Sinclair Glass Co.

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sinclair Glass Company, and Sinclair Glass Division, David B. Lilly Company, Inc., and United Glass and Ceramic Workers of North America, AFL-CIO. Cases 25-CA-3555 and 25-CA-3555-2 February 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On August 3, 1970, Trial Examiner James V. Con- stantine issued his Decision in the above-entitled pro- ceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondents had not en- gaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, Respondents and General Counsel filed exceptions to the Trial Examiner's Decision with supporting briefs. Respon- dents also filed cross-exceptions and a brief in re- sponse to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified below. 1. The Trial Examiner found that Respondents' ac- tion in withholding the Thanksgiving turkey gift from its employees in 1969 was in derogation of Respon- dents' bargaining obligations. However, Respon- dents' duty to bargain with the Union about this or any other subject was not placed in issue by the com- plaint and was not litigated by the parties. We there- fore do not adopt the Trial Examiner's view of the unlawful character of Respondents' conduct. Respondents' failure to give the employees a Thanksgiving turkey was, like other conduct de- scribed in the complaint, alleged and litigated as con- duct prompted by discriminatory considerations proscribed by Section 8(a)(3) and (4) of the Act. The Trial Examiner narrated the evidence presented on the motivation issue and found that Respondents de- cided to withhold the Thanksgiving turkey because they wished to substitute, instead, a $10 cash Christ- mas gift.' The Trial Examiner apparently concluded that Respondents were not therefore impelled in fact by discriminatory considerations. General Counsel takes exception to this finding and alleges it is incon- sistent with the credited testimony of Judith Snyder describing her conversation with Assistant Plant Manager Walter Harris on the subject on or about December 1. As found by the Trial Examiner, Harris told Snyder in that conversation that Ralph Hodges, Respondents' president, had decided not to give the employees the usual Thanksgiving turkey for two reasons: first, because he (Hodges) was "dissatisfied about the employees and the trouble they were caus- ing as far as following the union contract;" and sec- ond, "because Mr. Hodges was aggravated about the unfair labor practices and that [the] Local Union could buy [the employees] a turkey if [they] wanted it.", On the evidence above recited, it is clear that Harris represented Respondents' denial of the Thanksgiving turkey as a punishment for the Union and the employ- ees' activities in enforcing contract rights and in filing charges with the Board. It is also clear, and we find, that these representations were violative of Section 8(a)(1) of the Act. It does not follow, however, that the actual decision to withhold the Thanksgiving turkey was in fact prompted by the unlawful considerations described by Harris. President Hodges, who made the decision concerning the Thanksgiving turkey, testi- fied without contradiction that the decision was one which affected employees at all of Respondents' plants and not only the employees at the plant repre- sented by this Union; and that this decision was made as part of a plan to give the hourly employees the same $10 Christmas cash benefit which had theretofore cus- tomarily been granted only to salaried employees .2 The $10 Christmas bonus was thereafter in fact uniformly given in the form of a deposit or credit to a bank account in the name of each of Respondents' employees. In the circumstances we are persuaded that not- withstanding Harris' unlawful characterization, Re- spondents' action in withholding the Thanksgiving turkey was not an action designed to punish the em- ployees for their union activities or for their filing of the charges, but was in fact prompted by lawful con- siderations. We therefore do not find this action viola- tive of Section 8(a)(3) or (4) of the Act. 2. We agree with the Trial Examiner's finding that 1 As set out in the Trial Examiner's Decision the initial charge was filed October 25, 1969 The charges were being investigated by Board agents in late November or early December Snyder gave the Board agent an affidavit in support of the charges on December 3 2 Salaried employees were not, as a matter of custom, given the Thanksgiv- ing turkey 188 NLRB No. 33 SINCLAIR GLASS CO. Respondents discriminated against employees who joined the Union's 1968 strike in the matter of wage rates and thereby violated 8(a)(3) and (1) of the Act. This finding is based on undisputed evidence showing that Respondents paid three nonstrikers-Ruby Worthen, Joyce Baty Swimm, and Marsha Cole- man-at hourly wage rates higher than those paid employees who participated in the strike, even though the former strikers were performing comparable work. Despite Union protests, Respondents contin- ued to pay higher hourly rates to Coleman and Swimm until both left Respondents' employ on dates preceding the hearing in this case. Worthen, who was still an employee at the time of the hearing, continued to receive the higher wage rate until about October 1969 when Respondents ultimately acquiesced in the Union's demand that her wage rate be reduced to that specified for her job classification in the collective- bargaining contract between Respondents and the Union. Apparently because Respondents had ceased this unequal payment by the date of the hearing, the Trial Examiner failed to provide a remedy for the precedent effects of that conduct on the former striking employ- ees-namely those who continued to receive less pay than fellow employees solely because they, unlike those paid the higher rate, had engaged in protected concerted activities. However, in order to effectuate the purposes of the Act, we believe these lower paid employees should be made whole for the monetary loss resulting from Respondents' unlawful discrimina- tion against them .3 We shall therefore require Respon- dents to pay the former striking employees who were performing the same or comparable work, a sum equal to the wages paid Coleman, Swimm, and Worthen less the amounts already paid, together with interest at 6 percent. Because of 10(b) considerations, however, we shall limit Respondents' backpay obliga- tion to a period commencing on April 25, 1969, and ending as of the date Respondents ceased the dispa- rate wage rate payments to Coleman, Swimm, and Worthen .4 Contrary to our dissenting colleague, we do not believe that our make-whole remedy should be 3 Cf. Great Dane Trailers Inc., 150 NLRB 438, enfd 388 U S 26 Chairman Miller would adopt the Trial Examiner's Recommended Order for this violation inasmuch as neither General Counsel nor the Charging Party requested the backpay remedy afforded by his colleagues. Chairman Miller also notes in this connection that the Respondent 's preferential treat- ment of nonstrikers Coleman, Swimm, and Worthen was discussed by Re- spondents with the Union at the latter's request and that Respondents are not here accused of a failure to meet and/or to discuss this or any other appropriate subject with the Union in good faith . Chairman Miller also notes that the discrimination lay not in depriving strikers of any contract benefit, but rather in paying nonstrikers higher-than-contract rates A remedy which grants pay in excess of contractually agreed-upon rates, rests, in the Chairman's view, upon doubtful statutory authority and on equally doubtful policy considerations 363 withheld on the ground that the Charging Party and the General Counsel have not requested such a reme- dy or the circumstance that the Respondent has not violated Section 8(a)(5) as well as Section 8(a)(3) in this instance. It is a principle too well established in Board law to require citation of authority that a ques- tion of remedy is within the discretion of the Board. Section 10(c) directs the Board to order an offending respondent to cease and desist from its unfair labor practice and "to take such affirmative action includ- ing reinstatement of employees with or without back pay as will effectuate the policies of this Act." The fact that Respondent has not refused to bargain about its discrimination in the rate paid nonstrikers as opposed to strikers does not mitigate the seriousness of its un- lawful conduct. Nor does the existence of a contract rate warrant the conclusion that employees should not be made whole when, for unlawful reasons, other employees are paid a higher rate. In our opinion, a contrary view is not justified by any provision in this statute or any established policy in the law of labor relations. On the contrary, to deny these employees a reimbursement order leaves this Respondent with nothing more than a cease-and-desist slap on the wrist rather than a monetary deterrent to the commission of the same or similar unfair labor practices. 3. We do not, however, adopt the Trial Examiner's finding that Respondents' grant of vacation benefits to certain nonstrikers in June 1969 was made in viola- tion of its 8(a)(3) obligations. The relevant facts are as follows: Vacation benefits became due under the terms of the then effective collective-bargaining contract be- tween Respondents and the Union on June 1, 1969. Respondents were contractually obligated to pay ben- efits to unit employees who met certain specified length-of-service and hours-at-work conditions, and they did so. Respondents, however, did not confine the grant of vacation benefits to the employees due such benefits under the contract. They also granted vacation benefits to a group composed of 10 addition- al employees, 9 of whom were employees who had not participated in the Union's 1968 strike. In explaining its action, Respondents adduced undisputed evidence that they did not wish to withhold vacations from any employees who were hired during 1968 and who were still on the payroll on the date on which vacation benefits came due under the provision of the bargain- ing contract (June 1, 1969); and that they did not disqualify any of the employees who joined in the 1968 strike. In this fact posture, we are unable to find the Respondents' action was either meant to be, or was in fact, a disparate treatment of employees who participated in the strike. We shall accordingly dis- 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD miss the alleged violation of Section 8(a)(3) and (1) based on the Respondents' vacation grant .5 4. We adopt the Trial Examiner's conclusion that Respondents discharged Snyder because of consider- ations proscribed by Section 8(a)(3) and (1) of the Act. But, contrary to the Trial Examiner, we are con- vinced and find that Respondents' discharge of Sny- der was also moved by considerations in conflict with Section 8(a)(4) and (1) of the Act. We base this con- clusion on the following sequence of events which immediately preceded Snyder's termination: The initial charge in this case was filed October 25, 1969, following: (1) a series of attempts by the Union and the employees' grievance committee to get Re- spondents to stop their disparate treatment of former striking employees; and (2) the Union's invocation of Board processes in aid of these attempts. Snyder, the most vigorous employee member of the grievance committee, thereafter became the target for a number of antiunion remarks by supervisors on the subject of the filing of the charges. As noted above, Assistant Plant Manager Harris engaged Snyder in a conversation on or about De- cember 1 and told her, among other things, that Presi- dent Hodges was "aggravated" about the filing of the unfair labor practice charges and that he therefore withheld the customary Thanksgiving turkey gift from the employees. About 1:30 p.m., on December 3, Snyder asked Harris for permission to leave her work, explaining that she had an appointment at 2 p.m. to "give my testimony" on matters having to do "with the Union." Harris granted the permission, and stated, "Yes, he knew about it-that the Union men were in town." On the next day, Harris asked Snyder if she had in fact given her "testimony." Snyder responded that she had, and that the testimony was contained in an affi- davit to the Board which related to the pending charges .6 In a later conversation in which Harris and Snyder were discussing union matters, Snyder stated that she was tired of the Union; that she had received a lot of complaints from people that they did not want to back up by filing grievances; and that there wasn't anything she could do unless they did so. Harris sug- gested that she should try to get off the union griev- ance committee so that she would not be "the fall guy S We need not, and do not, decide whether the Respondents ' above-de- scribed grant of the vacation benefits to the group of employees not eligible to receive it under the terms of the contract may have been in violation of Respondents' contractual or statutory bargaining obligations . That question was neither presented by the complaint nor litigated at the hearing. 6 It is clear from the record that Respondents knew Snyder had given the Board the testimonial affidavit which they referred to as "testimony" in support of the charges in this proceeding. The Trial Examiner's implication that her "testimony" involved some other proceeding therefore appears to be an inadvertent error. for the employees' complaints." Snyder did not get off the union committee. On December 11, after Respondents suddenly served the dismissal notice on Snyder, Snyder visited the offices of President Hodges to discuss the matter. She told Hodges, among other things, that she had never before been fired from a job and asked if, at the very least, he could have her termination changed to a layoff. Snyder also told Hodges she believed her discharge had "something to do with her union activi- ties." Hodges then asked her if she had given her "unfair labor practice testimony" and when she said "Yes," he further asked her "what was in the testimo- ny." Snyder answered that she did not believe the "testimony" did him [Hodges] any harm and that it concerned the question of the preferential payment of wage rates to nonstriking employees. On December 12, Snyder was called to a conference by Supervisor Taylor.' He then reprimanded her for appealing to Hodges, and offered her two alterna- tives: (1) she could either leave her work permanently, in which case her discharge would be recorded as a layoff; or (2) she could remain an employee, but only on a part-time basis. Snyder refused both alternatives and left the plant.' The above-described circumstances, considered to- gether with those set out by the Trial Examiner in sustaining the alleged violation of Section 8(a)(3), per- suade us, and we find, that Respondents entertained an animus to Snyder both because of her vigorous role in pressing union grievances and also because she had given the Board an affidavit in support of the charges, and that but for this animus, Respondents would have retained Snyder in their employ. It follows that by discharging Snyder Respondents violated both Sec- tion 8(a)(3) and (4) of the Act as alleged. CONCLUSIONS OF LAW In light of our findings and in order to conform thereto, we hereby amend the "Conclusions of Law" as set out in the Trial Examiner's Decision as follows: a. Substitute the following as paragraph 3 of the said Conclusions of Law: By discharging Mrs. Judith Snyder because of her union activities and because she gave a testi- r Taylor was one of the three supervisors who had signed Snyder 's termina- tion notice 6 We note, as did the Trial Examiner, that at the hearing Respondent sought to defend its termination of Snyder on grounds that it had economic reason to reduce its complement in December 1969, and that it selected Snyder as one of the several employees to go because of an unsatisfactory work performance and an excessive amount of absenteeism . Like the Trial Examiner and for the reasons he stated, as well as for the considerations we have set out above, we find Respondents' asserted reasons for its termination action to be pretextuous SINCLAIR GLASS CO. monial affidavit to the Board, Respondents vio- lated Section 8(a)(3),(4), and (1) of the Act. b. Substitute the following for the Conclusions of Law marked subparagraphs (a) through (c) of para- graph 4 in the Trial Examiner's Decision, and delete subparagraph (d): (a) Coercively interrogating Judith Snyder about her union activities or those of other employees or about the testimonial affidavit which she gave to the Board under the Act. (b) Compensating employees who worked during a union strike at wage rates higher than those paid for comparable work to employees who par- ticipated in the strike. (c) Telling employees that Respondents had failed to provide them with a Thanksgiving tur- key gift in 1969 because of their union activities and the filing of unfair labor practice charges with the Board. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondents, Sin- clair Glass Company, and Sinclair Glass Division, David B. Lilly Company, Inc., Hartford City, Indi- ana, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discrim- inating aginst any of them with respect to their hire or tenure of employment or any condition of employ- ment because of their activities on behalf of United Glass and Ceramic Workers of North America, AFL- CIO, or any other labor organization, or because they have given the Board testimonial affidavits under the Act. (b) Coercively interrogating employees concerning their and other employees' union activities or about testimony which they give in any case before the Board. (c) Compensating employees who work during a lawful strike of the Union at a higher rate of pay than that paid for comparable work to employees who par- ticipated in the strike. (d) Telling employees that Respondent had failed to provide them with a Thanksgiving turkey gift in 1969 because of their union activities and the filing of unfair labor practice charges with the Board. (e) In any other manner interfering with, re- straining, or coercing employees in exercising rights guaranteed to them by Section 7 of the Act.' 365 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Judith Snyder immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed by her, and make her whole for any loss of pay she may have suffered, with interest at the rate of 6 percent, by reason of Sinclair's dis- crimination against her, as provided in the section above entitled "The Remedy." (b) Notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Forthwith pay to all former striking employees who received wages lower than those paid to nonstrik- ing employees for comparable work, a sum repre- senting the difference between the wages paid them and those paid nonstriking employees together with interest at 6 percent per annum for the period de- scribed elsewhere in this Decision. (d) Preserve and, upon reasonable request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all other records necessary to ascertain the amount, if any, of backpay due under the terms of this Order. (e) Post at its plant at Hartford City, Indiana, cop- ies of the attached notice marked "Appendix."10 Cop- ies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondents' authorized representative, shall be post- ed by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Order, what steps Respondents have taken to comply here- with. 9 We grant General Counsel' s request for a broad cease-and-desist order as Respondents' conduct violated fundamental employee rights guaranteed by the Act, and particularly the right to utilize the Board's processes. 10 In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government refuse to become or remain, members of the above- named Union, or any other labor organization. Dated By (Representative) (Title) We hereby notify our employees that WE WILL NOT discharge employees or otherwise discriminate against any of them in any manner in respect to their hire or tenure of employment or any term or condition of employment, because of their activities on behalf of United Glass and Ceramic Workers of North America, AFL-CIO, or any other labor organization, or because they have given testimonial affidavits under the Na- tional Labor Relations Act. WE WILL NOT coercively ask you questions about your and other employees' union activities or about any evidence you may give in any mat- ter pending before the National Labor Relations Board. WE WILL NOT compensate nonstriking employ- ees at a higher rate of pay than that paid for comparable work to employees who participated in the strike. WE DID NOT abolish the 1969 Thanksgiving tur- key gift because of our employees' union activi- ties or because of the filing of unfair labor practice charges with the National Labor Rela- tions Board, and WE WILL NOT tell the employees that we did so for those reasons. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in exercis- ing rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer Judith Snyder immediate and full reinstatement to her former job or, if thatjob no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed by her, and make her whole for any loss of pay she may have suffered as a result of her discharge by us, with interest thereon at 6 percent. WE WILL reimburse all former striking employ- ees who received wages lower than those paid to nonstriking employees for comparable work, a sum representing the difference between the wag- es they received and those paid nonstriking em- ployees together with interest at 6 percent for a period commencing April 25, 1969, and ending with the date our payment of higher wage rates to former nonstriking employees ceased. All our employees are free to become, remain, or Dated By SINCLAIR GLASS COMPANY (Employer) SINCLAIR GLASS DIVISION, DAVID B. LILLY COMPANY, INC (Employer) (Representative) (Title) We will notify immediately the above-named individ- ual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317- 633-8921. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is a consol- idated unfair labor practice case commenced pursuant to Section 10(b) of th& National Labor Relations Act, herein called the Act. 29 U.S.C. 160(b). It consists of two cases which were consolidated for the purpose of trial. In Cases 25-CA-3555 and 25-CA-3555-2, a charge was filed on Oc- tober 25, 1969, and December 29, 1969, respectively, by United Glass & Ceramic Workers of North America, AFL- CIO. Both charges name Sinclair Glass Company as the Respondent. At the trial Sinclair Glass Division, David B. Lilly Company, Inc., was added as a Respondent.' On January 3, 1970, the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director of Region 25 (Indianapolis, Indiana), consolidated said two cases and issued a consolidated com- plaint based on the two charges. On March 20, 1970, said consolidated complaint was amended. It was further amended at the hearing. 1 This name appears as corrected by stipulation of the parties at the hear- ing SINCLAIR GLASS CO. As amended, the consolidated complaint alleges in es- sence that Respondents have violated Section 8(a)(1), (3), and (4), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. Respondents' answer, as amended, admits some facts but denies that they committed any unfair labor practices. Pursuant to due notice the consolidated case came on to be heard, and was tried before me, at Hartford Cit. , Indi- ana, on May 12, 1970. All parties were representedyat and participated in the hearing and had full opportunity to in- troduce evidence, examine and cross-examine witnesses, file briefs, and argue orally. Briefs have been received from the General Counsel and the Respondents. This case presents the issues of whether Respondent (1) Interrogated employees concerning (a) their own and other employees' union membership and activities, (b) other concerted activities, and (c) testimony which they gave in Case 25-CA-3555. (2) Threatened employees with reprisals for union activi- ties and if the charge was not withdrawn in Case 25-CA- 3555, and abolished a Thanksgiving bonus in 1969. (3) Granted several employees a vacation with pay be- cause they worked during a strike conducted b United Glass and Ceramic Workers, herein called the Union. (4) Discharged Jane Snyder for engaging in union activi- ties and giving testimony to a Board agent during the inves- tigation of Case 25-CA-3555. Upon the entire record in this case, and from my observa- tions of the witnesses, I make the following: FINDINGS OF FACT I AS TO JURISDICTION Respondent Sinclair Glass Company, herein called Sin- clair, a West Virginia corporation, is engaged at Hartford City, Indiana, in manufacturing, selling, and distributing decorated glassware and related products. During the year preceding January 30, 1970, it purchased, transferred, and delivered to its plant goods and materials valued in excess of $50,000 which were transported thereto directly from States other than Indiana. On or about March 9, 1970, Sinclair Glass Division, David B. Lill y Company, Inc., herein called Lilly, pur- chased from Sinclair some of the assets, mcludinp name, goodwill, and physical assets, of Sinclair including Sinclair's leasehold interest in its Hartford City plant. Since February 28, 1970, Sinclair has ceased to operate said Hartford City plant, and since on or about March 9, 1970, Lilly has operated said plant. Lill y has been engaged at said plant in substantially the same business as Sinclair, and has employed substantially the same employees and supervisors previously employed by Sinclair. Lilly is a Delaware corporation. During the year begin- ning March 9, 1970, it will purchase, transfer, and deliver to said plant goods and materials valued in excess of $50,000 directly from points outside the State of Indiana; and will, during the same period, sell and ship finished products from said plant valued in excess of $50,000 directly to points outside the State of Indiana. The answer admits and I find, that Lilly is a successor employer to Sinclair, and that Lilly will be responsible for remedying any unfair labor practices committed by Sinclair as set forth in the amended consolidated complaint. I find that both Sinclair and Lilly are engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over them in this proceeding. II THE LABOR ORGANIZATION INVOLVED 367 United Glass and Ceramic Workers of North America, AFL-CIO, the Charging Party herein, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence F. R. Hodges, president of Sinclair, testified as a witness for the General Counsel. His testimony follows. Sinclair has two plants in Hartford City. Plant # 1 was acquired in 1962 and Plant #2 in 1966. Employees in Plant # i are represented by American Flint Glass Workers Un- ion and those in Plant #2 by the Charging Party, herein called the Union. The Union and its Local 66 currently have a collective-bargaining contract with Sinclair. See G. C. Exh. 4. During the Union's strike conducted from July through October 1968, employee Ruby Worthen continued to work for Sinclair. After said strike, i.e., from October 1968 to October 1969, Worthen was compensated at the rate of $2.30 an hour when, in fact, the contract rate for such jobs at which she so worked was $2.05 an hour. Employees Joyce Baty Swimm and Marsha Coleman, who were hired during said strike, were paid at the rate of $1.95 an hour when, in fact, the contract rate was $1 .90 an hour for the b they were performing; i.e., silk screen printin . On the other hand, employee Catherine Meachem, a silk screen printer, who participated in said strike, received the contract rate of $1.96 an hour for such work. Some time in about May 1969, the Union complained to Hodges the fact that Ruby Worthen, Joyce Swimm, and Marsha Coleman were being compensated at a rate "over the contract rate," and asked that those paid $1.90 for sim- ilar work be raised to $1.95. Hodges declined this request. This subject was again brought up by the Union once or twice, but without success. In June 1969, Respondent Sinclair granted to employees Judy Snyder, Robert Clark, Mae Decker, Lorene Hummer, Glen Felver, Joyce Baty Swimm, Nellie Heath Brown, Patty Eldridge, Clara Mays, and Irene Love, who were hired, or worked, or both, during the period of the above strike, vacations and vacation pay. None of them had worked a full year prior to receiving such vacation and vacation pay, although the pertinent collective-bargaining contract re- quired, as one condition precedent, at least I thousand hours and 1 year's service with the Company to obtain such benefits. See article XII(A) of G. C.'s Exh. 4. However, every employee employed during both 1968 and 1969, and who did not quit before June 1, 1969, received a vacation in 1969, including one striker. Nevertheless this last striker was an employee who, although not meeting the 1,000-hour requirement, had been an employee for more than a year. In 1966, 1967, and 1968, the employees received a turkey as a Thanksgiving gift, but they did not receive any gift at Thanksgiving 1969. On December 12, 1969, Sinclair terminated the employ- ment of Judy Snyder for poor attendance and an unsatisfac- tory work record. Hodges played no part in the decision to discharge Snyder. However, at all times material the Com- pany issued no written warnings to any employees during their employment. Judith Snyder also testified for the General Counsel. A summary of her testimony ensues. She was hired by Sinclair in late September 1968, while the aforesaid strike was being 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conducted. Her employment, in Plant #2 , was essentially that of a sand blaster. On December 12, 1969, she was discharged. In August 1969 Mrs. Snyderjoined Local 66 of the Union and served on its industrial relations committee. This com- mittee met with management to discuss grievances and gen- eral dissatisfaction of^the employees. About some time in October 1969, she also became "grievance woman" for Lo- cal 66; i.e., she handled grievances for the employees. One of the matters discussed by the said committee with management was Ruby Worthen's being paid at a higher rate than other employees performing the same work. Later the Company agreed to reduce Worthen's hourly rate to the contract rate being received by employees doing the same work. Another grievance presented by the committee was vigorously pushed b Mrs. Snyder. See G. C. Exh. 5. Appar- ently this was the fast written grievance presented to the Company. Generally Mrs. Snyder was the spokesman for the Union at these meetings with management representa- tives. On December 3, 1969, Mrs. Snyder gave an affidavit to the Board. About December 4 Supervisor Walt Harris asked her about it. She also "gave testimony to the National Labor Relations Board agent." A "couple of days" before said December 3, Supervisor Walt Harris told Mrs. Snyder that President Hodges of Sinclair was "dissatisfied about the employees and the trouble that they were causing as far as following contract." Harris further told her that was one of the reasons why the employees "had not received a turkey for Thanksgiving, as usual." Another reason for this omission, Harris told Mrs. Snyder, was "that Mr. Hodges was aggravated about the unfair labor practices and that [Snyder s] Local Union could buy [the employees] a turkey if [they] wanted it." About December 4 Mrs. Snyder told Harris that she was "tired of hearing every one complain." Thereupon he sug- gested to her that she should try "to get off the [Unions] committee" so that she would not become the "fall guy for all of [the] complaints [of the employees]" Snyder relied that she "could more than likely leave the committee but she "could not leave" the Union because a union shop clause in the contract would cause her to be discharged. On December 11, 1969, Mrs. Snyder found attached to her timecard a dismissal notice reading as follows (G. C.'s) Exh. 8): December 11, 1969 DISMISSAL NOTICE TO- JUDY SNYDER EFFECTIVE. DECEMBER 15, 1969 REASON : WORK UNSATISFACTORY POOR ATTENDANCE RECORD Herb Taylor Walt Hams Joe Benedict cc Union HT/ck Upon receiving said notice Judy asked President Hodges whether he "knew anything about it." He replied in the negative. Thereupon Judy asked him to "change it to a layoff." Hodges replied by asking her if she "had-given in y unfair labor practice testimony." She answered that she did. This caused him to ask her "what was in" such testimony. She then outlined what she had said in such testimony. Finally, Hodges told her to return to work the next day and that he would get in touch with her after talking to Herb Taylor. The next day, December 12, Mrs. Snyder reported for work. Herb Taylor arranged to talk to her at 3:30 p.m. in the presence of her husband. However, Taylor spoke to her at about 2 p.m. instead. Taylor offered her the alternative of changing the dismissal to a layoff or to continue as an employee in the sandblast cages. After first asking why she had not been warned that her attendance record and work were unsatisfactory, Snyder elected "to leave the factory under a discharge,' and then departed. Although Mrs. Snyder was never warned about her work or her attendance record, the committee on which she served was notified by Vice President Herb Taylor about 3 or 4 weeks before December 12, 1969, that he " was going to write up warning letters to employees who missed more work than he thought necessary and that, in fact, he had wrote upp one for [her] but that [her] attendance had picked up and he did not give it to [her]." Further, Snyder's sand- blasting work had been complimented by Plant # 1 Super- visors Sayers, Hess, and Saunders, for whom she performed this work. The work itself was done in Plant #2. Mrs. Snyder worked 35 hours a week, instead of 40, by obtaining special permission to do so from President Hodg- es. Hodges told her his permission was conditional upon the approval of such working hours by Joseph Benedict, plant manager of Plant #2. Snyder did obtain such approval from Benedict, so that her hours were from 8 a.m. to 3:30 p.m. She thus was cleared to work 7, rather than 8, hours a day. Some times she was absent from work because of medical problems of which Supervisors Hess and Sayers were aware. But she always called the factory or caused it to be called whenever she was unable to go to work. On no occasion was time off denied to her; and at no time was she warned that she was taking off too many times. Employee Addie Irene Elwood also testified for the Gen- eral Counsel. A summary of her testimony follows. Addie is a member of the Union's industrial relations committee, on which Judith Snyder also served. During October, November, and December, 1969, said committee met with Sinclair's officials weekly. Mrs. Snyder attended most of those meetings, was the most active person there on behalf of the Union, "always spoke out more so than the rest" of the union members, and "was the main spokesman for the Union at most of these meetings." This was so notwithstanding that the president and vice presi- dent of the Union's Local 66 were present at such meetings. Mrs. Snyder also presented the first written grievance to Sinclair. See G. C. Exh. 5. No written grievances had been processed prior to this time. The General Counsel's final witness, employee William Lake, is president of Local 66 of the Union. As such, he attended meetings between management and the Union's industrial relations committee in October, November, and December 1969. Lake substantially corroborated Addie El- wood that Mrs. Snyder was the `most active" and "main spokesman" for the committee at such meetings, and that Mrs. Snyder presented the first written grievance ever filed with the Company. See G. C. Exh. 5. It was stipulated by the parties that Mrs. Snyder was absent "approximately 43 days" in 59 weeks, and'7 days in the 11-week period from September 27, 1969, to the date of her discharge on December 12, 1969; Juanita Blair, 29 1/2 days in 16 weeks between February 3 and May 18, 1968, and 18 days in the 7-week period from November 16 to Decem- ber 27, 1968; Nellie Brown Heath, 22 days in the 43-week period from September 28, 1968, to July 19, 1969, and 18 days in the 28-week period from January 11 to July 19, 1969; Joyce Bergdoll, 16 1/2 days for the 20-week period SINCLAIR GLASS CO. 369 from February 3 to June 15, 1968; Virginia Thomas, 22 days for the 34-week period from September 13, 1969, to May 2, 1970; Sharon Pursley, 9 days for the 9-week period from November 30, 1968, to February 1, 1969; Marsha Coleman, 32 days for the 29-week period from October 12, 1968, to April 28, 1969; Claudia Kingery, 12 days in the 22-week period from November 4, 1968, to April 5, 1969; Ruth Mon- roe, 19 days in the 21-week period from February 10 to June 29, 1968; and Joyce Baty Swimm, 19 days for the 32-week period from March 1 to October 4, 1969. It was further stipulated that, except for Mrs. Snyder, none of said em- ployees was terminated for poor attendance or absenteeism, and that the total number of hours worked by some of said employees appears in Respondent's Exhibit 3. B. Respondent's Evidence Sinclair's President F. R. Hodges, testified in substance that he gave Mrs. Snyder permission to work 7, rather than 8, hours a day, provided that Plant Manager Joseph Bene- dict approved this arrangement. Further, Hodges denied that he asked Mrs. Snyder "about her activities in connec- tion with the filing of an unfair labor practice charge"; that he ever warned her or in any way indicated to her that she would be penalized because of her union activities; that he was not aware of her membership in the Union; that, in- stead of a turkey at Thanksgiving time, 1969, each employee received a $10 deposit in a local bank at Christmas time, 1969; that giving turkeys to employees in the past was "not regular in nature" but were "gratuities on the part of man- agement"; and that no antiunion animus was involved in the decision to withhold turkeys as a gift in 1969. Herbert Taylor is Sinclair's vice president. A conspectus of his testimony follows. On December 11, 1969, Taylor "caused a dismissal slip to be issued to Judy Snyder." About a week or 10 days before this Taylor examined her atten- dance and work record; and after discussing them with the plant superintendent "and the assistant," all three arrived at the conclusion that she should be dismissed. This particular time was selected to dismiss Judy because "there was a general slowdown in the business of the Com- pany at that time and this was part of an overall reduction- in-force plan" which was adopted. Six other employees also received dismissal notices on December 11, 1969. In the past, Sinclair dismissed some employees for poor attendance or unauthorized time off. A list thereof appears in Respondent's Exhibit 5. At one of the meetings with the Union s committee Taylor mentioned that Mrs. Snyder ,.was about the first one to get a warning letter for her attendance." However, he also said he was not giving her the warning letter because her attendance had improved. Since attendance had become a problem at the plant begin- ning in October 1969, Taylor had raised this issue at meet- ings with the Union's committee, mentioning Mrs. Snyder's name "as a chief offender." Union Committee Members Bill Lake and Miss Elwood, "and the other members of the Committee" agreed with Taylor. In late October or early November 1969, Taylor twice told Mrs. Snyder "she had better be careful about her atten- dance, that we were paying more attention to it now, and it could possibly be justification for firing somebody." And Mrs. Snyder admitted at a hearing on her unemployment compensation claim, that Taylor had warned her about her attendance. In fact, Mrs. Snyder had the worst attendance record of any Sinclair employee in December 1969. Further, Taylor insisted that "basically" Mrs. Snyder was terminated because of "her attendance and her workman- ship, poor workmanship." He also testified that a rule was adopted in late 1969 whereby unauthorized absences would result in a warning for "first offense," "three days off" for "second offense," and "the third offense" is dismissal. By "unauthorized" he meant "for being absent without calling in." However, Mrs. Snyder did call-in on the days she was absent. Walter Harris is Sinclair's assistant plant manager at Plant 2. Among other things, he denies that he asked Mrs. Snyder what she said in a statement she gave to the Board. Rather, he merely replied to her, after she voluntarily men- tioned to him that she may have made an erroneous asser- tion as to her hourly rate in said statement , that "Well, if I was you, I would be sure, before I made such a statement." On another occasion Mrs. Snyder "brought up the matter about her hearings and worried that she would be in some trouble." Apparently she was referring to an affidavit given by her to the Board. Harris "told her that if it was me that I would seriously be worried if I gave any wrong informa- tion." But at no time did Harris inquire of Mrs. Snyder as to the contents of said affidavit. Harris participated in the decision to terminate Mrs. Sn y -der and coroborated Vice President Taylor's version of the events prompting her discharge. In addition, Harris crit- icized Mrs. Snyder in late October or early November 1969, for taking too much time in "giving relief to the girls packing dishes on the lehr and packing off the other decorating lehr." This action on his part occurred because Mrs. Snyder, after relieving said girls, "was taking additional breaks on her own." However, Mrs. Snyder `corrected" this upon being informed of her dereliction by Harris. At a meeting with the Union's industrial relations com- mittee in October or November 1969, Harris mentioned to Mrs. Snyder that she had the worst attendance record of anybody in the plant. But he did not indicate that she might be fired because of it. On another occasion he told her that she "had been missing a lot of work," that "it was not a good policy to miss this work," and that "it would do her no good" to miss work so much . But he did not allude "to termination because of absenteeism." Once Mrs. Snyder asked Harris to be transferred off her job of sandblasting cages. Replying, Harris denied this re- quest "because she was too good on this thing." Neverthe- less Harris signed Mrs. Snyder's dismissal notice which states, inter alia, that one ground for such action by Sinclair is "work unsatisfactory." See G. C. Exh. 8. Respondent's plant manager of Plant 2 is Joseph Bene- dict. In October 1969, he criticized Mrs. Snyder, for "only having three pieces of glass on the rotary furnace [when] ... she was supposed to have four on." "This particular operation is run one or two days a month." However, Mrs. Snyder thereafter ran four pursuant to his instructions. And "in October or the first part of September" 1969, Benedict also criticized Mrs. Snyder for using the wrong cartons "to store cages in." But she did use the correct cartons after being so directed by Benedict. C. Concluding Findings and Discussion 1. As to interrogation On December 4, 1969, Supervisor Walt Harris inquired of employee Judith Snyder about an affidavit she gave to the Board on the previous day. I credit Snyder's version of this incident and, to the extent that the testimony of Harris is not consonant therewith, I do not credit it. Patently such in- quiry is coercive, and I so find. Accordingly I find that such interrogation violates Section 8(a)(1) of the Act. About December 11, 1969, President Hodges of Sinclair 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Glass asked Mrs. Snyder if she had given any "unfair labor practice testimony" and, upon receiving an affirmative re pp -Iy, sought to ascertain "what was in" such testimony. On this issue I credit Snyder and do not credit the denial by Hodges of Snyder's account of this conversation . In discred- iting-Hodges I have not only relied on his demeanor on the witness stand, but also have considered a statement he made in another connection while testifying for Respondent. Thus Hodges testified that he was unaware that Snyder was a union member. Yet she served for at least 3 months on and was a spokesman for a union committee which met with management officials weekly (although Hodges was not one of them) to discuss grievances . It is inconceivable that knowledge of Snyder's role on this committee did not reach Hodges. His denial of such knowledge has in part convinced me that I should not credit Hodges when his testimony conflicts with that of the General Counsel's witnesses. Manifestly the foregoing two questions propounded by Hodges to Snyder are coercive within the meaning of Sec- tion S(a)(1) of the Act, and I so find. 2. As to abolishing the Thanksgiving bonus in 1969 Admittedly Respondent (a) failed to furnish a+turkey to its employees at Thanksgiving time 1969, and (b) did not bargain with the Union before pursuing such a course. I find that such turkey had been given often enough in the past to become a practice which by 1969 had ripened into a fringe benefit or an established condition of work. I expressly find it was not a gift or gratuity by 1969. Since such turkeys had become a condition of employ- ment, they could not lawfully be discontinued unilaterally by the employer, for the employer was under a statutory obligation to bargain with the Union concerning any change in conditions of em to ment. Wald Manufacturing Company, Inc. v. N.L.R.B., 426 F.2d 1328 (C.A. 6); May's California, 183 NLRB No. 47. See N.L.R.B. v. Katz, 369 U.S. 736. It follows, and I find, that the failure to consult or bargain with the Union concerning the elimination of the 1969 Thanksgiving turkey contravenes the Act. No contrary result is required because Sinclair gave each employee a $10 gift at Christmas rather than the omitted Thanksgiving turkey. This is because I find that such a $10 gift is a substitute for the turkey and, as such, constitutes a change in the form of a condition of employment. It follows that such change, being unilaterally consummated without prior consultation or bargaining with the Union, transgres- ses the Act. 3. Granting preference to nonstriking employees From July to October 1968, the Union struck Sinclair. During this strike employee Ruby Worthen continued to work for Sinclair. Although a general wage increase was not inaugurated following the stake, Worthen's pay was raised in October 1968, from the contract rate of $2.05 an hour for herjob to $2.30 an hour. Nothing in the record suggests that this was a merit increase or that it was motivated by legit- imate reasons . Accordingly, I find that this was a preference which encourages employees not to engage in a lawful strike, and which also discriminates against strikers. Under such circumstances I find that this action violates Section 8(a)(1) of the Act. Cf. N.L.R.B. v. Fleetwood Trailer Compa- ny, Inc., 389 U.S. 375; N.L.R.B. v. Great Dane Trailers, 388 U.S. 26. The same considerations require a similar conclusion as to the rates of pay granted to Joyce Baty Swimm and Mar- sha Coleman, who were hired as silk screen printers during the above-mentioned strike at an hourly rate 5 cents above the contract rate for such printers . During a strike the sub- stantive provisions of a collective -bargaining contract are not abrogated or suspended, so that its terms must be hon- ored to the extent that an employer continues operations during the strike. Hence Sinclair was obligated to honor the contract's wage provisions while the strike continued unless it was necessary to increase the contract's rate of pay to attract new employees in order to maintain operations. But the record is barren of any evidence indicating that new employees could not be obtained during the strike ex- cept at wages above those designated in the contract. Even if Sinclair was compelled to pay a higher rate to new em- ployees during the strike , Sinclair was under an obligation to raise the rates of other employees performing the same work, at least when requested to do so by the Union after the strike terminated . But Sinclair refused to grant such raise to the other employees when so requested b y the Un- ion. Since no justification has been disclosed by the record warranting such increase in the rates of pay of Swimm and Coleman, find that paying them above the contract rate discriminates against strikers. It follows, and I find, that such conduct violates Section 8(a)(1) of the Act. In June 1969 Sinclair granted vacations and vacation pay to 10 employees who were hired or worked during the strike mentioned above. They are enumerated above under sec- tion III(A). Although the collective-bargaining contract, in pertinent part, limited vacations to employees with not less than 1 year's service and "1000 hours in the year preceding June 1st of that year," none of such employees had worked a full year prior to June 1969 . It is my opinion, and I find, that absent an explanation for granting such vacations, Sinclair's action in taking such a course presumptively con- travenes the Act as a discrimination against lawful strikers. In this connection I expressly rule that the burden of proving that such action transgresses the Act rests upon the General Counsel, and that it does not shift to the Respon- dents. But when a set of facts points to the conclusion that the Act has been violated, so that a prima facie or presump- tive case flows therefrom, the burden rests upon Respon- dents to show that such conduct is justified as a legitimate exercise of managerial judgment . Such burden is not a bur- den of proof, for this remains with the General Counsel, but in effect is a burden calling for an explanation as to why such conduct is lawful under the Act. Since Sinclair's grant of such vacations presumptively discriminates against employees engaged in a strike protect- ed by the Act, it becomes incumbent at this point to exam- ine the explanations advanced by Sinclair to support said action as lawful. (a) Sinclair first insists "that every employee who had been employed during 1968 and who remained on the pay- roll at the end of the qualifying period, June 1 , 1969, re- ceived a vacation in 1969 ." (See p. 10 of its brief.) But the evidence is ambiguous as to whether such employees, who admittedly worked a full year, also worked less than 1,000 hours in such period. Therefore I am unable to find that such employees who worked for a full year put in less than 1,000 hours during that time. It follows that Respondents have failed to establish that striking employees working less than 1 ,000 hours in the applicable year received vacations. Hence I find that this explanation is inadequate to overcome the General Counsel's prima facie case that strik- ers suffered disparate treatment when vacations were awarded to nonstrikers for the year ending June 1, 1969. (b) Then, again, Respondents insist that the did not discriminate against strikers because "one employee who struck and who also did not meet the one thousand (1,000) SINCLAIR GLASS CO. hour requirement" nevertheless received a vacation. See p. 10 of their brief. However, this employee worked for a full year prior to June 1, 1969, so that, in effect, he met one of the two conditions required to enjoy a paid vacation. But the 10 nonstrikers mentioned above who received vacations beginning June 1, 1969, admittedly did not work a full year pnor to said June 1, 1969. Hence the facts in this paragraph fail to establish a valid reason for granting vacations to nonstrikers who worked less than a year before June 1, 1969, and I so find. Accordingly, I find that the grant of paid vacations to the 10 nonstrikers involved constitutes a preference to nonstrik- ing employees forbidden by Section 8(a)(1) of the Act. 4. The discharge of Judith Snyder On the record unfolded in this case I am of the opinion, and find, that Mrs. Snyder was discharged for engaging in union activities, and that the reason given to her for her dismissal is a pretext to disguise the actual reason therefor. The reason announced to her for her termination is "WORK UNSATISFACTORY POOR ATTENDANCE RECORD." See G. C. Exh. 8. While this ultimate finding is derived from the entire record , it also flows from the following subsidiary findin gs, which I hereby find as facts: (a) Mrs. Snyder engaged in union activity consisting of service on the Union s industrial relations committee and also the preparation and presentation of grievances on be- half of employees in her capacity as a member of said com- mittee. Further, I find that Sinclair had knowledge of her union activity because its supervisors not only met with such committee but often saw and heard Mrs. Snyder acting in the role of spokeswoman for said committee . 'Obviously the discharge of a leading union advocate is a most effective method of undermining a union." N.L.R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C.A. 5). (b) Sinclair committed other unfair labor practices as found above. This tends to disclose, and I find, antiunion hostility on the part of Sinclair . Of course, this alone is insufficient to form the basis for a finding of a discriminato- discharge (N. L.R. B. v. Threads, Inc., 308 F.2d 1, 8 (C.A. 44); J. P. Stevens & Co., Inc., 181 NLRB No. 97), but it is an element which may be evaluated in ascertaining whether a discharge was motivated by antiunion sentiments. Maphis Chapman Corp. v. N.L.R. B., 368 F .2d 298, 304 (C.A. 4); N.L.R.B. v. Georgia Rug Mill, 308 F .2d 89, 91 (C.A. 5). (c) Mrs. Snyder was abruptly discharged without prior warning. It is true that one of her supervisors, Taylor, told her to pay more attention to her attendance because "we were paying more attention to [attendance] now, and it could possibly be justification for firing somebody." But I do not construe this as a warning that Snyder had thereby exposed herself to discharge . Further, even if it qualifies as a warning, it came in late October or early November 1969; but from then until December 12, 1969, when she was dis- missed, Snyder's attendance cannot be characterized as un- satisfactory. Further, Supervisor Taylor considered an attendance re- cord bad only if an absence was unauthorized . But he con- ceded in his testimony that Mrs. Snyder's absences were all authorized. In addition, Taylor notified the Union's industrial rela- tions committee that he intended to give Mrs. Snyder a warning letter for her poor attendance but had abandoned the thought because her attendance had improved . This can hardly be called a warning . In fact, since it occurred 3 or 4 weeks before her discharge it suggests that her attendance had become satisfactory. 371 Also, Supervisor Hams adverted to Snyder 's poor atten- dance record at a meeting of the Union 's industrial relations committee . But at no time did he refer to the fact that she was in danger of losing herjob therefor . Hence I find that this did not rise to the stature of a warning. Merely discuss- ing with an employee the desirability of improving his work habits does not amount to a warning that he had rendered himself subject to discharge because of such habits. There is also some evidence in the record that Mrs. Snyder's work was criticized as unsatisfactory on a few occasions . Although I consider such dereliction as of minor significance , I nevertheless find that it constitutes cause for discharge. This is because an employer may discharge an employee for any cause whatsoever, no matter how trivial it may be, so long as it is not discriminatory under the Act. "Management can discharge for good cause , bad cause, or no cause at all without incurring liability under the Act." N.L.R.B. v. McGahey, 233 F.2d 406, 413 (C.A. 5). But I find that Sinclair overlooked or condoned these minor faults of Mrs. Snyder by continuing to employ her notwithstanding their occurrence. Electro-Netic Products Corporation, 183 NLRB No . 59; 74 LRRM 1358. And I expressly find that she was never warned that such conduct rendered her liable to discharge. Since cause existed for her discharge, the fail- ure to discharge her therefor is material on the question of whether the discharge appreciably later for said cause is based on such cause or is pretextual to cover up a dismissal for union activity . Arkansas-Louisiana Gas Company, 142 NLRB 1083, 1085-1086. In this connection, I find that Sinclair had not adopted before Snyder's discharge a specific system of discipline to guide employees in assessing their conduct against set standards of work and behavior. Consequently the failure to warn Snyder gains significance when no such system exists or has been promulgated to employees. Talon, Inc., 170 NLRB No. 42, Tn. 1; E. Anthony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); N.L.R.B. v. Melrose Co, 351 F.2d 693 , 699 (C.A. 8). (d) Snyder was precipitously discharged . In fact she was not even orally discharged ; rather a note was left for her attached to her timecard . On the basis of my experience as a Trial Examiner, I regard failure to notify an employee orally of his discharge as material , but I attach no weight to this fact. However, "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co., Inc., 247 F .2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829 : N.L.R.B. v. Hawthorn Company, 404 F.2d 1205, 1210 (C.A. 8): N.L.R.B. v. L. E. Farrell Co., 360 F.2d 205 , 208 (C.A. 2). The abruptness of Snyder's discharge warrants the inference-and I draw it- that antiunion motives prompted such discharge. See Elec- tro-Netic Products Corporation, 83 NLRB No. 59. (e) Further, it is not essential that union activity be the only ground responsible for Mrs . Snyder's discharge. "If the discharge is because of union activity it is a violation of the Act even though a valid ground for dismissal mi ght exist." N.L.R.B. v. Longhorn Transfer Service, Inc., 346 2d 1003, 1006 (C .A. 5); Betts Baking Co. v. N. L.R.B., 380 F.2d 199 (C.A. 10). It is sufficient in finding Snyder's discharge to be discriminatory that her union activity is a motivatin g or substantial factor leading to her dismissal. N.L.R.B. v. Sym- ons Mfg Co., 328 F.2d 835 , 837 (C.A. 7). Accord : N. L. R. B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). I expressly find that, regardless of whether other cause exist- ed for Snyder's discharge, union activity was a substantial- but not necessarily the only reason for her dismissal. Cf. N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F.2d 725, 728 (C.A. 2). 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Although not of overwhelming importance , it is rele- vant to note that although President Hodges testified, and Sinclair's written notice asserted, that Mrs. Snyder was dis- charged, Respondents at the trial sought to show that Sny- der was laid off at a time when business was slow and that she was selected for layoff because of her poor record. This shift in the reason for Snyder's discharge has some proba- tive value in arriving at the conclusion that she was discrim- inatoril discharged. (g) Other employees who had poor attendance records were not discharged therefor . These employees are Juanita Blair, Nellie Brown Heath, Joyce Bergdoll, Virginia Thom- as, Sharon Pursley, Marsha Coleman, Claudia Kingery, Ruth Monroe, and Joyce Baty Swimm. It is true that their bad records do not quite equal that of Mrs. Snyder . Never- theless I cannot ignore the probative value of the record disclosing that such employees were retained notwithstand- ing their unsatisfactory absenteeism. This is not conclusive, of course, but it is an element which has been considered in determining the actual reason for Mrs. Snyder's discharge. (h) Finally, it should not be overlooked that "Direct evi- dence of a purpose to discriminate is rarely obtained, espe- cially as employers acquire some sophistication about the rights of their employees under the Act ; but such purpose may be established by circumstantial evidence." Corrie Cor- poration v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). Accord: Hartsell Mills v. N.LRB., 111 F.2d 291, 293 (C.A. 4); N. L. R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). "Nowadays it is usually a case of more subtlety ." N.L.R.B. v. NeuhofBros., 375 F.2d 372, 374 (C.A. 5). Hence it is not surprising for an employer to point to an employee's minor or doubtful shortcomings in defending or seeking to uphold a discharge prompted by antiunion animus . It is my opin- ion, and I find, that Snyder's poor attendance record was seized upon to discharge her for being a vigorous member of the Union's industrial relations committee . But I do not find that she was discharged, in whole or in part, for giving testimony or an affidavit to the Board in another proceeding before it. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Sinclair set forth in section III, above, found to constitute unfair labor practices occurring in con- nection with the operations of Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As Respondent Lilly is a successor to Sinclair, it will be liable with Sinclair to remedy the unfair labor practices found above . I shall recommend that Respondents cease and desist from said unfair labor practices and that they take specific affirmative action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Judith Snyder was discriminat- ed against when she was discharged , it will be recommended that Respondents be ordered to offer her immediate and full reinstatement to her former position or , if such is not availa- ble, one which is substantially equivalent thereto, without pre udice to her seniority and other rights and privileges. It will further be recommended that Mrs. Snyder be made whole for any loss of earnings suffered by reason of the discrimination against her. In making Mrs. Snyder whole Respondents shall pay to her a sum of money equal to that which she would have earned as wages from the date of her discharge to the date of reinstatement or a proper offer of reinstatement, as the case may be, less her net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner formulated by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated by the method set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondents preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondents post appropriate notices. The conduct of Sinclair in my opinion does not depict a general hostility to the Act. Accordingly, I find that an order is sufficient which is limited to enjoining the unfair labor practices found above and similar or like acts. Since the remedy adopted should be commensurate with the infrac- tions of law found herein, relief more extensive in scope is not warranted. Upon the basis of the foregoing findings of facts and the entire records in this case , I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondents are employers within the meaning of Sec- tion 2(2), and are engaged in commerce as defined in Sec- tion 2(6) and (7), of the Act. 3. By discriminating in regard to the tenure of employ- ment of Judith Snyder, thereby discouraging membership in the Union, a labor organization, Respondent Sinclair leas engaged in an unfair labor practice transgressing Section 8(a)(3) and (1) of the Act. 4. By engaging in the conduct set forth below in this paragraph Respondent Sinclair has committed unfair labor practices condemned by Section 8(a)(1) of the Act: (a) Coercively interrogating Mrs. Snyder concerning her and other employees' union activities and her testimony which she gave in another case before the Board; (b) Compensating employees who were hired and worked, or continued to work, during the union strike at a rate higher than that called for by the collective-bargaining contract applicable to the jobs performed by said employ- ees; (c) Granting to ineligible employees vacations with pay because they continued to work, or were hired and worked, during the Union's strike; (d) Unilaterally abolishing the Thanksgiving turkey in 1969. 5. The foregoing unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act. 6. Respondent has not committed any other unfair labor practices alleged in the complaint. [Recommended Order omitted from publication]