Aerovox Corp. of Myrtle Beach

AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1011 Aerovox Corporation of Myrtle Beach, South Carolina and International Brotherhood of Elec- trical Workers, AFL-CIO, Local Union No. 382. Cases 11-CA-3214, 11-CA-3271, 11-CA-3286. 11-CA-3305, 11-CA-3337, 1 1-CA-3378, I 1-CA-3403, and 1 1-CA-3407 July 8, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 27, 1968, Trial Examiner Josephine H Klein issued her Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. She further found that Respon- dent had not engaged in certain other unfair labor practices and recommended that such allegations be dismissed. Thereafter, the Respondent filed ex- ceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, as modified herein.' 1. We do not agree with the Trial Examiner's finding that Respondent discharged Robert Grimm in violation of Section 8(a)(3) of the Act. Grimm, a known union adherent, had been em- ployed by Respondent for approximately 2 years before his discharge. He was a machine operator on the third shift. At the time in question, there was no regularly assigned foreman for this shift. Kenneth Johnson, second-shift foreman, stayed over for from 2 to 5 hours on the third shift, and Karl Allen, first-shift foreman, who had general supervisory authority over all three shifts, came in for a few hours before the beginning of the first shift. As found by the Trial Examiner, employees on the third shift did not like Johnson and were reluctant to recognize him as their foreman. Grimm admitted that a short while before he was discharged he and another employee had refused to obey Johnson's order to clean a machine because Allen had not told them to do so. Other employees testified that Johnson "was on them" from the beginning of his practice of staying on after the end of the second shift. Johnson himself testified that within a few days after he began to exercise supervision of the third shift he criticized the workers for making ex- cessive scrap. It is obvious that there was bad feel- ing between Johnson and the employees on the third shift which had nothing to do with the Union's organizing drive. While working on August 11, 1967, Grimm left his machine to go to the water fountain. On his return he stopped talk with a fellow employee, an infraction of plant rules. Johnson observed the in- cident and reprimanded Grimm. An argument en- sued between the two men during which Grimm used profanity to Johnson. Thereupon, the latter suspended Grimm and ordered him to leave the premises. Grimm refused and sought to telephone Allen. Finally, Johnson called a plant guard who escorted Grimm from the premises. When Allen ar- rived later in the day, he discharged Grimm. The Trial Examiner found, in substance, that the assigned reason for Grimm's discharge was a pre- text and that the real reason was Grimm's union ac- tivity. Contrary to the Trial Examiner, we are not satisfied that the General Counsel has proved the pretext theory by a preponderance of the evidence. As is apparent, the employees, including Grimm, for some time had resented Johnson as a super- visor, and Johnson in turn criticized the employees. When Grimm flouted Johnson's authority on Au- gust 11, and cursed him, Johnson reacted in a not unusual manner by suspending him Grimm still re- sisted Johnson and had to be escorted from the plant by a guard When Foreman Allen, who was in charge of all three shifts and thus superior to John- son, reported for work he sustained Johnson by discharging Grimm. It seems to us that Grimm was guilty of a serious act of insubordination toward Johnson and that he was discharged for that reason. The mere fact that an employee is known by his employer to be an active union adherent does not immunize him from legitimate disciplinary action.2 There is no evidence that Respondent tolerated in other employees acts of insubordination similar to that for which Grimm was discharged, and there- fore there is no basis for finding disparate treat- ' As the Regional Director did not resolve the employee status of Mishoe or Hucks in the representation case, we find it unnecessary to consider the Trial Examiner 's views on relitigability ' Murray Ohio Manufacturing Co , 128 NLRB 184 172 NLRB No. 97 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. Under the circumstances, we find that the General Counsel has not proved that Respondent discharged Grimm for a discriminatory reason and we shall dismiss the complaint as to Grimm. 2. We agree with the Trial Examiner's finding that Respondent's letter of February 3 was violative of Section 8(a)(1). The letter stated, "Remember the Union cannot guarantee present benefits to continue under a union contract. Bargaining starts from scratch," and went on to state that a strike was the only recourse against an "unwilling" em- ployer. The tone of the letter left little doubt but that Respondent would be such an "unwilling" em- ployer. In the context of the other substantial unfair labor practices committed by Respondent, we find that the letter was calculated to imply a threat of reprisal should the employees select the Union and was also intended to make the employees realize the futility of electing a union; it was thus coercive.3 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 below4 and hereby orders that the Respondent, Aerovox Corporation of Myrtle Beach, South Carolina, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order, as so modified. i Astronautics Corporation of America, 164 NLRB 623 ' We hereby delete the name of Robert J Grimm wherever it appears in the Trial Examiner's Recommended Order and in the notice TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN , Trial Examiner : Pursuant to charges filed by International Brotherhood of Elec- trical Workers, AFL-CIO ( the Union), against Aerovox Corporation of Myrtle Beach, South Carolina (Respondent ), on January 6 (11-CA-3214), March 20 (11-CA-3271), and April 6 (11-CA-3286), a complaint and an amended consolidated complaint were issued on February 20 and April 24, 1967,1 respectively. A hearing was held thereon in Myrtle Beach, South Carolina, on May 9 and 10. Additional charges were filed on May 4 (1 1-CA-3305 ), June 12 (I1-CA-3337), and June 16 (11-CA-3378), upon which a second consolidated complaint was issued on June 21 . The General Counsel then moved to reopen the record of the hearing on the original consolidated complaint and to consolidate the latter consolidated complaint for further hearing. Over Respondent's objections , the General Coun- sel's motion was granted and further hearings were held on August 8, 9, and 10. On September 18, be- fore the Trial Examiner had issued a decision, an additional complaint was issued based on charges filed on June 9 (11-CA-3403) and August 16 (1 1-CA-3407). On motion of the General Counsel, the record was again reopened, over Respondent's objections, and the new complaint consolidated with those previously heard. Further hearing was held on October 31. At all the hearings all parties were afforded an opportunity to be heard, to examine and cross-ex- amine witnesses, and to present documentary and other evidence. The parties waived oral argument, but the General Counsel and Respondent have each filed two briefs. Upon the entire record, from ob- servation of the witnesses, and on consideration of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTIONAL FINDINGS A The complaints allege, Respondent admits, and the Trial Examiner finds that Respondent, a South Carolina corporation, is, and at all material times has been, engaged in the manufacture of capacitors and other electrical equipment at its plant in Myrtle Beach, South Carolina. During a representative 12-month period Respondent manu- factured, sold, and shipped from its Myrtle Beach plant finished products valued in excess of $50,000 to points directly outside South Carolina. Respon- dent is now, and has been at all material times, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.' B. The complaints allege, Respondent admits, and the Trial Examiner finds that the Union is, and at all time material herein has been, a labor or- ganization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES CHRONOLOGY Early in November 1966 Respondent's main- tenance employees, as a group, requested improved benefits from Respondent's management. Receiving no satisfactory answer to their requests, the em- ployees called in the Union, which commenced an organizing campaign among the maintenance em- ployees early in December. On December 6, 1966, the Union made a bargaining demand and filed a representation petition. After vigorous campaigns :)y both the Union and Respondent, the Union won an election and on February 24 was certified as the representative of the maintenance employees at Unless otherwise stated , all dates herein are in 1967 National Labor Relations Act, as amended , 29 U S C 151, et seq AEROVOX CORPORATION OF MYRTLE BEACH, S.C. Respondent's Myrtle Beach plant. Case I 1-RC-2472.3 The Union thereupon extended its organizational activity to the production employees. A representa- tion petition was filed and, pursuant to a Decision and Direction of Election issued by the Regional Director, an election was held on July 27. Case I1-RC-2539. On November 16, after the close of the last hearing in the present proceeding, the Re- gional Director issued his decision on certain chal- lenged ballots and certified the Union as bargaining agent for the production workers. On January 8, 1968, the Board denied Respondent's request for review.4 The first hearing in the present consolidated proceeding in May (11-CA-3214, 3271, and 3286) involved alleged acts of interference and dis- crimination by Respondent in the course of the campaign among the maintenance employees. The hearings in August (1 I-CA-3305, 3337, and 3378) concerned alleged acts of interference and dis- crimination in connection with the preelection campaign among the production employees. The hearing on October 31 (1 1-CA-3403 and 3407) in- volved the alleged discriminatory discharge of two employees after the close of the August hearing in the present case. A. Alleged Violations of Section 8(a)(1) 1. The no-solicitation and no-distribution rule The complaint alleges the promulgation and maintenance of an invalid no-solicitation rule between December 1 and 15, 1966, as violative of Section 8(a)(1). The answer states that the rule was promulgated "long prior to December of 1966." The rule in question was contained in an employee handbook issued by Respondent some- time after November 21, 1966, when Respondent received copies from the printer. However, the evidence establishes that the rule had been posted on the company bulletin boards at least as early as the fall of 1965. Accordingly, since the promulga- tion of the rule occurred more than 6 months be- fore the filing of the initial charge in this case, it cannot be found to have been violative of the Act. Mason & Hanger-Silas Mason Co., Inc., 167 NLRB 894. However, since the rule was reissued and maintained during the 10(b) period, its validity and application must be considered. The first sentence of the rule is directed only against nonemployees5 and was enforced without discrimination. Thus it cannot be held to violate the Act. N.L.R.B. v. Babcock & Wilcox Co., 352 U.S. 909, 916. 'Thereafter Respondent sought to contest the propriety of the unit and a bargaining order was issued by the Board on June 19 Aerovox Corp , 165 NLRB 623, enfd 390 F 2d 653 (C A 4, 1968) ' The facts here stated are taken from the official record in Case 1 I -RC-2539, of which the Trial Examiner takes official notice The rule continues: 1013 ... There shall be no solicitation of any kind, except as noted below, by employees which in any way interferes with production. However, the Company will, as in the past pro- vide methods for the collection of donations to Aerovox Charities. This regulation does not prohibit the solicitation by employees, in case of death, injury, prolonged illness , or extreme hardship. The supervisor must be notified of the nature and time of such solicitations and permission granted. The evidence shows that permitted solicitations and collections were conducted by use of a centrally located box into which employees could deposit money if they desired. Employees were not allowed to circulate among working employees to solicit in- dividual contributions. Since union solicitation could not be conducted by means of a stationary box, and the rule appears to have long preceded the advent of the Union, the Examiner believes the quoted prohibition was reasonable and was not rendered discriminatory by the exceptions as imple- mented.6 The final paragraph of the rule reads: Good housekeeping in the plant contributes to safe and quality production. In order to main- tain good housekeeping, the distribution in the plant by anyone of any literature, pamphlets or handbills will not be permitted except such dis- tribution as may be made by Management in aid of its operations. By its terms, this prohibition covers nonwork areas and nonwork time. Although it is said to be a housekeeping rule, no evidence was adduced to show that it was necessary for this purpose. On the contrary, Respondent in effect concedes that it was not necessary, since it defends against this charge of violation essentially by asserting that the rule was not enforced. In this connection, Work Manager Louis M. Palamara testified as follows: ... For example, you are free to solicit on your own time, and your cafeteria time is your own time, on plant premises. We would probably object to the literature being posted on a bulletin board which is under our direct control. 0. How about passing out a union handbill in the cafeteria? A. I would say we would not penalize any- body for doing this providing they are there on their own time. We recognize coffee breaks and lunch time as being their own time, and ' "There shall be no solicitation of any kind on company time or com- pany property , including parking lots, by persons not employed by the Company " 6 The facts here stated distinguish this case from Serv-Air, Inc , 161 NLRB 382, enforcement denied in pertinent part 395 F 2d 557 (C A 10) 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also the people they are handing it out to. 0. How about in the washrooms or restrooms' A. In the washrooms , I would say that we would probably lean to an interpretation of saying again , recognizing it probably as their free time. Therefore , no penalty would be in- voked in the washroom , probably. Q. Probably? A. I would say my interpretation- it would probably come back to me for an interpreta- tion, and I would say that no penalty would be invoked would be my interpretation. Manifestly , since Palamara himself was not sure that the distribution of literature by employees was permitted in nonworking areas, the employees cer- tainly had not been so advised . Foreman Patterson apparently took the rule at its face value , testifying that he had asked an assistant supervisor ' whether employee Harrelson had been distributing union cards , without suggesting any limitation as to time or place.' There can be no doubt that the invalidly broad no-distribution rule, as printed in the em- ployee handbook and posted on the bulletin board, would interfere with the employees ' legitimate or- ganizational activities . It was thus violative of Sec- tion 8 ( a)(1).9 Dudley Mfg. Corp., 167 NLRB 107, Lexington Metal Products Co., 166 NLRB 878. 2. Threats and Interrogation a. Employee Glenn B. Causey testified that sometime around the end of 1966 he spoke to his foreman, Paul Oser, concerning a raise . Oser said that he would speak to Plant Engineer (Production Superintendent) Sechrest about it. Oser thereafter told Causey that Sechrest would have to observe Causey a little longer. Causey replied. "Observe what, my work or my badge?" Causey was referring to a union badge he was then wearing. Oser made no reply at the time but later, according to Causey, Oser said that if Causey "would pull off [his] badge that [he] would see a lot of changes." Sechrest testified that Oser had spoken to him about Causey's request and Oser had expressed the opinion that Causey did not deserve a raise. Sechrest said that no mention was made of a union badge. Sechrest then spoke to Causey and "in- formed him if in the future his capability showed hat he warranted a higher rate of pay even before his merit time came around, [Sechrest] would take care of it." Causey quit Respondent's employ early in January 1967. Oser, who is no longer with the Company, was not called to testify. Thus, there was no direct deni- al of Causey's quotation of Oser. Sechrest's recital of his conversation with Oser does not supply the deficiency On the basis of Causey's undenied and credited testimony, the Examiner finds that Respondent, through Foreman Oser, impliedly threatened discriminatory treatment for union sym- pathies and impliedly promised benefits for aban- doning the Union b. Employee James Todd testified concerning a conversation he had about February 15 with Foreman M. B. Hughes, later joined by Sechrest, concerning Todd's request for a raise. Todd testified that Hughes said Todd had not been with the Company long enough to get a raise, "But now in the meantime [Hughes] wanted to know was I a 100 percent for the Company." According to Todd, Sechrest said that "Whatever happened on voting day would tell the tale." Hughes asked Todd what pay he thought he would get if the Union came in and simply shook his head negatively when Todd said $2 or $2.25. Todd testified further that Sechrest had indicated that if the Union won the election the employees' "files would be thrown in the trash can and [they] would have to stand a test. ' Sechrest and Hughes denied Todd's testimony. Hughes testified that Todd asked if the Union would affect him and Sechrest said it would not. Sechrest further testified that he told Todd that "as far as his education, he could grow with the com- pany." Sechrest denied that any "tests" were men- tioned in the conversation, and Respondent sug- gests that the matter of "tests" might have arisen from Sechrest's statement that Todd could further his education at the Technical Education Center, where tests might be given.10 Having carefully ob- served the demeanor of the witnesses, the Trial Ex- aminer credits Todd's testimony. Although Respon- dent's brief states that Todd was a janitor, it ap- pears that he had been promoted from janitorial duties, including the cleaning of restrooms, to mechanical maintenance , including "greasing machines over the plant and help [ing] build machines." Sechrest testified that he personally had promoted Todd from janitorial status and had given ' Who Respondent maintains was a supervisory employee See discus- sion of the discharges of Arlene Hucks and Mary Michoe, infra " In its brief, Respondent relies on the fact that employee Harrelson was not reprimanded when he gave two union cards to employee Arlene Hucks in the cafeteria This fact, however, certainly does not establish that em- ployees generally were told that the rule was not in effect as written Cf Beverage-Air Company, 164 NLRB 1127, 1149 It is interesting to observe that Arlene Hucks immediately turned the cards over to Foreman John King Explaining this conduct , Hucks said "They had started watching me Some girls that were sitting at the table near us had seen this, and I think that they had turned it into [Supervisor] Patterson So, he and John King and [Foreman] Tony Wilder had sLaned watching me I called King over-John King, and gave him the cards " Hucks further testified that later Patterson thanked her for turning the cards in Harrelson is one of the alleged discnmmatees in this proceeding In his brief, the General Counsel maintains that "On its face, [the no- solicitation rule] is discriminatorily enforced , and on its face, it precludes distribution in nonworking areas " At the hearing, counsel said "Counsel for General Counsel has read the sign himself and I see nothing wrong with the words on the door " The Examiner believes that such "concession" of counsel cannot be held to estop the General Counsel from here maintain- ing that the rule is invalidly broad on its face 10 Respondent 's brief says "During the conversation between Hughes, Sechrest and Todd, about his raise, Mr Todd whose duties were those of a janitor, was told that he could further his education by attending the Technical Education Center If any examination exists, they would exist at the Technical Education Center AEROVOX CORPORATION OF MYRTLE BEACH, S.C him raises before the not-inal merit increase periods. Thus, as urged by the General Counsel, Sechrest's statement concerning tests was in effect a threat of possible demotion back to janitorial status in the event of a union victory. c. Employee Ray T Collins, Jr., testified that around the end of November he spoke to Foreman James Patterson. Collins' testimony was: Well, not knowing much about unions I wanted to find out so I went to him and asked him had he heard anything about the union , and he said yes, he had but he couldn't help me any, to leave it alone, not to have anything to do with it, and if I heard anyone talking about the union, to let him know. Patterson testified that he spoke to Collins about the Union twice, both times at Collins' instigation. Patterson admitted that he was interested "all the time" in the union views of the employees under him, but denied that he ever asked any of them and specifically denied that he asked Collins to report on that matter. Despite Patterson's denial, the Ex- aminer finds that he violated Section 8(a)(1) by requesting that Collins report on the union activi- ties of other employees." General Automation Manufacturing, Inc., 167 NLRB 502. d. The complaint alleges that Foreman H. B. Graham "Threatened employees with discharge because of their union membership, activities and sympathies." The only testimony concerning Graham was that of employee Greer Junior Jordan that Graham said. that he wouldn't be too sure that the union would help us, that he wouldn't wring the com- pany's arm for a raise if they didn't want to give one, and he didn't think that [the em- ployees] should either .... This testimony is insufficient to establish a violation of Section 8(a)( I), Graham's statements being de- void of threats, promises, or coercion. It will be recommended that this allegation of the complaint be dismissed. e. Employee Velma Messer testified that around April 27, employee Hazel Todd volunteered to get a union card for Messer to sign Thereafter, Mes- ser's foreman, Bernice Rabon, approached her and "said `don't let any of these girls talk you into doing anything,' because she said `it will cause you to lose your job."' Rabon denied ever having talked to Messer about the Union. Rabon testified that she never discussed the Union with any of the em- ployees under her except to answer direct questions asked by them. However, she was evasive and una- " Although the complaints do not specifically so allege, Patterson ad- mitted that he had asked Arlene Hucks whether employee Harrelson had solicited for the Union and requested that she report thereon to higher management Since the Trial Examiner finds that Arlene Hucks was not a supervisor (see infra), this conduct by Patterson also violated Section 8(a)(I) 1R When questioned whether any employee had asked her if the plant would close if the Union came in , Rabon replied in the negative and then said she had "heard it rumored but nobody has ever asked me that 1015 ble to give examples of questions she had been asked by employees in her section . 12 Rabon testified that even in conversations in her carpool she made no unsolicited comments about the Union. This seems most unlikely since the Union was a common subject of conversation , all the members of her carpool were , like Rabon , opposed to the Union, and all but one of the other members were office employees and thus outside the unit in- volved . On the stand , Mrs. Rabon did not appear to be an unusually taciturn person . On all the evidence , including the demeanor of the witnesses, the Trial Examiner credits employee Messer's testimony and finds that Foreman Rabon threatened loss of employment for union support. f. Under date of 'December 5, 1966 , the day be- fore the Union 's bargaining demand and petition to represent the maintenance employees, Respondent posted a notice on the company bulletin board.13 The notice , a strong statement of the Company's antiunion position , contained the following para- graph: This matter is, of course , one of concern to the Company. It is also , however, a matter of seri- ous concern to you and our sincere belief is that if this Union were to get in here, it would not work to your benefit but, in the long run, would itself operate to your serious harm. The notice is identical to that which the Board found violative in Greensboro Hoisery Mills, 162 NLRB 1275. See also, e.g., Serv-Air, Inc., supra, 161 NLRB 382, enfd. in pertinent part 395 F.2d 557; Kayser-Roth Hoisery Co., 158 NLRB 28, reversed in pertinent part 388 F.2d 979 (C.A. 4). Where , as here, the notice was followea ny nu merous serious unfair labor practices , thus becom- ing part of an overall pattern of coercion of and in- terference with the employees ' organizational rights, it is itself clearly coercive and thus violative of Section 8(a)(I ). g. On February 3, Respondent sent an antiunion campaign letter to employees . That 2 - 1/2-page letter said , inter aka: Remember, the Union cannot guarantee that present benefits will continue under a Union contract. Bargaining starts from scratch! You might think that a change will result in im- provement, but a Union often brings many more problems than it solves .... * The only weapon a Union has to attempt to force concessions from an unwilling employer question " She later said , however, that the employees she rode with "were lust afraid that the plant would lose its customers, and all in this slack time It wasn 't that the plant would close due to no union, that has never been mentioned " "The allegation of this notice as a violation was added to the complaint at the beginning of the first hearing, on May 8 Although Respondent ob- jected, claiming surprise, it is not apparent how Respondent was preju- diced , since there is no dispute that the notice was posted and no other evidentiary matters are involved 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the strike. With a Union, you must be willing to accept the serious possibility of a strike with all its hazards. A strike is toughest on the em- ployees and his family. Strikers cannot collect unemployment compensation, bills pile up and paychecks lost during a strike can never be made up. Such loss of wages is one of the seri- ous potential disadvantages of unionization which you must weigh. Hard feelings, broken friendships and even violence are also dangers associated with unionization. The letter proceeded to advise the employees that economic strikers could be permanently replaced. The Board has consistently held that statements such as these are coercive and violative of Section 8(a)(I ). The "start from scratch" portion of the letter clearly constituted a threat of loss of benefits in the event of a union victory. See Surprenant Mfg. Co., 144 NLRB 507, 517, enfd. in pertinent part 341 F.2d 756, 761 (C.A. 6). Similarly, in stating that the Union's only weapon was a strike, which would lead to replacement and permanent loss of jobs, Respondent was guilty of the conduct found violative in Little Rock Downtowner, Inc., 143 NLRB 887, 890, enfd. in part 341 F.2d 1020 (C.A. 8). And in "predicting" that a union victory would result in less harmonious relationships within the Company, Respondent was improperly playing upon the fears of the employees. Graber Manufac- turing Co., 158 NLRB 244, 249, enfd. 382 F.2d 990 (C.A. 7); Bush Hog, Inc., 161 NLRB 1575. h. At the hearing on October 31, James Phillip Hucks, who was allegedly discriminatorily discharged (see discussion infra), testified that in November 1966 his supervisor, Tony Wilder, in the presence of another employee, asked Hucks what he thought and felt about the Union. Thereupon the General Counsel, stating that he had had no prior knowledge of this incident, moved to amend the complaint to allege that interrogation as viola- tive of Section 8(a)(1). Over Respondent's objec- tion, based primarily on Section 10(b) of the Act, the Trial Examiner permitted the amendment, in- dicating, however, that she was reserving ultimate decision on the timeliness of the amendment. In its supplemental brief, Respondent renews its Section 10(b) objection to the amendment. The General Counsel's supplemental brief does not mention the amendment. Without ruling on the applicability of Section 10(b), the Trial Examiner will recommend dismis- sal of this portion of the amended complaint on the ground that Respondent was not afforded an adequate opportunity to investigate and defend against this allegation. 3. The grant of benefits The first complaint alleges that in December 1966 Respondent "granted employees economic benefits including improved vacation plan, in- surance plan, and free Christmas turkeys." Although the General Counsel does not refer to this allegation in his brief, it will here be briefly discussed. The undisputed evidence shows that in the past employees periodically had ham or chicken bogs14 at the plant, with the ingredients and facilities sup- plied by Respondent Louis Palamara, Respon- dent's works manager, opposed holding the bogs because, as he explained, a relatively small number of employees were regularly saddled with the con- siderable work involved in preparing and serving the bogs. Accordingly, he decided that, beginning with 1966, Respondent would give the production and maintenance employees individual Christmas turkeys for home consumption rather than provide the materials for bogs at the plant. It had been customary in the past for Respondent to give office employees Christmas turkeys. The turkeys for 1966 Christmas were ordered considerably before the union organizing campaign began On the un- disputed evidence, the Trial Examiner finds that the General Counsel has failed to establish that the gift of Christmas turkeys to the production and main- tenance employees in December 1966 constituted the grant of benefits for the purpose or with the ef- fect of dissuading the employees from supporting the Union. As previously stated, the maintenance employees approached management with requests for im- proved benefits early in November. At that time they were told that an announcement would be made concerning vacations the next Friday. How- ever, on Friday Respondent said merely that infor- mation would be forthcoming in the next issue of the Hot Line, Respondent's house organ. An- noyance at this delay was the immediate occasion for the maintenance employees' decision to enlist the aid of a union. The vacation plan was then published in the employee handbook, You and Your Company, which Respondent had submitted for printing on October 27 and distributed shortly after November 21, when the printed copies were received from the printer. There was no evidence of any changes having been made in the handbook after printing was ordered. Thus, since the em- ployees did not present their grievances and the union campaign did not commence until sometime in the latter half of November, the Trial Examiner finds that the improved vacation plan had been de- cided upon before there were any concerted or union activities. Improved Blue Cross coverage, to be effective December 15, 1966, was announced in the issue of the Hot Line which appeared on an un- specified date in November. The General Counsel, on whom the burden of proof rested, did not show that the improved insurance plan was decided on or announced after the employees approached management and then called in the Union. Ac- " A local or regional delicacy made basically with meat and rice AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1017 cordingly , it is found that the General Counsel has failed to establish the allegation of the violative grant of benefits and the Trial Examiner will , there- fore , recommend dismissal of that portion of the complaint. Dan Howard Mfg. Co., 158 NLRB 805, 807, enfd . in part 390 F.2d 304 (C.A. 7).15 B. Alleged violations of Section 8(a)(3) 1. Maintenance unit employees a. General observations As previously noted, in November 1966 the maintenance employees first approached manage- ment with a request for improved benefits. On the day they received what they considered an un- satisfactory reply, employees Vickman and Gra- inger were discharged. The record is not entirely clear as to the status of these two men. The General Counsel refers to them as "supervisors," and em- ployee E. B Martin so designated them. One of the employee witnesses, however, called them "work- ing foremen." The evidence generally establishes that, whatever their status, they made common cause with the rank-and-file employees in their ef- fort to secure improved benefits. One employee testified that, to the best of his recollection, Vickman first suggested that they call on a union. These discharges disturbed the maintenance em- ployees and substantially contributed to the deci- sion to enlist the aid of a union. At least one union -meeting was held at Vickman's home. Among the maintenance employees at the time in question was M. B. Hughes, a machinist. Hughes was particularly upset about the discharge of Vickman and Grainger. He suggested, and volun- teered to participate in, providing financial assistance to the two men until they secured new employment. According to credited employee wit- nesses, Hughes also offered the use of his automo- bile for securing the assistance of a union organizer. Hughes had attended the meeting at which it was decided to enlist the aid of a union and union meetings at Vickman's home and at a restaurant. However, Hughes denied that he had been active in the organizational activity He said he had left the second meeting early, after expressing his opposi- tion. But he reluctantly admitted that he had signed a union card. Even if one credited his disavowal of the commitment to the union cause, he obviously was in a position to know, and did know, which em- ployees were union activists. Sometime in December 1966, after the main- tenance employees had been organized, M. B Hughes was made a foreman. His knowledge of the union campaign thus was available to management, which made clear its opposition to the Union and _ frequently discussed the matter at meetings of su- pervisory personnel. In a list of "Do's and Dont's for Supervisors" Respondent said: " It is not an un- fair labor practice to listen" when employees volun- teer information "about confidential Union mat- ters, meetings , etc." That supervisory personnel were expected to share their knowledge with management is attested to by the fact that Foreman Patterson asked employee Arlene Hucks about another employee's union solicitation and requested that Hucks report thereon to "higher men" because she was an "assistant supervisor."16 As a witness, Hughes, who did not appear to be a reticent person, made clear his opposition to the Union. On all the evidence, including Hughes' demeanor as a witness, the Examiner discredits his testimony that he never discussed with management the employee and union meetings he had attended before becoming a foreman.'' The Trial Examiner finds that Foreman Hughes' knowledge of the union sympathies and activities of particular maintenance employees was imparted to other supervisory and management personnel and was in Respondent's possession when it took the personnel actions hereinafter discussed. The evidence in the present record reflects close surveillance of and a spate of adverse employee re- ports concerning the alleged discriminatees. Plant Engineer Robert L. Sechrest, in overall charge of maintenance and related work, sought to establish that the disciplinary actions here involved were fully in accordance with Respondent's established past practices. His attempts to do so, however, were unsuccessful. On cross-examination Sechrest con- ceded that the November discharges of Vickman and Grainger were the first discharges for cause in the year 1966 that he could name . Although he had previously said that he thought there had been about four discharges for cause from January through April 1966, he was unable to name any of the employees discharged and Respondent never did present any further evidence in this connection. Sechrest further was unable to name any other em- ployees who had been reprimanded or suspended during the period January through October 1966. He then testified as follows on cross-examination by counsel for the Union: 0. You didn't have any trouble as far as discipline was concerned as far as suspension, as far as you know, from January to November 1966, did you? A. In that particular phase of it, we did not put out our company policy manual and inform the people specifically what we expected on them, what we expected as managers, them to do for their hours of working. It was specified what each employee and everything that they are supposed to do is taken care of in the pol- is Additional alleged violation of Section 8(a)( I ), involving employees Mary Mishoe and Arlene Hucks, will be discussed below in conjunction with the alleged violations of Section 8(a)(3) arising from their layoff 18 Arlene Hucks' status under the Act is discussed below it Hughes incredibly testified that he had never discussed the Union with anyone-not even with his wife 101 9 DECISIONS OF NATIONAL LABOR RELATIONS BOARD icy manual. After it was given to them, they read it, they signed for it that they were familiar with it, we expected them to follow our department and company policies. Sechrest then said that there had been one suspen- sion in the past, but he could not remember who had been suspended And immediately thereafter he acknowledged that the handbook distributed around the end of November was "simply a com- pilation of rules and regulations that have been in effect for a long period of time." On all the evidence, the Trial Examiner finds, in accordance with the General Counsel's contention, that in November 1966, starting with the discharge of Vickman and Grainger, the first general expression of employee dissatisfaction, and the ensuing union organizational campaign, Respondent initiated a program of increased disciplinary action.18 b Specific alleged discriminatory actions (I) The discharge of E. B. Martin E. B. Martin was discharged on December 21, 1966, after almost 7 years' service, which, so far as appears, had been completely satisfactory. The em- ployee report of his discharge states the following reason: The Company has evidence that you openly solicitated on behalf of a Union in the produc- tion area of this Company and that you handed out Union cards and asked that they be signed. At the time that this was done, the employees that you approached were engaged in produc- tion in the normal course of their employment. While an employee has a right to engage in Union activities during their own period of time, an employee does not have the right to interfere with production by solicitating for Union membership. The Company has a firm policy, regarding this, and you have violated this policy and, therefore, your services are now hereby terminated for this conduct. Employee Mary Edna Lilly, called by Respon- dent, testified that on December 12 Martin left a machine on which he was welding and walked about 12 or 15 feet to the machine at which Lilly was working. At the time employee Spivey, who, like Lilly, was a production worker, was checking the speed of Lilly's machine. According to Lilly, Martin placed several union cards on the machine and talked to the employees, principally Spivey, for about 5 minutes. However, Lilly also testified that Martin "didn't say too much then but he came back later asked us if we had signed the cards." He then told them "how good the Union was and what it would bring" the employees. During this conversa- tion Lilly continued to operate her machine and ap- parently Spivey continued to check its speed. There was no evidence of any disruption in production. According to Lilly, Spivey took the cards which Martin had laid on the machine. Martin testified that while he was working on a stamping machine Lilly noticed his union badge and asked him what the letters "IBEW" stood for. He replied: "I've been everywhere." After they both laughed, she repeated her question and he told her the name of the Union. He testified that the conversation took just a few seconds, during which there was no suspension of work. He denied that he left any union cards on the machine. At the time in question there was no organiza- tional campaign among the production workers, a fact substantiated by several witnesses, including Foreman Hughes, who testified that at the union meeting in December'9 the subject of discussion was "Organizing the maintenance and machine shop and janitors." Questioned about E. B. Martin's discharge, Louis M. Palamara, Respondent's works manager, testified as follows: A. As the paper states, in my terminology and my language, he was discharged for solicit- ing for the union on company time, company property, and interfering with production, nor- mal production, normal production habits of employees. Q. . . . what was he actually doing? A. He was soliciting for the union. He was trying to get union cards signed. Q. By whom? * * * * * A. By Edna Lilly. Q. Was this the only person? A. She mentioned another individual. My knowledge of the case was that the contact he made, the one that I was interested in, was Edna Lilly. It only takes one. ... he was in violation of an accepted law. He was soliciting for a union and for this reason he was discharged. Thus, although the employee report stated that Martin's activities had interfered with production, Palamara apparently made no investigation to determine whether that was the fact and there was no evidence to that effect. See Serv-Air, Inc., supra, 161 NLRB 382. Although Lilly said that Martin had spoken mainly to employee Spivey and that Spivey had taken the union cards, Palamara ap- parently did not speak to her and she was not called to testify. And Palamara did not even question Martin. See Textile Workers Union of America (J. P. Stevens & Co., Inc.) v. N.L.R.B., 388 F.2d 896, 903 (C.A. 2).' The wording of Palamara's testi- " On August 10 Edgar testified that approximately 30 employees, 23 or 24 of them being factory workers, had been discharged in 1967 No com- parable figure was provided for prior years '" Hughes disclaimed any ability to give even an approximate date for the meeting in question However, other evidence clearly places it in December AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1019 mony itself strongly suggests that he was simply looking for a pretext to discharge Martin.20 While Respondent 's rule against solicitation on working time was presumptively valid (see discus- sion supra ), and violation thereof might constitute valid ground for discharge , the Examiner is satisfied that Respondent simply seized upon Martin 's rela- tively minor dereliction as a pretext for ridding it- self of a union leader . Other employees were not so harshly dealt with For example , employee J. B. Johnson , a production employee ( whose discharge is discussed below ), testified to having openly sol- icited employees to sign union cards during work- ing time in the presence of both his foreman and his supervisor . Although his foreman denied knowledge of this solicitation , the Trial Examiner credits Johnson 's testimony. Johnson was not discharged or even personally reprimanded at that time. On all the evidence, the Trial Examiner con- cludes that the reason for Martin 's discharge was not the fact of soliciting on working time but rather the object of the solicitations . In short, Martin was discriminatorily discharged for his union activities. Taylor Instrument Companies, 165 NLRB 843. (2) The discharge of Munick Carl Hucks Carl Hucks,21 who had worked for Respondent about 4 years, was discharged on January 3 al- legedly for failing to report for work on Saturday, December 31, after having been given a written reprimand on December 22 for absenteeism. Ap- parently Respondent had found his work satisfac- tory up to that time, since he had been reemployed around September 1, after having quit about a month earlier. From the inception of the organizing campaign, around the end of November or the beginning of December, Hucks was an active union proponent and wore a union organizing committee badge On December 29 Respondent posted on the com- pany bulletin board a notice that Saturday, December 31, 1966, would be a scheduled normal working day for the maintenance department and that Monday, January 2, 1967, would not be a workday. Hucks did not report for work on Satur- day, December 3 1, and did not call in or request to be excused . Presumptively , therefore, disciplinary action would appear proper. However , the evidence leads the Examiner to conclude that Respondent "doth protest too much." Although the scheduling of work on December 3 1 was clearly directed to the special circumstances of the New Year's holiday , Respondent tied it into the Company's practices as to work on Saturdays generally. There is no dispute that, at least until September 9, work on Saturdays was voluntary. Every Friday the foremen asked each employee if Y0 The pattern is similar to that testified to by Arlene Hucks, who quoted Foreman Patterson as having said that "there was nothing he could do with ]employee Harrelson] unless he caught him soliciting for the Union " Har- ne wanted to work the, next day . Sechrest testified that commencing with September 9, Saturday work for the maintenance employees was made non- voluntary , with Respondent simply posting on the bulletin board each Friday a list of the employees who were expected to report to work the next day. No general announcement was made of this change either orally or in writing on the bulletin board or in the company newspaper. No explanation was given for the absence of a general announcement of such a significant change in the Company 's rules. Respondent introduced into evidence schedules which had been posted on the bulletin board each Friday between September 9 and December 16 list- ing the names of maintenance employees scheduled to work the next day . However , the posting of these names does not in itself establish Respondent's con- tention that Saturday work was changed from voluntary to compulsory. Carl Hucks testitiea Lnat the foremen came around on Fridays with lists of employees . He said the foreman "always gave us a choice ." After ask- ing the employees , the foremen made notations on the lists to indicate which employees had agreed to work the next day. The lists posted on the bulletin board were compiled from these polls . Hucks then stated that he recalled having agreed to work one Saturday in December ( which he did ) and added: `the other Saturdays I either told them no or either no one came around to ask me ." Employee James King corroborated Hucks' understanding of Respondent 's manner of scheduling maintenance employees for Saturdays . King said: Well, when they first started , they just come around and asked you if you wanted to work on Saturdays , and then later on they would come around ; they had a slip with all the wor- kers names on it , and they asked if you wanted to work ; and if you did, he would write the names down ; and if they didn 't, he would check it off so you could tell whether they were going to be there or not on Saturdays. Sechrest testified that it was his foremen, not he personally , who had advised the employees that Saturday was now mandatory unless an employee obtained specific permission not to be present for a reason deemed justifiable by management. Sechrest said there had been a transitional or "phase-in" period after September 9 in which the foremen continued to talk to individuals and told them that henceforth Saturday schedules would merely be posted . He did not know how long this transitional period lasted . Only one of the three foremen under Sechrest testified and Respondent did not question him on this matter. On cross-examination this foreman, Hughes, was asked if he had been in- structed not to ask the employees if they wanted to work on Saturday . He replied : " It was posted on the board ." But, as previously noted , no notice ever elson 's subsequent discharge is discussed below ' Carl Hucks, Phillip Hucks , and Arlene Hucks, all alleged dis- cnmmatees , are not related to one another 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was posted announcing the change from voluntary to mandatory Saturday work. Thus Sechrest's es- sentially hearsay testimony that the foremen had so advised the employees remained uncorroborated. There was no direct nonhearsay evidence that any employee had been told he was requuired to work Saturdays when scheduled without his consent. Employee James King did not work Saturday, December 3 1, but received no reprimand or other discipline therefor.22 On January 9 he was orally reprimanded for being absent on Saturday, January 7, and on January 20 he was given a written repri- mand for being absent on January 7 and 14. The treatment afforded him establishes that absence on December 31 or other Saturdays did not automati- cally require discharge.23 Hucks' prior reprimand, dated December 22, reads as follows: A review of your absentee record indicates that you have been absent quite excessively during the month of December. To be exact, you were absent on 12-10-66.... 12-13-66, anu IG-i/-bo. Altnougn 12-lu-66 and 12-17-66 were Saturdays, you were scheduled to work and also you committed yourself by re- porting that you would be in for work. The Machine Shop cannot run effectively or efficiently with this kind of absenteeism. You are, hereby, cautioned to improve this record and that any more absenteeism during the next three months will be just cause for dismissal. The statement that Hucks had "committed" him- self by "reporting that [he] would be in for work" indicates that somebody had asked him, thus refut- ing Respondent's present contention that em- ployees were scheduled for Saturday work without prior consultation. Sechrest testified that he had been told by Hughes that Hucks had "committed" himself to work, but Hughes did not testify con- cerning this matter. One cannot help wondering why, when Hucks failed to report for work on December 10, he was not reprimanded and specifi- cally informed that Saturday work was no longer on a voluntary basis if that was the fact. The obvious explanation is that Respondent was building a record against Hucks 24 On all the evidence, the Trial Examiner finds that Munick Carl Hucks was discriminatorily discharged in violation of Section 8(a)(3) of the Act. (3) The suspension of E. L. Martin25 On February 28, 1967, E. L. Martin, a carpenter, was suspended for 3 days without pay. Martin was a union proponent from the beginning of the campaign. He wore a union but- ton, attended employee and union meetings, and solicited union cards. Like other alleged dis- criminatees, Martin had attended union meetings with M. B. Hughes. The employee report imposing the suspension gives the following three separately numbered reasons: "Being away from the job or out of work area without permission of the supervisor"; "Ineffi- ciency or lack of ability"; and "Wasting time, such as loafing, excess visiting, wandering way from work station." Thereafter appears the following: "Failure to observe rudimentary company rules." Martin gave the following account of tTie crrcum stances leading up to the suspension: About 11:30 a.m. one day26 he went out of the shop to get a piece of tube out of his truck. Outside the shop, he saw Jimmy Lawrence Roberts, who had previously worked as Martin's helper. Roberts was on sick leave, having severed a finger in an accident at the plant. Martin stopped, asked Roberts how he was, mentioned the fact that Roberts had left some tools at the plant, and asked if he wanted Martin to get him the tools. Martin said the conversation took about a minute. Martin then went back into the plant and got Roberts' band saw. After giving Roberts the saw, Martin got the tube from his truck and then returned to the plant to see employee Vir- gil Roberts about another order. While he and J. L. Roberts were talking, Foreman Hughes came to the back door of the plant, looked out, and then went back in. Sechrest also walked up, coming through the parking lot. Later that day Martin was called into Sechrest's of- fice and given an oral warning. According to Mar- tin, Sechrest said Martin had been "out of line talk- ing to somebody [he] had no business talking to." When Martin explained the matter, Sechrest said, "That doesn't make any difference." A few days later Martin was called to the office of Respon- dent's industrial relations manager, Robert Edgar. With Edgar and Foreman Singleton present, Sechrest told Martin he had been "out of line" and was therefore being suspended. Jimmy Lawrence Roberts corroborated Martin's testimony concerning the conversation outside the 22 While King was apparently prounion, there is no evidence that he en- gaged in any union activity other than wearing a union pin ' Employee Glenn,B Causey also failed to report to work on ;December 31, 1966, but did not receive even an oral reprimand Respondent main- tains that it would have been a waste of time to give such a reprimand, since Causey had already given notice that he was quitting a week or so later One might well wonder why such a reprimand would not be advisable in the event Causey were to seek reemployment, if the dereliction were con sidered serious enough to warrant discharge In this connection it may be noted that the employee report on the discharge of J B Johnson ( infra) contains a large note reading " Do not rehire " 21 On November 25 Hucks had been given a written reprimand for allow- ing his brother to come into the plant at night without having secured per- mission Respondent does not rely on this reprimand as justifying the even- tual discharge Respondent contends, on the other hand , that this repri- mand serves to establish the absence of antiunion motivation on Respon- dent's part, since it was given before the union campaign commenced The Trial Examiner rejects this argument It might just as plausibly be argued that Respondent 's failure to take more drastic disciplinary action for the November 25 misconduct highlights the severity of the subsequent discharge In any event , the reprimand was apparently given after the marn- tenance employees had approached management with their complaints and probably after they had decided to call in a union 25 E L Martin is E B Martin 's father 28 Martin's recollection of dates was vague This does not, however, af- fect his credibility AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1021 plant and the appearance of Hughes and Sechrest at that time . Sechrest testified that when he asked Martin about the matter Martin said that he did not recall with whom he had been speaking . Sechrest's memory , however, was admittedly unclear as to details. He said he thought he had heard of the in- cident from Foreman George Caldwell, who had seen Martin talking outside the plant . Sechrest testified affirmatively, however, that Martin "was out on the sidewalk with someone other than Aerovox employees ." This statement does not jibe with Martin 's testimony , as corroborated by Roberts . Neither Caldwell27 nor Hughes was questioned concerning the E . L. Martin affair. In its brief, Respondent argues that the vice of Martin 's conduct was not that he was outside speaking to a nonemployee , but rather that "[he] was not performing work while standing out on the sidewalk engaging in conversation with persons not connected with his work , whomsoever [sic] they might be." But Respondent adduced no evidence concerning the amount of working time Martin spent in the conversation . So far as appears, Respondent made no investigation of this matter. Respondent emphasizes a written reprimand which Martin had been given in December for "exiting by means of the maintenance doors which is in violation of company policy." This alleged mis- conduct is unrelated to the grounds on which Martin was purportedly suspended and was not mentioned in the employee report imposing the suspension.28 On all the evidence , the Trial Examiner finds that Martin 's conversation outside the plant shortly be- fore February 28 was simply used by Respondent as a pretext for disciplinary action , the true reason for which was his union sympathies and activities.29 (4) The discharge of John Wayne Altman Altman was hired on October 10, 1966, at $1.25 per hour as a trainee to operate a DSMR machine on the first shift. On October 20, he was assigned to cleanup duty on the third shift (at $1.28 per hour, including a shift differential). According to an em- ployee report, this transfer was made because his work as a machine operator had been unsatisfac- tory. The report said: "If his performance as clean up is not satisfactory, his services will be termi- nated." An employee report of November 13 stated that Altman had been "of his lost motion, and his performance is not satisfactory at all." The report continued: "But will try another week after he was cautioned. And his performance will be observed closely." Sometime around November 25, he asked his supervisor, Gladys Jordan, for a raise. Accord- ing to Altman, Jordan at that time expressed plea- sure with his work and on November 28 his wage rate was increased to $1.30. An employee report of that date said that Altman had been closely ob- served and his work had improved. He was discharged on December 15. A detailed employee report of that date said: "Since his Raise in Pay His job performance had Declined." It then recited derelictions on December 6, 8, 9, 13, and 14, in such detail as to show that Altman had been kept under constant surveillance. Palamara testified- "After discussing some of the reprimands [Altman] had received with Mr. Caldwell, I in- structed Mr. Caldwell to maintain normal surveil- lance. This- is customary for all our employees." Caldwell, however, denied that he had ever been instructed to watch Altman's work. Caldwell ex- plained the detail of his observation by stating that, as a sergeant in the Army, he had acquired the practice of keeping a log of "anything that happens that I think that might something come up in the fu- ture." His log contains unfavorable notes but never complimentary observations. It was not produced or offered in evidence. Altman testified that he had attended three of four union meetings and on December 15, the day he was discharged, he wore a union badge for the first time. Caldwell admitted having seen the union badge that day. But Caldwell also testified that he decided to discharge Altman on December 13 but, at the request of the payroll department, postponed the notice until payday, December 15. Respondent's evidence shows that complaint was made of Altman's work before the union campaign began Though he apparently made his best effort, with some improvement for awhile, he generally remained an inefficient worker. That he was given a 5-cent-per-hour raise some 6 weeks after being hired is not in itself sufficient to establish that he was not thereafter discharged for inefficiency. And there is no other affirmative evidence to support such a conclusion. While there are some deficiencies in Respon- dent's evidence, the Trial Examiner finds that the General Counsel has failed to establish by a pre- ponderance of the evidence that Altman's discharge was discriminatorily motivated. Ac- cordingly, it will be recommended that the com- plaint be dismissed insofar as it alleges Altman's discharge as violative of Section 8(a)(3). (5) The discharge of Julius Virgil Roberts Roberts, whose job was to set up machines for prescribed operations, was an active and avowed union proponent. He testified at the representation proceeding involving the maintenance unit and was St Caldwell keeps a log of employee misconduct which he feels might be the subject of action in the future (See discussion of the Altman discharge, infra ) So far as appears , he did not there record E L Martin's alleged unauthorized conversation outside the plant $1 There is no cviden.,.o mat Martin had previously been reprimanded for "wasting time " Respondent 's brief thus conveys an erroneous impression of the record when it says "IMartm 'sl prior verbal warnings and written warnings had made no impact upon him and a reasonable , lawful action by Respondent was to use some method of getting its message across that his paid time was Company time and Company rules were to be obeyed " 29 It appears that E L Martin was later discharged but the record con- tains no evidence concerning the circumstances of the discharge 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a union observer at that election. After the main- tenance unit election he actively solicited union memberships among the production workers, whom he visited at home on the free time afforded him because the Company was working short hours. Respondent does not deny knowledge of Roberts' union sympathies and activities. After having worked for Respondent for 5 years, Robert was discharged on May 430 purportedly for having disregarded instructions as to the method of adjusting certain equipment. On May 4 Roberts admittedly used a bent piece of lead solder in adjusting the positioning wheel on a machine .31 At the time he was adjusting a machine for the production of parts for IBM. It is undenied that this production requires especially close adjustment of the wheel.32 Roberts' testimony, essentially uncontradicted, was that he was the only person then employed at the plant who was able to set a machine for IBM production. Further, at the time in question, upon instructions, he was setting the job up on a machine which had never previ- ously been used for this type of production. Roberts, whose demeanor impressed the Trial Examiner very favorably, testified that in setting the positioning wheel he loosened the Allen screw (which held the wheel tight on the shaft) to the "snug" position, placed the rounded end of the bent solder bar against a tooth on the circumference of the wheel, and then quickly tapped or "bumped" the other end of the solder bar with his hand, thus turning the wheel slightly. He credibly testified, with corroboration, that it had been a longstanding practice for him and others to employ this method of adjusting positioning wheels, using either a solder bar or a piece of brass. Both of these metals so used are softer than the aluminum toothed edges of the positioning wheels. He explained that the necessary adjustments of wheels are often as slight as one-sixty-fourth of an inch and it is impossible to make such fine adjustments by loosening the Allen screw completely and then moving the wheel with bare hands. Roberts further testified that when he was orally reprimanded on May 4, he suggested that other tools be provided and was informed that new wrenches were then on order.33 Sechrest testified that he had helped set up DSMR machines and "may well have" used a bar of brass to tap something into position, but denied that he had ever used a bar of solder for that purpose. He later testified that he had used a piece of brass to "adjust on the DSMR" but had "never used a piece of brass to adjust a positioning wheel." He gave no further explanation. Roberts testified that, in con- nection- with the incident for which Roberts was discharged, Bellamy said that Roberts had acted properly. While Bellamy denied this, the Trial Ex- aminer credits Roberts. According to Respondent, sometime in April in- structions were issued that no objects other than Allen wrenches were to be used in adjusting the machines. However, much of Respondent's own evidence corroborates Roberts' testimony that the actual instructions were "not to use a hammer or hard metal in adjusting the wheels on the machine." The employee report concerning Roberts' discharge tends to support this version of the instructions, reciting: On or about 4/12/67 our 1st shift set up man, supervisor and section foremen were called together by the line foreman and shown an expensive DSMR Part which had to be replaced due to abuse in adjusting forceably adjusting. [Beating with a mallet or equivalent ] They were told that under no cir- cumstances would this practice be tolerated. Section Foreman John D. Bellamy testified that the immediate occasion for the issuance of the in- structions was damage to a positioning wheel so serious that it could not be repaired, but had to be replaced. 34 Because of that wheel, Sechrest, in charge of maintenance , spoke to Line Foreman Glen Rockett, who thereupon called a meeting with Bellamy, Supervisor Kenneth Johnson, and Roberts, where the instructions were given orally. Sechrest, however, testified that he believed the particular damaged wheel which led to the instruc- tion had been repaired - "This particular wheel I believe was cleaned up." Rockett, who had been called in by Sechrest and shown the wheel, did not testify. Bellamy further testified that theretofore wheels had had normal maintenance repairs at in- tervals of 6 months to a year but they had never had repairs other than for normal wearing of the bushings, springs, pins, etc. Sechrest, however, said that the Company had been complaining about damaged wheels for the "the better part of a year." He added that they might have had such trouble even before then but "it wasn't important enough at that time to really raise an issue about it " When asked on direct examination concerning the frequency of repairs or replacements before April 1967, Sechrest said. "it would be at a random ac- cording to how badly they were abused, but I would say with a frequency of every three months at least." He then testified that, "[with] ordinary maintenance" these wheels, other than the bearings, should not need repair for "nine or ten months." Whether Bellamy or Sechrest was correct as to when damage to the positioning wheels began it is clear that the instructions which Roberts al- legedly disobeyed were not given until April 1967. 90 His discharge was just 5 days before he testified briefly in this proceed- ing in connection with E L Martin's suspension Roberts ' discharge was litigated in the August hearing " The machine is used for soldering wire leads to small ceramic discs The function of the positioning wheel is to place the wires in proper rela- tionship to the discs " In the IBM production the function of the positioning wheel is somewhat different from that in other production " Apparently they have since been provided " The evidence was that a replacement wheel costs $112 AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1023 Roberts was summarily discharged without any in- vestigation by Respondent as to the condition of the wheel. There is not a scintilla of evidence that Roberts had damaged the wheel in any manner. Further, Roberts had not "beat" upon the wheel with a "mallet" or any "hard" object. The day before he was discharged Roberts was recognized for having submitted a suggestion for improvement of the Company's operations. Respondent concedes that the suggestion was a good one and has been adopted. The first employee report concerning Roberts which he knew about was in October 1966, recom- mending him for a wage increase. Between that time and the date of his discharge three adverse re- ports had been put in his file but only one of them had been shown to him The earliest of the three, dated December 9, 1966, states that Roberts had been cautioned for failure to follow instructions, "including an instruction to "[K]eep lost motion to a minimum " (based on complaints that he visited the maintenance department too often and stayed too long) and unspecified violations of instructions concerning assignment of work to mechanics. The next employee report, dated January 5, 1967, states that Roberts' "attitude about doing his job is very poor," with the added note: "One thing in particu- lar referred to in the above is his negative stand on instructions from section foremen in this area." No specifics were provided in the report or in testimony at the hearing. The third report, dated March 21, was shown to Roberts when made. It concerned his having asked why one of the em- ployees in his section was at the foreman's desk. Roberts testified that, seeing the machine operator at the foreman's desk, Roberts wanted to know if there was any problem with the operation of the machine, which he had set up. The employee report of this incident reads. Employee has been advised of his error in assuming he should be concerned with the judgements or decisions of the foreman in charge. On 3/21/67 he went to the foreman & asked why one of his operators was "chewed out." He was told that this is confidential infor- mation, that the operators of the machines were the responsibility of the supervisor & foreman, not his, and that his job is set up or other as instructed'by those in charge. It was also pointed out, that this was not the first insubordination on his part & that it will not be tolerated in the future without action being taken. He was reminded that his attitude has been less than desirable in the recent past. Respondent does not suggest that Roberts was rude, hostile, or otherwise offensive in manner. To the Trial Examiner it hardly appears to constitute "insubordination" warranting a formal reprimand for Roberts to be concerned that a fellow employee not be unfairly dealt with, particularly since Roberts had reason to believe that there might be some problem with a machine which he had set up and which was then not in operation.35 The repri- mand thus appears to be a bit of "record-building" to justify a later discharge. On all the evidence, the Trial Examiner finds that Roberts' use of a solder bar in adjusting the posi- tioning wheel while setting up a DSMR machine to run IBM production was simply a pretext which Respondent seized on to justify discharging him, the real reason for the discharge being his union ac- tivities. 2. Production employees a. The discharge of George Lawrence Harrelson Harrelson, a disc paint machine operator working under Janice Smart as supervisor and James Patter- son as line foreman, was discharged on May 5, 1967. Harrelson was an active union sympathizer from the beginning of the organizing campaign among the production workers in January. He was on the union organizing committee, distributed handbills and literature in the company cafeteria, spoke to employees, and solicited union authoriza- tion cards. He started to wear a union organizing committee badge about the middle of January and wore it an the time until he was discharged. Patter- son conceded that he had known that Harrelson "associated with union people ever since December," although Patterson said he could not recall when Harrelson had started to wear a union badge. To support its contention that Harrelson was discharged for cause, Respondent introduced a se- ries of employee reports and evidence concerning oral warnings . The earliest employee report, dated March 30, 1967, reads: Employee had been warned about being out of section without permission. He has been going to other sections and talking to machine operators. According to Harrelson, at that time production was slack in his section . Accordingly, he was as- signed to work in the wax room. When he caught up with his work, he went to Assistant Foreman King and asked for work to do. King told him to help Supervisor Steve Martin make stamps for the TSC machines and to help Billy Lewis strip car- riages. With Harrelson thus obeying King's instruc- tion, Patterson reprimanded him for being away from the wax room. Neither King, Martin, not 'S in the incident resulting in his discharge , Roberts had shown a similar concern for fairness When Foreman Bellamy verbally reprimanded the machine operator, Brown, for having used a solder bar in setting up the DSMR machine, Roberts interceded and volunteered the information that it was he who set up the machine with the use of a solder bar 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lewis was called to testify. Foreman Patterson, tes- tifying for Respondent, said that "on several occa- sions throughout the plant" he had seen Harrelson "going from section to section, from machine to machine talking to the operators." Patterson added that he had "checked" and Harrelson "had no per- mission to be out of the section ." He gave no details as to his "checking." According to Harrel- son, when he was reprimanded he was in his section but not in the wax room, where his basic assign- ment was. Another employee report, dated April 27, reads: Employee has been warned about his quality of work. He has also been warned about his at- titude and conduct. He had to be told to move his work three (3) times from the oven before going to move the work. The supervisor has also had to keep calling him to keep him awake. Improvement will be shown or dismis- sal action taken. According to Harrelson , he was sitting sorting work when fellow employee Paul Sanders came to him and asked for the return of a spring Harrelson had earlier borrowed. Harrelson was just about to answer Sanders when Supervisor Janice Smart ap- proached and said: "Larry, you mean you're not asleep now?" She walked away and later returned with a written reprimand. Sanders corroborated Harrelson's testimony. Smart did not testify. Patter- son's essentially hearsay testimony was that "the su- pervisor had been to him, telling him he was going to have to stay awake more, he was going to have to pay more attention to what he was doing." Harrelson testified that about 2 a.m. on April 28 36 while on his way to the cafeteria during his break period, he saw a few women reading material on the bulletin board. The material apparently con- sisted of questions raised by Respondent concern- ing the Union. The women put the questions to Harrelson. Being unable to answer all of them, he proceeded to copy them so that he could secure the answers from the Union. While he was so engaged, Patterson came by and said, in effect, that the Union was no good. It was a few hours later, about 5:30 a.m., that Patterson gave him a written repri- mand for allegedly sleeping on the job. According to Harrelson, at that time the reprimand referred only to sleeping on the job and did not contain any reference to the quality of his work.37 Patterson corroborated the testimony of some kind of en- counter at the bulletin board, but his version dif- fered from Harrelson's. According to Patterson, Harrelson was standing at the bulletin board with some women when Patterson walked by. Patterson testified that- 1° This was during the third shift of the April 27 workday Thus, although the employee report is dated April 27, it was issued after the episode here recited 37 Employee James Phillip Hucks indicated that he had heard of em- ployee reports having been altered , but he had no personal knowledge thereof See discussion of the Hucks matter infra 11 There is an added note reading "Employee stated that the scrap he ... the women started making some comments to me about the union .... So this I enjoyed. I started making some back with them. They asked me .... And in the meantime Larry turned around and said something to me, and I asked him, I said, "Larry, did you ask a. question." And he turned around and left. According to Patterson, it was around 7 or 7:30 a.m. that he gave Harrelson the reprimand. Thus, despite minor differences in their testimony, Har- relson and Patterson agree that the reprimand of April 27 was given within a matter of a few hours after they had spoken about the Union with some female employees at the company bulletin board. The employee report of May 4 announcing Har- relson's discharge reads: ... Employee has been warned orally on several occasions about his quality of work and one written warning. He has also been warned about going to other sections without permis- sion and following instructions. On the morning of May 5 he ran an order of work that had an excessive amount of scrap. This scrap was paint smears, shorts and blanks Due to no improvement shown we feel that dismissal action should be taken.38 When questioned on direct examination about the events leading to the employee report of May 4, Patterson said: Well, after the write up, it still wasn't doing no good. I had talked to him orally. I walked by him and woke him up, or caught him nodding-I don't say I woke him up, and told him to go wash his face a few times, and I had seen him sitting around, and I would see him sorting work, and I would go to the supervisor and ask him why he was sorting work, and she, said "We found too many bad ones in it, too much scrap in his work." So on this night, this last night, I found his tray of work and it was an excessive amount of scrap, and I didn't have no alternative but to call him in and told him that I had not seen no improvement, and I let him go. General Foreman E. E. Carter testified that he asked Harrelson what he had done with the scrap and Harrelson said he had put it in the trash can. Although Carter said he wanted to see the scrap "to see just how bad this work was," no attempt was made to retrieve it. The evidence tends to establish that Harrelson probably had put the scrap in the scrap container, which was in the form com- monly referred to as a trash barrel .31 had picked out he threw in trash " 1' There was some evidence to the effect that , at least before the painted discs were fired , the silver paint with which Harrelson was working could be washed off and thus had some salvage value After firing, silverpainted discs may have had some value as scrap, but Respondent adduced no specific reliable evidence on this score AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1025 Harrelson also testified that on May 4 , the morn- ing before he was discharged , he had handed out union handbills in the cafeteria at breaktime and outside the plant before he went home after finish- ing work. He said that Personnel Director Edgar and four other supervisory officials had been present for the approxmately 15 minutes that he passed out handbills in the road . About 2 hours later he was called at home and asked to return to the plant and report to the personnel office. When he did so, he was given the discharge notice. Harrelson testified, and Patterson concurred, that at the time of his discharge Harrelson was training on a machine he had not previously operated. Respondent did not offer any production records or other evidence tending to support its conclusionary statements that Harrelson created an excessive amount of defective work On all the evidence, including the demeanor of the witnesses, the Trial Examiner finds that Harrel- son was discharged because of his union activities. b. The discharge of J. B. Johnson J. B. Johnson was discharged on April 6, after having worked for Respondent about 5 years. He testified that he had been openly active for the Union since around January or February, when he tried to have an organizing campaign initiated among the production workers. He solicited union cards "from start to finish, on or off the job." He said that on one occasion, during production time, he went from machine to machine, operating each machine while the operator signed a union card. At this time Johnson 's machine was not operative and he was working at miscellaneous jobs, such as cleanup , until his machine was repaired. His foreman, Gladys Jordan, and supervisor, Helen "Lib" Hucks, were present about 10 to 12 feet away from Johnson's machine. He also testified that before the organizing campaign began among the production workers, he spoke in favor of unioniza- tion to "Lib" Hucks, who was then a "material han- dler" (or "assistant supervisor"). His version of the events leading up to his discharge was as follows: When he arrived at work on April 6, his machine was not operating. Even- tually it was repaired and then checked by a setup man, the usual procedure. The machine was running when the setup man then turned it over to Johnson. Johnson looked at the machine and said he could not run it at the speed at which it was set. The setup man said that Foreman Jordan had or- dered Johnson to operate it precisely as it was. Johnson thereupon went to see Jordan and said that he could not produce quality work at the high speed at which the machine was set, which Johnson estimated at 16,000 pieces per hour. Jordan in- sisted that he run it as is Johnson further testified that the raw material to be run was of very poor quality. After speaking with Jordan, he tried to operate the machine. In his words: I tried to run it , I couldn 't do much with it, it was running too fast, it was breaking, the work was real bad, it was about as bad work as I have ever had in the five years I was there. * * * ... the material was warped up, when it come out it would break, punch a hole through my screen . I would have to stop and change screens, and I got a lot of, it was running so fast what work did go on the belt was doubling up, and I'd have to pick those off. I just couldn 't do much with it. After the lunchbreak, another operator ran the machine for an hour, while Johnson made screens because so many had been broken by the faulty material. At or about 3:45 Lib Hucks informed him that he was to go to Jordan 's desk and then to the personnel office Jordan handed him his discharge notice and he then proceeded to personnel, where he spoke to Personnel Director Edgar and Foremen Jordan and Rockett Jordan testified as follows: The machine was set at 8,000 per hour on her instructions . The material being run was size .500 discs, which are among the larger sizes produced by Respondent . The "quota," or break-even point, for that size disc is 37,850 per day. This means that , with the compensation rate of 30-1 /2 cents per 1,000 , an operator will earn his guaranteed minimum wage of $1.54 per hour by painting approximately 37,850 size .500 discs per day. However , employees generally are expected to produce more than the break -even quota, thus earning more than the guaranteed hourly rate Ac- cording to Jordan , the average operator should produce around 47,000 or more per day, earning around $1 .75 per hour . Setting the machine speed at 8,000 per hour would, according to her, afford about that amount of production, with the usual time out for replacing screens, lunch and coffee breaks, etc. She testified at another point, however, that with the machine set at 8,000 per hour the operators "usually run between 50,000 and 60,000 per 7-1/2 hours." These figures are about 32 per- cent to 58 percent above the break-even point. Production Manager Robert L. Eberhart testified that quotas are established generally so that the operators will average 25 percent more than their base hourly rates. Jordan further testified that when Johnson in- sisted he could not run the machine at the speed at which it was set, she had employee MacArthur Ed- wards run it for about half an hour, during which time he produced 3,800 pieces , while Johnson ran another machine. She then had setup man Elwood Stevens run it for an hour , during which he produced 8,000 pieces. According to Jordan, John- son was at this time washing- not making-screens. She then sent Johnson back to operating it but he produced only about 3,500 to 4,000 per hour. Jor- dan said she "didn't feel like he was trying." She thereupon discharged him. Jordan denied having any knowledge that Johnson was prounion. 354-126 O-LT - 73 - pt I - 66 t026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For the following reasons, in addition to careful observation of the witnesses' demeanor, the Trial Examiner rejects Respondent's contention that it discharged Johnson for cause, uninfluenced by his union activities. Neither Edwards nor Stevens, who allegedly ran the machine satisfactorily on the day in question, was produced as a witness . They were the obvious persons to testify as to the operation of the machine and the raw material Additionally, Johnson had testified that the machine was running at a rate of about 16,000 per hour, while Jordan said it had been set at 8,000. Stevens, the man who set the machine up, was in a position to provide relevant testimony. Instead of producing the lower ranking employees with direct personal knowledge, Respon- dent produced only higher ranking personnel, such as General Foreman Carter and Personnel Director Edgar, whose knowledge was hearsay several steps removed from the facts. Johnson testified that the incident in question was the first time the setup man had set the speed of the machine, previously the operator had always been able to adjust the speed of his own machine. Jordan testified that she had ordered the machine to be set at 8,000 and had controlled the rate of speed since about February or March of 1967. She did not suggest that the change in the nature of her operations was pursuant to orders trom higher authority. Production Manager Eberhart, however, testified that about 6 months to a year before the hearing in August he, "as management ... in- structed the setup man that he would set the speed of the machines." Eberhart was asked whether an operator was allowed to reduce the speed of a machine if he received bad raw material. His reply was: "Yes, or I would think that he would call a setup man and have a setup man work with him .... The proper instructions for the setup man would be to set this machine back a little slower and see if the quality would get better, yes." Further, Line Foreman Patterson testified that a machine opera- tor is permitted to adjust his own machine "except when he abuses it." Additionally, the General Counsel adduced un- contradicted evidence that two employees, Jimmy Roy Skipper and Ronald W. Larrimore, had quit their jobs on the shift just before Johnson's because the raw material on which they were working was defective and their foreman had refused to take it off. Upon leaving, Skipper took a handful of the pieces, which were introduced into evidence. Many of the discs in evidence are warped to a substantial degree visible on casual inspection. Respondent's witnesses acknowledged that warped discs will break the screens in the paint machines and other- wise cause difficulties According to Eberhart, the warped discs in any batch of raw material should not exceed 3 percent. The discs in the record, '0 In its brief, Respondent says "All machines for that size disc are set at that same speed , and the other operators make it without any which were taken at random from the material being processed at the time, appear to contain con- siderably more than 3 percent warped pieces. There is no dispute that the raw material Johnson was working on was the same as that on the prior shift and that he was operating the same machine that Larrimore was running when he quit.40 Johnson testified that when Jordan insisted that he run the machine at the speed set, he asked to see Production Superintendent Walker. Although it was company policy that employees were free to talk to Walker at any time on any problems, Jordan denied Johnson's request When Johnson reported this fact to Edgar, Edgar summoned Jordan and Line Foreman Rockett. According to Johnson's un- contradicted testimony, Jordan explained her con- duct by saying that "in the state of mind [Johnson] was in, he was in no condition to see anybody." Johnson was nonetheless discharged without being afforded an opportunity to speak to Walker. The employee report concerning Johnson's discharge says in part: [his employee's services are being ter- minated ... as unsatisfactory for insubordina- tion and disregard for all previous warnings about poor attitude and disposition The report summarizes Respondent's version of the events on April 6 and concludes: This condition has been tolerated over one week as his incentive earnings indicate. Jordan suggested, and Respondent repeats in its brief, that "Johnson's past job attitude was to per- form satisfactorily upon the high rate jobs but when the slow rate jobs such as the 500 discs came through then he would look for something else to do." This general complaint was unsupported by any detail and is not reflected in any employee re- ports. Further, Foreman Patterson testified that the rate of pay for .500 discs was set so that "a com- petent operator running the .500's for a given length of time may run fewer but could expect to make about the same money as a competent opera- tor running any other size disc." At the time in question, Johnson did not ask for another assign- ment; what he requested was simply that the machine be slowed down. His own self-interest would dictate his operating the machine at the fastest speed practicable. Presumably to support the accusation of past misconduct, Respondent introduced two other em- ployee reports on Johnson. One, dated February 28, said he had been cautioned about leaving his department without permission to talk with another employee. Jordan testified that Johnson had been spoken to before but she did not know how long this conduct had been going on. She testified that on February 28 "I told him we just couldn't allow it any longer and I would have to put in an employee report on him, that it was very much against our problems " Respondent conspicuously omits any reference to the Lar- rimore and Skipper resignations AEROVOX CORPORATION OF MYRTLE BEACH, S.C. rules." The report says that Johnson "stated when the time came that he couldn't talk with another operator in another department about work it was really bad at Aerovox." Respondent did not present any evidence that Johnson had been conversing on nonwork matters; the purpose of Johnson's alleged trips to other departments was apparently deemed irrelevant to the offense. The second report, dated March 14 , recited the fact that, without permission, Johnson had worked through his lunch period and then left work early, telling his superior that he was leaving to take his child to a doctor. The report concluded: He has been advised that we will not tolerate any further disregard for any of our rules & regulations on his part and any recurrence of this will result in dismissal or disciplinary ac- tion. These two reports, taken at face value, bear little relationship to the alleged misconduct on April 6. Their wording and tone give them all the ap- pearance of "record building" to support a later discharge.41 Discrediting Jordan's disavowal of knowledge of Johnson 's union views and activities , the Examiner finds, on all the evidence, that Johnson was dis- criminatorily discharged for his union activities, in violation of Section 8(a)(3). c. The layoff of Mary Mishoe and Arlene Hucks Mary Mishow and Arlene Hucks were both "material handlers" or "assistant supervisors" on the third shift in the disc department. There is no substantial disagreement that the terms "material handler" and "assistant supervisor" are inter- changeable. The circumstances surrounding their layoff are essentially undisputed . On the night of Friday, May 19, they both reported to work wearing union badges Mishoe testified that her supervisor said he was ashamed of the girls who were wearing union badges. She worked the entire shift that day. About 15 minutes after she had arrived at work at mid- night on Monday , May 22, Foreman John King told her he had orders to send her home and that she was to report to Robert Edgar, personnel manager, at 9 a.m. Tuesday. Arlene Hucks' situation was es- sentially the same as Mishoe 's: she wore a union badge Friday night42 and then was sent home Mon- " In the course of cross-examination , Jordan produced six prior em- ployee reports concerning Johnson Although these prior reports were not offered in evidence , examination of Jordan disclosed that four were dated in 1964 and two in 1965, the most recent being April 3, 1965, 2 years be- fore the earliest in evidence Jordan could not explain why Johnson had not been discharged earlier, on the basis of four or five reports " that say his quality needs improvement " Further cross-examination disclosed that the report of April 3, 1965, stated that the quality of his work had improved and he had " I b Iecome a good employee " " Hucks ' testimony was "My supervisor , Tony Wilder, came up and asked me why I was wearing that nasty old badge, and I answered 'Just mostly for kicks , why, do you think Ishould take it off' He said ' no, the damage has been done now,' and he dropped the subject " " Mishoe 's testimony was "He asked me if I had ever worked for a 1027 day night , to report back to the personnel office at 9 a.m. Tuesday. On Tuesday morning Edgar told each of the two employees that she had been sent home because she had worn a union badge . He asked each of them if she had been active in the Union Each of them assured Edgar she had not been active and had worn the union badge on Friday on a dare.43 After Edgar spoke with Mishoe and Hucks in- dividually , he and Production Superintendent Walker spoke to them together . Both Edgar and Walker advised them that they were part of management and thus could not participate in union activities . They were then asked to stay on to attend a supervisors ' meeting , which they did. It was on this same day, May 23, that the third shift was discontinued and all third -shift employees were laid off.44 Several of the laid-off third-shift em- ployees were given jobs on the first or second shift, but neither Mishoe nor Hucks was offered any such transfer and neither had been recalled at the time of the hearing in this case Respondent concedes that if Mishoe and Hucks are determined not to be supervisors , Walker's and Edgar's statements to them were violative of Sec- tion 8(a)( I). Respondent maintains, however, that their status cannot be litigated in the present proceeding because it was conclusively determined in Case I1-RC-2539 that " assistant supervisors" are supervisors under the Act. In the hearing in that case certain stipulations were made by Respondent, represented by its present counsel , and the Union, represented by its business manager. Basically the parties there stipulated that- All supervisors so styled at Aerovox Corpora- tion together with all foremen , and all assistant foremen, and all assistant supervisors where ever they may be located at Aerovox Corpora- tion of Myrtle Beach are supervisors within the meaning of the Act. At other points in the representation hearing, stipulations were entered naming specific persons, and their titles , considered to be supervisors. Although several " assistant supervisors" were named and Respondent 's counsel stated that a list of persons recited " comprises the supervisory per- sonnel in the Disc Department," neither Mishoe nor Hucks was specifically designated , although they had then been material handlers for 4 or 5 months. When the general stipulation quoted above Union , and I told him 'no,' and he told me that he had, that he had worked under a strain the whole time he had worked under it, and he asked me why I wore the Union badge, and I told him 'well, I had been talking to people,' and they had dared the women out there to wear them, and the women out there were scared to wear them , and I put it on and wore it to show them I weren 't scared to wear it, and he wanted to know if I had ever took any part in it, and I told him 'no, other than to put on the Union badge and wear it to work,' and he said well, if he knew that I was wearing that Union badge to be working for the Union, he would fire me, but being I didn't know that I wouldn 't be covered under the Union if it went in, he would put me on tem- porary lay-off " Walker testified that he told the two women that he had heard rumors that they were active in the Union He could not recall from whom or under what circumstances he had heard the rumors 44 One department, not here relevant , continued to work the third shift 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was made, the Hearing Officer said "it isn 't practi- cal at this time to get the names of these super- visors, and we cannot do it, so we are accepting this type of stipulation." In his Decision and Direction of Election, the Re- gional Director designated a production unit, and delineated the exceptions only in the following general terms: excluding office clerical employees, profes- sional employees, all employees in the certified maintenance unit, guards and supervisors as defined in the Act. The Regional Director thus did not undertake to determine any questions of eligibility. Respondent apparently recognized that unit placement issues were not determined by the Regional Director, since the eligibility list it provided included the names of several "assistant supervisors," including Mishoe and Hucks Mishoe voted at the election, under challenge by Respondent.45 Respondent chal- lenged three voters on the ground that they were assistant supervisors. The Union challenged one voter on the same ground. The present issue was thus potentially presented to the Regional Director by challenges to ballots.46 There were a total of 66 challenged ballots. On September 19, the Regional Director decided 48 of the challenges, sustaining 7 and overruling 41. As to the remaining challenged ballots, which included those cast by "assistant supervisors," he said "the contentions of the parties and/or the evidence relat- ing to the duties and responsibilities of the chal- lenged voters is in conflict which can best be resolved by record testimony." The 41 ballots held valid were then opened and counted The result of the election was then- 335 for the Union and 307 against. Since the remaining 18 challenged ballots were thus not determinative, no hearing was held or decision rendered by the Regional Director con- cerning the status of Mishoe or other assistant su- pervisors.47 The Trial Examiner rejects Respondent's conten- tion that litigation of the supervisory status of "assistant supervisors" is precluded in the present proceeding by Section 102.67(f) of the Board's Rules and Regulations, which reads in part: The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceed- ing .... While the Board's decisions are not entirely uniform, the better view appears to be that a com- plaint proceeding alleging violations of Section 45 Hucks did not vote because she was out of town for personal reasons w The facts here stated are taken from the record in Case I i-RC-2539, of which the Examiner takes official notice "T On November 16, after the close of the third hearing in the present proceeding , the Regional Director issued a Second Supplemental Decision overruling Respondent's objection to the conduct of the election and certi- 8(a)(1) and (3) (rather than a failure to bargain in violation of Section 8(a)(5)) is not a subsequent unfair labor practice proceeding "related" to the representation proceeding within the purview of the regulation. See Amalgamated Clothing Workers of America [Sagamore Shirt Co ] v N.L.R.B., 365 F.2d 898 (C.A.D.C.). Additionally, the waiver provision of the regula- tion by its terms applies only to the parties to the representation proceeding. In the representation proceeding, the Regional Director was not a "par- ty," but served rather in an administrative, in- vestigative, and decisional capacity. Unless the Board may now, in this essentially adversary proceeding, litigate the factual issue presented, Mishoe and Hucks, as employees, will have gone unheard. The Board's responsibility to protect the statutory rights of employees cannot be nullified by agreement of employers and unions. Cf. Southbridge Sheet Metal Works, Inc., 158 NLRB 819, 826, enfd 380 F.2d 851 (C.A. 1); Mitchiyoshi Uyeda, d/b/a Udaco Mfg. Co., 164 NLRB 700, citing Shoreline Enterprises of America, Inc., 262 F.2d 933 (C.A. 5). The Trial Examiner thus holds that the super- visory status of Hucks and Mishoe was properly litigated in this proceeding and is here to be de- cided. The basic functions of "material handlers" are to see that the materials to be processed in their sec- tions are available and that the finished work is generally satisfactory before it is passed on to the inspectors and thence to the quality control depart- ment. The evidence establishes that material han- dlers have no authority to hire or fire or to make ef- fective recommendations with respect thereto. Similarly, they cannot take disciplinary action. At most, they may report to their superiors derelic- tions they may observe on the part of other em- ployees, but any action is taken by the superiors after investigation.4' Material handlers are not per- mitted to leave their work areas without securing permission from their superiors. Nor are they per- mitted to excuse any worker who may desire or need to be away from work Mishoe testified that, at full production, there was a maximum of four other people working her section and for some time before she was laid off there was only one person in addition to herself in her section. Hucks testified that in times of full production there would be from six to eight persons in her section but at the time she was laid off there were only two workers in ad- dition to her. When serving as such, material han- dlers are paid on an hourly basis, whereas straight production workers are paid on a production- incen- tive, or essentially piecework, basis, with a guaran- fying the Union On January 3, 1968 , the Board denied Respondent's request for review 4' An assistant supervisor may occasionally sign or initial an employee re- port However , setup man John Martin, a nonsupervisory employee, was asked to and did sign the employee report concerning the discharge of Phil- lip Hucks See infra AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1029 teed minimum. Mishoe testified that, as a produc- tion worker, she had earned as high as $2.70 to $2.80 per hour, with her average running around $2.50 to $2.60, whereas, as a material handler, she received only $1.45, plus a 5-cent shift differential, per hour Material handlers, like rank-and-file production workers, wear red identification badges; supervisors, assistant foremen, and foremen wear black identification badges. The Company's in- surance program is conducted in two classes, managerial and nonmanagerial. Production Su- perintendent Walker testified that the two classes are divided at the "black-badge" level, that is, assistant supervisors, who wear red badges, are in the insurance program for rank-and-file employees, whereas supervisors and all higher echelon person- nel are in the mangerial insurance program 49 In seeing that sufficient materials are available for processing and that the finished products are generally satisfactory, material handlers are authorized to give some orders to the production workers in their sections. However, such orders or instructions are of a routine nature and the material handlers have no scope for independent judgment or discretion. ITT Federal Electric Corp., 167 NLRB 350 In addition, material handlers generally work with their hands and spend a substantial portion of their time performing actual production functions, such as running machines. In the Respondent's or- ganizational table, assistant supervisors are listed in factory, as distinguished from supervisory, classifi- cations. Mishoe and Hucks both testified that, although they were made material handlers in January and February, respectively, they had never been told they were "supervisors" or invited to attend any su- pervisors' meetings until May 23, the day they were laid off Corey Bros., Inc., 162 NLRB 1253. Walker testified that the position of assistant su- pervisor is- a training ground for supervision. That is your first step. I mean you get in, you make out good, you're showing yourself a good super- visor, you are learning all the time, and then you graduate from one class to another.... Assistant supervisors and supervisors attend classes given periodically at the Company by a Clemson professor. However, setup man Roberts, a nonsu- pervisory employee, apparently also attended Mishoe and Hucks apparently had not attended. The Board has held that a person in training for a supervisory position is not a supervisor, particularly where, as here, it is entirely speculative if or when he will actually become a supervisor. Hilton-Burns Hotel Co., Inc., 167 NLRB 221. Walker also testified that at the time of the hear- ing there were 6 to 7 foremen and 10 to 13 super- visors in the disc department, with a total employ- ment of about 150 on two shifts. In normal times, with full production, there are generally about 20 supervisors in the disc department. If the 18 to 25 material handlers generally in the disc department were to be included in the supervisory category along with the supervisors and foremen, the ratio of employee to supervisors would be not more than 5:1 or 4:1, an uncommonly low ratio. See Welsh Farms Ice Cream, Inc., 161 NLRB 748. On all the evidence,50 the Trial Examiner con- cludes that Mishoe and Hucks were not supervisors within the Act Accordingly, Respondent violated Section 8(a)(1) of the Act when it admittedly prohibited them from wearing union badges and participating in union activities.51 Similarly, it is clear that Respondent violated Section 8(a)(3) of the Act when it sent them home on Monday, May 22,52 because of their having worn union badges on May 19, and, according to Walker, because of ru- mors he had heard that they were engaging in union activities. It is undisputed that on May 23 the entire third shift of the disc department, on which Mishoe and Hucks worked, was laid off for economic reasons. Some of the third-shift employees were given jobs on other shifts.53 The General Counsel maintains that Respondent's failure to recall Mishoe and Hucks after the layoff of May 23 was discrimina- torily motivated. Respondent, on the other hand, maintains that- ... there is no evidentiary showing upon the record of any existing job availability for either Mishoe or Hucks through the date of hearing of this matter in August. The Disc Department, third shift has not be reinstated . and ap- proximately 25 to 30 percent of the total work force of Respondent was still on layoff .... The record establishes that several third-shift em- ployees laid off on May 23 were transferred to the first or second shift in jobs other than those they had been performing on the third shift Mary Lou Richardson, the only other third-shift material han- dler laid off, was returned as a line operator on the first shift on May 29 14 Asked the basis for determining which laid-off employees would be given jobs on the first or second shift, Walker testified as follows. . . it is a blend of their abilities, their skill, 4' This testimony was adduced by questioning by the Trial Examiner Thereafter, in answer to questions by Respondent's counsel, Walker testified that he was not an expert concerning the Company's insurance program However, Respondent did not thereafter present any evidence concerning the insurance program so Angeline Stanley, a material handler, testified on behalf of Respon- dent Her testimony , generally consistent with that of Mishoe and Hucks, also shows that material handlers do not exercise truly supervisory authori- ty but are escPntiaily similar to expediters, or leadmen with the potential for future supervisory status " Respondent also violated Section 8 ( a)( I) when Foreman Patterson asked Arlene Hucks if employee Harrelson had solicited fort he Union 52 Accurately this time was about 12 15 a m , Tuesday, May 23 "Some employees, including James Phillip Hucks (see infra), were transferred to the Hi-Rel Department , which continued to work the third shift '" She was then discharged for cause on June 20 There was no evidence concerning her replacement, if any 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the amount of jobs they can do, their absentee- ism, how dependable they are; if they are here every day, and so forth and so on, .. . Personnel Director Edgar said the Company's pol- icy on layoffs was a "combination" of seniority and ability or skill, with seniority the decisive factor "if everything is equal." Mishoe's undisputed testimony was that she had worked for Respondent for 5 years and 8 months, during which time she had missed only 3 days' work. She also testified without contradiction as follows concerning her experience: I have been a catcher on the DSMR machine; I have been a utility girl; I have worked on the feed-through machine; I have worked on the eyelet machine, C. N. axle machine; fired ovens; run a TSC machine; I have stripped carriages, I have sorted work, and cleaned leads, and dipped Durez, and I was a first aid nurse on third shift. Respondent's counsel offered to stipulate that "the reason that she was made assistant supervisor was because her work was excellent .... because of her background of that sort of work." Respondent similarly admitted that Hucks was an excellent worker. Their promotions to assistant supervisor status presumably reflects Respondent's judgment of their superiority to the remaining rank-and-file employees in the department. In its brief, Respondent says: ... Both [Mishoe and Hucks] had secondary classifications, Arlene Hucks as a catchet which job she would perform should she be returned to production, and Mishoe as a durez dipper which job she would perform should she be returned to production.. . Respondent then proceeds to state that neither catchers nor durez dippers laid off have been returned to work and employees in both classes are still on layoff. This argument, however, ignores the established fact that other employees were recalled for jobs other than those they had previously held and Walker's unequivocal testimony that com- petent employees would be recalled for jobs in which they had had no prior experience. One would normally expect that the superior employees laid off would be the first recalled. Walker also testified as follows concerning his in- terview with Mishoe and Hucks on May 23 We told them at the time that they were on the management team, and that they could not be on the management team and attend [union] meetings like that .. we told them that if they had any leanings in that direction, they couldn't be on the management team, and we would have to find them a job out in the plant or something like that ... Yet no attempt was made to place these employees on the first or second shift. In view of all the facts, the inference is inescap- able that Respondent's failure to offer Mishoe and Hucks employment on the first or second shift was dictated by displeasure at their having worn union badges and the belief that they were union sym- pathizers. Respondent put in evidence a list of laid-off third-shift employees, which shows that one em- ployee was recalled on May 25, nine on May 29, three thereafter, and three on unspecified dates. Respondent's list states that Phillip Hucks (infra) was returned to work on May 29. Hucks testified, however, that he started back to work on May 24, on the first shift, where he was trained to operate a laminating press for a week or two and then put back on the third shift. Walker testified that he be- lieved some employees were recalled within a day or two after May 23. However, since Mary Lou Richardson, the only material handler in addition to Mishoe and Hucks who was laid off on May 23, was not recalled until May 29, the Examiner finds that Respondent's discriminatory failure to recall Mishoe and Hucks commenced on May 29, and will order backpay from that date.ss 4. The discharge of Robert Grimm Robert Grimm, hired by Respondent on November 23, 1965, was discharged on August 11, 1967 At the time he was working as a slip caster in the Hi-Rel Department on the third shift (midnight to 8.30 a.m.). Grimm testified that he attended about eight union meetings, talked to employees about the Union on his breaks, and wore a union pin or badge for about 3 to 5 months preceding the election in July. For the first month he wore a small blue badge and then a large white one with red letter- ing.56 Employee Lamar Sellers, testifying on behalf of the General Counsel, said that Grimm "wore a union badge, I guess, a week or two, and then wore it the day of the election," in July. Sellers generally was somewhat vague as to dates. John Martin, a setup man on the third shift, who was called as a witness by Respondent, testified that he could not recall Grimm's having worn a union button, but he also conceded that he "[d]idn't pay any attention." The Trial Examiner credits Grimm's testimony con- cerning the union badge. On all the evidence, the Trial Examiner finds that Grimm's support of the Union was so open and extended that it was known to Respondent. Respondent's version of the discharge is as fol- lows: Grimm was a machine operator on the third shift. At the time in question, there was no regu- ss,This is in addition to backpay for the I-day layoff of May 22 (1 e midnight to 8 30 a in of May 23 ) 56 Grimm indicated the size of the badge with his hands and then adopted Respondent's counsel's estimate of 4-inch diameter Other evidence, how- ever, indicates that the large union badges were probably around 2 inches in diameter AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1031 larly assigned third-shift foreman, Foreman John King having quit a month or two before. Around August 8 Kenneth Johnson, second-shift foreman, began to stay over for from 2 to 5 hours on the third shift and Karl Allen, first-shift foreman, with general supervisory authority over all three shifts, came in a few hours before the beginning of the first shift. Kenneth Johnson testified that on August 11 he was watching Grimm closely and observed him on two occasions leave his work area and go to con- verse with another employee, Lamar Sellers. Ac- cording to Johnson, the first conversation lasted about 3 to 5 minutes and the second about 4 or 5 minutes.58 As Grimm was returning to his work sta- tion the second time, Johnson stopped him and said something about the matter. According to Johnson, Grimm replied, in picturesque and profane lan- guage, that it was none of Johnson's business John- son thereupon suspended Grimm and ordered him to leave because of his cursing and challenging Johnson to go outside and fight with him. At that point Grimm went to the foreman's desk, saying he wanted to telephone Allen. According to Johnson, Grimm wanted to open and search Allen's desk to find his home telephone number. Johnson prohibited Grimm's using the telephone or opening Allen's desk. When Grimm refused to leave the premises Johnson called a guard, who escorted Grimm out of the building. When Allen later ar- rived, Grimm was outside the plant sitting in Sel- lers' car, waiting to ride home with Sellers. At Grimm's request an employee asked Allen to go out to see Grimm About 5:30 a.m. Allen did so and there discharged Grimm. Grimm testified as follows: He went to the water fountain, which was very near Sellers' work station. After having a drink of water, Grimm stopped just long enough to ask Sellers when and where he was going to have his break. According to Grimm, the conversation took about 20 or 30 seconds. Sellers corroborated Grimm in all significant respects. Neither Grimm nor Sellers was cross-examined concerning a possible prior conversation between them that night, even though Johnson testified that there had been one. On his way back to his machine, Grimm was stopped by Johnson. They had words, including profanity by both of them, according to Grimm. Although Johnson denied having used any curse words himself, Respondent's witness Martin quoted both Grimm and Johnson as having done so. Grimm testified that he wanted to telephone Allen but denied that he made any move to open Allen's desk to find his home telephone number. The evidence in connection with both the Phillip Hucks ( infra) and the Grimm discharges indicates strongly that the employees-at least those on the third shift-did not like Kenneth Johnson and were reluctant to recognize him as their supervisor or foreman. Grimm conceded that a short while be- fore he was discharged he and another employee had refused to obey Johnson's order to clean a machine because Karl Allen had not told them to do so. Sellers corroborated the testimony of both Hucks and Grimm that Johnson "was on them" from the beginning of his practice of staying on after the end of the second shift. Sellers said that Johnson immediately "started giving us all orders, . .. he just stood there and watched us."59 Johnson conceded that it was within 3 days, at most, after he started to supervise on the third shift that he criticized the workers for having "excessive" scrap and instructed them henceforth to include within good work types of units which they had thereto- fore been putting in scrap. When asked the specific reason for Grimm's discharge, Johnson said it was "For threatening & using abusive language to a foreman." Grimm readily conceded that he had used curse words but said that Johnson had also. Grimm testified that it was Johnson who issued the challenge to go outside and fight, whereas Johnson ascribed the threat to Grimm. Johnson did, however, concede that he wanted to fight Grimm. Foreman Allen's written statement of the reason for Grimm's discharge is broader than Johnson's testimony. Allen's statement refers to some specific incidents and continues: I reminded Bobby [Grimm] that he had an em- ployee report in on him and several minor in- cidents which did not get a report and that this added up to the fact that he was not perform- ing his job to satisfaction and that I was in complete agreement with the foreman, Ken Johnson.. The record shows, however, that on June 5, 1967, just 2 months earlier, Grimm had been given a wage increase, with an employee report which read: The above employee's performance are lsic] satisfactory. He cooperates and works well with others On that report Grimm was rated as "good" in abili- ty, efficiency, personal qualifications, and physical qualifications. Inconsistently, there are adverse em- ployee reports about Grimm dated April 22 and June 14-both before and after the wage increase. Both of these rate him generally as only "fair," as distinguished from the "good" evaluation on June 5.60 The reprimand of June 14, 9 days after the rate 57 The day the second round of hearings in this proceeding commenced 59 Asked if 3 to 4 minutes was an excessive time for an employee to be away from his work , Johnson said it "is getting on the verge of being exces- sive " 59 Sellers , who also had been active for the Union, testified that about 2 weeks after Grimm was discharged Sellers quit because "they was in after me so, I figured that they were going to fire me anyway, so 1 Just went ahead and quit I have never been fired , and didn't want to be fired " 9° Assistant Foreman Gladys Johnson prepared the report of April 22, which stated that Grimm had been caught dozing and "was warned of his actions and if there is a re-occurance Fsic I necessary action will be taken She also prepared the June 5 recommendation for a raise 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase, stated that Grimm had been warned about going home without permission and that "This is the second time within three (3) weeks he has been told that this will stop or action will be taken." The Trial Examiner credits Grimm's testimony that he had become ill at work and had told Foreman King that he was going home because of illness. As with other employees involved in this proceeding, the Examiner cannot escape the in- ference that Respondent was "building a record" to justify discharge of Grimm, a satisfactory employee. If the Trial Examiner had any doubt as to the pretextual nature of Respondent's discharging Grimm, the doubt would be obviated by an unex- plained inconsistency in Respondent's evidence. The employee report prepared by Johnson and dated "8-11-67" summarizes Johnson's version of the Grimm incident and ends with the note: "See attached statement." The "attached statement" is one by Karl Allen. Johnson testified that he wrote his report, put it in Allen's desk, and then left the plant before Allen arrived Johnson was then questioned as to the note, "See attached state- ment." In explanation, Johnson said that his original written report had not contained that note but had set forth in graphic detail the profanities ut- tered_b-y- Grimm. According to Johnson, when he arrived at work the next day he was instructed by Allen to rewrite the report so as to delete the offen- sive detail and simply refer to "strong, threatening and abusive language. "61 At one point, however, he also testified that Allen had written the words "See attached statement " Those words appear to be in the same handwriting as the rest of the report, in- cluding Johnson's signature The Johnson report in the record was obviously written after the fact, since it says: "Ken Johnson did not tell Grimm that he was fired, but he was told later that morning by the day shift foreman Karl Allen." Allen testified that he prepared his statement after he read the one Johnson had left in his desk and after he had spoken to Grimm. But Allen was clear that he discharged Grimm and wrote his report before Johnson returned to work the next day. And Allen unequivocally denied ever having seen any report by Johnson which set forth the details of Grimm's allegedly profane language. Allen was certain that the Johnson report as it appears in the record is ex- actly the same as the one Allen found in his desk when he came to work on the morning in question.62 As it appears in the record, Allen's "at- tached statement" is typewritten and dated "Au- gust 15." Asked concerning that date, Allen could surmise only that that was the date on which his statement, originally handwritten on August 11, had been copied by a typist. Neither Johnson's original report nor the handwritten original of Al- len's statement was produced. Allen's typewritten statement is addressed "To Whom It May Con- cern " He testified, however, that the salutation was directed only to persons within the Company and there was no intention that the statement be "pub- lic" or available to persons outside the Com- pany. He could not, however, provide any reason why a purportedly intraoffice memorandum was typed, as it was, on company letterhead. In view of this confusion and conflict, the Trial Examiner is unable to credit either Johnson63 or Al- len.64 One further circumstance should be noted. John- son testified that he did not discharge, but simply suspended, Grimm. Allen thereupon discharged him on the basis of only Johnson's original report and a conversation with Grimm, in which, accord- ing to Allen, Grimm denied having cursed but ad- mitted having invited Johnson outside the plant. Allen did not explain why he precipitately discharged Grimm without consulting Johnson to find out why the latter had not immediately exer- cised his admitted authority to fire Grimm on the spot 65 On all the evidence, the Trial Examiner finds that Robert Grimm was discriminatorily discharged in violation of Section 8(a)(3). e The Discharge of James Phillip Hucks Phillip Hucks was discharged on August 15. Hucks had been a union activist from the beginning of the campaign among the maintenance workers, having been at that time a setup man and thus within the maintenance unit.66 He testified on be- half of the General Counsel in the present proceed- ing on August 8 and 9. Respondent does not deny having had knowledge of Hucks' union sympathies and activities. Respondent maintains that Hucks was discharged for sleeping on the job. At the time in question, Hucks was operating a laminating press on the third shift, which works from midnight to 8:30 a.m. s' Johnson's report as it appears in the record says Grimm used "Very strong Cursing languet I sic) to his Foreman " sz Referring to the Johnson report in the record, Allen said "That is the original report there that he left me " ' The General Counsel requested that the Trial Examiner take judicial notice of the fact that another Trial Examiner had previously discredited Johnson as a witness in Franklin Brass Products, 151 NLRB 800, 804 In discrediting Johnson in the present proceeding, the Trial Examiner relies solely on Johnson's demeanor and the evidence in the present proceeding, with no consideration given to the Trial Examiner's action in Franklin Brass w The Trial Examiner's conjecture is that the Johnson report and the Allen statement were prepared cooperatively sometime after the fact Sig- nificantly, neither is signed by Grimm and there is no evidence that he was asked to sign either, although he had signed the adverse report of April 22, 1967 In contrast, James Phillip Hucks (see infra ) was twice requested to sign the employee report on his discharge According to him, he acceded to the second request to assure that the report would not later be changed One of Harrelson 's employee reports contains the notation "Employee given opportunity to sign this report but refused " ss In explaining why he had refused to allow Grimm to telephone Allen, Johnson said , inter alia, "the authority I have is just as strong as the line shift foreman " ss He actually voted in both elections, having been transferred from maintenance to production around May 23, when most of the third shift was discontinued See Mishoe's and Arlene Hucks ' layoff, supra AEROVOX CORPORATION OF MYRTLE BEACH, S.C. 1033 There was no regular foreman on the third shift at the time. For a week, Production Foreman Karl Al- len, who regularly worked on the first shift, had been coming to work a few hours early to supervise the third shift (See discharge of Robert Grimm, supra.) Allen testified that on the morning in question he arrived at work 5 or 5:30. Hucks was asleep with his machine in full operation. Allen walked over to and shook Hucks to wake him up. According to Allen, he had observed Hucks asleep for about 10 to 15 seconds. As Hucks' head was down on the table, Allen bent down to observe Hucks' eyes and found they were closed. Allen then shook Hucks to wake him up, whereupon Allen turned around and walked out of the room. Allen testified that during the entire period, from the time he entered until he left the room, Hucks' machine was in full operation. The machine in question operates on a cycle which can be initiated only by the operator's push- ing a button, when a cycle has been completed, the machine stops operating until it is reactivated by the operator's pushing the button. Hucks testified that when the machine was running 7-layer materi- al, as it was at the time in question, the operating cycle takes about 20 to 25 seconds. Employee Sel- lers judged the duration of the cycle as 20 seconds. Setup man Martin, called as witness by Respon- dent, said the cycle for 7-layer material took about 15 or 16 seconds. Allen testified, without any cor- roboration, that the cycle was from 30 to 45 seconds-closer to 45. The Trial Examiner dis- credits Allen67 and finds that the cycle took about 20 seconds. In view of the duration of the cycle, it would be virtually impossible for anybody to activate the machine and then fall asleep before the cycle ended. As Respondent's witness Martin testified, an operator would "have to go to sleep right fast" to do so between the beginning and end of the machine's cycle. Had Allen said that Hucks had simply dozed off, his testimony might have been somewhat more plausible, but Allen emphatically stated that Hucks "wasn't dozing ... he was asleep and his eyes were closed "68 The Trial Examiner credits Hucks' testimony that his head was down at the time because he was checking to see that the material was going through properly. Employee Clarence L. Smith, who testified on behalf of Respondent, worked within a few feet of Hucks, and, when operating his machine, faced in Hucks' direction. Smith did not see Hucks asleep on the night in question. Setup man Martin, also called by Respondent, testified that "a lot" of em- ployees doze off on third shift and he did not know of anybody who had been fired for doing so. Smith denied ever having seen anybody sleeping on the job but reluctantly admitted that he had heard of such conduct. Assistant Foreman Gladys Johnson, who had worked for Respondent about 12 years, had never discharged anybody for dozing on the job. 69 The employee report on Hucks' discharge said, inter alia : "We have had extensive damage done to these mach. with Phillip was operating which we feel that was negligence on the operators part. [sic]" Allen testified, however, that Hucks was discharged for sleeping, not for "negligence." Moreover, Allen testified that no damage was done to the machine at the time in question and he was unable affirmatively to attribute any damage of the machines to Hucks' or any other employees' having fallen asleep. He admitted that he did not believe that any damage to the machines had been due to Hucks' sleeping. Hucks' employment history with Respondent is significant. On June 10, 1963, shortly after being hired, he was given a merit increase from $1.20 to $1.25 per hour. The request for increase, signed by Department Head Walker, said: "Performs his present job very well and accepts extra duties and responsibilities and requires very little supervision." About 6 weeks later he received a further merit in- crease to $1.33 per hour. This time Production Manager Eberhart wrote: "This man is an excellent worker and very dependable. In my opinion he is one of the best men I have in this section " On January 17, 1964, he was given an increase to $1.38 per hour A year later he was raised to $1.75, his foreman writing: "Capable and efficient. Willing to accept responsibility outside of immediate area." Then in October 1966 he was raised to $2 20 per hour, the employee report reading: "Employee's services has [sic] been very satisfactory and we are in agreement that he should be given top rate- $2.20." Additionally, in each of the years 1964, 1965, and 1966 Hucks had perfect attendance, for which he was heartily congratulated by Respon- dent. After all these accolades, under date of December 1, 1966, there appears an employee re- port reading: Employee was cautioned about his attitude towards fellow employees and his responsibili- ties, which has been less than satisfactory for about a month .... That report was made by Bellamy, who was not Hucks' foreman. Hucks credibly testified that he had never seen that report until the day he was dismissed, over 8 months later. The Trial Examiner finds it significant that the date of the first adverse 6' The Trial Examiner has heretofore discredited Allen's testimony in connection with the discharge of employee Robert Grimm, supra w Allen repeated this thought when asked why on previous occasions employees Grimm and Hucks had been simply reprimanded for sleeping on the job His reply was "There was quite a difference between Phillip (HucksI and Grimm Phillip was not asleep the best I remember, and it ap- peared that Grimm had his head laying down on the table, and was possibly dozing, but Phillip was not in this state of steepness " 61 Allen testified that after March 1967, when he assumed charge of this department, two people in addition to Hucks had been discharged for sleeping on the job One of the two was employee Jackie Causey However, Allen later said that Causey "quit on his own more or less " 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD report coincides closely with the appearance of the Union among the maintenance workers. On all the evidence, including careful observa- tion of the demeanor of all witnesses, the Trial Ex- aminer finds that James Phillip Hucks was discharged for his union activities in violation of Section 8(a)(3) of the Act. Hucks was discharged within a week after he testified on behalf of the General Counsel in the present unfair labor practice proceedings. How- ever, that fact alone is insufficient to warrant a finding that his discharge was based in any part on his testifying in this proceeding. Accordingly, the Trial Examiner will recommend dismissal of the al- legation that Hucks' discharge was violative of Sec- tion 8(a)(4). CONCLUSIONS OF LAW 1. Respondent, Aerovox Corporation of Myrtle Beach, South Carolina, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. International Brotherhood of Electrical Work- ers, AFL-CIO, Local Union No. 382,is alaboror- ganization within the meaning of Section 2(5) of the Act. 3. Respondent engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by maintaining an invalidly broad no-distribution rule, questioning employees concerning the union activities of other employees, threatening discriminatory action based on employees' union sympathies; threatening ad- verse economic consequences if the employees selected the Union as their collective-bargaining representative, and suspending nonsupervisory em- ployees for wearing union badges. 4. Respondent engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) by: discharging employees Ernest Bethea Martin, Munick Carl Hucks, Julius Virgil Roberts, George Lawrence Harrelson , John B . Johnson , Robert J. Grimm, and James Phillip Hucks, suspending employee E L Martin for 3 days; and suspending employees Mary E. Mishoe and Arlene Hucks and thereafter failing to recall them from layoff. 5. Respondent did not engage in any unfair labor practices within the meaning of Section 8(a)(4) of the Act. 6. It has not been established by a preponder- ance of the evidence that Respondent engaged in any unfair labor practices other than those specifi- cally found herein. THE REMEDY The Trial Examiner recommends that Respon- dent be ordered to cease and desist from its unfair labor practices and take certain affirmative action, including rescission of the broad no-distribution rule published in its employee handbook and posted on its premises. In addition it is recommended that Respondent be required to offer Ernest Bethea Martin , Munick Carl Hucks, Julius Virgil Roberts, George Lawrence Harrelson, John B. Johnson, Robert J. Grimm , and James Phillip Hucks immediate rein- statement to their former or substantially equivalent positions and to offer employees Mary Mishoe and Arlene Hucks positions for which their experience qualifies them or for which they can be trained on the job . The above-named employees and E. L. Martin shall be made whole for any loss of earnings suffered by them as a result of the dis- criminatory treatment herein found, backpay, with interest, to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Backpay for Mishoe and Hucks shall include pay for May 23 (third shift on the May 22 workday) when they were sent home and for the period commencing May 29, 1967. Upon the foregoing findings of fact and conclu- sions of law and upon the entire record in this case, pursuant to Section 10(c) of the Act, the Trial Ex- aminer recommends issuance of the following- ORDER Aerovox Corporation of Myrtle Beach, South Carolina, its officers , agents, successors , and as- signs, shall: 1. Cease and desist from: (a) Questioning employees concerning the union activities of other employees ; threatening adverse economic consequences of the employees' selecting International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 382, as their collec- tive-bargaining representative ; threatening dis- -riminatory action because of employees' union sympathies or activities ; and maintaining a rule prohibiting the distribution of written or printed material by employees in nonworking areas on non- working time. (b) Discouraging membership in and activities on behalf of the aforesaid Union , or any other labor organization , by discharging , suspending , or refus- ing to reinstate or recall any employees , or in any other manner discriminating in regard to hire or tenure of employment , or any term or condition of employment. (c) In any like or related manner interfering with, restraining , or coercing employees in the ex- ercise of their right to self-organization , to form abor organizations , to join or assist the aforenamed Union , or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activi- ties for the purpose of collec tive bargaining or other mutual aid or protection , or to refrain from engaging in such activities. 2. Take the following affirmative action which vill effectuate the policies of the Act: (a) Rescind without delay the broad no-distribu- AEROVOX CORPORATION OF MYRTLE BEACH, S.C. tion rule as published in the employee handbook and posted on the premises. (b) Offer immediate and full reinstatement to Ernest Bethea Martin, Munick Carl Hucks, Julius Virgil Roberts, George Lawrence Harrelson, John B. Johnson, Robert J. Grimm, and James Phillip Hucks to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (c) Offer to Mary E. Mishoe and Arlene Hucks immediate employment in positions for which their experience qualifies them or for which they can be trained on the job, without prejudice to their seniority or other rights and privileges. (d) Make the aforenamed employees and E L. Martin whole for any loss of earnings suffered by reason of the discrimination against them, in the manner set forth in the Trial Examiner's Decision. (e) Notify the aforenamed 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. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (g) Post at its Myrtle Beach, South Carolina, plant, copies of the attached notice marked "Ap- pendix."70 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 1 1, in writing, within 20 days from the date of receipt of this Decision, what steps have been taken to comply herewith.71 The complaint is dismissed insofar as it alleges violations of the Act other than those found in this Decision. '0 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 the Regional Director for Region 1 1 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX 1035 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 the following employees their former jobs and pay them for wages lost since their discharge: Ernest Bethea Martin Munick Carl Hucks Julius Virgil Roberts GEORGE LAWRENCE HARRELSON John B. Johnson Robert J. Grimm JAMES PHILLIP HUCKS WE WILL offer employees Mary F. Mishoe and Arlene Hucks jobs for which they are qualified or for which they can be trained on the job and will pay them for wages lost on May 23, 1967, and since May 29, 1967. WE WILL pay employee E. L. Martin for wages lost when he was suspended without pay for 3 days. WE hereby rescind our rule prohibiting the distribution _ by - employees of literature, pamphlets, or handbills and WILL permit such distribution in nonwork areas by and to em- ployees when not on working time. WE WILL NOT question our employees con- cerning the union sympathies and activities of other employees or request employees to re- port to us on such matters. WE WILL NOT threaten loss of jobs or other adverse economic consequences because the employees join a union or select it as their col- lective-bargaining representative. WE WILL NOT discharge, suspend, or in any other manner discriminate or threaten to dis- criminate against any employees because they join or support a union ; nor will we dis- criminate or promise to discriminate in favor of any employees because they do not join or support a union. All our employees are free to become or remain, or to refrain from becoming or remaining, members of International Brotherhood of Electrical Workers, AFL-CIO, Local Union No. 382, or any other labor organization. AEROVOX CORPORATION OF MYRTLE BEACH, SOUTH CAROLINA (Employer) Dated By (Representative ) (Title) 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, 1624 Wachovia Building , 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2392