Great Central Insurance Co.

474 GREAT CENTRAL INS. CO. Great Central insurance Company and Vickie Schneider, Case 38-CA-547 June 9, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On March 19, 1969, Trial Examiner Benjamin A. Theeman issued his Decision in the above -entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision, a supporting brief, a response brief, and two motions to introduce additional evidence; the General Counsel filed limited exceptions, a supporting brief, a brief in support of the Trial Examiner's Decision, and responses to Respondent' s motions to introduce additional evidence. Pursuant to Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, the motions to introduce additional evidence,' the responses thereto, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendation S.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent , Great Central Insurance Company, Peoria, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' 'Respondent's motions to introduce additional evidence concerning an alleged offer of reinstatement made after the issuance of the Trial Examiner's Decision are hereby denied as raising issues more appropriate for consideration in the compliance stage of this proceeding. 'Although we agree with the Trial Examiner's conclusion that Respondent terminated Mrs. Schneider in reprisal for her union activity, we note that, even if her discharge were motivated by her having discussed salary with other employees, the discharge would be violative of Sec. 8(aXI), since discussing salary or other terms and conditions of employment is protected activity under Section 7 of the Act. The remedy for such violation would be the same as for the violation of Sec. 8(aX3). 'We find no merit in Respondent's exception to the broad cease and desist order. The broad order recommended by the Trial Examiner is appropriate herein since the discharge of an employee for engaging in TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Trial Examiner: The complaint, as amended, alleges that Respondent, Great Central Insurance Company, had engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. 151, et seq. (the Act) by discharging and refusing to reinstate the Charging Party , Mrs. Vickie Schneider, because she engaged in union or concerted activities. Respondent by its amended answer denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me on November 13 and 14, 1968 , in Peoria, Illinois . All parties appeared and were represented by counsel. They were given full opportunity to participate , adduce evidence, and examine and cross-examine witnesses. The General Counsel and Respondent have filed briefs which have been carefully considered. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. BUSINESS AND COMPOSITION OF RESPONDENT Respondent is, and has been at all times material herein , an Illinois corporation with its office and place of business located at Peoria, Illinois. It is engaged in the business of selling and issuing various types of insurance policies including, but not limited to, burglary insurance. During the past 12 months, which period is representative of all times material herein , Respondent (a) sold and issued from its Peoria office, insurance policies valued in excess of $500,000 to its policyholders ; (b) received premiums in excess of $500,000 from its policyholders; (c) received in excess of $50,000 in premiums at its Peoria, Illinois office from policyholders located outside the State of Illinois; and (d) in the course and conduct of its business operations, has paid claims from its Peoria office in excess of $50,000 to claimants located outside the State of Illinois. In accord with the foregoing, it is found that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNFAIR LABOR PRACTICES A. The Issues Mrs. Vickie Schneider was employed by Respondent as an accounting clerk on July 17, 1967. She was discharged on September 5, 1968. Harold E. Florey, manager of the accounting department, testified he discharged Mrs. Schneider for (a) "talking too much away from [her] desk," (b) "discussing salary [which ] is against company policy. We don't want people discussing salary,"' (c) "[having] resigned on two [previous] occasions [so that he, the manager of the accounting department ] don't know from one week to the next if she 's going to be there or not and the only thing [he] could do is let her go," and (d) "I have a replacement for you." The General Counsel union activities goes to the very heart of the Act. N.L.R.B. v. Entwbtle Mfg. Co.. 120 F.2d 532 (C.A. 4). 176 NLRB No. 59 GREAT CENTRAL INS . CO. 475 contends Mrs. Schneider was discharged for attempting on and after August 28, 1968, to bring a union into the plant and for her concerted activities in respect to that action. The correctness of these contentions is in issue. A subissue which directly affects the main issue is whether Florey at the time of discharge had knowledge of Mrs. Schneider's union or concerted activities. Respondent contends that Florey had no knowledge of her interest in bringing a union into the plant , or that she had been talking to other employees about having a union. B. The Scene of the Action The accounting department of the Respondent occupies part of a large open room . Manager Florey occupies an enclosed office, the upper part of the partitions being of clear glass. The other employees including three supervisors are seated at flat-topped desks in the open area in front of Florey's office. Each desk is approximately 60 inches in length and 30 inches in width. There are approximately 20 inches between desks from the side of one to the side of the other and approximately 40 inches between the front edge of one desk and the back edge of the next . The occupant sits in the middle area of the desk. The accounting department is divided into three sections headed by a person entitled "Supervisor." During the period in question they were : Agent Account Section, Supervisor Arthur Schnebly with five people; Direct Mail and Home Office Building Section, Supervisor William Reames with eight people; and General Accounting Section, Supervisor William Eagleson with three people.' The supervisor of each section was responsible only to Florey. The supervisors had no authority to hire, fire, suspend, or otherwise discipline employees or to grant them raises, time off, or to adjust their grievances. In addition to sitting at similar desks the supervisors , like the other employees, performed actual clerical work, punched the timeclock , worked the same daily hours, were paid time and one-half for hours worked over 40 in a week and were paid on a salary basis . Eagleson received $525 per month . The salaries of the employees in his section range from $300 to $330. Schnebly received $500 per month. The salaries among the employees in his section range from $250 to $400. The salaries of the employees in the third section are not of record. C. Eagleson and Schnebly are Supervisors The General Counsel contends that Eagleson and Schnebly are supervisors within the meaning of Section 2(11) of the Act. Respondent contends they are not; that they are highly skilled and experienced employees who bear the title "supervisor"; and that they are supervisors in "title" or "name" only but actually have no supervisory "authority" as mentioned in Section 2(11). The record shows that Eagleson and Schnebly are highly skilled and experienced but it also contains other evidence to show they are supervisors. It is now well established that Section 2 ( 11) speaks in the disjunctive' and that to constitute a person a 'Respondent's brief does not mention that talking salary was one of the causes of the discharge nor that "discussing salary" is against company policy. 'Including supervisors, the total is 19 persons. Florey testified that the accounting department contained 24 persons . The difference is not explained. supervisor it is sufficient to show that the person performs any one of the functions , or in the performance of his duties possesses one of the enumerated powers and responsibilities set forth in Section 2(11). N.L.R.B. v. Metropolitan Life Insurance Co., 405 F. 2d 1169 (C.A. 2), and cases cited therein . It serves no purpose to emphasize or list the supervisory powers that Eagleson and Schnebly do not have . In keeping with Metropolitan Life Insurance Co., supra, this discussion will be limited to those management powers exercised or possessed by Eagleson and Schnebly. The accounting department of Respondent as above stated is headed up by Harold E . Florey, whose title is manager. He also is assistant treasurer to the board of directors. Prior to September 1966, Florey's second in command was known as assistant manager.' In September 1966, the accounting department was reorganized. The change abolished the job of assistant manager . The three operating sections were established , each headed by a supervisor. They were : ( 1) Agent Account Section, Supervisor Harold Glass;' (2) Direct Mail and Home Office Billing Section , Supervisor William Reames; and (3) General Accounting Section, Supervisor William Eagleson.' The purpose of the change was "to make the work load easier by having a little more supervision within the department . . . by . . . experienced people [who] could look after some of the problems of those particular sections." (Emphasis supplied.) As admitted by Florey, the assistant manager was directly responsible to him but had responsibility over the entire department and its operation in Florey's absence. It is evident that the Company's intention was not to diminish responsibility of the assistant manager even though it was distributed among the three section supervisors. The above changes were contained in a document dated September 15, 1966, from Florey to the accounting department. The subject was "Accounting Department Organization Changes." Set out therein were the three new sections and the work by jobs done within each section. The document among other things stated: The following supervisory and responsibility areas have been assigned in an effort to operate the department in a more efficient manner. The work assignments in the various sections are subject to change as the work load changes. Due to the nature of our work load and peak periods, some personnel assigned to one section will be working in another section under different supervision. It is hoped that problems arising from this can be kept to a minimum. 'Sec. 2 (11) defines a "supervisor": any individual having authority , in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust thew grievances, or effectively to recommend such action, if in connection with the fc regoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 'This job was filled by William Eagleson, who later became supervisor of the General Accounting Section. 'Succeeded by Francis Reliford in February 1967, who in turn was succeeded by William Schnebly in August 1968. 'As conceded by Respondent, Reames. Schnebly. and Eagleson performed the same functions and had the same authorities. The following discussion does not differentiate among them A finding made as to one is applicable to the other except where otherwise specified. 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Supervisors of the above operating sections will report directly to the Manager of the Accounting Department. The document was exhibited to all the employees in the accounting department. In practice, thereafter, new employees were hired to do a specific type of work or types of work. They were informed at hiring that if they were not busy they should look to the section supervisor or to Florey for reassignment. Similarly, if overburdened, they should seek relief or assistance from the same sources. In practice the supervisor of a section had authority and responsibility within his* section without referring the matter to a higher authority to assign employees who were not busy to help one who was. In practice, each of the supervisors obtained employees from another section dependent on the workload and the peak periods to work his section. Sometimes a supervisor would go through Florey to accomplish the shift. At times on his own initiative he requested the supervisor of the other section to make the assignment; or he spoke to the employee directly. The fact that the employee so shifted was advised when he was hired that he may be shifted, does not in any way lessen the effectiveness of the assignment or reassignment, or diminish the authority of the supervisor to so assign. Under the Company's work flow system, some of the work went directly to the person performing the work. Some of the work was routed through the supervisor for direction and checking. The supervisor has the responsibility that the work in his section is performed correctly and by certain cutoff times. To locate errors, the supervisor spot checks the work before it leaves the section. Where he finds an error he sees to it that the employee corrects them or he may make the correction himself. As stated above, the supervisor has the authority to and does get assistance from other employees to meet cutoff times. Any of the three supervisors is authorized to and has broken up groups of employees whether of his section or not who gather together for a "gab session," and is authorized to ask them if they have anything to do. The Respondent has a policy of granting scheduled increases to employees after a review of the employees' work. The first review occurs 90 days after the employee starts. Thereafter the increases are given on an annual basis except as Florey testified, "We do give some in 6 months," and in fact in several instances had done so. Before each raise the supervisor is consulted to determine the progress of the employee. As to the 90-day raise, if the supervisor gives a satisfactory report, the raise is automatic. Subsequent raises are dependent upon the supervisor's report. There is no evidence that Florey independently checks these reports. The supervisor also reports to Florey with regard to employee competency. Two employees who did not work out well after being hired were discharged solely on the reports of Supervisor Reliford (see footnote 5) that the employees were incompetent . In a similar fashion it is noted that Florey claimed he discharged Mrs. Schneider as a result of Eagleson's report that she "had been away from her desk quite a bit and talking to other people and wasn't doing her work."' It is clear from the foregoing, the action of the supervisor relative to the employees he supervises and the reports he gives to Florey materially affect the job status of the employees. Florey relies upon the supervisor as a 'Although as found hereafter the report was not the true reason for the discharge, it clearly evidences Eagleson's supervisory status. source of information upon which he may exercise his final authority. In many instances he accepts the report without a further check. Though the supervisor may not use the word "recommend" in his reports, he effectively recommends action to Florey. Further, each supervisor responsibly directs the work activities of the employees of his section. The, exercise of authority by the supervisor is neither routine nor merely clerical, but requires the use of his independent judgment. Accordingly, on the record as a whole, it is found that Eagleson, Schnebly, and Reames, the respective supervisors of the three sections, are supervisors within the meaning of Section 2(11) of the Act.' The record contains statements and actions by Respondent that support the conclusion of supervisory status.' Respondent concedes that Reames could be a Section 2(11) supervisor "Because of the number of employees involved . but surely neither Eagleson nor Schnebly could be." By "number of employees involved" Respondent undoubtedly is referring to the number each supervisor has under his supervision. Respondent gives no authority for this distinction, nor does it show why the "number of employees" creates a difference in status among the three supervisors." Section 2(11) does not speak of nor establish "number of employees" as a criterion. In the instant case the disparity in number of employees in the three sections is not so great as to constitute a substantial difference. As of August 1968, Eagleson had three people in his section, but this number is increased from time to time by employees from other sections who are brought over temporarily to assist Eagleson. When Reliford was in charge of the Agent Account Section, he had seven employees under him. As of August 1968, this section (Schnebly, supervisor) contained six or seven employees. As of August 1968, Reames' section contained eight employees but in 1967 it had only five or six employees. On the other hand the record clearly shows that the functions, responsibilities, and authorities of the three supervisors are equal and it was intended by the Respondent that they should be equal. It follows from the foregoing that a concession that Reames is a Section 2(11) supervisor also concedes that Eagleson and Schnebly are Section 2(11) supervisors. 'See Lyon. Incorporated, 145 NLRB 54, 73. 'In its original answer to the complaint, which answer is an exhibit in this proceeding, Respondent admitted that Eagleson is a Sec. 2(11) supervisor. Subsequently, at the hearing, Respondent amended its answer and denied that Eagleson was a supervisor. No reasons were given for the change of position. Normally, when a pleading is amended the superseded portion ceases to be a conclusive judicial admission. Where it remains as part of the record it still remains as a statement once seriously made by an authorized agent and is competent evidence of the facts so stated. See Kunglig Jarnvagsstyreb en v. Dexter & Carpenter, 32 F.2d 195, 198 (C.A. 2), cert. denied 280 U.S. 579. Under these circumstances, it is considered that the admission supports the conclusion that Eagleson was a Sec. 2(11) supervisor. "In cases where the Board considered "numbers of employees" as a factor in the determination of supervisory status other special circumstances were present. See Remington Rand Corporation, 141 NLRB 1052, 1054, wherein the Board stated: In our opinion, the record adequately supports the conclusion that Lercher responsibly directs the work of the approximately 25 employees working on the night shift. Further , to find that Lercher is not a supervisor would result in approximately 25 employees working the night shift without any responsible supervisory representative of Respondent present during the major portion of the shift . In such circumstances, we find that Lercher is a supervisor within the meaning of the Act. Also Vega v. N.L.R.B., 341 F.2d 576 (C.A. I), cert. denied 382 U.S. 862. GREAT CENTRAL INS. CO. 477 D. The Company Personnel Policy and Practice The Company has no stated policy, written or otherwise, setting standards for employee behavior. Generally, the practice has been to give the employees as much leeway as possible and to work with them. The person who hired Mrs. Schneider told her that there was no company policy on "breaks"; that the Company was very lenient; and that an employee was free to take a break if she needed one. The normal work of the employees required them and Respondent permitted them to go from the employee's own desk to consult with a supervisor or another employee at the other's desk. Florey testified that while visiting it was not unexpected that the employees would discuss nonwork subjects as well as work subjects and laugh and joke with each other. Continuing personnel problems in the accounting department were: (I) girls staying in the ladies' restroom for too long a period of time; and (2) excessive talking between girls who visited each other. Discipline of offenders was lax. For example: As to item (1): In the early part of 1968 several of the female employees including Mrs. Schneider would stay in the ladies' restroom for about 10 or 15 minutes about 4 p.m. How long this continued is not shown. In the spring of 1968," Florey spoke to Mrs. Schneider and another employee about it. He told them that they were spending too much time as a group in the ladies' restroom; that the Company had no "break as such"; and that if a cup of coffee or a cigarette was wanted they should have them at the desk. The problem, however, was not resolved. The ladies desisted for a while but the practice started over again a little while later and has continued since. The record does not show who the later malingerers were. Florey has rebuked no one since he last spoke to Mrs. Schneider and the other employee. The latter is still an employee of the Respondent. As to item (2): From time to time, employees were admonished verbally for behavior disruptive of normal working conditions. Instances of such admonition were as follows: "Sippy" Brooks, an employee since December 1966, worked in the same section as Mrs. Schneider. Six months after she was hired, Florey called her into his office, advised her she was being given a raise and then, with regard to her talking, told her to "hold it down to a small roar back there in the corner." Sippy Brooks is a baseball fan . In the spring of 1968, she was in the company vault listening to a ball game on a radio. Florey was also there. He told her she "couldn't do it." She was upset but she stopped. In the early part of August 1968, Sippy Brooks' talking was still a problem. In an attempt to resolve it, Florey rearranged the seating plan of the accounting department to bring Sippy Brooks near his office. A few weeks later, about a week or two before Mrs. Schneider's discharge, Sippy Brooks received another warning from Florey. He told her that talking was to be held to a minimum; anything related to work was to be discussed in a low voice so as not to disturb the other employees; "and this was how it was or else." About this time, Florey also warned employee Harris about talking. Sippy Brooks and Harris are still employees of Respondent. About the same time as this last warning to Sippy Brooks, Florey spoke to Mrs. Schneider. Florey told Mrs. Schneider that he knew that she was a good friend of "Mrs. Schneider sets the time in April or May; Florey in May or June 1968. Sippy Brooks, but that he would like them to keep their conversations down to "a small roar." Around this time, Florey warned another employee, Dave Harris, about talking. This conversation was part of a discussion between Florey and Mrs. Schneider in which she revoked her 3-week notice to quit and Florey told her that her planned replacement would be placed elsewhere and that she would get a raise about the end of September or the first of October.12 Incompetence was a cause for discharge as shown by the fact that several employees had been terminated for that reason. As to excessive talking or other disturbing behavior, the record contains no instance where an employee had been terminated, punished, suspended, or otherwise penalized on that account. As Florey testified, "I have tried to work with the people as much as possible, giving them as much leeway as I can; thinking they will respond to talk rather than suspending them, rather than firing them." E. Mrs. Schneider's Employment Record Mrs. Schneider was employed as an accounting clerk in the General Accounting Section of Respondent's accounting department. Her supervisor was Bill Eagleson. Her duties were to process all the new insurance issues, renewals, and cancellations that were paid on a monthly basis. She also worked the finance journal. Her duties required her to leave her desk from time to time to consult with other employees about the work to be done. When hired in July 1967, her salary was $270 a month. In November 1967, after 90 days, Mrs. Schneider received an automatic increase making her pay $285 a month. In March 1968, an employee quit. Mrs. Schneider told Florey that if she did both jobs she would have enough work to keep her busy all the time and asked him not to get a replacement. Florey agreed. Then, Mrs. Schneider received a raise of $25 a month, making her pay $310 a month. In the morning of August 8, 1968," Mrs. Schneider spoke to Florey and asked him for a raise in pay. She advised him she had just been married and needed more money. Florey promised to look into the matter. She spoke to him again about 4 or 5 days later. After being told by him that she was not yet due for another raise, she told him to "forget it" because she would be quitting in October. That afternoon, Florey called Mrs. Schneider into his office to try to change her mind about quitting. He told her that she was being well paid for an inexperienced girl, having already received two raises; that she could not work elsewhere and advance as rapidly; and that as she desired she would be given work that would use her typing skills. The discussion ended when Florey told her the Company was satisfied with her work and if she changed her mind to let him know. About a week later she advised him she wished to stay. Florey responded, "That's fine. We would like to keep you." About August 26, in the morning, Mrs. Schneider talked with Florey again. She asked him if she could be allowed to work part time at the same salary, guaranteeing that she would get all the work done. He stated he wanted no part-time workers. She then advised him that she wanted to give him 3 weeks' notice so that "See fn . 14, infra "The findings in the remainder of this section for the period from August 8 to Mrs. Schneider's discharge are a composite of the credited portions of the testimony of Mrs. Schneider and Florey. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he might get a replacement . Florey thanked her and advised the personnel department. On August 28 he interviewed an applicant for the job . He told the applicant she could begin working the Monday of the last week of Mrs. Schneider's employment so that the latter could help break her in. On August 30, Mrs. Schneider saw Florey again to tell him she had changed her mind and wished to stay. He said, "Fine, I'm glad." He told her of the arrangements to hire another girl as her replacement, but that he would check with personnel about placing the new girl in another department. The raise was again mentioned and Florey stated she would get one at the "end of September or the first of October because I usually try to review the pay every six months."" Later that afternoon he stopped at Mrs. Schneider's desk to tell her that arrangements had been completed and she could stay. On September 3" and the morning of September 4, Florey noticed that Mrs. Schneider was away from her desk on several occasions. He observed her talking to Sippy Brooks. The afternoon of the 4th, Florey attended a meeting away from the accounting department. On his return, Eagleson reported to him that Mrs. Schneider "had been away from her desk quite a bit and talking to other people and wasn't doing her work at that point." Florey decided to arrange for her discharge the next morning. F. Mrs. Schneider's Union Activities Late in the afternoon of August 28, Mrs. Schneider and three other employees were in the ladies ' restroom. They discussed salaries paid by the Respondent and the behavior of the accounting department supervisors to the employees . As a result, they decided to get a union started in the plant to help them better salaries and working conditions. Mrs. Schneider volunteered to get the information "on how to organize a union." That evening and the next day Mrs . Schneider contacted several sources, including a member of the general executive board of the Insurance Workers International Union. On August 29 and 30, September 3 and 4, at the desks of employees in the accounting department , when visiting other employees in other departments , at lunchtime, and in the Company's parking lot, Mrs. Schneider solicited employees in an attempt to gain support for union organization . As in the first conversation, the discussions included mention of wages and the relationship between supervisor and employee . Mrs. Schneider spoke to approximately 16 different employees" in this manner and to several more than once . The conversations were in a low tone in order that they should not be overheard. Several were in the presence of Eagleson and Schnebly but Mrs. Schneider was not certain that either overheard what was said. On September 4, in the accounting department, Mrs. Schneider held a conversation with Peggy Grimm at the latter's desk . Schnebly was seated at his desk about 3 to 5 feet away and Eagleson at his about 25 feet away. Mrs. Schneider in a low voice asked Grimm if she would support a union . In a loud voice Grimm responded, "No, I won't because you'll never get a union out here." "It was in this conversation that Florey told Mrs. Schneider to keep the conversations with Sippy Brooks down to a small roar . See In. 12. "August 30 was a Friday. The following Monday was Labor Day. September 3, a Tuesday, was the next working day. "Linda Ashenbrenner, Collette Ludwig, Sharon Holliday, Ruth Riesen,' Sippy Brooks, "Mary" Mullin, Dave Harris, Mike Baker, Pat Bower, Mrs. Schneider testified she did not know whether either Schnebly or Eagleson heard Peggy Grimm. She did state that in her opinion Grimm's voice could have been heard for a distance of about 40 feet . Eagleson was not called as a witness by the General Counsel or Respondent. Schnebly testified that he did not overhear the conversation with Grimm and that he had a perforated right eardrum. Schnebly testified that he had no difficulty hearing questions put to him by Respondent 's counsel; and that the counsel had a loud voice. The parties stipulated that that distance from counsel to the witness was approximately 15 feet. G. The Discharge About 11:30 a.m. on September 5, 1968, Florey discharged Mrs. Schneider . Earlier he had requested her final checks from the payroll department . During the discharge conversation , Florey told Mrs. Schneider she was being discharged, For talking too much away from your desk and talking to other people and discussing salary and so forth-and this is against company policy. We don't want people discussing salary. And in view of the fact that she had resigned on two occasions, I don't know from one week to the next if she's going to be there or not and the only thing I could do is let her go. I have a replacement for you. Mrs. Schneider responded that he was being unfair that she was not the only employee who talked and listed four or five others including Sippy Brooks . Florey agreed that "she was not" the only talking employee and that he had talked to other people about the same problem. Mrs. Schneider went on to say that if he wished to fire all the people who were talking he wouldn't have anyone left. Florey responded, "If that's what it takes, that is what will happen." Sometime after her discharge Mrs. Schneider requested her job back. She received no reply from Respondent nor has she been since reinstated by Respondent. H. Company Knowledge of Mrs. Schneider's Union Activities In accord with the General Counsel's contention it is found that Eagleson" and Florey were aware of Mrs. Schneider's union activities before the time of her discharge. As to Eagleson: This finding is made without reliance on the testimony that Eagleson was within hearing distance of the conversation between Peggy Grimm and Mrs. Schneider. The finding is based on the uncontroverted testimony of Baker and Reliford. Baker testified that before the discharge he was at Eagleson's desk having a general conversation and in passing Baker "mentioned that Vickie had been discussing the starting of a union at Great Central." Eagleson said, "He was unaware of the fact." Baker testified that to his best estimate the conversation occurred 2 weeks before Mrs. Schneider's discharge. The latter occurred on September 5. Thus, if the "2 weeks" were strictly construed the conversation would have occurred on Jack Henson, Alan Goble, Peggy Grimm, Judy Gardner, and three other people identified as " Bobbie," "Thelma," and an "IBM clerk." "In view of the finding as to Eagleson it is unnecessary to make a finding with regard to Schnebly's knowledge. GREAT CENTRAL INS. CO. 479 August 22, 6 days prior to August 28 when Mrs. Schneider first started her union campaign . Despite this date discrepancy, Baker 's testimony that the conversation took place is credited . When asked when the conversation took place Baker responded , "Dates I couldn 't give you." He then stated it was before the time of the discharge and then placed it about 2 weeks before . His error is in placing the time of the conversation . He was not in doubt that the conversation took place . Under the circumstances in this case the conversation could only have taken place on or after August 28 . It is so found . There was no doubt that Baker knew what Mrs. Schneider was doing because she testified that she had spoken to Baker about the Union. Reliford was a supervisor formerly employed by Respondent . He left voluntarily . On September 5, the night of Mrs. Schneider's discharge he visited Respondent's office about 7:30 or 8 p .m. where they were "doing the collection reports ." This was something Reliford customarily did. He met Schnebly, Baker, and Eagleson . After Schnebly and Baker left, Reliford talked with Eagleson . The latter told him that Mrs. Schneider had been terminated that day, And we talked about it and he said - well, I asked him why, and he explained to me that she had been showing a bad attitude in approximately the last three weeks or month and that it was hurting her in regards to how they felt about her and her employment and she was - I asked Mr. Eagleson what he was referring to and he said she had gone into Mr. Florey and turned in her notice to quit and then had gone back in and asked to keep her job and then asked for part time or a three-day week or something of this nature, that she could work at her present salary and still get her job done, and that this was ridiculous, and that she had been talking with the employees in the department and that she - in that he had heard that she was talking to employees about forming a union. On cross-examination , Reliford's qualification, if any, of the above statement was that Eagleson did not say that her union activities was one of the reasons why she was terminated but that Eagleson "simply stated he heard she was talking to other employees about the union."10 As to Florey: In accord with the General Counsel's contention , it is found that Florey, prior to the time he discharged Mrs. Schneider , had knowledge of her attempts to unionize the employees. In making this finding I do not rely solely on the fact that Florey is chargeable with knowledge of the union activities of Mrs. Schneider acquired by Eagleson as a supervisor. See Montgomery Ward & Company, 115 NLRB 645, 647, affd . 242 F.2d 497, 501 (C.A. 2); Arlington Hotel Company, Inc., 127 NLRB 736; Owens-Corning Fiberglass Corp., 146 NLRB 1492; Alabama Textile Products Corp., 164 NLRB No. 15; Stewart & Stevenson Services, Inc., 164 NLRB No. 100, enfd . 414 F.2d 232 February 12, 1969, (C.A. 5); N.L.R.B. v. Transport Clearings, Inc., 311 F . 2d 519, 523 (C.A. 5); N.L.R.B. v. Abbott Worsted Mills , 127 F.2d 438, 440 (C.A. 1). Rather greater weight is given as a basis of Florey's knowledge to the conclusions drawn from his testimony. The record clearly shows that from the start, as part of her union campaign, Mrs. Schneider consistently 'sit is significant that Eagleson was not called upon to deny the statement of either Baker or Reliford though he was present at the hearing. mentioned salaries, supervisor-employee relationship, and the Union when she talked with the other employees. Florey on direct examination and under cross consistently stated that he had no knowledge of the subject of Mrs. Schneider's conversations. However, one of the reasons for her discharge was that she was "discussing salary.... We don't want people discussing salary...." When asked how he know "she was talking salary if you didn't know what she was talking about. " he responded that someone unknown had told him about it . It is immaterial for the purposes of this Decision to determine who that person was. The material fact is that Florey was told. It is not unreasonable to conclude that under the circumstances of this case, that when Florey was told Mrs. Schneider was discussing salary, he was also told she was attempting to unionize the employees. That an informant to an employer of an employee's activities in the volatile area of union activities would reveal only the discussion about salaries and not reveal the attempt to unionize is highly improbable. In view of the foregoing it is not reasonable to accept Florey' s sweeping denial of knowledge of Mrs. Schneider's union activities. On the contrary, it is reasonable to conclude that when Florey admitted to knowledge that Mrs. Schneider was discussing salary, he also knew that she was discussing union organization. It is so found." Analysis and Conclusions Florey gave four reasons for discharging Mrs. Schneider: (1) talking too much away from her desk; (2) discussing salary which is against company policy; (3) two previous resignations; and (4) he had a replacement for her. Under other circumstances, it might be held that her discharge for these reasons would not be violative of the Act. But under the circumstances of this case it is found that none of the four reasons is creditable, and that none of them was the cause of her discharge.20 1. Talking too much Respondent openly has practiced the policy of neither suspending or firing its employees for excessive talking. Florey testified that when the problem occurs he prefers talking to them and giving them leeway. This liberal policy has been consistently applied." It was used with Sippy Brooks who received several warnings and whose behavior was the cause of the rearrangement of the desks in the accounting department. At the time of the hearing, she was still an employee of the Company though she had received another warning about talking in August about "On the basis of the foregoing and observation of Florey's demeanor on the stand when cross-examination dealt with this subject, so much of Florey's testimony that states he did not have knowledge of Mrs. Schneider's union activities prior to the time of her discharge is not credited. "The existence or assertion of a valid reason for discharge does not necessarily indicate that this reason constituted the real cause for discharge, nor does the existence of a valid cause provide a defense unless it is the moving cause for the termination . Samuel B. Gass. 154 NLRB 728, 741, enfd. 377 F.2d 438 (C.A. 1); N.L.R.B. v. Superior Sales, Inc., 366 F 2d 229, 233 (C A. 8); Socony Mobile Oil Co. v. N.L.R.B., 357 F 2d 662, 663-664 (C.A. 2), Thor Power Tool Company. 148 NLRB 1379, enfd. 351 F.2d 584 (C.A. 7); Duo-Bed Corp. v. N.L.R B.. 337 F.2d 850, 851 (C.A. 10), cert denied 380 U.S. 912; N L R.B. v. National Food Stores. 332 F.2d 249 (C.A. 4); N L.R.B. v. Solo Cup Co., 237 F.2d 521, 525 (C.A. 8), N.L.R.B. v. Texas Independent Oil C 232 F 2d 447, 450 (C A. 9); N.L.R.B. v C. A J Camp. Inc.. d/ a Kibler-Camp Phosphate Enterprise, 216 F.2d 113, 115 (C.A. 5). 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same time that Mrs. Schneider had. It is significant that the August warning was Mrs. Schneider's first. No reason is shown by Respondent for the difference in treatment between Sippy Brooks and Mrs. Schneider. Mrs. Schneider was an excellent employee, one that Florey had made a special effort to retain and induce to remain with the Company . She had received an increase automatically after 90 days with the Company . She was given another increase 4 months thereafter even though the Company's policy was to have annual increases but Florey tries "to review the pay every six months." In view of the foregoing it is concluded that "talking too much" though advanced by Florey as a reason for the discharge of Mrs. Schneider does not stand scrutiny and in fact was not a reason at all. 2. Discussing salary Other than the statement made by Florey at the time of the discharge of Mrs . Schneider, the record is bare of any evidence to show that the Company had any policy concerning the discussion of salary among employees. If there was such a policy, there is no evidence that it was communicated to the employees. The use of a nonexistent policy, or the sudden exhumation of a noncommunicated company policy as a cause for discharge does not convince one that an alleged breach of such a policy was a cause for the discharge of Mrs. Schneider . Accordingly, it is found that Respondent's assertion that "discussing salary" was a cause of the discharge of Mrs. Schneider was sham and not the true cause of the discharge. 3. Two previous resignations This stated reason is palpably untrue. After Mrs. Schneider's first resignation Florey sought her out to induce her to remain . At her second resignation and recantation, Florey had full opportunity to reject the recantation if he considered her undependable. This he did not do. Instead, he told Mrs. Schneider he was "glad" she was staying, made arrangements that her proposed replacement should be used in another department, and promised her a raise in or about a month 's time. Such actions are not normally exhibited to an employee that is considered flighty and undependable . In view of the foregoing it is concluded that the two previous resignations though one of the stated causes of the discharge of Mrs. Schneider was not in fact the true cause. 4. He had a replacement for Mrs. Schneider Florey's actions with regard to the replacement showed a desire to keep Mrs. Schneider rather than to let her go. By the time of the discharge Florey had already arranged for the transfer of the replacement to another section. Thus, there no longer was a replacement for Mrs. Schneider. Under these circumstances , it is concluded as with Florey's other statements that "a replacement" was in fact not a contributing cause to the discharge. The total circumstances of Mrs. Schneider's discharge: Respondent's knowledge that she was agitating for a union among the employees; the timing of the discharge almost immediately after the union organization campaign started; the absence of any warning that discharge would "This is further emphasized by the nondisciplinary treatment of the employees in taking extended restroom breaks. result if she continued excessive talking ; the disparity of treatment between her and other more frequent offenders who had been more frequently warned ; the abrupt change in the Company's attitude, from a special effort to keep her as an employee to discharging her for actions that had been already condoned in her or in other employees; the pretextual reasons advanced by Florey for her discharge, 22 leave no doubt that Respondent discharged Mrs. Schneider because of her efforts to organize a union among the employees." It is so found. In summary, it is found, on the entire record and for the reasons stated , that the Company discharged Mrs. Schneider becasue she advocated and sought to bring about union organization of the Company's employees; that by discharging her for that reason , Respondent violated Section 8(a)(3) of the Act, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thus violating Section 8 (a)(1) of the statute.24 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Great Central Insurance Company is, and has been at all material times, an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discriminatorily discharging Vickie Schneider, as found above, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by, Section 7 of the Act, as found above, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 11The pretextual nature of the reasons given by the Company to justify the discharge is further evidence of discriminatory motivation and lends support to the finding that the discharge was for her union activities. See N.L.R B. v. American Carting Service Inc., 365 F. 2d 168, 172 (C.A. 7); Shattuck Denn Mining Corp. v. N.L R.B., 362 F.2d 466, 470 (C.A. 9); N.L.R.B. v. Griggs Equipment. Inc., 307 F.2d 275. 278 (C.A. 5); N L R.B. v. Dant. 207 F.2d 165, 167 (C.A. 9). "See Great Atlantic and Paces Tea Co v. N.L R.B., 354 F.2d 707, 709 (C.A. 5); N.L R.B. v. Longhorn Transfer Service, 346 F.2d 1003, 1006 (C A. 5); N.L.R.B. v. Griggs Equipment. Inc., 307 F.2d 275, 278 (C.A. 5); and N.L.R.B. v Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5); N.L.R B. v. West She Carpet Cleaning Co.. 329 F.2d 758, 761 (C.A. 6), N.L R.B. v. Tennessee Packers, Inc., Frosty Morn Division 390 F.2d 782 (C.A 6). 34 In view of these findings, Respondent's motion to dismiss the complaint made during the hearing on the ground that the General Counsel had failed to prove a violation is denied. GREAT CENTRAL INS. CO. 481 THE REMEDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the Act, I shall recommend that the Company cease and desist from the unfair labor practices found, and take certain affirmative actions found to be necessary to remove the effects of the unfair labor practices and designed to effectuate the policies of the Act, as provided in the Recommended Order below. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following: Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 38, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the said Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply.26 RECOMMENDED ORDER Great Central Insurance Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of its employees in any labor organization, by discharging or otherwise denying employment to, any employee, or in any other manner discriminating against any employee with respect to hire, tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of any rights guaranteed them by Section 7 of the said Act. 2. Take the following affirmative action: (a) Offer to Vickie Schneider immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by payment to her of a sum of money equal to that which she would have earned from the date of her discharge to the date of the offer of reinstatement, less her net earnings during such period. Said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. (b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to a determination of the amount of backpay due, and to the reinstatement and related rights provided in such order. (c) Post at its place of business in Peoria, Illinois, copies of the attached notice marked "Appendix."" "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership of any of our employees in any labor organization, by discharging or otherwise denying employment to, any employee, or in any other manner discriminating against any employee in regard to his hire, tenure of employment, or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization to form, join, or assist any labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any or all such activities. WE WILL reinstate Vickie Schneider and reimburse her for any loss of pay as a result of her discharge. All our employees are free to join, and remain members of, any union of their choice. GREAT CENTRAL INSURANCE COMPANY (Employer) Dated By (Representative) (Title) 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. If employees have any question concerning this notice or compliancce •with its provisions, they may communicate directly with the Board's Subregional Office, Fourth Floor Citizens Building, 225 Main Street, Peoria, Illinois 61602, Telephone 309-673-9282. "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Officer-in-Charge for Subregion 38, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith."