Western Publishing Co., Inc.

WESTERN PUBLISHING CO. Western Publishing Co., Inc., and Local 223, Interna- tional Brotherhood of Bookbinders . Case 30-CA- 1250 January 29, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS 1. JURISDICTION 245 Respondent, a Wisconsin corporation, is engaged in the business of printing and lithography in its plant in Racine, Wisconsin. During the past calender year, a representative period, Respondent shipped goods in interstate commerce, valued in excess of $50,000, to points outside Wisconsin. Respondent is an employer engaged in interstate com- merce within the meanings of the Act and the Union is a labor organization within the meaning of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES On September 29, 1970, Trial Examiner Ramey Donovan issued his Decision in the above-entitled proceeding, finding that the Respondent had not en- gaged in certain unfair labor practices and recom- mending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision, Thereafter, the Charging Party filed excep- tions to the Trial Examiner's Decision and a support- ing brief. The Respondent filed an answering brief in reply to the Charging Party's exceptions and brief in support thereof. 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 the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION RAMEY DONOVAN, Trial Examiner : The charge in this case was filed on May 6, 1970, by Local 223, International Broth- erhood of Bookbinders, herein the Union, against Western Publishing Co., Inc., herein the Company and Respondent. Under date of June 17, 1970, the complaint issued. The complaint alleges a violation of Section 8(a)(1) and (3) of the Act by reason of the discharge of employee Danny Brim for union activities . Respondent in its answer, denies the fore- ggoing allegation and asserts as an affirmative defense that the Charging Party has filed a grievance regarding the com- plaint issue pursuant to a contract grievance and arbitration procedure. The case was tried in Racine , Wisconsin, on August 4 and 5, 1970. Respondent's operation in Racine is located in three plants, employing 1,125 hourly employees. The Company has contracts with eight unions in its plants and its earliest union contracts commenced in 1933. The charging union in this represents 600 employees at the three plants, with ap- proximately 400 in the main plant and the balance in the other two palnts, referred to as plants 5 and 6. The latter two plants are across the street from each other and the main plant is about a block away. Danny Brim commenced his employment with Respon- dent in early March 1969 as a trucker. The trucks are evi- dently fork-lift type machines operated by the truckers who move material from one area to another . Brim worked in the main plant and principally on the third shift although he also worked at times on the record or first shifts . His imme- diate foreman was Bingham. Brim joined the Umon after he became employed by Respondent.' He was elected shop steward for his department, department 34, in November 1969.2 Lochowitz, president of the Union , instructed Brim that his main task as steward would be to collect dues but that he should also be able to answer questions of people in his department who had problems and that he should try to straighten out problems with the foreman involved and that he should also call Lockowitz in any situation that seemed important 3 There are nine other stewards in addition to Brim but, apparently, on some shifts in Brim's department, Brim is the only steward. The Union also has employees who are elected or designated as grievance men. As the name implies, the grievance men can initiate and process grievances under the contract. The theory of the complaint is that Respondent dis- charged Brim because of his activity as a steward. Lochow- itz testified that Brim was more active as a steward than any other steward or grievance man and that Lochowitz re- ceived an average of one telephone call from Brim every 2 weeks on potential grievance or contract matters. Accord- 1 Contractual relations between the Respondent and the Union have exist- ed for at least 18 years 2 Bingham is a member of the Umon also He pays dues and carries a current membership card. Being a foreman , Bingham does not attend union meetings or vote in the union and is not part of the bargaining unit 3 The Union maintains an office in Racine which serves as I.ochowitz' base of operations Lochowitz is evidently a full time president and has been such for 18 years He has dealt with Respondent throughout this period and the record indicates, although not in so many words, that Lochowitz is the principal administrator of the contract on behalf of the Union and its mem- bers As president, Lochowitz presides at union meetings, heads the executive board, and is involved in grievances and arbitration matters. He has ready access to plant management, including foremen, and apparently talks to them from time to time by telephone or in person on matters relating to labor relations and contract administration. Unless the discharge of Bnm in April 1970 is the exception, there is nothing in this record to indicate that the contractual relationship between the Company and the Union is anything but a normal and viable employer-union relationship with each side protect- ing its respective interest while recognizing the existence and interests of an opposite party 188 NLRB No. 34 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to Lochowitz, he received a telephone call about once a month from the most active grievance man, as contrasted with Brim. Brim described the following incidents as evidence of his active role as a steward: (1) November 1969, Brim told supervisor Klemencik that he should stop employee Sandon from acting as a "key man" because it was contrary to the contract . (A key man is authorized, under the terms of the contract, to assign work to others. Brim testified that Sandon had been a key man but had been dropped to a journeyman classification but continued to perform key man functions). Klemencik asked Brim if he was asking that a foreman be assigned to the shift. Brim said that it was up to management how it would handle the matter but that he would go along if, instead of Sandon making assignments on his own , Klemen- cik relayed assignments through Sandon . Klemencik agreed to the proposal. As far as appears this is the extent o this matter. (2) November 1969, Brim observed a forklift operated by employee Romano in his department . Williams, an employ- ee from another department was standing on the raised fork cleaning out some pipes. Brim told the man that standing on the fork was a safety hazard and that moreover cleaning out pipes was work in another union's jurisdiction. Also, although both Williams and Romano were in the same un- ion as Brim, the department had separate seniority and the men who were not in Brim's department should not be working there, according to Brim. Williams said, in effect, he was acting pursuant to foreman Nieghbor's direction. Brim then telephoned Lochowitz and explained the situ- ation. Lochowitz testified that after receiving the call he went to the plant and talked to Nieghbor . The latter agreed to correct the situation and to tell Williams not to engage in such work again . This was the end of the matter. (3) December 1969, while Brim was on the third shift, at about 2 a.m. he told supervisor Klemencik that the employ- ees in Brim's department were unhappy because the first and second shift were going to be working overtime but not the third shift. Klemencik said he could do nothing because he did not assign the overtime . Klemencik suggested that Brim speak to foreman Bingham in the morning when Bing- ham came to work . Brim did so and when he stated the situation to Bingham the latter said he would assign overtime to the third shift and he did so. This took care of the problem. (4) January 1970, Brim protested to foreman Vite about some women employees from another department being assigned to the first floor bindery. Vite said this was permit- ted in an emergency. Brim said it was not an emergency. Vite said he was only making the assignments for one or two nights. Brim said he would complain to the Union if the situation continued. Apparently this was the end of the matter. (5) In March 1970, Brim was working in the first floor bindery. He had heard from other employees that the fore- man, Ingrouille, had brought in a man, Kroehler , from the second floor bindery. Brim complained to Ingrouille that the assignment was in violation of the contract since there were already people laid off in the first floor bindery. Ingro- uille told Brim that he felt that he had the right to do what he did. Brim said that he would report the matter to the Union's grievance man in the area, Nelson. Brim did so and Nelson talked to Ingrouille and another supervisor. The matter was not resolved . Brim telephoned Lochowitz. A day or so later Lochowitz came to the point and discussed the problem with Nelso, Ingrouille, Dry, the area superintend- ent, and Koch, the employee relations manager . A written grievance concerning the incident was filed on June 5, 1970, by Lochowitz and employee Carlson . The grievance was pending at the time ofpthe instant hearing.4 (6) About the end of March 1970 Brim spoke to Ingrouille about employee Percaro having too much of a work load and that another man should be assigned to help Percaro. Ingrouille did not agree that Percaro was overworked. Brim said he would have to report the matter to Lochowitz and he did so. (7) Early April 1970, Brim told Lochowitz that two men in Brim's department had been loaned to another depart- ment beyond the period provided in the contract for such loans and that Brim was prepared to file a grievance about the matter. Lochowitz said that he would talk to Brim's foreman, Bingham, about the matter. Lochowitz spoke to Bingham and the latter admitted the facts and said that he would correct it. No grievance was filed . In the course of the conversation with Lochowitz Bingham asked who was com- plaining. Lochowitz refused to tell him. Bingham said, in effect, that he wagered that the complainant was Brim. Lo- chowitz said that he would not tell who it was. According to Lochowitz, Bingham said that Brim was a troublemaker and was no good and griped about work assigned to him and did not want to work.5 (8) Around this same time, in early April 1970, Brim came to Bingham's office to ask about his work for that shift. Another foreman, Peterson was also present. Bingham told Brim that he knew that Brim had complained to Lochowitz about the loan of two employees to another department (see paragraph 7, above). Bingham asked Brim if he knew what kind of a place it would be if everyone went exactly accord- ing to the contract. Brim said that was the purpose of the contract. Bingham said that he could also go exactly by the contract as well as Brim. Peterson said that the two-loaned- out men performed the same work and received the same pay whether on loan or not. Brim said that was irrelevant and that the loan violated the contract. He was then told to go to work. (9) About April 7, 1970, Brim complained to Lochowitz that foreman Peterson was repairing machines in Brim's department and that another employee, who was supposed to be doing trucking work, was also repairing equipment and that all this was in violation of the contract. Lochowitz telephoned Koch and told him what the situation was, nam- ing Peterson and the employee who was performing the repair work. Koch talked to the supervisor and the matter was taken care of, in that those performing the repair work were, in effect, told to discontinue such work. Having described Brim's union activities,6 we will now consider the testimony of Dr . Herrmann, a medical doctor, whose testimony we regard as credible. Herrmann works for Respondent approximately 2 hours a day as plant physi- Ingroudle testified that he used Koehler because of a malfunction of certain equipment and because of a particular qualification possessed by Koehler to perform the work without the malfunctioning machine. 3 Bingham denies saying that Brim was a troublemaker. He said that he told Lochowitz that the way Brim is complaining he is going to give you a lot of trouble. The Trial Examiner credits Lochowitz and we do not view the versions as diametrically in conflict. A person who views another as a cause of trouble or an an impending cause of trouble is in effect viewing that person as a troublemaker. 6It is our opinion that Brim's activities , aforedescribed, were protected activities under Section 7 of the Act . Although Respondent elicited evidence that, under the language of the union constitution, the steward's role is a limited one and that the Union had not listed stewards among its officers and grievance representatives in a letter to the Company , this does not alter our conclusion. WESTERN PUBLISHING CO. cian 7 He has a similar relationship with two other compa- nies. For Respondent, Herrmann conducts preemployment medical checks, advises on job placement and limitations of employee work, and related matters from the medical stand- point. Respondent also has a medical department which is under Herrmann's general supervision . This department is staffed by a nurse. Herrmann first met Brim in February-March 1969 in the course of Respondent's preemployment medical check. On the basis of information furnished by Brim and from his own observation and examination , Herrmann cleared Brim for employment by Respondent . Brim commenced his em- ployment with Respondent in March 1969. As plant physician Herrmann also saw Brim on the fol- lowin^^&& -d---ates: 4/28 pain in left elbow area 6/4 chest pains ; advised Brim to consult his own doc- tor and sent him home 12/29 intestinal problem ; advised Brim to consult his own doctor and sent him home. 1970 7 Pain in lower back relating to industrial accident (Brim testified that in February 1970, while mov- ing a heavy box in the plant, he fell and injured his back) -advised Brim and his supervisor that Brim should do not heavy lifting for balance of the week 2/5 Pain in lower back In addition to the above occasions when Herrmann per- sonally saw Brim for various ailments, Brim visited the plant medical department and was seen by the nurse on the fol- lowing dates: 1969 4/25 (twice); 4/28; 4/30 6/4; 6/17; 6/28 7/9; 7/24; 7/25; 7/26 9/18; 10/1;10/3; 10/16 11/13; 12/12; 12/29 1970 2%2; 2/3 (seen by nurse and again by doctor); 2/4; 2/5 4/7 Respondent's records show that in 1969 Brim was absent- sick 18 full days and absent-sick 2 half days; in the same year he was absent excused 3 full days and 6 half days. From January 50 April 1970,8 Brim was absent-sick 2 full days and was absent on medical leave from April 7 to 20. With the exception of the April 7 to 20, 1970, medical leave, the various absences that Brim had in 1969 and 1970 were for the most part intermittent , with the periods being either for 1 day or 2 or 3 days in succession. In recounting the occasions when Brim was seen by Herrmann in 1970, above, we last mentioned February 5 when Brim complained about paint in his lower back evi- dently relating to the industrial accident he incurred a few days before. Not lo> ig after February 5, and in February, Bnm testified that he was laid off for 5 or 6 weeks.9 He states 7 He has worked in this capacity since January 1%8. 8 As we shall see, Brim was discharged on April 23, 1970. 9 This was a lack of work layoff and, judging from Brim's testimony, was not unusual. He stated that he believed he had a similar layoff on January 7-21, 1970; April 11-22, 1969; May 5-20, 1%9; May 22-June 2, 1969; October 31-November 4, 1%9. There is no claim or evidence that such layoffs were discriminatory. 247 that he welcomed the layoff at the time because he was having some difficulty with his back. After his February 1970 layoff for lack of work, Brim returned to work about March 23. On April 7,10 Brim saw Dr. Herrmann at the plant and complained of back pain. Herrmann advised him to see his own doctor and he was given a period of medical leave . Between April 7 and 20, while on medical leave, Brim saw his own doctor four times regarding his back and he received one ultrasonic treatment for his back from the doctor. Brim thereafter told his doctor that he felt alright and he received a release to return to work. He reported for work on Monday , April 20, and was seen by Herrmann. He presented the release from his doctor and evidently Herrmann was satisfied that he was fit to return to work . Herrmann asked Brim to wait in the wait- ing room. The doctor then telephoned Bingham, Brim's foreman. Herrmann advised Bingham that Brim's back problem had apparently resolved itself and that Brim's doc- tor and Herrmann had cleared him to return to work. Herrmann said that he did not expect that the back problem would present any reason for additional absences and that, if subsequent absences occurred because of back problems, Herrmann believed that the matter should be handled as a labor relations matter and not as a medical problem. As far as appears, Bingham made no comment. There is also no evidence that the doctor knew anything about Brim and his activities other than on the medical level as plant physician. Herrmann then returned to Brim and told him that he was cleared to return to work. After seeing the balance of the patients that morning, Herrmann instructed the nurse to contact employee relations manager, Koch, and ask him to come to the medical department to see Herrmann. Koch arrived in Herrmann's office around 9 :30 a.m. Both Herrmann and Koch testified regarding their con- versation and the circumstances on April 20 . The following is a synthesized version of the testimony of both witnesses and in the Trial Examiner's opinion accurately describes what was said. When Koch came to Herrmann's office , the latter said that he wanted to talk about Danny Brim or did Koch know about the Brim situation. Koch replied, who is Danny Brim, or that he did not know anything about Brim . Herrmann said that Brim is an employee who just returned from medi- cal leave and is ready to go back to work; that Brim had an industrial accident in the plant in February involving his back; that Herrmann had seen Brim when complained about his back and had then placed Brim on medical leave; that Herrmann could make no definite finding concerning Brim's reported pain and had suggested that Brim see his own doctor ; that Brim was now ready to go back to work; that Herrmann had doubts about the justification for the medical leave since shortly after the accident in February Brim had been out for some time on a work layoff and apparently had no problem during that period , but, when he returned to work in April , he had back pain, and Herrmann had placed him on medical leave from which he had just returned after one treatment by his doctor and apparently had no further pain; that after seeing Brim that morning, April 20, Herrmann had told Bingham, Brim's foreman, that if Brim had any further continued absenteeism or back pain problems, Herrmann considered it to be a matter to be handled as a labor relations problem by Bingham and Koch 10 Respondent's record's indicate that Brim's medical leave began April 7. Although the date of April 10 also appears in the transcript , the witness was apparently incorrect Whether April 7 or 10 is not of material significance. fl Herrmann normally sees patients at the plant between 7 and 9 a.m. He believes that he saw Brim between 7:30 and 8 a in. 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and not as a matter that was a medical problem. Koch then asked Herrmann for a brief run down of Brim's record. Herrmann produced some records and went over what the records showed, such as visits to the medical department and the ailments and requests to go home early because of illness. Herrmann said that he was concerned about the number of Brim's relatively minor injuries and their fre- quency that resulted in visits to the medical department, although the back injury was possibly an exception. Herrm- ann suggested that Koch look into Brim's past work history to see if there was a similar past history of absences because the Company may have a long term medical liability on its hands.12 Koch returned to his own office and got Brim's McBee card, a personnel department record form maintained on each employee. Among the information thereon was a re- cord of absences with a code showing whether for sickness and so forth. Koch glanced at the record of absences. He then took out Brim's personnel jacket or folder and looked at the application form that Brim had filled out in applying for a job with Respondent. Koch noted that two former employers were listed thereon and there were two forms reporting a telephone check made by Respondent's person- nel department with these employers. Koch then took the McBee card and the personnel folder to Linstroth's office. Linstroth was supervisor of hourly employment and was in Koch's department under Koch's overall supervision. It was still the morning of April 20 when Koch came to Linstroth's office. He handed him the McBee card and per- sonnel folder of Brim and said that the doctor feels that per- sonnel may have a medical liability or a long term medical liability on our hands-see if you can find out anything concerning this man's past attendance record"13 Koch then left. Some hours after Koch left his office, but on the same day, Linstroth began examining the various documents that Koch had brought him. Between the afternoon of April 20 and the afternoon of April 22, Wednesday, Linstroth checked the various forms in Brim's folder. Linstroth testified that on Brim's application he noticed a time gap between 1964 when Brim left high school and his first employer, Otis Elev4tgr, in 1966. He noticed that the form showed only two former employers, Otis Elevator and Lathrop Furniture, and Respondent's telephone checks made with these companies. The report indicated that Brim had quit both jobs. Linstroth assumed that, therefore, Brim had filed for unemployment compensation at some point and in m lying would have listed former employers point and hadppreviously worked 2-1/2 years for the Wisconsin Unemployment Service and presumably was knowledgea- ble in this area. He called the above Unemployment Service and a representative there pulled out Brims application and stated that it showed that Brim had worked for Young Radiator and Marigold Dairy. Linstroth asked if anything else that might be of interest was shown. The reply was that the record showed that Brim had been in military service for a short period but no dates were shown. 12 Aside from anything else, Herrmann in categorizing Brim as a labor relations problem rather than a medical problem gave the clear implication that the doctor, after the back affair and with the background of numerous past medical visits and absences , viewed Bnm as a potential liability to be handled in the future as a labor relations responsibility either because the doctor viewed him as a real or potential hypochandnac, or as accident prone, or as a genuinely unwell person, or as a malingerer, and, in any event, a personnel problem and not a medical problem because he was a potential liability as an employee. 13 Koch testified that he was interested in any past record for the reason that he wanted to know if Brim had a past pattern similar to his record with Respondent. Linstroth then telephoned Young Radiator where Brim had worked for a year, from September 1965 to September 1966. According to Linstroth, Young told him that Brim had had a very poor attendance record and had quit; that they would not reemploy him and that he had applied for reemployment but had been refused. When contacted by Linstroth, Marigold Daisy said that Brim had been asked to leave their employ and this his record with them was poor. Noting that the only military reference that Brim had made on his preemployment papers filed with Respondent was that his classification was 3-A, Linstroth checked with the Local Selective Service office. The latter confirmed that Brim was 3-A, married, with dependents. Linstroth asked if the record showed that Brim had been in military service. The answer was, yes. Linstroth asked if Brim had received a medical discharge and the answer was again affirmative. In connection with the foregoing investigation, Linstroth, as indicated, did compare the information obtained with what Brim had stated on his preemployment application and other forms. The application, filled out by Brim on February 17, 1969, shows under "Work Experience-List most recent job first," Lanthrop Furniture 10/68 to 12/24/68; Otis Elevator 4/66 to 9/68. Under Military Serv- ice," Brim wrote, under "Draft Classification," 3-A. Under "Veteran, Yes ; No ; nothing is shown. Under "Service Dates, From To ," nothing is shown. Printed above the space where Brim signed the application is a printed state- ment certifying that 'I" certify that the statements made on the application are true and that "I understand that any wilful misrepresentation of essential facts may be sufficient reason for dismissal." On a "Pre-Employment Medical Examination" form filled out by Brim on February 21, 1969, there were, inter alia, the following: "List the last three Companies you worked for." Brim listed two companies Lanthrop Funn- ture and Otis Elevator. There were also the followingg: "Have you ever been rejected for Military Service for medi- cal reason." Brim checked under "No." Were you given a Medical Discharge from Military Service. Again, "No" was checked. Under Discharge (give dates and reasons)" there were spaces headed, "Cause; Hospital; Location; Physican." Brim wrote: "1966 Operation on right knee; St Mary's, Racine; Dr Christhse." He also listed a 1965 appen- dix operation in Racine. Under "Comments on above ei- ther the nurse or the doctor wrote "Both conditions are now normal". In another section for comments, Dr. Herrmann, based on his interview of Brim had written "Had surgery for removal of bone fragments-doing construction work-no problems." A third -form, entitled "Personnel Inventory," dated March 17, 1969, filled out by Brim, contains, inter alia, the following headings: Current Military Status, with boxes for checking; Ac- tive Reserve ; Inactive Reserve; National Guard; No Service-Ineligible; No Service-Eligible; Service completed. There is also a space to write "Branch of Service"; Service dates"; "Rank" . All the foregoing boxes and spaces had been left blank by Brim.14 14 It is argued that Brim did advise Respondent that he had had a knee operation. This is not quite the same as knowledge that Brim was discharged from military service because the service viewed his knee as a potential future liability to Brim and to the Government. At the time of application for employment or at any other time the Company might or might not take the view that if the Government did not wish to take the risk of future problems or liability as to Brim, why should the Company, particularly, in 1970, in view of Brim's other medical problems while in our employ In any event, we believe that the Company could view Brim's failure to mention his military service and his discharge therefrom for medical reasons as a serious dere- liction WESTERN PUBLISHING CO. After comparing Brim's various entries or lack of entries on the afore mentioned employment forms with the infor- mation he had obtained from the Unemployment Service, from Young Radiator and Marigold Dairy, and from Selec- tive Service, Linstroth went to Koch late in the afternoon of April 22. He showed Koch the various employment forms and reported the information that he had obtained in the course of his checking. As presented by Linstroth and as understood and concurred in by Koch on that occasion, they viewed the situation as follows : On two forms Brim had falsified by omitting to name former employers and the dates ; he had failed to answer questions on the form that would indicate whether he had been in military service; that when Brim answered negatively the questions on the form as to whether he had ever been rejected for military service or had ever received a medical discharge , he had also falsi- fied. When the foregoing had been presented, Koch asked Lin- stroth what he thought "we" should do. Linstroth said that he thought they should discharge Brim for falsifying his application forms. Koch said that he felt the same way. Koch then instructed Linstroth to call Bingham, BMTS foreman, and inform him of the decision and also to call Brim and afford him an opportunity to present any reasona- ble explanation for omitting the afore-mentioned informa- tion on his applications. Linstroth called Bingham at the time but found that Bingham had already finished work and had left the plant. The following day, April 23, at about 9 a.m. Linstroth went to Bingham's office with some of Brim's personnel records. He told Bingham that the personnel department had found that Brim had falsified several essential doc- uments and that personnel wanted to discharge him-did Bingham have any objection . Bingham said, no. Linstroth returned to his office and instructed one of the girls to call Brim at home and ask him to see Linstroth before reporting for his shift that evening. Brim, after returning from his medical leave on April 20, had not reported for work on April 22. He had called the nurse beforehand to say he had a headache and would not be in. Consequently, when the personnel office called Brim at his home on April 23, he was asked if he would be coming to work that evening. He said, yes, and was requested to report early to see Lmstroth before going to work. When Brim reported at about 11 a.m. on April 23, Lin- stroth called Bingham to tell him he was about to talk to Brim and that he wanted Bingham present during the inter- view. According to Linstroth, it was normal procedure to have the foreman present when the personnel department informed an employee that he was being discharged. There is no evidence to the contrary. Shortly thereafter, the session began with Brim, Lin- stroth, and Bingham present. The substance of the conver- sations was that Linstroth said that in going through Brim's application forms, several serious omissions had been dis- covered. When asked, Brim admitted that he had worked for Young Radiator and Marigold Dairy. His explanation for omitting them as former employers was that he had forgotten about them.ls Linstroth expressed skepticism, 17 Brim testified that in May 1970, in explaining the omissions to plant manager Kaplan he gave the explanation that he had been filling out so many applications in looking for work that he simply listed two employers , Otis and Lathrop. In his testimony regarding the April 23 conversation with Linstroth, Bnm does not refer to having given any explanation for the omissions. We think it unlikely that when Linstroth cited the omissions, Brim was not asked for an explanation or did not proffer one since his testimony indicates that he was quite articulate in his own defense not only with Kaplan but earlier with Linstroth. We have credited Linstroth as to the fact that regarding the 249 pointing out that Otis Elevator was evidently Brim's first employer and he had worked there for a year and only a few years prior to the time he filled in the appli cation. Linstroth asked rim if he had been in military service . Brim said, yes. He was shown where he had not indicated that he had been in military service , or the dates, or branch of service. He was then asked why he had been in the service for such a short time. The response by Brim was that he had received an honorable discharge. Linstroth asked if he had received a medical discharge from the service . Brim said, no, that he had received an honorable discharge for medical reasons. They went back and forth on this medical discharge aspect for a while, with Linstroth expressing the position that in substance Brim had received a medical discharge and should have indicated this on his application forms. Brim contested this, adhering to his position that he had received an honorable discharge for medical reasons. His offer to bring in the discharge was refused by Linstroth because Linstroth said, no matter what it stated , Brim had not men- tioned it on his application . Brim wanted to know why, after 14 months, the Company had decided to check his applica- tion out of the many applications it had on file. Linstroth said it occurred because the Company became concerned about his many absences from work and decided to check on his application papers.16 Brim pointed out that he had received no warnings about his attendance . He expressed the view that the Company's action was due to Igrouille and Bingham reacting to Brim's enforcement of the union con- tract. Linstroth said that he knew nothing about any rob- lems between Brim and the foreman and reiterated: why Brim's applications had been checked .17 Bingham had inter- posed at one point, when Brim referred to him, above. Bing- ham said that Brim's enforcement of the contract had not bothered him at all. Brim queried, why then had Bingham called him a troublemaker. Bingham denied having done so. Brim said he had heard to the contrary. Bingham said that any conversation he, Bingham , had had with Lochowitz was personal and Lochowitz had no business repeating it. The concluding remarks were made by Linstroth to the effect that the Company had no alternative but to discharge Brim for falsification of his applications. He offered Brim the choice of resigning for personal reasons or being discharged for falsification of employment records . Brim refused to resign, saying he wanted to take up the whole matter with the Union. It was made clear to him that he was therefore discharged for the above falsification of records. Linstroth reviewed and confirmed the discharge inter- view by a letter to Brim on April 30. The letter said that it had been brought out in the interview that Brim at the time of employment, had not listed 2 past employers and provid- ed no data as to military service; that Brim had in fact worked for Young Radiator and Marigold Dairy; that he had been in military service and had received an early dis- charge for medical reasons.1$ omission of employers, Brim, on April 23, offered the explanation of having for^otten We do not believe that it is significant that Linstroth's reply, which was true as far as it went, did not reveal the entirety of what Koch had told Linstroth regarding Herrmann 's concern and that Herrmann had initiated the matter with Koch. 17 At the hearing, also, Linstroth testified that he had no conversation with Bingham or any other supervisor concerning Brim's union activities regard- in$ the contract. 3 Bnm testified that in 1964 he had enlisted in the Marine Corps for 3 years. He received an honorable discharge after approximately 2 months of service. Bnm testified that while in the service his knee had bothered him while marching He was sent to the Balboa Hospital in San Diego to have his knee checked, tested, and X-rayed. After a brief stay at the hospital, the Continued 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brim contacted Lochowitz after his discharge and had several conversations with him. Lochowitz testified that af- ter going over the facts and details with Brim , he telephoned Koch. One of the first questions he put to Koch, according to Lochowitz was, who fired Brim , was it Bingham. Koch replied that.Bingham had nothing to do with firing Brim and that it was the personnel department who discharged him. Lochowitz then advanced various contentions and ar- guments including his belief that the Company had used a pretext to get rid of an active union man. Koch denied it. Lochowitz asked for the Company's reasons in writing. 19 On May 4 or 6, 1970, at Lochwitz request, plant manager Kaplan met with Lochowitz and Brim to consider the Bnm matter.20 Linstroth was also present. Kaplan asked ques- tions about Brim's omission of prior employers from his application and the reasons, as well as about his military service and discharge therefrom. Brim gave his answers and his position as did Lochowitz. The matters and contentions presented were substantially the same as had been aired on April 23 between Linstroth and Brim, except that Kaplan appears to have acted more as an inquirer than a protago- nist. In any event the ultimate result of the meeting was to leave the discharge in effect 21 Conclusions We have found that Brim had engaged in protected union activities as' a steward. The nature, impact and weight of those activities and the Company reaction thereto merits neither exaggeration nor minimization . Brim's activities in- volve an employer long habituated to unionism and, as far as this record shows, an employer having a basically good relationship with the instant union over a period of many years. Such a background, of course, confers no license to violate the Act. The strongest evidence of reaction to Brim's union activi- ties either prior to the discharge or otherwise is foreman Bingham's describing Brim as a troublemaker, and as no good, and as uninterested in his work. Neither this nor any other incident involving Brim's activities occurred in con- texts of violent and highly acrimonious clashes between Brim and various foremen, including Bingham.22 Brim had simply spoken to foremen about what he considered to be contract violations. Sometimes a foreman acceded to Brim's contention almost routinely, sometimes they did not, but there were no bitter, down to the mat, exchanges and bat- tles. The strongest action that Brim ever threatened or took service doctor said that he felt that Brim's knee was too weak for him to continue in service and he was recommending that the service not take a chance on the knee being damaged further . Brim was therefore discharged because of his knee problem. 19 Linstroth's letter of April 30 to Brim, described above, was evidently written in response to Lochowitz' request. 20 Kaplan testified that he first heard of the Bnm case in a weekly meeting which be customarily holds with Koch regarding events of the week. The Brim matter was mentioned to Kaplan after the discharge . Koch on that occasion referred to Brim's discharge and the circumstances and reason 21 Brim testified that in the course of the meeting Kaplan asked Linstroth if the latter had secured Brim's "work history" from Brim's other employers Linstroth said he had not but was in the process of doing so . Lochowitz testified to substantially the same effect. Both Kaplan and Lmstroth in substance deny that Linstroth had been asked whether he had checked with the employers and that he had said, no. The Trial Examiner believed that Linstroth had checked with the two employers in question , Young Radiator and Marigold, as he testified, prior to this meeting and prior to the discharge. However, a written work history, consisting of, inter aha, a photostat of Brim's attendance record at Young, was not obtained until July. 22 We do not imply that illegal motivation is only revealed by evidence of dramatic clashes. was to report what he considered to be a contract violation to Lochowitz, the union president. The foreman would scarcely view the possible or actual involvement of Lochow- itz as outrageous and catastropic . Lochowitz had been deal- ing with the Company and its foremen for almost 20 years. He had ready access to everyone in management . He could and did call individual supervisors on the telephone or come to the plant and discuss a problem or complaint with them in person. He did this regarding some matters raised by Brim. Lochowitz presented the union position and the par- ticular foreman stated his view, either acceding to Lochow- itz or otherwise . Indeed, it was to the union president that Bingham expressed the view that Brim was a troublemaker although he was fully aware that Lochowitz was standing behind various complaints that Brim had made . If Bingham, because he regarded Brim as a troublemaker, contemplated getting rid of Brim through some pretext to be dredged up, he had picked a strange confidant to whom to reveal his feelings of hostility. In our opinion, Bingham, a foreman in the plant for 23 years and a dues paying member of the Union, spoke frankly to Lochowitz , president of Bingham's and Brim's union, and said, in effect, by the term "trouble- maker," that he considered Brim to be an irritating "pain in the neck" and something of a gold brick . The evidence in this record does not convince the Examiner that Bingham contemplated or afterwards instigated or engineered Brim's discharge. If, contrary to the foregoing, we regarded Bingham as having been revealed by his remarks about Brim as dedicat- ed to the eventual discharge of Brim (and in the course of our analysis we have indeed approached the evidence from the foregoing perspective and other perspectives and tenta- tive premises for the sake of analysis) and that he and other supervisors instigated a project to "get something " on Brim as a pretext for discharge, we find a major and substantial obstacle in the path. Whatever Bingham or other foreman felt about Brim, the evidence, in our opinion, reveals that the events leading to Brim's eventual discharge originated with Dr. Herrmann. Herrmann's views, opinion, and suspicion regarding Brim's medical problems, whether correct or not, are not shown to have any connection or relationship to Brim's union activi- ties and there is no evidence that Herrmann was even aware of the latter. In our opinion, there is no evidentiary basis for rejecting the evidence that the discharge was strickly a mat- ter of Herrmann to Koch , Koch to Linstroth, Koch and Linstroth, to discharge. And the foregoing combination, evidentiarywise, reveals convincing insulation, from even awareness by any of those actively involved in the dis- charge, of any problems that may have existed between Brim and various foremen. We have not reached this con- clusion without careful consideration of the witnesses and the evidence. We cannot substitute suspicion or surmise for what has impressed us as credible evidence?3 We are satisfied that Herrmann, whether correctly or not, viewed the circumstances surrounding Brim's medical leave from April 7 to 20 with suspicion. This was Brim's first extended medical leave in his 14 months with Respondent. His prior medical absences with Respondent , although many, had been intermittent and not more than a day or so at any one time. These prior absences had been for a variety of ailments. But the extended medical leave in April related 23 The General Counsel's view is that when Herrmann called Bingham, the latter, because he was hostile to Brim, engineered the discharge by suggesting that Herrmann speak to Koch about Brim's record and this led to the dis- charge for pretextious reasons . The trouble with this theory is that evidence to support it is lacking. It is of course possible that Respondent's witnesses perjured themselves but, if they did, we have been successfully deceived. WESTERN PUBLISHING CO. taa back injury and its aftermath. To use nonmedical terms, a back injury and subsequent complaints about continued pain and discomfiture in the back is a "tricky business," regardless of whether the entire situation is genuine or not. A doctor, such as Herrmann, in the industrial medicine field, employed by a Company to protect its interest and those of its employees in the medical field, would undoubt- edly be attuned to the medical and medical-legal potentiali- ties of an employee's back inury and subsequent claimed disability for an extended period. This would be particularly true where the physician, as in Herrmann's case, was evi- dently suspicious of the claimed continued consequences of the injury by the employee. This back injury context in Brim's case, with the accompanying extended leave, appar- ently served as a catalyst for Herrmann to bring together, in his own mind, Brims history of medical absences in the past, together with the more recent back situation. From such a context, Herrmann took the initiative to advise Koch and Bingham that any future claimed sickness or absence by Brim relating to his back should be handled as a labor relations problem. As might be expected in view of Koch's position as head of the personnel department, Herrmann, in so advising Koch, explicated that the reason why Brim should be handled as a labor relations problem rather than as a medical problem, was because, in Brim, the Company may have on its hands a long-term medical liability. Herrm- ann advised Koch to check on Brim's prior employment history to see if there was a pattern of similar absences. Linstroth's subsequent investigation, pursuant to Koch's instruction, which in turn was due to what Herrmann had advised Koch, was, in our opinion, as described earlier, plausible and credible under the circumstances. The investi- gation revealed unanticipated omissions and discrepancies in Brim's employment pacers that Respondent omissions and discrepancies in Brim s employment papers that Res- pondent viewed as constituting falsification by Brim. It is to be borne in mind that the issue before us is, does the evidence support the conclusion that Respondent dis- charged Brim for union activities. Did Respondent dis- charge Brim for the reason it gave to Brim and which its witnesses testified to, or was the discharge because of Brim's union activities. The issue is not whether Respondent should have done what it did or whether the Trial Examiner agrees with the interpretation Respondent's witnesses assert that they placed on the facts revealed by Linstroth's investi- gation. The Trial Examiner has carefully considered wheth- er, given the information that Respondent had secured and the action it took, Respondent's conduct was so implausi- ble, so unconvincing, or so inequitable and specious that the Trial Examiner could or should reject Respondent's reasons for the discharge and conclude that Respondent was moti- vated by some other reason. For instance, Brim, in addition to failing to indicate that he had ever been in military service, indicated that he had never received a medical discharge from military service. Linstroth's information from Selective Service was to the contrary. Later, in confrontations with Brim, when it was revealed that Brim had received an honorable discharge for medical reasons, Respondent took the position that this was a distinction without a difference and that Brim had re- ceived a medical discharge; Brim took the opposite position. It was an arguable point but the Trial Examiner did not 251 believe that Respondent's position was so untenable that the assertion of that position was quite evidently a pretext. The General Counsel in his brief states: On his preemployment application, Brim stated that he had been laid off from Otis Elevator (Resp. Exh. 3). While it is true that Brim had been discharged from Otis, had he been attempting to intentionally and wil- fully falsify this application, he would not have listed Otis Elevator, rather he would have listed such former employers as Young Radiator and Mari-Gold Dairies and omitted Otis Elevator. Stated another way, if Brim attempted to deceive Respondent, he would not have listed an employer who might give an unfavorable re- port; instead he would have listed only those employers who would give favorable reports? Assuming, arguendo, all the above, in our opinion, it goes more to the merits of the discharge than to the motive since it is by no means apparent that such a reasoning process was so evident that it must have been or was undergone by Respondent's people or that they would adopt such reason- ing. As to the underlying evidentiary facts, the record does show that Brim, on his application of February 17 wrote that he had been layed off by Otis.25 Respondent's tel- ephone check on Brim with Otis on February 18 shows under " . . . reasons for leaving" that Otis stated "Lack of work." We would equate this with layoff and not discharge. Also, when asked by the telephone checker whether it would rehire Brim, Otis said, yes. This appears more consistent with the fact that Brim had been laid off rather than dis- charged. Moreover, Young Radiator, when Linstroth dis- covered that Brim had worked there, told him that they would not rehire Brim under any circumstances and had, in fact, refused to do so. They said Brim had a poor attendance record. Since two of the questions asked of former employ- ers in Respondent's telephone check was, "Would you re- hire" and "How was the attendance record' this information would presumably have been secured if Brim had listed Young on his application. As to Marigold Dairy, which Brim also had not listed, they told Linstroth that Brim had been asked to leave their employ and that his record with them was poor. Regarding the argument that although Respondent had previously discharged six employees for falsification of em- ployment applications, it had never done so where an em- ployee had worked for 14 months, it is likely that Respondent never previously had a recommendation by its doctor to check the past employment record of an employee who had been employed as long as Brim. The doctor initiat- ed this action because of his view of Brim as a patient which came to a head in April 1970. The necessity of first going to Brim's application in order to conduct such a check is apparent. It was unfortunate for Brim that his application and the investigation revealed what they did. It is our opinion that the complaint has not been sus- tained by substantial evidence on the record as a whole. Dismissal is recommended. In view of our conclusions we find it unnecessary to pass upon Respondent's affirmative defense as to the availability of arbitration. 24 Evidently using the same approach, union counsel states that "On his preemployment application, Brim listed the only job from which he was fired [Otis]." 25 At the hearing Brim testified that he had been discharged by Otis