Junction City Daily Union, Inc.

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Junction City Daily Union, Inc. and American Federation of Labor Congress of Industrial Organizations. Case 17-CA-3753 August 25, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND ZAGORIA On April 22, 1969, Trial Examiner David S. Davidson 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 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 they are free from prejudicial error. They are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with the decision herein. The Trial Examiner found that the Respondent violated Section 8(a)(3) of the Act by discharging Shirley Parrick, a teletype setting operator in its composing room. We do not agree. The record establishes that Parrick was discharged following a complaint made by Elaine Dye, a fellow employee, to Lee Rich, Respondent's general manager, that she had "had it" with Parrick, who was not doing her fair share of the work. Rich asked Dye what he should do, indicating that he could either discharge her or take less drastic disciplinary action. Dye responded that it would be best to place Parrick on probation and Rich said that he would talk to her. However, Rich told Parrick that there was constant discord in the teletype setting room, that he believed she was responsible, and then discharged her. Rich testified that he fired Parrick because he feared that the alternative was losing other employees if he retained her. The Trial Examiner found this explanation "weak" since Dye did not demand Parrick's discharge and testified that Rich agreed to placing Parrick on probation. Having discredited Rich's stated reason for the discharge, the Trial Examiner concluded that Parrick's union sympathies were a factor leading to her discharge and that the discharge was, therefore, discriminatory. We do not agree. There is ample evidence that Parrick was not a satisfactory worker, had a poor attendance record, and did not get along well with the other employees in the composing department. Although she was a union adherent, she did not play a leading role in the organizing campaign and did not solicit signatures for union authorization cards. There is no direct evidence that the Respondent was aware of her union sympathies, and we cannot find that such knowledge was otherwise established. No independent evidence of union animus was adduced at the hearing, and no other violations of the Act were alleged. Based upon the entire record, in particular the lack of evidence of union animus, the fact that Parrick's union activities were minimal, and the affirmative evidence that she was an unsatisfactory employee, we find that a preponderance of the evidence does not establish that her union sympathies were a contributing factor in her discharge. Consequently, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint filed herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: Upon a charge filed on December 9, 1968, by American Federation of Labor-Congress of Industrial Organizations, a complaint issued on January 31, 1969, alleging that on or about November 29, 1968, Respondent discriminatorily discharged employee Shirley Parrick and that on or about December 4, 1968, Respondent's composing room employees struck because of the discharge of Parrick. The complaint alleges that the discharge violated Section 8(a)(1) and (3) of the Act and that the strike was caused by Respondent's unfair labor practices. In its answer Respondent denies the commission of any unfair practices. A hearing was held before me on March 4, 1969, in Junction City, Kansas. At the close of the hearing oral argument was waived and the parties were given leave to file briefs, which were received from the General Counsel and Respondent. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent , a Kansas corporation, is engaged in the publication of a daily newspaper at Junction City, Kansas. Respondent's annual gross volume of business is in excess of $200,000. Respondent holds membership in and subscribes to interstate news services , publishes nationally 178 NLRB No. 36 JUNCTION CITY DAILY UNION 217 syndicated features, and advertises nationally sold products. I find that Respondent is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction herein is warranted. II. THE LABOR ORGANIZATION INVOLVED American Federation of Labor-Congress of Industrial Organizations and Salina Typographical Union 638, affiliated with the International Typographical Union, AFL-CIO, are labor organizations within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Sometime around the beginning of August 1968, Salina Typographical Union 638, affiliated with the International Typographical Union, AFL-CIO, hereinafter referred to as the Union, began an organizing campaign among Respondent's employees. On November 15, 1968, a representation election was held among the employees in a unit of production and maintenance employees including mail machine operators. Of approximately 22 eligible voters, 8 voted for the Union, I 1 voted against the Union, and 3 cast challenged ballots.' On November 25, 1968, the Regional Director for Region 17 issued his certification of results of election certifying that no collective-bargaining representative had been selected. On November 29, 1968, Shirley Parrick was discharged by Respondent under the circumstances set forth below. Several days later, on December 3, 1968, eight of Respondent's employees signed and presented to Respondent a letter in which they asked for recognition of the Union as representative of the composing room employees only and for reinstatement of Shirley Parrick, asserting their belief that she had been discharged for union activities. On that day the eight employees discussed the petition with Lee Rich, Respondent's general manager. Rich denied both requests, and the eight employees concertedly left their jobs. They had not sought to return to work at the time of the hearing herein. B. The Nature of Shirley Parrick 's Duties Shirley Parrick worked as a teletype setting or TTS operator in Respondent 's composing department. Using a typewriter keyboard she transposed news stories into perforated tape for use in an automated typesetting operation . The transposing is commonly referred to by the operators as typing . Respondent had two TTS machines which were located in a separate TTS room adjacent to Respondent's composing room . As they needed work, the operators went to the composing room to get news stories from a hook. Normally a TTS operator was expected to take the top story off the hook although if the top item was short, the operator usually looked through the pile for other short items to combine with it on one perforated tape. Some special work was brought directly to the operators usually by Vernon Manion , the head of the Two of the three challenged ballots were cast by Vernon Manion and Donald Kay, who were challenged by Respondent as a supervisor and a managerial employee, respectively. As the challenged ballots were not sufficient to be determinative of the election, no investigation was made of the challenges Although some evidence was presented before me as to the status of Manion and Kay, I find it unnecessary in this proceeding to determine their status. composing department, who assigned it directly to a specific TTS operator. Shirley Parrick started to work for Respondent on February 10, 1968. At that time there was one other TTS operator, Susan Vega, and a proofreader employed in the TTS room. Vega quit her job around August 1, 1968. Shortly before Vega left in mid-July, Elaine Dye started to work as a TTS operator, and some time after Vega left, Betty Taggert was hired as a third TTS operator. In April 1968, Marvel Sheasley replaced a former proofreader and worked as the proofreader thereafter. After Betty Taggert was hired, one of the TTS operators assisted Marvel Sheasley with the proofreading as there were only two TTS machines and three operators. At some point after Taggert's hire both Parrick and Dye complained to Vernon Manion about disparities in the distribution of work among the operators. They expressed the view that it was unfair that one operator should get more proofreading than the others and asked that the operators get equal time as proofreaders. Manion then worked out a system of rotation so that each operator spent two-thirds of the, day operating a TTS machine and one-third of the day assisting Sheasley with the proofreading. However, when one of the TTS operators was absent, the remaining two operators worked steadily at the TTS machines, assisting Sheasley only when they lacked work, when Sheasley fell behind in the proofreading, or when Sheasley needed a second person to proofread legal notices and more important items with her. At the time of Parrick's discharge she was paid $1.65 an hour. Dye was paid $2 an hour. The record does not indicate the wages paid the other employees in the TTS room. C. The Union Activities of Parrick and Other Employees Shirley Parrick signed a union authorization card at her home on August 16, 1968. Parrick did not directly solicit signatures from other employees on authorization cards, but spoke in favor of the Union with other employees while at work. Most of her conversations were with the employees in the composing room where the strength of the union support appeared to be located. In her early conversations with other employees she principally sought information about the Union. However, after she learned more about it, she began to express her own opinions and to support it. Insofar as the record indicates, Parrick spoke to Sheasley and Dye about the Union each on a single occasion.2 Her conversation with Dye was imitated by Dye who confronted Parrick after hearing a report that Parrick was telling others that Dye was an informer for Rich, Respondent's manager.' Their conversation at that time became heated, and shortly thereafter Manion told the employees in the TTS room that they were not to discuss the Union while at work because it interfered with their production. Parrick was not aware that Rich had ever observed her in her union activities or had any direct knowledge based on his own observation that she was supporting the Union. Rich denied any personal knowledge of Patrick's 'Sheasley and Dye each so testified Parrick testified that she was not certain whether she spoke to either of them more than once 'Dye so testified, and Parrick indicated uncertainty as to how the conversation started 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activity. Others in the composing room also spoke in favor of the Union in the shop. Among them, Vernon Manion, the head of the composing room , was known in the shop as in favor of the Union and at one time or another spoke to almost every other employee about it. About a week before the election, Dye, who had told several of the employees in the composing room and the TTS room that she was opposed to the union, was asked to work part of 2 days in the front office typing letters for Respondent which were sent out to the employees as part of its campaign against the union. She had volunteered previously to Rich that she was opposed to the Union. Rich had asked her about union meetings and if she had attended them, but she told him that she did not know anything about the Union because the employees knew that she was against it and told her nothing.' D. Parrick's Work Record Throughout Parrick's employment for a variety of reasons, she missed work from time to time. It was Respondent's policy not to dock employees for absences, and she was paid for the days she missed. Parrick conceded that she missed some work and that perhaps she had been absent as much as once or twice a week before Rich spoke to her about it in June 1968, as set forth below. Although she denied that she was absent as much as once a week thereafter, she conceded that she could have missed as much as 6 days during the month before her discharge as her father was in the hospital at that time. In addition, she was hospitalized in mid-August for 3 days and she missed another half-day of work at that time because of personal problems. Rich, who ordinarily did not keep records of employee attendance, began to keep track of Parrick's absences on his desk calendar about 30 days before her discharge. He recorded that she missed 6 out of the last 30 days of her employment. Susan Vega, Marvel Sheasley, and Elaine Dye worked in the TTS room with Parrick during portions of Parrick's employment. According to them, Parrick could not sit at her job for any length of time without getting up to wander about the plant, make telephone' calls from the front office, or make trips to the restroom. They also testified that Parrick's typing and proofreading were poorer in quality than that of the others in the TTS room. According to them, Parrick also talked a great deal on the job about her personal problems. In their view, Parrick sought to avoid work, putting more of a burden on the others in the TTS room, and this was a common topic of conversation among the others in the TTS room during breaktimes. Sheasley testified that Parrick often disappeared for a period of time when she observed additional work being placed on the hook in the composing room for the TTS operators.' According to Dye, she frequently observed Parrick bypassing the item on top of the hook in order to avoid typing copy which was considered more difficult.` 'I have credited Dye's testimony as to her conversations with Rich about the Union. Rich testified that he did not recall whether Dye told him she was opposed to the Union or whether he questioned Dye about attendance at union meetings. 'Although the TTS room was separated from the composing room by a wall, there was a window through which the hook could be seen from the proofreading desk , and Parrick could see from her machine when employees brought additional work to the hook. 'The testimony of Vega, Sheasley, and Dye as to Parrick's work In June 1968, Parrick came to the plant on a Saturday morning to tell Manion that she had been advised by her doctor not to work that day. Manion told her to speak to Rich. When she told Rich she was unavailable for work, he replied that if she was going to be out of work so much, he would have to get someone else to work in her place.' Vega, who quit work around August 1 to take a vacation and return to college, testified that she accelerated the date of her departure because of Parrick and that at the time she gave her notice in mid-July, she complained to Rich about Parrick's work habits. According to Vega, she told him that she thought it unfair to others in the TTS room that Parrick did not do adequate work. Vega had not previously spoken to Rich about Parrick. Although she testified that Rich told her he had heard similar things from others and would look into it, there is no evidence that Rich took any action following Vega's complaint. On one occasion after the union campaign began, Sheasley timed Parrick while proofreading and determined that it took Parrick 2 to 3 times longer to proofread a galley than what Sheasley considered normal. Sheasley reported her findings to Manion. Manion replied that he was aware that Parrick was not putting out her share of the work and added that if the Union came in, Parrick would have to work.' On another occasion, Dye and Sheasley spoke to Betty Taggert, who took her breaks with Parrick, about Parrick's work. They asked Taggert if she could tell Parrick in a nice way that they were tired of the way that Parrick did her work, Taggert spoke to Parrick about it.' Insofar as appears from the record, Dye, Sheasley, and Manion did not talk to Parrick directly about her work until the day of Parrick's discharge, although Dye testified that on one occasion she reported to Parrick, Manion's statement that anyone who did not do a day's work would be in trouble after the Union came in, intending it as an indirect suggestion that Parrick work harder. Parrick conceded that there was conflict among the girls in the TTS room which had existed even before the union activities at the plant began, although she testified that it intensified thereafter. practices before the day of her discharge was largely not contradicted. 'Parrick so testified. According to her, Rich said nothing to her at the time about the quality of her work . Rich testified that he called Parrick in at that time and told her that she was not producing up to her ability and that she would have to improve or he would replace her. However, Rich's testimony indicates that even as to more recent events his memory was poor, and his testimony appears to be inaccurate in other respects. I have credited Parrick as to this conversation . Vega testified that she believed that Rich had talked to Parrick about the poor quality of her work on one occasion before June . However, the basis for her belief was not shown, and neither Parrick nor Rich testified to any earlier conversation between them concerning the quality of Parrick's work . I base no findings on Vega's testimony in this regard. 'Sheasley so testified. Manion conceded that employees had complained to him about Parrick's work . Although he initially testified that he told them only that he would see what could be done about it, he conceded that he might have told them that those who did not put out a full day's work would be in trouble after the Union came in . I have credited Sheasley in this regard. 'Dye and Sheasley testified concerning their request to Taggert, and Parrick conceded that Taggert had spoken to her about her work, telling her that it was at the request of the other girls . According to Parrick she replied to Taggert that she felt she was doing as much as anyone else. According to Dye, Taggert reported back that Parrick had said she was sorry and would try to do better. Taggert did not testify. JUNCTION CITY DAILY UNION 219 E. Parrick's Discharge. On November 29, Parrick and Dye were the only two TTS operators at work. Manion, as well as Taggert, was absent. Dye came to work about 25 minutes late, and as she entered the TTS room, passing Parrick, she commented that it was nice to know the right people so that you did not have to come to work until you wanted to.10 Around 11 a.m. while Dye was at the proofreading desk helping with the proofreading, Parrick went to the composing room to get more work from the hook. She took a number of small items from the hook to be combined on a single tape, leaving behind a Fort Riley release, considered more difficult to type, which had been on the top of the pile on the hook." As Parrick returned to her machine Dye called her over to the proofreading desk and told her that she did not want Parrick picking out just the articles that she wanted to type. Dye stated that they were supposed to take the work off the hook in the order in which it appeared. Parrick denied that she had taken work from the bottom of the pile. Dye told Parrick that she knew what Parrick had done because Dye had observed what was on the hook. Parrick replied that there were a lot of short items on the hook and that whenever there were a lot of them they sorted them out and combined them on a single tape. During the afternoon, within an hour of the deadline for completion of the typing for that day's paper, Dye and Parrick had a further encounter. Parrick went to the proofreading desk to help with the proofreading. While she was so engaged, Dye went to the composing room. She returned with copy to type and put some of it on Parrick's desk, keeping the remainder which she started to type herself. Parrick finished proofreading the galley that she was working on and went to the composing room to ask one of the composing room employees if he wanted her to type or proofread. She was told that Sheasley was behind in the proofreading and that she should help Sheasley. Parrick went back to the TTS room, picked up the copy that Dye had laid on her desk, and took it back out to the composing room where she replaced it on the hook. Parrick returned to the TTS room and started to proofread again . Dye asked Parrick if she was going to get the copy and type it or what she was going to do. Parrick replied that she had been told to proofread. Dye became angry and told Parrick that she was tired of Parrick's sneaking underhanded ways and that she was going to talk to Rich to see if something could be done about it.'2 Dye finished the remaining typing and went to Rich's office to speak to him. She indicated to Rich that she had "had it," that Parrick was not working as usual , that she could not take it anymore, and that something had to be done." Dye told Rich it had been going on for quite a while and that she had complained to other people without "Parnck so testified without contradiction Dye conceded that she was chronically tardy, and had apologized to Rich for it, but worked through her lunch periods or after quitting time to make up for it. Rich's explanation that he was unaware of Dye's starting time is not credited "Dye so testified, and Parrick in explaining why she took a number of smaller items did not deny that the Fort Riley item had been on top of the hook "I have based these findings on Parrick's initial testimony which does not differ in any material detail from Dye's testimony as to this incident. On cross-examination, Parrick varied the sequence of events , testifying that she was told to proofread before Dye placed copy on her desk and at a time when there was none to be typed. I do not credit Parrick's latter testimony to the extent that it varies from her initial testimony result. She told Rich that she and Sheasley talked about it frequently, that Sheasley was well aware of the problem, and that Sheasley also felt that Parrick was not working. Rich asked Dye what she thought ought to be done, indicating as alternatives that he could discharge Parrick immediately, lay her off for a month and then discharge her, or put her on probation. Dye expressed the opinion that with Christmas coming up it would probably be best for all concerned if Rich talked to Parrick and let her know that she was on probation. Rich said that he would talk to Parrick that day, and Dye left.1° After Dye returned to the TTS room from Rich's office, Parrick went to Rich's office and asked if she could talk to him.15 She told Rich what had happened that day and how she and Dye had been at each other. She asked Rich if he thought there was something that she could do to get along better with the other girls in the TTS room. Rich replied he did not know of any way for her to do that. He stated that there was constant conflict and hard feeling in the TTS room and that he thought she was the cause of all the trouble. Rich told her to put her coat on and leave. F. The Strike At some point before the representation election a number of the employees who supported the Union had informally agreed together that' if any employee was discharged because of his union activities the rest of them would leave their jobs together.16 Over the weekend following Parrick's discharge, several of the employees discussed what they might do about it. William Weaver drew up a draft of a petition for presentation to John Montgomery, Respondent's publisher. On the morning of December 3, Weaver brought the petition with him to the plant, and after minor corrections the petition was typed and signed by eight of the employees in the composing room. They decided that Manion should call Montgomery and talk to him about it. Manion called the Montgomery's home and was told by Mrs. Montgomery that he was out of town. She suggested that the employees speak to Rich. Manion reported his telephone conversation to the other employees, and they decided to talk to Rich. As a consequence, after Rich arrived at the plant, the petition signers met with him in Montgomery's office. Weaver read the petition aloud to Rich. Its contents were:" This is a 2-part petition Part I On November 23, 1968 you addressed the employees of the Daily Union. At this time you suggested that we should get together and bring our grievances forth. Since the recent election showed that "Dye testified that she could not recall the exact words which she used. Rich testified that he could not recall exactly what Dye said but he gained the impression that something had to be done or Dye and Sheasley would quit "Dye so testified Although Rich testified that he did not go into any great detail about what he was going to do, he conceded that they might have discussed probation I have credited Dye "Parrtck testified that she went to Rich's office on her own motion Rich testified that he called Parrick in. As there was no particular reason for Parrick to have invented this detail, and as Rich's testimony was unreliable in a number of respects, I have credited Parrick as to her final interview with Rich. "Manion, Weaver, and Kay all testified to the existence of this agreement "The petition has been reproduced as it appeared without alteration 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there were some not in agreement with the Daily Union policies. When the ITU first began organizing us, there were only a few involved. The Management then see fit to bring in as many as possible to keep the ITU out. During the campaign you stressed much concern for our family's and how union meeting would keep us away from them and cause us to neglect them, but what about all the time we must spend working over time not because we want a bigger slice of the pie but because we have to, to make a living wage. The letter stated that our wage was comparable to that of 17 other papers of comparable size, but what about the amount of hours put in by the employees. Were these comparable too? There are many grievances that could be listed but we wish only one thing and that is what we asked for in the beginning. Recognition of the Salina Typographical Union to represent the composing room employees only. This does not mean the press room photographers, AP editors or janitors. But the composing room only. We hope at this time you will give this recognition. Part II On November 29, 1968 Shirley Parrick, a TTS operator was dismissed from her duties at the Daily Union. It is well known fact that she was a backer of the ITU movement in the recent election. In one of the campaign talks it was stated there would be no malice after the election regardless of the outcome. We the undersigned can not help but feel that once again management has failed to live up to there word. We understand that this employee was baited into being provoked by another employee, whom, we might also add was well known to be against the ITU movement. The result was Shirley was dismissed and the other employee remained. We cannot look at this any way other than Shirley was made an example. To keep the other employees in line. We do not know if Shirley would ever return to the Daily Union and we would not blame her if she didn't but we feel that she should be given this opportunity by the management. If this request is not adhered to, the undersigned employees feel they will be unable to be at work on December 4, 1968. We feel that if the employee can be dismissed then the rest of our jobs are in just as much jeopardy. No man can go on every day of his life wondering if he will be dismissed from his duties because he had an opinion and expressed it publicly. We feel that the only way we can have this security is through a union contract. The Typographical Union is in no way involved in this request but is an action of us as individuals. After Weaver finished reading the petition Rich responded. The testimony is in conflict as to the exact nature of his initial reply but I find in accord with the testimony of Donald Kay that Rich initially stated that he felt that the firing of Shirley was a secondary matter and that he did not think that was why the men were there at all. As Kay understood it, Rich indicated that he thought they were there because they wanted union recognition." The meeting between Rich and the employees continued for at least an hour. During that time, Rich explained to the employees why he had discharged Parrick and told them that he would not reinstate her. He told the employees that she had been hired on a probationary basis, she had been absent quite a bit, her production was below average, and he had fired her for incompetence. Rich also discussed the first part of the petition, telling the employees that he would not recognize the Union because the election was over and mentioning Respondent's plans for future benefits for the employees. At one point during the meeting after Rich had indicated that he rejected the demand for Parrick's reinstatment, the employees got up to leave. Rich asked them to remain and continue talking. They did, but no resolution was reached. Rich suggested that the employees meet privately among themselves to decide what they were going to do. He left the room, and after a few minutes of discussion among the employees they decided that they would leave their jobs. Manion went to inform Rich of this decision, and he and the other employees left the plant together " G Concluding Findings 1. Respondent's knowledge of Parrick's union activities There is no direct evidence that Rich knew of Parrick's activities on behalf of the Union. However, as the number of votes cast in the election indicates, Respondent's plant was small. Employees, including Parrick, had discussed the Union in the plant. Parrick and Dye had argued in the plant over a report that Dye was a company spy which Dye attributed to Parrick. As Rich indicated in testifying as to the reasons for Parrick's discharge, he was aware that she spent time in the composing room talking with other employees when she should have been working. It is clear otherwise from the record that at least some of that conversation during the period before the election related to the Union. Rich also testified that he estimated that he passed through the working area at least 50 times a day. As Dye testified, Rich had questioned her about union meetings. Rich's denial of knowledge of Parrick' s union activities appears in the following terms. Q. Now, of your own knowledge, did you, yourself, personally, know of any activity on the part of Shirley Parrick either for or against the union? A. Personally? Q. Yes. A. No. Q. In fact, up until that time you did not know her feelings about the Union, did you? '.Kay so testified Manion and Weaver testified that Rich stated that the Union was secondary in Shirley's discharge Weaver testified that he recalled Rich's use of the word secondary but that Rich could have used the word unimportant, and he understood Rich to mean that her union activities were unimportant in his decision to discharge Parrick. Rich testified that he could not remember the exact words which he used but that he generally indicated that the petition was unacceptable , that he had discharged Parrick because her services were unsatisfactory, and that he told the employees that as far as recognition was concerned the election was held and was over . While I conclude that the word "secondary" was used by Rich, I am satisfied that the testimony of Manion , Weaver and Kay relates to a single use of that word Kay impressed me as a forthright and accurate witness with no motive to shade his testimony in favor of Respondent. I credit Kay's version of Rich's remarks. "The exact content of the discussion during the meeting with Rich is not entirely clear Manion estimated that most of the time was spent talking about Parrick's discharge. Weaver in his testimony , however, indicated that Rich tried to steer the conversation towards company benefits for the employees and away from discussion of Parrick's discharge , although Parrick's discharge was discussed Kay's testimony also indicates that Rich tried to focus the discussion on the company benefits . Rich testified that he believed the discussion was equally divided between the two parts of the employees' petition JUNCTION CITY DAILY UNION 221 A. I couldn't have sworn to them, no. Taking this testimony in conjunction with Rich's additional testimony that he had refrained from discharging Parrick after his June talk with her because of the pending union activities, as well as his reluctance to concede that he was aware of Dye's opposition to the Union and had questioned her about the Union, I conclude that Rich's denials were carefully limited and less than forthright. I conclude on the basis of all the evidence summarized above that Rich was in fact aware of Parrick's prounion sympathies. 2. Parrick's discharge There was a history of conflict between Parrick and others in the TTS room. Although no previous complaint had been made to Rich other than that of Vega at the time she gave notice, Sheasley had talked to Manion about it, and Dye and Sheasley had asked Taggert to speak to Parrick about it. A source of the conflict was the belief of Dye and Sheasley that Parrick did not carry her fair share of the workload and sought to avoid more difficult work. On November 29 two incidents occurred which Dye interpreted as attempted evasions of work and she so informed Parrick. After the second incident Dye told Parrick she was going to see Rich about it and left to do so. There is reason to suspect that there was some exaggeration in the descriptions of Parrick's faults," and there is more than a suggestion that the hostility between Dye and Parrick was intensified by the encounter between them before the election when Dye accused Parrick of spreading false tales about Dye. Nonetheless, there is little reason to doubt that whatever the degree of justification, Dye and Sheasley found Parrick a source of irritation because of her work practices. The incidents described by Dye and Parrick on November 29 were unrelated to the Union. In the context of the history of conflict between Dye and Parrick these incidents could understandably have been viewed by Dye as adding further fuel to the conflict between them. In these circumstances, I conclude that Dye's complaint to Rich was based on the incidents of that day which she construed as further evidence of Parrick's shortcomings as a fellow worker. Rich's decision to discharge Parrick, however, is not so easily disposed of. After Dye recited her grievances to Rich, he asked for a suggestion as to the action he should take. Dye expressed the view that with Christmas coming up it would be best for all concerned if Rich put Parrick on probation and talked to Parrick to let her know that she was on probation. Rich told her that he would talk to Parrick, and Dye left. Indeed, Dye testified that when Parrick left the plant after Parrick talked to Rich, Dye was surprised because she was under the impression that Rich was going to talk to Parrick "and it was just going to be a talk." Certainly, the conclusion to be drawn from the testimony of Dye, who was not hostile to Respondent and is credited, was that she had not sought Parrick's discharge but indicated satisfaction with efforts to seek Parrick's improvement. "Even after Vega complained to Rich in mid-July and although Rich testified that he had observed Parrick 's shortcomings directly, Rich said nothing to Parrick about them . Although Dye and Sheasley testified that on one occasion they decided to speak to Rich about Parrick, when they found that Rich had left the plant for the day they did not pursue it. Dye testified in explanation, "Things have a way of diminishing in importance overnight and I had forgotten my minor irritations." Nonetheless, Rich discharged Parrick almost immediately after Dye registered her complaint. Rich explained that action as the effectuation of a decision made a long time previous to the event. According to Rich, he had taken no action for several weeks after his talk with Parrick in June. He testified that by that time the Union organizers were in town, and he felt that if he took any action at that time, it would be a black mark against him and possibly a violation of NLRB regulations. However, according to Rich, he had made up his mind that when he could gracefully, legally, and properly dismiss Parrick because of her absences and poor work, he would do so as soon as he could. He testified that Dye's complaint to him was the straw that broke the camel's back. He stated that he acted at that time because it was the end of the pay period, he had recorded Parrick as absent six times since October 31, he had observed Parrick's shortcomings personally, and he believed that he was going to lose Dye and Sheasely if he did not fire Parrick. I have noted above that I have not credited Rich in other respects. Among other things despite Dye's testimony that she had explained her frequent tardiness to Rich and had apologized to him for it, Rich testified that he was not aware that she was late to work and thought that he might have mistakenly told her to start work at 8:30 rather that at 8 when the other TTS operators started work. Despite Dye's testimony that she had informed Rich of her opposition to the Union and that he had questioned her about union meetings, Rich testified that he could not recall that Dye ever told him that she was against the Union or that he questioned her about union meetings. There is no reason to believe that Dye invented her testimony, but there is substantial reason to believe that Rich sought in a rather transparent fashion to conceal his favoritism of Dye and his efforts through her to gain information about employee union activity. Turning to Rich's explanation for his decision to discharge Parrick, there is again considerable basis for skepticism. Thus, there is strong reason to doubt that Rich had decided to discharge Parrick before the union organizing campaign began. Among other things, if Rich had made that decision, it is unlikely that he would have asked Dye what action she recommended and then have indicated to her his apparent acquiescense in that action. Moreover, Rich testified that he normally considered new employees to be on probation for 6 months, but that he would make the period shorter if they showed particularly bad habits. Despite the fact that Parrick's 6 months were up in August and that Rich claimed that he was aware of her shortcomings before then, he testified that he took no action by the time the union organizers appeared on the scene, explaining that it was not a serious thing or a matter of life and death. Not only did Rich fail to take action, but he also did not talk to Parrick again about either her attendance or her work performance until the day of her discharge . The conclusion is difficult to escape that far from regarding Parrick's derelictions as sufficient to cause her discharge, until November 29, Rich did not regard them as sufficiently serious to warrant his intercession. Rich's explanation that he finally discharged Parrick upon Dye's complaint for fear of losing Dye and Sheasley is at odds with Dye's version of her conversation with Rich. Dye did not present Rich with an ultimatum that he had to choose between Dye and Parrick, but suggested that the best thing to do for all concerned was for Rich to talk to Parrick and place her on probation. Any fear of 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD losing Dye and Sheasley , at least until Parrick's probation had been tried , would appear to have been dissipated by Dye's recommendation , and according to Dye, who had no reason to misrepresent this conversation, Rich indicated acquiescence . Thus this stated reason for Rich's action appears weak indeed . In these circumstances, I find it impossible to credit Rich's explanation of his decision and action to discharge Dye. The conclusion that Rich' s explanation for Parrick's discharge was an after-the-fact rationalization rather than a valid explanation of his actions gives rise to an inference that a candid explanation would entail admission that Parrick' s union activities were a factor in Rich's determination to terminate Parrick then rather than place her on probation as Dye had recommended . To be sure Rich was not bound to accept Dye's recommendation, but as Rich had indicated his intention to do so and had dissipated for the time being the threat of loss of Dye and Sheasley, his failure to follow that recommendation requires explanation if the inference of discrimination is to be rejected . Although it appears from Parrick ' s credited testimony that her visit to Rich's office occurred at her initiative rather than Rich' s, nothing which Parrick said to Rich at that time explains Rich ' s decision to terminate Parrick . Rather Parrick' s inquiry as to whether Rich knew of anything that she could do to get along better with the other girls offered Rich the opportunity to point out to Parrick the deficiencies in her work , which he had never done previously , and to inform Parrick of her probation as he had indicated he would in his conversation with Dye. The inference to be drawn from Rich ' s testimony does not stand alone, but finds support in Respondent's opposition to the Union during the preelection period, as well as Rich' s failure to take any steps to secure correction of the inadequacies in Parrick ' s work before she was terminated , even though Vega had complained to him in mid-July and he was assertedly aware of her shortcomings. It is true that Respondent was free to discharge Parrick for her shortcomings or for any reason at all as long as her union activities were not a factor contributing to her discharge . However, I am persuaded from this evidence that Parrick' s union activities were the factor which caused Rich to discharge Parrick following Dye's complaint rather than to place her on probation. Accordingly , I conclude that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Shirley Parrick. 3. The strike The complaint alleges that the work stoppage which began on December 3 was caused by Respondent's unfair labor practices and was an unfair labor practice strike. The evidence supports this allegation. Three employees who signed the petition and participated in the meeting with Rich immediately before the walkout testified that their action was taken as a consequence of an agreement among the union supporters in the plant that they would all leave their jobs if any of them were fired because of their union activities. The petition which they read to Rich contained two parts. In the second part, which set forth their request that Parrick be offered reinstatement, the first paragraph concluded with the sentence: "If this request is not adhered to, the undersigned employees feel that they will be unable to be at work on December 4, 1968." Thus, consistent with the employees' testimony, the petition stated their intention to walk out if the request for Parrick's reinstatement were not granted. Although it appears that in their discussion with Rich the employees did not state that they would not walk out if Parrick were offered reinstatement but recognition were withheld, the petition itself which was both read and handed to Rich led to that conclusion. In any event, even if denial of both requests contributed to the decision to walk out, the discharge of Parrick and Rich's refusal to offer Parrick reinstatement would remain a substantial cause of the walk out. In either case, it follows that the walk out was an unfair labor practice strike.Z' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent discriminatorily discharged Shirley Parrick, I shall recommend that Respondent be ordered to offer her immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and to make her whole for any loss of earnings she may have suffered by reason of the discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned as wages from the date of her discharge to the date of the offer of reinstatement, less net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I have also found that on December 3, 1968, a number of Respondent's employees left their jobs to engage in an unfair labor practice strike. Although there is no evidence that at the time of the hearing any of the unfair labor practice strikers had requested reinstatement, they were entitled to reinstatement upon application, whether or not their positions had been filled by the hire of replacements. Accordingly, in order to effectuate the policies of the Act, it will be recommended that Respondent be ordered, upon application, to offer to all employees who went on strike on December 3, 1968, or thereafter, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or privileges, dismissing if necessary, any persons hired on or after that date. It is also recommended that Respondent make whole those employees for any loss of pay they may have suffered or may suffer by reason of Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applies for reinstatement, to the date of Respondent's offer of reinstatement, to be computed in "See Louisville Chair Company, Inc, 161 NLRB 358, 378, enfd 385 F.2d 922 (C A 6) JUNCTION CITY DAILY UNION 223 accordance with the formula set forth in the paragraph above.:: Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Junction City Daily Union, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. American Federation of Labor-Congress of "Louisville Chair Company , supra, 161 NLRB at 376, 378. Industrial Organizations and Salina Typographical Union 638 affiliated with the International Typographical Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging Shirley Parrick because of her union activities Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act. 4. The strike by Respondent's employees which began on December 3, 1968, was caused by the discharge of Shirley Parrick and was an unfair labor practice strike. [Recommended Order omitted from publication.]