , and that she does not seem to think that her skiving job is as impor- tant as her Shop Stewart [sic] duties , in other words, she is not putting forth her best effort to come up with other Skiver's [sic ] on the job. She also stays away from her job too much. Solter refused to accept the warning and returned it to Bentley. Following Craig's discharge Solter accused Union President Minor of being responsible for Craig's permanent termination . In a confrontation at which other employees as well as management personnel were present, Minor denied the charge and chal- lenged Solter's motives in making the accusation. Solter accompanied Craig and Reinbold to the Board 's Regional Office in Kansas City, Missouri, when Craig filed her charge against the Company and Reinbold initiated her cases against both Com- pany and Union. On March 10, while on layoff status, Solter was in the plant to perform certain work associated with her job steward duties . Customarily stewards are compensated for such work by remission of the dues requirement. On this occasion Plant Superin- tendent Mize instructed Solter to clock in so that her time could be recorded for payment by the Union. Sometime later Mize returned with Union President Minor and Department Foreman Bentley and Solter was told that the instructions to clock in had been given in error and that her only compen- sation for the time she spent on union business would be the refund of her union dues . Bentley cor- rected her timecard and shortly thereafter handed to Solter the same written warning she had received and refused in January . Bentley testified that he had given the warning to Solter at Mize's direction. As in the case of Reinbold 's discharge , I find that the written warnings were an expression of Mize's SELWYN SHOE MFG. CORP. 683 displeasure with a vigorous assertion of contract rights and his own insecurity in his new role of deal- ing with personnel problems. Thus, his reaction to Reinbold's invective was out of proportion to the provocation and the reissuance of the warning fol- lowed his publicly corrected error in telling Solter to clock in while on union business. In any event, by its very terms, the written warning interfered with Solter's exercise of her right to engage in pro- tected concerted activity and violated Section 8(a)(1) of the Act. 2. The events of March 17 On Friday, March 17, Solter solicited signatures in the plant for. a petition she had prepared to ex- press dissatisfaction with the Shoe Workers. The petition was actually a handwritten paragraph head- ing a sheet of paper in a spiral bound notebook such as is used by students. The petition read: Anyone in favor of getting the present Union out and a good one in here, please sign below: A total of 26 persons, including Solter, signed in support of the petition. All but one, Martha Per- kins, signed in the plant on March 17. Although Solter visited some members at their homes on the following Sunday, she was unable to secure any ad- ditional signatures. At issue herein is the time of day when Solter sol- icited and obtained the signatures to her petition. General Counsel argues that this was done during her lunch period. The Company contends that Solter secured the employee signatures during working time in the afternoon and that she was away from her work station for a considerable period of time for that purpose. In support of its position the Company called to the stand six presently employed employees who all testified that they had signed the petition in the restroom between 2 and 3 p.m. that afternoon. Most had gone to the restroom for a midafternoon smoke and there had been accosted by Solter who asked them to read and sign her book. One of the, employees, Billie Birdsong, had left her work place and gone to the restroom for the express purpose of signing the petition after being told about Solter's activities by a fellow employee. Clara Horst, who was not counted among the 26 signers, first affixed her signature and then, after talking to Plant Su- perintendent Mize about the petition, returned to the restroom and removed her name. To counter this testimony that Solter had promoted her petition during working time, General Counsel relied on Solter's own denials and the testimony of Kenneth Schmidt, a former em- ployee of the Company. Schmidt, whose name ap- pears third from the last among those who signed, testified that he had affixed his signature several minutes before the end of the lunch break. If credited, Schmidt would corroborate Solter's claim that all but Martha Perkins signed during the lunch period, although Solter admitted the last may have been signing when the whistle blew to signify that the lunch hour was ended. Schmidt's signature ap- pears on the petition immediately below that of Helen Finn. Of all those who offered evidence as to the time of the events in question, Finn most im- pressed me during her appearance as a witness. Finn was subjected to a long examination in which I joined because, feeling from her appearance that she was a reliable witness, I wished to test that im- pression. I am satisfied that Finn was honestly relat- ing the events as she recalled them and I credit her claim to have signed the petition between the hours of 2 and 3 in the afternoon of March 17. Ac- cordingly, I do not credit Schmidt's assertion that he had been solicited by Solter during the lunch period and I find that she sought signatures for her petition during working time. In reaching this conclusion I am not unmindful of record testimony that at the time of the events herein employees were permitted to leave their work stations during the afternoon for a smoke or rest period. However, the evidence supports a find- ing that the time Solter spent in the restroom so- liciting these signatures far exceeded the normal period employees took for such -a break. Thus, the time she spent garnering support for her petition impinged upon her working time. In addition, I have not overlooked Foreman Bentley's testimony that he did not see an unusual number of em- ployees going to the restroom on March 17 and his belief that he would have noticed had Solter been away from her work station for an unusual length of time. Certainly, as to the employees who testified, it appears that they worked not in Bentley's prefitting department but in the fitting department supervised by Foreman Benton. Bentley would not have been in a position to observe the conduct of such em- ployees. As to Solter being away from her own work station, Bentley's testimony was only that he thought he would have observed her absence, not an affirmative statement that he saw her at her machine so as to overcome the contrary evidence that she had been in the restroom for a substantial period of working time seeking employee signa- tures. 3. Solter's credibility As earlier noted, Solter had refused during cross- examination to produce certain notebooks for ex- amination by Respondents. The petition had been in one of these notebooks during the time Solter was soliciting signatures and the book was on her workbench, to one side of her machine, when she was discharged on March 20. The other notebook, which Solter referred to as her steward's book, had also been on her workbench during the events of March 20. Both books had been shown to Solter during General Counsel's direct examination and she had identified them and her testimony involved 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD references to their contents. Counsel for the Shoe Workers sought to examine the notebooks during his cross-examination of Solter . Although a sub- poena duces tecum requiring production of the books was issued , they were not forthcoming. Despite her refusal to honor the subpena, I draw no inferences unfavorable to Solter from this incident because she was apparently acting upon the advice of General Counsel. However, the Respondents urged that all or part of her testimony be stricken and all or part of the consolidated complaints be dismissed because they had been denied the oppor- tunity to cross-examine fully. At that time I did not grant those motions. Following the close of hearing those motions were renewed. In an abundance of caution I deter- mined that the hearing should be reopened to af- ford Respondents the opportunity to examine the books and further examine Solter. My Order To Show Cause, initiating the reopened hearing , issued on December 14. On December 18, General Coun- sel responded , agreeing to make Solter and the notebooks available for examination . Solter received a copy of General Counsel's response which was mailed to her by registered mail on December 18. At the reopened hearing in St. Louis on February 13, 1968 , the notebooks , which had been in Solter's possession at all times since the close of the original hearing on September 21, were produced for ex- amination by Respondents' counsel. Thereafter she was examined . In the course of that examination Solter acknowledged that at some time between the close of the initial hearing and the reopened hear- ing on February 13, 1968, she had added material to the second notebook which she referred to as her steward's book. This added material appeared to be a contemporaneous entry of the events con- cerning her own case and those of Craig and Rein- bold as those matters had developed and about which she had testified at the initial hearing . Solter did not volunteer the information that she had added this material to the notebook. I then questioned Solter as to when she had made the ad- ditions to the book. Being sure that Solter would be able to use the Christmas period in 1967 as a divid- ing point for the placing of events , and being sure that by Christmas she had received General Coun- sel's response to my Order To Show Cause and thus have been on notice that the books were to be shown to the Respondents and again be before the Board, I asked whether she could recall whether the additions had been made after Christmas. To this Solter replied, "Yes, I believe so." However, " Solter claimed that during this conversation Mize asked why she had not worked on Saturday and she explained that she had been ill and had called to say that she would not be in . Then, Solter testified , Mize said the Company would rid itself of people who are sick and get others in who could work . Mize said, she claimed , " We are just going to get rid of some of the people in here ." In the absence of corroboration , I do not credit this testimony by Solter when General Counsel showed Solter the copy of his response to Trial Examiner's Order To Show Cause, she was emphatic that she had not added to the notebook after receiving her copy of that docu- ment. It appeared as she testified that when the tim- ing was related to Christmas, Solter was attempting to recall the events as they occurred. However, sight of the response to the Order To Show Cause was a red flag alerting her to the significance of timing and she was quick to deny adding to the contents of her steward's book after being put on notice that the books would come into evidence. I can only conclude from her manner of answering that she added to the contents of the notebook after being alerted to the fact that the hearing would be reopened and the notebooks made avail- able to the Respondents. Thus, the "doctored" notes would serve to buttress the testimony she had previously given. I can hardly credit a witness who I find was prepared to manufacture evidence to support her case. 4. The events of March 20 During the morning of Monday, March 20, five employees who had signed Solter's petition the preceding Friday, came to her work station and removed their names . Plant Superintendent Mize observed the incident and thereafter discharged Solter. Solter had been scheduled to work on Saturday, March 18, but on a plea of illness she did not re- port. On Sunday she made a number of unsuccess- ful visits to employee homes seeking additional signatures for her petition. When Solter came to work on Monday she found on the bulletin board a job posting notice, dated the preceding Friday and signed by Annie Burks, the Union's secretary-trea- surer. Solter complained to Mize that such a notice should be signed by the steward, in this case Solter. Mize explained that the date was an error , changed the date to that of Saturday, when Solter had been absent and reposted the notice.13 During the morning of March 20, Cramer and Baker, who had signed Solter's petition on Friday, came to Howard Bertrand, Selwyn's industrial en- gineer, and asked what he thought they should do about the petition. Bertrand refused to comment on the matter, explaining that he was a company representative. However, Bertrand reported the in- cident to Mize. Bertrand told the plant superinten- dent that he had refused to advise the employees about what course they should follow in reference to the petition and further told Mize that they had told him they had signed during working hours.14 1' The two employees involved did not mention Bertrand in their testimony. Baker testified that she had not discussed the petition before removing her name though she had overheard a conversation between Cramer and another employee about the document Cramer denied discussing the matter with anyone other than fellow employee, Hilda Wind- sor, the conversation overheard by Baker I do not credit the employees' denial that they had discussed the petition SELWYN SHOE MFG. CORP. As a result of his conversation with Horst , Mize al- ready knew that Solter had been soliciting signa- tures for her petition on Friday. Mize observed three of the employees as they went from the fitting department to Solter's work station in the prefitting department . There Mize heard one of the employees ask Solter for the peti- tion so that she could erase her name . Mize asked the employee what the petition was and she told him its nature. The plant superintendent then told Solter that she knew "petitioning" on company time was not allowed. Solter denied "petitioning" on company time, explaining that she was merely writing down the case numbers of the shoes on which she was working .'5 Mize expressed doubt that Solter had been entering her case numbers and the employees had then erased her entries. He ther told Solter to collect her things and come Witt him.16 Mize then sent for Burks, the Union's secretary- treasurer, and announced that Solter was fired for petitioning on company time. Solter protested that she had not done anything to warrant her being discharged , explaining to Burks that she had merely been entering her case numbers . Mize again asked if the employees had been erasing Solter's case numbers, Burks asked Solter about the paper in- volved , but Solter refused to show the alleged entry of case numbers. Bertrand who was present re- called that Burks asked Solter if she wished to file a grievance but Solter rejected the offer. Solter then left the plant.17 I have already found that Solter solicited signa- tures for her petition during working hours and ab- sented herself from her work for a considerable period of time while so engaged . Mize knew of this activity and personally observed its further effect on working time when other employees from another department came to Solter in connection with the petition during working hours . Then when Mize sought an explanation from Solter for the em- ployees being at her work station and her own inat- tention to her duties she gave a dishonest answer, in effect failing to take advantage of an opportunity to explain that the loss of working time on March 20, while flowing from her petition , had not been in- itiated by her. Thus, Mize reasonably acted on the facts then known to him that Solter was again inter- fering with production, not only her own but that of others, as she had done on March 17 . I find that '" The "stewards" notebook, introduced into evidence at the reopened hearing on February 13, 1968 , contains at two points what appear to be en- tries of case numbers . However, there are no dates of entry shown with either notation 1e Solter 's version of this incident is substantially akin to Mize's other than her claim that in response to his question about what she was doing when the other employees came to her in the prefitting department, she had replied, " I am doing what I was told to do this morning " Whether she replied as Mize claimed , or her response was as she testified, it was an eva- sive answer. 685 Solter's discharge was occasioned by her conduct which impinged upon working time, although in another context that conduct would have been pro- tected . Mitchell Transport, Inc., 152 NLRB 122, set aside, sub nom. CharlesL . Hawkins v . N.L.R.B., 358 F.2d 281. 5. Solter's failure to grieve The regularly scheduled monthly meeting of the Union was held the evening of March 20. Solter at- tended and though she inquired about a withdrawal from the Union for Reinbold , she did not discuss her own discharge with any of the union officials present. Thereafter Solter wrote out on a pad of grievance forms at her home a grievance protesting her discharge but never filed that grievance or any grievance concerning her discharge with either the Union or the Company . As to discharges , the col- lective-bargaining agreement provides: ARTICLE XIII GRIEVANCES Section 3. If any member of the permanent crew be discharged for cause , the Company shall show such cause upon written request of the Union, provided such request is made in writing seven ( 7) calendar days after the date of such discharge , and if not so made, there shall be no further liability on the part of the Company with respect thereto . Grievances per- taining to discharge will not be considered if not so requested in writing within seven (7) calendar days after the particular discharge. On April 7 Solter sought permission to attend a meeting of the Union 's executive board to present her case to that body. Such permission was denied because in the absence of a grievance filed within the 7-day limit of the contract Solter had been dropped as a member pursuant to the regular procedure of the Union since she no longer met the membership requirement of being an "employed worker within the jurisdiction of [the] union. "Is The complaint alleged that the Union "has failed and refused to fairly and properly represent " This account of the actual discharge is based on a synthesis of the testimony of Mize, Bertrand, and Burks , which I credit Solter , whom I do not credit , claimed that after Mize said she was fired, there was a silence which she broke by asking Burks to help her, that Burks finally asked about Solter's petition to oust the Union, and that Solter had left after noting Burks' refusal to assist her and saying that the contents of her book was "none of [Burks'] business ." Further, Solter claimed that Mize had not stated a reason for her discharge and that she learned the reason only when she wrote for an explanation some time later 18 Article IV, section 1, of "By-Laws , United Shoe Workers of America AFL-CIO-CLC, Local 235, Boonville , Missouri " 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [Solter] in the processing of [her] grievances." However, Solter never filed a grievance though she well knew the procedure required by the collective- bargaining agreement . I shall recommend dismissal of this allegation of the complaint . Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBT (Interstate Air Service Corp.), 167 NLRB 135. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in sec- tion III, above, occurring in connection with the in- terstate operations of the Company described in section I, above, have a close , intimate , and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Company en- gaged in unfair labor practices in violation of Sec- tion 8(a)(1) of the Act and that the Respondent Union engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I shall recom- mend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company unlawfully discharged Earlene Reinbold , I shall recommend that it be ordered to reinstate her to her former or a substantially equivalent position of employment, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of earnings suffered as a result of the Company's unlawful conduct . In the case of Evelyn Craig I have found that the Company conditioned her reemployment upon her dropping charges under the Act which she had filed against it. To remedy this violation I shall recommend that the Company be ordered to offer Craig employment on a job for which her former employment qualifies her and to make her whole for any loss of earnings suffered since March 27, 1967, as a result of the Company's unlawful conduct. Backpay for Craig and Reinbold shall be computed in the manner set forth in F.W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumb- ing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Selwyn Shoe Manufacturing Corporation is an employer within the meaning of the Act. 2. United Shoe Workers of America, Local No. 235, AFL-CIO, is a labor organization within the meaning of the Act. 3. By engaging in certain described conduct referred to hereinabove , in section III , A, B, and C, hereof, the Respondent Employer interfered with, restrained , and coerced its employees in the exer- cise of rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By engaging in the conduct described in sec- tion III , A, 2, above, Respondent Employer dis- criminated against Evelyn Craig because she filed charges under the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 5. By refusing to process Earlene Reinbold's grievance because she filed charges under the Act, as described in section III, B, 2, above, the Respon- dent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. The Respondent Employer and the Respon- dent Union have not committed other unfair labor practices as alleged in the complaint. RECOMMENDED ORDER A. The Respondent Employer, Selwyn Shoe Manufacturing Corporation , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging the filing of unfair labor prac- tice charges with the National Labor Relations Board, by refusing to reemploy, or otherwise dis- criminating in regard to hire or tenure of employ- ment or any terms or conditions of employment of, any of its employees. (b) Discriminating against employees because of their activity in processing or discussing grievances under the collective-bargaining agreement. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed by the Act. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act: (a) Offer to reinstate Earlene Reinbold and Eve- lyn Craig to employment with the Company, in the manner described in the portion of this Decision entitled "The Remedy" and make them whole in the manner described in "The Remedy" for any loss of earnings suffered by reason of the dis- crimination against them. (b) Expunge from its records the disciplinary warnings issued to Mildred Solter. (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 and com- DECISIONS OF NATIONAL LABOR RELATIONS BOARD pute the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant in Boonville, Missouri, co- pies of the attached notice marked "Appendix A."19 Copies of the said notice, on forms provided by the Regional Director for Region 17, shall be posted by the Respondent Employer, after being signed by its representative, immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to insure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply therewith.20 B. The Respondent Union, United Shoe Workers of America, Local No. 235, AFL-CIO, its officers, representatives, and agents, shall: 1. Cease and desist from refusing to process grievances of employees because they have filed charges with the Board under the Act. 2. Take the following affirmative action necessa- ry to effectuate the policies of the Act. (a) Post at its regular place of business and regu- lar meeting place copies of the attached notice marked "Appendix B. '21 Copies of the said notice, on forms provided by the Regional Director for Re- gion 17, shall be posted by the Respondent Union, after being signed by its representative, immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by other material. (b) Mail to the Regional Director for Region 17 signed copies of the aforesaid notice for posting on the premises of the Company if it be willing to so post. Copies of said notice, to be furnished by the Regional Director, after being duly signed by Respondent Union as stated above, shall be forthwith returned to said Regional Director for transmittal to the Company. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this 1B 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." R0 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- " Notify the Regional Director for Region 17, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith 21 See fn . 19, supra 687 Decision, what steps it has taken to comply therewith.22 IT IF FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. 22 See fn 20, supra APPENDIX A 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 National labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge or in any other way discriminate against employees because they discuss or insist upon their grievances filed under the union contract. WE WILL NOT refuse to reemploy, or in any other way discriminate against, employees because they file charges with the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with the rights of our employees under the law, or force them to give up any of their rights under the law. WE WILL offer immediate employment to Evelyn Craig and offer Earlene Reinbold her job back and give them backpay to make up for the wages they lost because we refused to give them work. SELWYN SHOE MANUFACTURING CORPORATION (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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 directly with the Board's Regional Office, 610 Federal Building, 601 E. 12th Street, Kansas City, Missouri 64106, Telephone 374-5282. APPENDIX B To All Members of United Shoe Workers of Amer- ica, Local 235, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT refuse to process grievances of employees who have filed charges with the Na- tional Labor Relations Board. WE WILL NOT in any similar manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. UNITED SHOE WORKERS OF AMERICA , LOCAL No. 235, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered , defaced, or covered by any other material. If members have any questions concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 E. 12th Street, Kansas City, Missouri 64106, Telephone 374- 5282.