General Fireproofing Co.

130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Fireproofing Company and United Steelworkers of America, AFL-CIO. Case 11-CA-3778 August 18, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On April 9, 1969, Trial Examiner George A. Downing 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 and a supporting brief. Pursuant to the provisions of 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 Respondent's exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified below. Upon the record as a whole we cannot agree with the Trial Examiner that the General Counsel has sustained the burden of proving that Thomas Dalton was discharged for reasons proscribed by the Act. Dalton's union activities were minimal, consisting of signing a card and serving on the Union's organizing committee along with several other employees. Dalton had been injured on the job at a time prior to the advent of the Union, and Respondent offered to prove that his injury was the result of "horseplay." Nevertheless, even after his union activities became known, Respondent went to great lengths to assign Dalton to jobs he could perform. At the time of his discharge, Dalton was assigned to a level 4 job, at his own request, but his work record for the 2 weeks preceding his discharge was very poor. The inferior level of Dalton's work performance during this period may be explained by the evidence, credited by the Trial Examiner, of the large number of times he was away from his job station engaged in activities unrelated to his work. 'In view of our adoption of the Trial Examiner's finding that the Respondent violated Sec 8(a)(3) and (1) of the Act by discharging employee Russell Harrill, we find it unnecessary to reach the Trial Examiner's additional finding that the discharge of Harrill also violated Sec. 8(a)(4) of the Act There is further evidence in the record, also credited by the Trial Examiner, which suggests that Dalton looked upon his job injury as insurance against discharge. As found by the Trial Examiner, Dalton made plain to his coworkers that he felt this was the case. Moreover, immediately prior to his discharge, when supervisor Schuller called him into the office to discuss his wandering away from his job station and his poor work performance, Dalton replied that if he could not satisfy Schuller, he would go and wash parts (a job generally assigned to women), and that if he could not do that job, he would come and sit in the office with Schuller. Following this flippant remark, Dalton was discharged. Accordingly, despite Respondent's union animus and the several remarks directed to Dalton in violation of Section 8(a)(1) of the Act, we do not believe the record established that Dalton was discharged for discriminatory reasons. In all other respects we affirm the Trial Examiner's Decision. 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, as modified below, and hereby orders that the Respondent, General Fireproofing Company, Forest City, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete paragraph 2(a) of the Trial Examiner's Recommended Order and substitute therefore the following: "(a) Offer to Russell Harrill immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by payment to him of a sum of money equal to that which he would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period. Backpay shall 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." 2. Add the following as paragraph 2(b), and reletter the following paragraphs accordingly: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 178 NLRB No. 22 GENERAL FIREPROOFING COMPANY 131 3. Delete the sixth indented paragraph of the notice marked "Appendix" and substitute the following: WE WILL offer to Russell Harrill immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of our discrimination against him. IT IS HEREBY ORDERED that the portion of the complaint concerning the alleged discriminatory discharge of Thomas Dalton be, and it hereby is, dismissed. MEMBER JENKINS , dissenting in part: The record facts warrant the conclusion drawn therefrom by the Trial Examiner that the discharge of Dalton was discriminatory; therefore, I would affirm the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE A. DOWNING, Trial Examiner : This proceeding under Section 10(b) of the National Labor Relations Act as amended was heard at Forest City, North Carolina, on February 12 and 13, 1969 , pursuant to due notice. The complaint , which was issued on December 30, 1968,' on charges filed on November 14 and on February 2, 1969, alleged in substance (as amended ) that Respondent engaged in unfair labor practices proscribed by Section 8(a)(l), (3), and (4) of the Act by certain specified acts of interference, restraint and coercion and by discharging Russell Harrill on October 30 and Thomas C. Dalton on November 1 because of their union membership or activities and because they gave testimony in, or appeared at, the hearing in an earlier Board case, II-CA-3610. Respondent answered, denying the unfair labor practices. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS ; THE LABOR ORGANIZATION INVOLVED I find on admitted and stipulated facts that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, ' and that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. THE UNFAIR LABOR PRACTICES A. Introduction and Issues Organizational activities among Respondent's employees, renewed in July, culminated in the filing on All events herein occurred in 1968 unless otherwise noted. 'Respondent , an Ohio corporation , operates a plant at Forest City, North Carolina, where it is engaged in the manufacture of business furniture . Respondent purchases and receives annually from extrastate points raw materials valued in excess of $50,000 and it sells and ships annually to extrastate points finished products valued in excess of $50,000. September 23, of a representation petition, which was withdrawn by the Union on October 7. On July 10 and 25 the Union furnished to Respondent the names of eight employee members of its organizing committee, including those of Harrill and Dalton, who were discharged, respectively, on October 30 and November 1. This case concerns those discharges as well as alleged statements which Personnel Manager Thomas E. Edmundson made to Harrill and Dalton on certain occasions. The complaint also included a 8(a)(4) allegation based on Harrill's testimony against Respondent at the hearing on July 31 and August 1 in Case 11-CA-3610, before Trial Examiner George L. Powell, whose decision issued on January 27, 1969, TXD-30-69.' Respondent defended Harrill's discharge on the ground that he threatened a fellow employee that he would do everything in his power to have the employee fired when the Union came in, which threat caused the employee to quit. Dalton's discharge was defended on the ground of deteriorating work performance and efficiency after repeated warnings to improve and it followed immediately after a warning interview on November 1, during which Dalton allegedly displayed a grossly insubordinate attitude toward his supervisor. Respondent raised no question of Harrill's performance or efficiency and none in Dalton's case prior to July 22, 1968. It also stipulated that it had knowledge of the union activities of both employees and it was fully aware, of course, of Harrill's testimony in the prior case. B. The Evidence 1. The Discharge of Russell Harrill Russell Harrill was in Respondent's employ for some two years and had progressed to the top rate of a polishing jack operator; he had never received a reprimand. The material events surrounding his discharge began around July 10, when Respondent was notified that Harrill was a member of the Union's organizing committee. Some week and a half before the hearing in the prior case (July 31), Harrill was summoned to the office of Personnel Manager Edmundson.' Edmundson expressed appreciation at being informed that Harrill was working for the Steelworkers' committee and stated he was not going to discriminate against Harrill in any way but on the other hand did not intend to give him any special privileges. Claiming special knowledge of union methods because of some 7 years' employment with NLRB, Edmundson proceeded to warn Harrill to be careful how he followed union advice as to what he could do (as a committee member) and that though Harrill might go on organizing in his own department, Edmundson had better not catch him in any other department, for if he stepped across the line, "[T]hat's going to be it." Harrill testified that prior to that time no one had said anything to him about going into other departments and that the employees felt free to go anywhere they wanted to. Thereafter Harrill noticed that he was constantly watched by his supervisors, Daniel Schuller and Bob 'A similar allegation based on Dalton's appearance only as a spectator at that hearing was dismissed on Respondent ' s motion at the end of the General Counsel's case in chief. 'Though mistakenly fixing the occasion as October at one point , Harrill corrected the month to July, fixing it as before the hearing at which he testified as a witness. Edmondson disputed neither the date nor the content of their conversation as Harrill testified to it. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Connors, who sometimes timed even his visits to the restroom and who began to shift him from job to job. That testimony was not denied by Schuller and Connors and was directly corroborated by Morris Wilson, another member of the organizing committee, who also testified to somewhat similar treatment in his own case. Some month and a half before Harrill's discharge he was assigned to train on pedestals a new employee, Wayne Hardin, who had previously done other work on another shift. Harrill testified that on various occasions he solicited Hardin to sign a union authorization card and that Hardin sometimes assured Harrill he would do so, but never did. A few days before Hardin quit (on October 4) he asked what Harrill would think if the Union came in and if Harrill was signed up and was paying dues and Hardin was not. Harrill replied that with Hardin receiving the same benefits, he would feel that Hardin was no friend of his and was cutting his throat. Harrill denied threatening to have Hardin fired if he did not join the Union. Harrill testified further that on the afternoon of October 30, Supervisor Schuller took him to Edmundson's office where Edmundson informed Harrill he had reports that Harrill was "breaking the solicitation law" and was threatening employees on the job. Edmundson refused to tell Harrill who the informants were and made no reference to Hardin, who had quit nearly 4 weeks earlier. He proceeded to comment, however, that he took Harrill to be above the average employee who "was messed up in the union," and that he thought Harrill was more intelligent than to go to union meetings and to believe everything that union representatives Claude Hall and Joe Kirk told him. Thereupon, without asking Harrill for his side of the story, Edmundson summarily discharged Harrill. Respondent rested its defense on an affidavit which Hardin gave Edmundson on October 30,° the material contents of which were as follows: 6. The first day I was on 1st shift, [training under Harrill] about 8:00-8:30, Russell Harrill came up to me and asked me what I thought about the union. I told him that, "I don't think it's worth a damn for me." This was during regular work time. Breaktime in Finishing was 9:15-9:30. 7. This same date, after we got back to Finishing from break, about 9:40, Russell Harrill came back to me and asked me, "Have you thought about it?" I told him, "I still haven't thought anything about it." Russell and I worked side by side. He was roughing and I was finishing. 8. Russell Harrill didn't say anything to me for a couple of days after that. Then, after about two days lapse from his talking union with me, about 2:00 p.m., he started again. He told me that "Shorty," Tommy Dalton and a bunch of them had signed union cards. He told me that only 8 remained who had not signed union cards. I told him to "leave me alone; that I still haven't thought anything about it." 9. Everything cooled off for awhile, then about 2-3 days before I quit, Russell started in on me again. He told me that there would be an election and the union was 'Though Respondent's brief refers to "some earlier problems with Harrill," it contended that Plant Manager Loveless ' decision to discharge Harrill was based "purely" on Hardin's affidavit and Edmundson's recommendation , which under the latter's testimony was itself based 95 percent on the affidavit. going to win. He said that the union had 72% of the employees "signed up." Russell then said, "You're not for the union; I'm 100% for it; when the union gets in I'm going to do everything in my power to get you fired". I didn't say anything. 10. I quit General Fireproofing about 3 days later because Russell wouldn't leave me alone and I was afraid that I might lose my job when the union came in because of what Russell said to me. 11. 1 talked to Odell Lovelace, who buffs in finishing, about the threat that Russell made to me. I was at Odell's house that night. This was about 2 nights after I quit work at General Fireproofing. Odell told me that he would have talked to Schuller about it before he quit. He said that he would help me get back on. 12. 1 told Odell that I would go see "Tom" in Personnel about it. About the next day, I received a note (in the mail) from Tom, saying to come in and see him about the circumstances by which I quit work at the Company. 13. I went to see Tom, Personnel Manager at General Fireproofing, the next morning, about 8:30 a.m. This was on approximately Friday, October 18, 1968. I told Tom all about it. It is the same thing I've listed herein above. 14. While I worked 1st shift in Finishing, "Shorty" would come back to get the legs from Russell and me and he would often motion to me like he was signing something.-meaning, I gather, if I had signed the union card. He asked me on one of these occasions if I had signed . I told him, "No." 15. About 3 days after I came on 1st in Finishing, Russell Harrill pulled a union card out of his billfold and tried to give it to me. I told him, "I don't want to mess with it." This was on the job, about 8:00-8:30 a.m. Edmundson's testimony concerning the taking of the affidavit was as follows: He first heard of the reason for Hardin's quit when a report reached him around October 14 concerning statements Hardin made when he returned for his check on October 11. On October 15 Edmundson wrote Hardin a note requesting that he come to the office to answer some questions concerning the reason he left the Company. Hardin did not come in until October 30, and he then informed Edmundson that Harrill began putting pressure on him shortly after the training began to join the Union but that he repeatedly refused to do so and flatly refused to sign a card. Finally it came to the point that Harrill told Hardin that if he did not sign a card and the Union came in , Harrill would do everything in his power to get Hardin fired. Hardin informed Edmundson that this frightened him to a point where he worked out the night and just did not come back. Edmundson thereupon prepared the affidavit quoted above, writing down what Hardin told him, and had Hardin read it over to check it for truth and accuracy. Edmundson later discussed the matter with Schuller, who read Hardin's affidavit, and the two of them discussed it with Plant Manager Loveless, who also read the affidavit, and who based his decision to discharge on the affidavit and on Edmundson's recommendation. Edmundson's testimony concerning the exit interview differed from Harrill's mainly in denying that he made any reference to solicitation or the solicitation law and in denying he expressed belief that Harrill had more sense than to get mixed up with the Union or with union representatives Hall and Kirk. He admitted however, that GENERAL FIREPROOFING COMPANY he did mention the names of Hall and Kirk and that he stated he did not know what they or the Union had been telling Harrill but that no matter what it was, Harrill could not threaten other employees on company property As for giving Harrill a chance to explain his side of the story, Edmundson testified that Harrill "was welcome to say anything he wanted to during the terminal interview," (emphasis supplied), and he agreed that Harrill's check may well have been already made out. Though Schuller was present and though he testified as Respondent's witness on other matters, he was not called on to corroborate Edmundson's testimony concerning the terminal interview. Accordingly, I resolve all material conflicts in the two versions by crediting Harrill, who otherwise impressed me as a more reliable witness.` Questioned on cross-examination concerning his willingness to accept Hardin's affidavit at face value, Edmundson testified his suspicion was not aroused is the slightest by the fact that Hardin said nothing to his foreman about the alleged threat when he quit nor was it aroused when Hardin's affidavit showed he waited 3 days to quit after the alleged threat was made. Edmundson offered no explanation as to why he thought an actual threat was involved under those circumstances. Respondent also called Hardin whose testimony was in general accord with his affidavit as quoted above except he testified that he quit at the end of the same day on which Harrill allegedly threatened him. Hardin simply walked out without informing his foreman or anyone else he was leaving, but when he returned (on October 11) for his check he informed Supervisor Bob Goins that he quit "on account of the union." Hardin also testified that he knew when he quit that he was going onto another job which he had arranged 3 days in advance, but that he preferred to stay with General Fireproofing. Sometime later Hardin received a card from Edmundson and he went in on October 30, told Edmundson "what happened" and gave Edmundson a sworn statement after Edmundson rehired him on anotherjob. Questioned on cross-examination about a conversation with Jimmy Moore, Hardin at first denied he ever talked with Moore about Harrill, but on further questioning he qualified that denial by stating he told Moore nothing about the Union. Hardin finally admitted that Moore asked him about Harrill but testified he told Moore nothing because it was none of Moore's business. He denied telling Moore he quit because the job was a hard one. Moore, called in rebuttal, testified that on the first day Hardin came back to work Hardin questioned him about whether Harrill quit or was fired, and he informed Hardin he heard rumors that Harrill was fired because Hardin signed a paper in the office to the effect that Harrill had threatened him. Hardin denied that he signed a paper and denied that he threatened Harrill. On further questioning Moore testified that he asked if Harrill threatened Hardin and if that were the reason Hardin quit. Hardin replied he had not been threatened and that he quit because the work was too dusty or too hard or something to that effect. On the foregoing record I conclude and find that Hardin was not in fact threatened as he claimed in his `Though Respondent sought to impeach Harrill ' s denial that he informed the State Unemployment Commission that he did not have work at General Fireproofing Company because no work was available, it offered only an unidentified claims ruling which related the "no work available" statement to Harrill's separation from later employment at Forest City Electric Co 133 affidavit and in his testimony. All the remaining evidence tended to refute that claim and to support Harrill's denial of a threat. Thus Hardin's affidavit shows that he waited 3 days before he quit, and his testimony showed that he then simply walked off the job without notifying his foreman he was quitting or that he had been threatened. Furthermore, when Hardin returned a week later for his paycheck and was asked by Supervisor Goins why he quit, he again made no mention either of a threat or of Harrill but stated instead that he left "because of the union." So matters stood with Hardin for another 2 weeks when, after first being rehired, he gave Edmundson an affidavit that though Harrill had threatened him, he waited some 3 days to quit Finally I credit Moore's testimony that Hardin admitted that Harrill had not threatened him. To find that Hardin was not threatened does not end the matter, however, for Respondent claims reliance on Hardin's affidavit that Harrill threatened him. Since that defense bears directly on the overall issue of Respondent's alleged discriminatory motive, it will be reviewed further under section 3, Concluding Findings, infra 2. The discharge of Thomas C. Dalton To be noted preliminarily is the record of Dalton's employment and his medical treatments. Dalton was in Respondent's employ for some 5 years and as early as December 1966, he had advanced to a class 5 buffing job, the highest job classification in the finishing department. On or about December 16, 1966, he was severely injured on the job and after an initial recuperation, he returned to the hospital in Gastonia in May 1967, and again in March 1968, for further operations on his arm. Dalton's doctor has never given him a final release Payment of workmens' compensation which Dalton received from time to time ended some 3 weeks before the hearing when Dalton reported to the State Commission that he had another job. His claim for permanent injuries has never been settled When Dalton returned to work after his first recuperation of some 3 to 4 weeks, he was put on various light jobs but retained his class 5 rate. After an absence of some 4 or 5 weeks following his May 1967, operation, Dalton was again assigned to light work at his class 5 rate and he remained at that rate until January 1968 when Edmundson (who came in as personnel manager in August 1967) reduced Dalton's classification to class 3, burring and polishing, with a corresponding cut in pay. Dalton resumed his class 3 job upon returning in June from his March 1968, operation, but on July 22 he was assigned at his request to his old class 5 buffing job upon representing to Foreman Schuller that his arm was in satisfactory shape. Except for some 3 weeks in August when (Dalton testified) he was temporarily assigned again to a class 3 job, Dalton worked on his class 5 buffing job until some 2 weeks before his discharge. Then at Dalton's request to be taken off the class 5 job, Schuller assigned him to a class 4 job at corresponding pay. Dalton's union activities became known to Respondent, as in Harrill's case, by a letter to the Company in July informing it that he was a member of the Union's organizing committee. Dalton also testified to two conversations (later to be referred to) in which Edmundson mentioned his union activities.' Whether coincidential or otherwise, it was on July 22 (when Dalton was reassigned to his former class 5 job) that Respondent first claimed to note a change in Dalton, whose attitude, job performance and efficiency were thereafter allegedly 'Dalton's appearance as a mere spectator at the hearing before Trial Examiner Powell did not establish a violation of Sec 8(a)(4) and the complaint allegation based on that section was dismissed on Respondent's motion See fn 3, supra 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unsatisfactory. Before turning to that evidence, however, we should note briefly the considerable testimony by Dalton and Edmundson concerning Dalton ' s workmen's compensation claims and Edmundson's efforts to obtain a final release from Dalton's doctor and to reach a final settlement on Dalton's permanent injuries. As Respondent did not relate its defense of the discharge in any way to its failure to obtain such a settlement, the conversations need not be reviewed in detail except in such respects as bear on the alleged discriminatory motivation and on credibility generally. Edmundson testified, for example, that he had a series of some 10 conversations with Dalton during the 2 or 3 months prior to June, 1968, when Dalton returned to work after his final operation but had no further conversations with Dalton until the latter part of October. Dalton testified to the contrary to an occasion in August (after the former hearing and after the plant vacation) when Schuller took him to Edmundson's office after he reported that his arm was giving him trouble on the buffing job, and Edmundson directed Schuller to assign Dalton to a third class job on work he could do, with a corresponding pay cut. Neither Schuller nor Edmundson denied that conversation nor disputed Dalton's testimony that he in fact worked for some 3 weeks on the class 3 job before going back to buffing. Dalton also testified that on September 27 he obtained from his doctor a certificate covering the dates of his trips to Gastonia for treatment and that he presented a copy to Edmundson the following week with a claim that he was entitled to mileage on the trips. Edmundson stated that he would "turn it in" but did not know whether Dalton would receive anything. Edmundson continued that he was "getting damn sick and tired of your activities you are having, going to those union meetings, meeting with Claude Hall, and Claude Hall brainwashing you and telling you lies, and your coming back here and spreading it all over the plant ... I'm going to put a stop to it." When Dalton asked how Edmundson knew he was going to the union meetings, Edmundson replied, "I know, in the hardest way, I know." Edmundson ended the interview by telling Dalton he wanted a statement from the doctor concerning when a final release could be expected so that Dalton's attorney and the Company's attorney could "get this thing over with." As previously noted, Edmundson testified at first he had no conversations with Dalton from June to late October, and even when shown the doctor's certificate of September 27, his recollection was curiously vague and his testimony became equivocal. Though contending at first that the nurse handled much of such "stuff," Edmundson finally agreed that the occasion may have been one of those on which he talked with Dalton about a settlement, that he did talk with Dalton about his mileage claim, but not after receiving the letter from the doctor, though he later "went on and paid [Dalton]." Edmundson made no denial of the statements which Dalton attributed to him, and I credit the latter's testimony that the conversation occurred. Concerning the late October conversation Dalton testified that Edmundson charged him with being the leader in a prank played on James Higgins and that Dalton was "pressing" Higgins because Higgins would not sign a union card. Edmundson continued that he was tired of Dalton going to the union meetings with Claude Hall, who was telling the employees a bunch of lies, that the employees were spreading those lies around the plant and that Edmundson proposed to put a stop to it. Edmundson testified he called Dalton in, charged him with participation in the prank and warned him to stop immediately under pain of discharge.' Edmundson admitted that he did mention Union Representative Hall and Kirk, telling Dalton that regardless of what they had told him as to what he could do on the job, he may have been misled and that he could not engage in the sort of conduct which Higgins reported. Edmundson denied stating that he was tired of Dalton going to union meetings or having anything to do with Hall and Kirk, but did not deny that he charged Dalton with pressing Higgins because the latter would not sign a union card. We now turn back to Schuller's testimony, which forms the base of Respondent's defense. Schuller testified that he first "saw a change" in Dalton immediately after Dalton was put back on his class 5 job on July 22, that he talked with Dalton twice between July and October, and on September 17 he issued a blue reprimand slip which read as follows: "Called Tommy in my office. Told him to stay on his job more. Not doing work assigned to him." Schuller talked with Dalton possibly one more time before October 18, when Dalton asked to be. assigned to a class 4 job because he knew he was not doing well on his buffing job and could do better on the next class down. Dalton signed the blue slip which Schuller prepared and which stated that Dalton, "Asked to be taken off Buff Class V," and he was thereafter put on a class 4 job beginning October 22. Schuller testified that he noticed after some 4 or 5 days Dalton was not producing and talked with him about his efficiency. Around the eighth day he found Dalton some 20 feet away from his work bench and called him back to it. He also called Dalton into the office and went over with him the daily efficiency reports, which showed that Dalton was averaging around 54 percent. Dalton commented he thought that was good. Schuller reminded Dalton that the department was supposed to operate at 100 percent and told him he had better try to do the job. the way he was supposed to. Following that Schuller wrote out under date of October 29 another blue reprimand slip which read as follows: Talked to Tommy Dalton about being away from his job too much and his performance - Reviewed daily performance sheets with Tommy since he has been on new class. Two days later Schuller discovered Dalton away from his job area again,' called him into the office, and told Dalton that he would have to stay on the job if he wanted to bring his efficiency up. Dalton replied that if he could not satisfy Schuller on that job, he would go and wash parts (generally assigned to women), and that if he could not do that job, he would come and sit in the office with. Schuller. Schuller ordered Dalton to "get the hell out" of the office because it was not big enough for both of them. 'Respondent's counsel represented at the hearing that the Higgins' incident played at most a minor part in the discharge. It is significant mainly for the content of Edmundson's references to Dalton' s union activities. 'James L . Coker and Odell Lovelace corroborated Schuller's testimony concerning Dalton's absences from his work area and testified further to statements which Dalton made to the effect that the Company could not fire him because of being injured on the job. I credit their testimony over Dalton's denials. GENERAL FIREPROOFING COMPANY Schuller immediately reported that incident to Edmundson and reviewed with him Dalton's record of efficiency and his attitude toward Schuller. They also reviewed the matter with Plant Manager Loveless, who directed them to get rid of Dalton because of his attitude. Edmundson's testimony was in accord. Edmundson himself conducted the exit interview, testifying that he reviewed with Dalton what Schuller had reported concerning Dalton's efficiency and job performance and told Dalton his attitude toward Schuller appeared to border on insubordination. He told Dalton the Company could not tolerate employees who adopted such an attitude toward their supervisors and because of his attitude and efficiency record there was no alternative but to sever relations with him at that time. The termination slip specified that Dalton was discharged for "Gross insubordination with supervision." Dalton admitted that Schuller talked with him a number of times about his efficiency and also talked to him a couple of times about being away from his work station. He testified that on the buffing job it was only the settee legs which gave him trouble, causing his arm to swell up, and that he periodically informed Schuller of that fact, including the occasion in August when Schuller took him to Edmundson and thereafter put him on a class 3 job for 3 weeks. Though Schuller on other occasions would take Dalton off of buffing settee legs temporarily, either Schuller or Foreman Bob Connors would nevertheless sometimes direct Dalton to help J. B. Smith to catch up on the settee legs, with the usual effects on his arm. It was because of the continued pain in his arm that Dalton told Schuller on October 18 that he would like to get off the buffing job, with the result that he was assigned to a class 4 job.'° Dalton admitted that after some 3 or 4 days on his final job Schuller informed him he was not getting enough production and would have to improve. On the final day Foreman Bob Connors put him on a job which required him to perform separate operations on machines which were some 15 to 20 feet apart. Schuller, who saw him away from his normal work station, inquired angrily what was going on and ordered him to stay on his job. When Dalton attempted to explain that Connors had changed his job, which required him to finish the operation on a different machine, Schuller rejected the explanation claiming that he had been watching Dalton all morning. A few minutes later Dalton was called in by Schuller who showed him some production sheets which purported to reflect that Dalton was "getting no where near production." Dalton admitted that he made the comment to Schuller that if he could not get production on that job, he could not get it on any other one, and the only thing he knew to do was to sit down in the office with Schuller. Relevant evidence concerning Dalton's work performance beginning July 22 is set forth in the following "Though Schuller admitted knowing of Dalton's sore arm, he denied that Dalton ever exhibited his swollen arm, either on October 18 or at any other time . As there was no denial of Dalton's testimony concerning the occasion in August when Schuller took Dalton to Edmundson 's office about just such a complaint, I do not credit Schuller's attempts to minimize his knowledge (and Dalton's complaints) about Dalton's swollen arm. As Dalton's testimony showed that he willingly accepted the class 4 job without objection, it is unnecessary to resolve a minor conflict concerning whether Dalton specifically asked for the class 4 job or whether Schuller suggested it after first proposing that Dalton move down to class 3 (an easier job at lower pay). 135 weekly summary showing a comparison of Dalton's performance with the department average: Week Ending Percentage of Performance Dalton Dept. Average July 26 63 89 Aug. 9 85 88 Aug. 16 91 90 Aug. 23 101 91 Aug. 30 90 91 Sept. 6 107 91 Sept. 13 146 90 Sept. 20 (unmeasured) 87 Sept. 27 92 86 Oct. 4 87 87 Oct. I l 78 88 Oct. 18 97 90.9 Oct. 25 53 91 Nov. I 54 86.3 As is seen, Dalton's record, except for the final 2 weeks, compared most favorably with the department average. Though Respondent contends that the daily figures from which the foregoing summary was compiled showed that Dalton performed sporadically, that fact seems readily explainable by Dalton's testimony concerning the difficulties he experienced on settee legs when occasionally assigned to that job. Furthermore, computations made from the tables show that Dalton's overall performance through the week ending October 18 exceeded by some 5 percentage points the department average. Concluding Findings Resolving first the allegations concerning Section 8(a)(1), I conclude and find on the credited testimony of Harrill" and Dalton that Edmundson (a) warned employees against attending union meetings and against other union activities and stated he would put a stop to them, (b) created an impression of surveillance of union activities by professing knowledge of attendance at union meetings and of what was said there, and (c) threatened employees with discharge because of their union or concerted activities. By such conduct Respondent interfered with , restrained , and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. I conclude and find that the evidence did not establish an alleged violation of Section 8(a)(1) (added by amendment) by a notice to employees which Respondent posted on January 30, 1969 , concerning its intention to seek Board and Court review of the Trial Examiner's decision in Case I I -CA-3610. Though the notice stated in "J. B. Smith, another member of the organizing committee, testified concerning a conversation with Edmundson in July whose content, as reduced on cross-examination , roughly approximated that of Harrill's testimony concerning a similar conversation with Edmundson in July. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part that, "Leroy Young (the discriminatee) is not going to be reinstated," it was plain from the notice as a whole that Respondent was stating its intention not to comply with the Trial Examiner's decision until it exhausted its legal rights of review. Turning now to the allegations of discrimination, it is to be noted initially that certain facets of the evidence apply commonly to the two discharges showing them to be linked together as parts of a common plan to discourage further organizational activities. Thus, both Harrill and Dalton were members of the organizing committee, both were warned about their union activities and they were discharged in quick succession. Immediately upon learning of Harrill's connection with the committee, Edmundson warned him that a single step out of line would mean the end for him and thereafter subjected Harrill and another committee member to unprecedented scrutiny during their daily activities. In Dalton's case Edmundson, claiming knowledge of his attendance at meetings, warned him about going to the meetings and against accepting what the union representatives told him there. Edmundson repeated similar warnings to Dalton in the late October interview, and in terminating Harrill, he commented on Harrill's lack of intelligence in believing what the union representatives told him at union meetings. Harrill in particular was a marked man after Edmundson's July threat for Edmundson, biding his time, seized on the first report of alleged misconduct.'r To discharge him summarily without divulging the names of informers or the nature of the alleged threats. Indeed Edmundson was plainly interested in effecting the discharge without hearing anything from Harrill in defense, for he conceded as a witness that he was conducting a "terminal interview" and that Harrill's check may well have been already made out. Furthermore, Harrill was put in the position of having to defend himself against a charge whose nature he was unable even to surmise since Hardin's name was not mentioned and since Hardin had quit nearly 4 weeks earlier. Edmundson's eagerness to seize upon the first report of alleged misconduct by Harrill reflected, under the circumstances here, that he was interested only in finding a pretext which would serve as ostensible ground for discharge. Cf. N.L.R.B. v C. & J. Camp, Inc., 216 F.2d 113, 115 (C.A. 5). Thus he was willing to accept without question and without further investigation Hardin's claim that he quit in fear of Harrill's threat, though Hardin's affidavit showed that he worked for some 3 days after the alleged threat was made and did not report it to any supervisor. Indeed, Hardin's testimony showed that he simply walked off the job without saying anything to anyone, that he had already arranged other employment, and that when he returned a week later for his check he informed his supervisor only that he quit on account of the Union, again failing to mention any threat or to implicate Harrill. Even cursory questioning of Hardin would have developed those facts and would have accentuated the grave doubts which were raised by the affidavit itself. And despite the failure to make even a minimal investigation , Edmundson might have learned the facts as late as the terminal interview (if he were genuinely interested) simply by informing Harrill the name of the informant and the nature of the alleged threat. But having precluded effectual defense, Edmundson proceeded "Respondent, though referring vaguely to "prior problems" with Harrill made no attempt to establish any misconduct prior to the Hardin incident and rested its case solely on Hardin 's affidavit. forthwith and without warning to discharge an employee whose prior record, unblemished by reprimand, was an exemplary one. I therefore conclude and find on the entire evidence that Respondent discharged Harrill because of his union activities and because he gave testimony against it in Case 11-CA-3610, thereby engaging in unfair labor practices proscribed by Section 8(a)(3), (4), and (1) of the Act. It is further to be noted that even had Respondent established a good faith belief in the truth of Hardin's affidavit, Harrill's discharge would in any event have violated Section 8(a)(1), since the alleged misconduct occurred, to Respondent's knowledge, in the course of soliciting Hardin to join the Union (a protected activity) and since Harrill was not in fact guilty of misconduct. N.L.R.B. v. Burnup & Sims, Inc., 379 U.S. 21; Cf. N.L.R.B. v. Industrial Cotton Mills, 208 F.2d 87, 90-92 (C.A. 4); Rubin Bros. Footwear, Inc., 99 NLRB 610. Thus the normal remedial order of reinstatement would follow in any case even if (contrary to my finding herein) the evidence failed to establish a discriminatory motivation for the discharge. N.L.R.B. v. Gullett Gin Co., 179 F.2d 499, 502 (C.A. 5) rev. on other grounds 340 U.S. 361. Though consideration of Dalton's case is complicated by his physical condition and by Edmundson's attempts to obtain a settlement on his permanent disabilities, the evidence established, as in Harrill's case, that Dalton's discharge also was discriminatorily motivated. Not only were the two discharges made in quick succession and after interviews in which Edmundson made reference to attendance at union meetings and to alleged reliance on what union representatives said, but the evidence showed that Respondent's disenchantment with Dalton began at the same time it was notified he was a union committee member. Furthermore, though Schuller claimed that Dalton's performance began immediately to deterioriate, Respondent's records belied that testimony, showing to the contrary that through the week ending October 18 Dalton's performance, overall, averaged some 5 percentage points higher than the department's. Moreover, Respondent made no effort to refute Dalton's testimony concerning his ability to do well the jobs he was assigned to with the single exception of buffing settee legs which, as he informed Schuller and Edmundson, caused pain in his arm. It was September 17 before Respondent made record note of any displeasure with Dalton, and then the warning related primarily to not staying on the job rather than the failure to meet production standards. Furthermore, Edmundson made no reference to Dalton's work performance in their late September conversation. I therefore conclude and find that Respondent failed to establish that there was any deterioration in Dalton's work performance prior to his assignment on October 22 to a class 4 job. Edmundson's interviews with Dalton in late September and late October threw further light on Respondent's concern with Dalton's union activities. In the first interview Edmundson angrily injected into the discussion of Dalton' s mileage claim warnings against Dalton going to union meetings and accepting and spreading the "lies" told him there by union representatives, claiming knowledge of Dalton's attendance "in the hardest way." The October meeting concerned Dalton's participation in the prank played on Higgins, with Edmundson charging that Dalton's motive was Higgins' refusal to sign a union card. Again Edmundson expressed displeasure at Dalton going to union meetings and believing what union GENERAL FIREPROOFING COMPANY 137 representatives told him there. There remains, however, the matter of Dalton's performance during the last 2 weeks . The record establishes that a sharp drop occurred in Dalton's performance immediately upon his assignment to the class 4 job on October 22 and that it continued through November 1. There is also no dispute that Schuller talked with Dalton at least twice about the need to improve his production and also criticized him for being away from his work station . 14 The final occasion led to Dalton's suggestion that if he could not get production on his current job, or on any other to which he might be assigned , he would come and sit with Schuller in the office. Though it is plain from all the evidence that the latter remark precipitated the discharge action," it is difficult to determine from Respondent' s case how it reached the level of extreme provocation which Respondent assigns to it On the face of it Dalton' s flip remark might, at a minimum , have been regarded as facetious, or at a maximum as reflecting an attitude of impertinence or possibly of mild insolence . Edmundson himself shied from calling it insubordinate , testifying he told Dalton his attitude "appeared to border on" insubordination. But Respondent promptly abandoned that milder appraisal of the incident, apparently viewing it as affording inadequate justification for the drastic penalty of discharge , for the termination slip which Dalton received assigned as the ground , "Gross insubordination with supervision." Respondent' s continued concern with the need to bolster its action is reflected in its brief where it goes on to greater heights of hyperbole by charging that Dalton became extremely insubordinate.16 In the final analysis, then , determination of the true motive for the discharge narrows down to a choice between the discriminatory one made out by the General Counsel's case and Dalton' s alleged insubordination." On that issue Respondent' s straining for exaggeration reflected not only the weakness of its defense but also its awareness of that fact That weakness strengthened correspondingly the General Counsel 's case, N.L .R.B. v. Georgia Rug Mills, 308 F.2d 89, 91 (C.A. 5), since it tended to confirm not to refute , the inference of discriminatory motivation and furnished part of "reasonable cause for believing that the ground put forward by [Respondent ] was not the true one and the ground was because of union activities ." N.L.R.B. v. Texas Bolt Co., 313 F.2d 761, 763 (C.A. 5). I therefore conclude and find on the entire evidence that Dalton was discharged, as was Harrill , to discourage membership in the Union, in violation of Section 8(a)(3) "Respondent did not call Supervisor Connors in denial of Dalton's testimony that Connors put him on a job which required him to move between two work stations "As Schuller's testimony gave no indication that he intended more than a reprimand, it may be fairly inferred that but Dalton's final remark, the discharge would not have occurred and that Dalton would again have been shifted to work he could perform (e g , a variety of class 3 jobs as well as class 5, buffing, except on settee legs ) as had frequently been done in the past "Similar hyperbole appeared in Respondent's opening statement where the term "total and complete insubordination" was used A further characterization of "open insubordination" was plainly wide of the mark for Dalton's statement was made in Schuller's office, not in the presence of hearing of other employees "As previously noted, Respondent disclaimed reliance on the Higgins prank and it at no time asserted reliance either on Dalton's physical condition or on its failure to reach a settlement of his permanent disabilities and (1) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1). 2. By discharging Russell Harrill on October 30 to discourage membership in the Union and because he gave testimony against it under the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3), (4), and (1) of the Act 3. By discharging Thomas C. Dalton on November 1, to discourage membership in the Union, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action as provided in the Recommended Order below which I find to be necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. 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: RECOMMENDED ORDER General Fireproofing Company, a corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Warning employees against attending union meetings and against other union activities and stating that it will put a stop to them. (b) Creating an impression of surveillance of union activities by professing knowledge of attendance at union meeting and of what was said there. (c) Threatening employees with discharge because of their union or concerted activities. (d) Discouraging membership in the Union , or in any other labor organization of its employees, by discharging them or in any other manner discriminating against them in regard to hire or tenure of employment or any term or condition of employment. (e) In any other manner interfering with , restraining, or coercing employees in the exercise of their rights to self-organization, to form , join, or assist United Steelworkers of America , AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action: (a) Offer to Russell Harrill and Thomas C. Dalton immediate and full reinstatement to their former or substantially equivalent positions without prejudice to 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by payment to each of them of a sum of money equal to that which he would have earned from the date of his discharge to the date of the offer of reinstatement, less his net earnings during such period (Crossett Lumber Company, 8 NLRB 440), 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 records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay due under these recommendations. (c) Post at its plant and offices at Forest City, North Carolina, copies of the attached notice marked "Appendix."" Copies of said notice on forms provided by the Regional Director for Region 11, shall, after being duly signed by Respondent's representative, 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.19 "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 . If the Board'A Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 11, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 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 warn our employees against attending union meetings or against other union activities or state that we will put a stop to them. WEWILLNOT create an impression of surveillance of union activities by professing knowledge of attendance at union meetings and of what is said there. WE WILL NOT threaten employees with discharge because of their union or concerted activities. WE WILL NOT discourage membership in United Steelworkers of America , AFL-CIO, or in any other labor organization of our employees , by discharging them or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join United Steelworkers of America, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing or to engage in other 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 offer to Russell Harrill and Thomas C. Dalton immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of our discrimination against them. All our employees are free to become, remain, or refrain from becoming members of United Steelworkers of America , AFL-CIO, or any other labor organization. GENERAL FIREPROOFING COMPANY (Employer) Dated By (Representative) (Title) Note:-Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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 compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachovia Building , 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2303.