Starcraft Corp.

44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Starcraft Corporation and Communications Workers of America, AFL-CIO. Case 17-CA-3705 June 26, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On April 4, 1969, Trial Examiner Robert Cohn 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. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, 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 no prejudicial error was committed. The rulings 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 with the following modification. We do not agree with the Trial Examiner's finding that Respondent discharged Gary Mundy in violation of Section 8(a)(3) of the Act. Mundy had been employed by Respondent since January 1967, in the shipping department. In September 1968, before the Union began its organizing campaign, Jarvis, the foreman of the shipping department, announced to the shippers and truckdrivers that the drivers were not allowed to talk to shippers loading trucks.' On October 8 or 9 Mundy asked two truckdrivers, Guier and Andrews, if they were for the Union. After they responded and Mundy began to walk away, Guier asked him a question about the Union. Mundy answered and moved on. Although the three men spoke for only about a minute, Jarvis observed the conversation. On October 9, Jarvis took Mundy to Production Manager Fidler to be reprimanded , since this was the first violation of the new rule. Fidler asked Mundy who started the conversation. Mundy stated The General Counsel alleged in the complaint amended at the hearing that the promulgation and enforcement of this rule violated Sec. 8(a)(l) The Trial Examiner found, and we agree, that such promulgation and enforcement was not for antiunion purposes. that the two truckdrivers instigated it. Fidler gave Mundy a verbal warning for talking or loafing. At no time did Fidler inquire into the subject of the conversation. Jarvis thereafter interviewed the two drivers who told him that Mundy had started the conversation. The drivers repeated this to Fidler.' Consequently, Fidler asked Jarvis to see Mundy again. Jarvis replied that this was impossible since Mundy had been in an accident at work the preceding day and had not come to work that day. In this connection, there was a posted plant rule that all injuries on the job had to be reported to the foreman and the office immediately. Mundy had not reported the accident when it occurred, and Jarvis only learned of it the next day after Mundy called in to tell a secretary that he would be off work to see a doctor because of the accident. When the above facts were reported to Fidler, he and Jarvis, conferring with Plant Manager Reid, concluded that Mundy had violated three company rules-talking to truckdrivers on the job, lying to supervisors as to who started the conversation, and not reporting an injury - and should be discharged. The discharge was made after a final interview with Mundy on Monday, October 14. The Trial Examiner concluded, in substance, that the alleged reasons for Mundy's discharge were pretexts and that the real reason was Mundy' s union activity. Contrary to the Trial Examiner, we are not satisfied that the General Counsel has proved by a preponderance of the evidence that the Respondent's asserted reasons for Mundy's discharge were pretexts. As is apparent, Mundy violated the new rule prohibiting loafing or talking between drivers and shippers. As is also apparent, in questioning the truckdrivers about Mundy's violation of this rule, Jarvis and Fidler concluded that Mundy had lied to them. Finally, Mundy had failed to report his accident on the job immediately despite the posted rule to this effect. In the Respondent's view Mundy was guilty of three violations of its rules and he was discharged for that reason. Even assuming that Mundy were known to be an active union adherent, this alone would not immunize him from legitimate disciplinary action.' There is no evidence that Respondent tolerated in other employees accumulated violations of rules similar to those for which Mundy was discharged, ° and there is no basis for finding disparate treatment. Moreover, the record fails to reveal conduct or statements by Respondent from which an improper motive might be inferred. Under these circumstances, we find that the General Counsel has 'Fidler and Plant Manager Reid had decided after Fidler saw the first driver, that if the second driver corroborated the first, Mundy would be suspended for 3 days for violating the no-talking or "loafing" rule. 'Aerovox Corporation . 172 NLRB No 97. 'As noted in fn. 2, supra, were Mundy's actions confined to talking to the drivers and lying about who started the conversation , he would have been given a 3-day suspension but would not have been discharged. 177 NLRB No. 6 STARCRAFT CORPORATION not proved that Respondent discharged Mundy for a discriminatory reason and we shall dismiss that allegation of the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Starcraft Corporation, Independence, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Delete from paragraph 1(a) of the Recommended Order of the Trial Examiner the words "discharging or otherwise." 2. Delete paragraphs 2(a), (b), and (c) from the Recommended Order of the Trial Examiner and reletter the subsequent paragraphs accordingly. 3. Delete the words "discharging or otherwise" from the first indented paragraph of the Appendix. 4. Delete the fifth and sixth indented paragraphs from the Appendix. IT IS HEREBY FURTHER ORDERED that the complaint be and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: This case, heard at Independence, Kansas, on January 15 and 16, 1969, pursuant to an original charge filed October 15, 1968,' and a complaint and notice of hearing dated December 9, presents the question whether Starcraft Corporation (herein the Company or Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (herein the Act), when it suspended and/or discharged two of its employees because of their asserted activities on behalf of Communications Workers of America, AFL-CIO (herein the Union). Also involved are several incidents of independent violations of Section 8(a)(1) of the Act as a result of alleged acts and conduct of Respondent' s supervisors hereinafter detailed. Upon the entire record, my observation of the demeanor of the witnesses, and after full consideration of the helpful posthearing briefs filed by counsel for the General Counsel and by counsel for the respondent, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Indiana corporation, is engaged in the business of manufacturing and selling small boats, camping trailers, and related items with a facility located in Independence , Kansas, which is the only plant involved in this proceeding. During an annual period, the All dates hereinafter refer to the calendar year 1968, unless otherwise specified. 45 Respondent sells and ships finished products valued in excess of $50,000 from its Kansas plant directly to points located outside the State of Kansas. Upon these facts, I find, as the Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, a national organization, exists, at least in part, for the purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work on behalf of employees. It has, according to the uncontradicted and credited testimony of its International representative, negotiated contracts with employers on behalf of employees whom it represents . Based upon the foregoing, uncontradicted evidence, I find, contrary to the seeming contentions of the Respondent, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Alleged Discrimination as Respects Richard Stevens The circumstances surrounding the suspension of this employee are not substantially in dispute and may be rather summarily disposed of. Stevens has been an employee of the Company since October 1965, in the camper department . It was he who initially contacted the Union through the AFL-CIO at the Kansas State Fair in Hutchinson around September 9 or 10, and advised that there was interest among the employees in forming a union . Subsequently, he received a followup letter from the Union's representative, Jack Lovett (G.C. Exh. 2), and thereafter an organizational meeting was arranged to be held at the home of an employee of Respondent on October 2. At that meeting, which was attended by Stevens as well as Gary Mundy, the other alleged discriminatee in this case, Lovett explained the manner and means by which the employees might carry on an organizational campaign, and advised them of their legal rights. He also gave the employees union literature along with authorization cards and union buttons to distribute among the other employees of the Company. The following day, October 3, Stevens wore a union button to work for the first time, and continued to do so until October 14, when the foreman , Richard Brown, approached and advised Stevens as well as other employees in that department that they could not wear their buttons anymore because it was a form of advertising which was prohibited in the plant.' Brown further advised that unless the employees took the buttons off, they would be reprimanded .' Stevens, along with the other employees, removed their buttons for the remainder of that day. 'The no-advertising rule was apparently instituted by the recently hired plant manager, Reid, in the latter part of September, and announced by him to the employees in a series of meetings which he held with the employees at that time. According to Reid , the rule was announced primanly in anticipation of the upcoming political campaign and the resulting necessity of limiting the distribution of literature and advertisements in the plant . Neither the promulgation of the rule nor the meetings with the employees is charged as unfair labor practices in the complaint 'This conduct is alleged in the complaint to constitute a violation of Sec 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the following day, October 15, Stevens had another conversation with Brown about 7 a.m. in which he inquired what Brown meant the preceding day when he said that the employees would be reprimanded if they wore buttons. Brown replied that they would be taken to the office. Stevens said that he intended to wear his button and he then put it on. Whereupon, about 10 or 15 minutes later, Brown directed Stevens to come with him to the office of Mr. Fidler, the production and personnel manager. Fidler asked Stevens if he did not realize that he was disobeying Brown's orders. The employee replied by inquiring whether the Company realized it was interfering with his federally protected right to organize a union. Fidler then gave Stevens the option of taking his union button off and going back to work, but Stevens retorted that the only way he would return to work was with his pin on . Whereupon, Fidler advised that Stevens was suspended pending further notification from the Company. After Stevens left, Fidler discussed the matter with Plant Manager Reid who suggested that they get in touch with the Company's counsel and ascertain the legal rights involved. The following day, company counsel advised Reid that the Company was wrong and that Stevens was right as respects this issue, and Stevens was notified about 3 p.m. on October 16 to return to work the following day. Upon his return, he was advised by Foreman Brown that the reason he had been recalled was because he had been correct and the Company wrong respecting employees' right to wear a union button while at work, that he would he reimbursed for all wages lost as a result of his suspension, and that there would be no "mark" against his record as a result of the incident. Moreover, according to Reid's testimony, a supervisor's meeting was immediately called in which the Stevens' case was reviewed and the supervisors told what the Company had done with respect to the matter. As far as the record shows, Stevens was reimbursed for all time lost, and has worked continuously for the Respondent since reinstatement. Analysis and Concluding Findings as Respects the Stevens Case It is well settled that "the right of employees to wear union insignia at work has long been recognized as a protected activity. The promulgation of a rule prohibiting the wearing of such buttons constitutes a violation of Section 8(a)(1) in the absence of evidence of `special circumstances' showing that such a rule is necessary to maintain production and discipline [citing cases]."' Respondent here does not claim the existence of "special circumstances" as a defense to its promulgation and enforcement of the rule prohibiting the wearing of union buttons, but rather defends on the ground that it had a "good faith belief that Stevens, by wearing his union button, was violating a lawful and valid rule restricting advertising which Reid had earlier instituted." (Resp. br., p. 34.) Without resorting to a discussion of whether a factual basis exists on this record for the assertion of such a "good faith belief," the short answer is that it would not, in any event, constitute a good defense to this type of 8(a)(1) of the Act. Such a threat to invoke sanctions against employees for engaging in conduct which has been held to be protected under Section 7 of the Act (Floridan Hotel of Tampa. Inc 137 NLRB 1484, enfd as modified on other grounds 318 F.2d 545 (C A 5)) is a clear violation of Sec. 8(a)(I). I so find an 8(a)(1) violation since, as the above-quoted statement of the law specifies, the only exception is evidence of "special circumstances," showing that such a rule is necessary to maintain production and discipline. No such evidence is extant on this record. However, Respondent argues that in any event no remedial order should be forthcoming since Respondent, upon learning of its illegal conduct, took prompt and effective measures to rectify it. It is true that the Board has in the past, in some cases cited by Respondent involving varying factual situations, waived any obligation on the part of Respondent to take further remedial action. However, as previously noted, the diverse factual situations in those cases make delineation of a decisional precedent difficult. The basic objective, as respects a remedial order in the instant case, is to make certain, within the realm of practicality, that the employees of Respondent be advised of their statutory right to wear a union button in the plant under circumstances where, as here, one of their colleagues was suspended for doing so - although he subsequently returned to work. In my view, mere notification to supervisors of the facts of the case is insufficient even if the supervisors are directed in turn to so advise the employees. The record here does not reflect any concerted effort on their part to do so. Nor does the fact that some employees continued to wear buttons constitute sufficient proof that the coercive effect has been dissipated. In sum, all this does not, in my judgment, substitute for a notice to the employees signed by management that they have a right to wear union buttons freely and without the danger of disciplinary steps being taken against them. Accordingly, I shall recommend the usual remedial provisions as respects a violation of this nature. B. The No-Talking Rule The complaint, as amended at the hearing, alleges that the Respondent violated Section 8(a)(1) of the Act by promulgating and enforcing a no-talking rule during the latter part of September and the first part of October. The Respondent, while denying a violation of the Act, concedes through its evidence that in fact such a rule was announced and enforced during this period (and subsequently) limited to its employees employed as truckdrivers and those employed as shippers or loaders. Thus, the evidence shows that in the first part of September Roy Jarvis,' foreman of the shipping department (which included both truckdrivers and shippers), determined that an inordinate amount of time was wasted - and therefore efficiency suffered-because of, conversations between the Respondent's truckdrivers and the shippers or loaders. This situation arose, according to Jarvis' testimony, because the truckdrivers normally had no duties to perform while awaiting their trucks to be loaded, and they had a tendency to strike up conversations with the shippers who were loading the trucks, thereby interfering with the latters' work. Jarvis further testified that he conferred concerning this matter with Plant Manager Reid and advised the latter that he intended to announce a no-talking rule to the drivers at the annual safety meeting which was scheduled for September 20. Reid agreed that this was a convenient and appropriate time since it was probably the only time during the year 'Floridan Hotel of Tampa. Inc, 137 NLRB 1484, 1486 'Although both the complaint and posthearing briefs refer to this gentleman as "Jarvais," he spelled his name omitting the second "a." STARCRAFT CORPORATION 47 that all of the truckdrivers were together. Accordingly, Jarvis announced in early September to the shippers that such a rule would be placed in effect in a matter of a few weeks. On Friday, September 20, at the truckdrivers safety meeting, Jarvis testified that he announced the rule as follows: I told the drivers that we were having interruptions in shipping which was lowering our efficiency . We were not getting the loads out that we should get out in the time we should get them out. By them stopping in there and talking to shipping , the shippers, they, in turn, stopped their work to talk to them. Also, they were told that they were not allowed in the production areas or warehouse areas when they had no reason to be there. The following Monday, September 23, Jarvis announced the rule to all of the shippers , as follows: A. This was possibly during the break when they were all together , when they were all there . I told them that we had told the drivers of this rule and that they understood and that we had hope that shipping did too. They asked me what we were going to do about outside drivers talking to them. Q. When you say "outside driver", Mr. Jarvis, what do you mean? A. We have drivers coming in from our other plant in Indiana which is their home base there . We have distributors that come in. They have their own units and they come in and pick up loads . This is what I was referring to. Q. Go ahead and continue about what you said about the outside drivers in your answer. A. I told them that if they had a problem with interference there, they should tell me and I would handle the matter. Since the rule itself was never reduced to writing, the exact definition, meaning, and scope of the rule was construed differently by both employees and management representatives, and even they were sometimes confused as to the exact nature and extent of the rule . For example, as previously noted, Jarvis, in announcing the rule to the shippers, testified that he told them that". . . while the shipping [sic] were on duty, that the drivers weren't to interfere or interrupt their work. They weren't to talk to the drivers unless it was a break time or lunch time." On the other hand, it is clear that Jarvis did not consider the rule to constitute an absolute prohibition of conversation between the drivers and shippers since there were "important things" that it might be necessary for them to converse about, such as the condition of the truck or the manner in which the trailer was loaded. This is confirmed by the testimony of Charles Guier, a truckdriver and witness for the Respondent, who testified that his understanding of the rule was that the Company did not want them out there ". . . goofing around and visiting all the time. I have been with Starcraft long enough to know if you have got any business with them [shippers], they are not going to say anything about it . . . . that if you have got business with one of the boys there, you can go and ask him whatever you want to ask him . A lot of times we have to have the loaders change the loads some for us, tighten wires or loosen wires so we can pull those poles before we can get them loaded down right ." Also, Lawrence Andrews, a truckdriver and witness for the Respondent, testified, in substance, that what Jarvis meant was that no action would be taken if the truckdrivers talked to the shippers on business matters alone. Counsel for the General Counsel argues that the rule was promulgated and enforced for the purpose of interrupting and complicating any communications relating to the Union as between the truckdrivers and the shippers, the former being over-the-road drivers who spend most of their time away from the plant.' I am in agreement with the contentions of the Respondent that the General Counsel has not sustained his burden of proof on this issue for the following reasons: 1. The rule was announced in September prior to any proof of knowledge by the Respondent that a union campaign was about to commence at the plant. The first knowledge of the Respondent of union activity shown by this record is on the morning of October 3 when some employees first wore union buttons in the plant. 2. The limitations of the rule itself detract from the persuasiveness of the General Counsel's argument respecting its purpose. That is to say, there were only 6 truckdrivers and 14 shippers out of a unit of some 120 to 130 employees. If Respondent's purpose was to prohibit communication concerning the Union among its employees, the natural tendency would have been to promulgate a no-talking rule of wider application.' 3. There is no showing that union activity was concentrated in this particular department so that special rules were necessary to restrain or limit it. In short, there is no persuasive evidence in the record to detract from the Respondent's contention that the rule was promulgated in an attempt to eradicate a source of irritation and inefficiency caused by truckdrivers who were not on duty interfering with the work of those employees who were.' Accordingly, I find and conclude that the General Counsel has failed to sustain his burden of proof on this allegation of the complaint, and I will recommend that the complaint be dismissed to that extent. C. The Alleged Discriminatory Discharge of Gary Mundy 1. Mundy's union activities; the pamphlet incident Mundy had been employed by the Company since January 1967 in the shipping department. There, his duties consisted primarily of loading and unloading boxcars and freight cars from a loading platform, and he also engaged in such secondary duties as sweeping the floor and hauling products for storage. Foreman of the shipping department during all times material was, as previously noted, Roy Jarvis. Billy Boomis was assistant foreman and there were two leadmen named Spears and Reynolds. Although there is some testimony in the record to the contrary, it appears that Mundy's work record at the Company during his employment from January 1967 until he was terminated on October 14, 1968, was, in general, satisfactory. He received wage increases along with other employees and during one occasion acted as leadman in the absence of one of the regular leadmen. His testimony that he did not receive any warnings or reprimands prior to October 9 is undenied on the record.' 'It is clear that the rule relates only to conversations between truckdrivers on the one hand and shippers on the other and not as among the shippers as a group or, indeed, among any other classifications of employees The record reflects that there was no general rule prohibiting talking among employees while at work, and that such talking was condoned by the Company in all areas save the one at issue. 'Truckdnvers were apparently the only classification of employees allowed on plant premises when not on duty. 'Plant Manager Reid, who participated in the decision to fire Mundy, as hereinafter discussed, stated that he did not consider Mundy a satisfactory 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mundy was one of the instigators of the Union in the plant. He talked to other employees in September about bringing the Union in, and attended the first union meeting on October 2. There, he received union literature, material, and authorization cards, which he carried to work with him the following morning. He also took a union button which he wore. On October 3, prior to commencing work, Mundy distributed at the plant some of the literature to fellow employees, and left a copy of a booklet entitled "YOUR LEGAL RIGHT TO JOIN A UNION IS GUARANTEED" on the top of his lunch bucket in a warehouse area. His first work duty that morning was to sweep the floor which took him about 15 or 20 minutes, and thereafter he went to a loading area and commenced loading a trailer. According to Mundy's testimony, at about 8:30 that morning Foreman Jarvis approached with Assistant Foreman Boomis behind him, Jarvis having pieces of paper in each hand which Mundy believed to be union leaflets and other materials." Jarvis asked Mundy if these (meaning the union papers) were his, to which Mundy replied that his leaflet was on his lunch bucket. Jarvis retorted that he found those on the floor, to which Mundy acknowledged that one was his. When Jarvis inquired as to the ownership of the others, Mundy replied that he did not know since everyone in the plant had received them. Jarvis, in conclusion, stated, "Well, if you want it, you'd better get it in your pocket," and walked off. Jarvis' testimony (which is substantially corroborated by Boomis) is essentially that the Company was having a cleanup campaign about this time and that, as he walked through the warehouse which had just been cleaned, he saw a piece of paper lying on the floor. He asked Boomis what it was to which the latter replied," I think it's a pamplet [sic] of Mundy's." Jarvis picked up the paper, walked through the breezeway where Mundy was loading the trailer, and asked if it was his. Mundy answered, yes - that everybody in the plant had gotten them because they were handing them out at the gate. The foregoing incident is alleged in the complaint to constitute coercive interrogation in violation of Section 8(a)(1) of the Act. Assuming the veracity of Mundy's version (which I will do for purposes of discussion), I cannot agree that under the circumstances here involved the inquiry was coercive. In making this determination, I have considered persuasive - although not necessarily determinative-the tests for determining the proper limits of interrogation formulated by the Court of Appeals for the Second Circuit in Bourne, An Individual d/bla Bourne Co. v. N.L.R.B." These factors are: (1) the background, particularly as it relates to the employer's hostility, if any; (2) the nature of the information sought, especially where it appears designed to permit ascertainment of the identity of employees and their support of the union; (3) the identity of the questioner; (4) the place and method of interrogation; and (5) the employee based upon reports he received . However, Reid only came with the Respondent in August 1968 , and there was no written record of any claimed derelictions attributed to Mundy so that any testimony of Reid on this point is necessarily hearsay. In any event, as subsequently pointed out, the Respondent relies solely on three stated reasons for the discharge, none of which related to Mundy 's previous work record "All parties agree that Jarvis had union material in one hand, but Jarvis and Boomis contend that he had company papers such as bills of lading or shipping tickets in the other hand. I do not view the differences to be significant insofar as resolution of the ultimate issue involved truthfulness of the reply. The Board applied the Bourne factors in Cannon Electric Company, 151 NLRB 1465, 1470, with the caveat that "we consider these factors tentative only and not of general applicability,"" since "it is quite possible that intimidation will occur even if all, or most, of these factors cut in favor of the employer."" An analysis of this incident in the tight of the Bourne factors reveals that all-with one possible exception-cut in favor of the Company. That is to say, at least at this point in time, there is little if any evidence of employer hostility to the union campaign; the questioner is a low level supervisor; the interrogation took place at the work place of the employee and not in a sanctum of management; and the employee answered the inquiry truthfully. While there might be gleaned from the inquiry that the purpose was to ascertain the identity of the union adherents, it would seem just as reasonable to infer in these particular circumstances, and in the light of the legitimacy of the cleanup campaign of the Company which is unrebutted on the record, that the purpose was a good-faith one to seek compliance with the directive to keep the plant clean and not have literature strewn about. In short, I find the evidence not sufficiently substantial to infer that the inquiry may reasonably be said to have been intimidatory or to have "convey[ed] an impression, rightly or wrongly, that [the employer] is considering reprisals against union supporters."" I shall therefore recommend that this allegation in the complaint be dismissed. 2. Events leading to the discharge of Mundy On October 8, between 9 and 10 a.m., Mundy was returning from securing a drink of water in the camper building to his work station when he encountered two of the Company's truckdrivers (Guier and Andrews) who were walking toward the building. The extent of the conversation, according to Mundy's testimony, is as follows: When I passed them, I asked them if they were union and they said no. So I started to walk away and Bill Guier said, "What is this rumor about union?" I said, "I am trying to get union in the plant." He proceeded to tell me he was a member of the Teamsters Union and when he gets to be a certain age, he writes Kansas City and retires or something. I turned around and went on. Q. [By Mr. Wacknov] About how long did that conversation last, Mr. Mundy? A. Not over a minute, 45 seconds, something like this. Q. Was Mr. Jarvis anywhere in the vicinity as far as you knew? A. Not that I knew of. Q. Did he come up and talk to you and the truck drivers?' A. No, sir. Q. So what did you do? A. I just went on back to work. Jarvis' version is that as he stepped out of his office and started to the main office with some bills of lading, he "332 F.2d 47, 48. "See also Southwestern of Dallas Optical Company and Tru-Optics, Inc., 153 NLRB 33, 37. See N L.R.B v Camco, Inc, 340 F 2d 803 (C.A. 5, 1965). "Bok, The Regulation of Campaign Tactics in Representation Elections under the National Labor Relations Act, 78 Harv. L. Rev 38, at 109, Cited in Cannon, supra, 1470. "Bok, supra at 106, cited in Cannon , supra at 1470. STARCRAFT CORPORATION 49 saw Mundy, Guier, and Andrews standing talking. He walked over and asked Mundy if he had work to do to which the latter made no reply and went back to the warehouse. Further, according to Jarvis' testimony, the truckdrivers inquired if they had a load to go out to which Jarvis replied that they might possibly later in the day." Sometime thereafter (apparently later in the day), Jarvis brought the incident to the attention of Production Manager Fidler because, as Jarvis testified, this was the first time he had occasion to make a reprimand under the new rule and he wanted to find out whether it should be a verbal or written reprimand . Fidler suggested that Jarvis bring Mundy to his office, which was accomplished shortly after work commenced on the morning of October 9. As might be expected, there is some variance in the testimony of the three individuals as to exactly what transpired on this occasion . However , it seems clear that Mundy related that he had left his work area to secure a drink of water and had met the truckdrivers on his return, and that they had a conversation. Both Mundy and Jarvis testified that Fidler was anxious to learn who instigated the conversation and that when Mundy attempted to detail the substance thereof, "Fidler told him we weren't concerned with the conversation , we were just trying to determine who talked to who."" Fidler gave Mundy a verbal warning for talking and loafing on the job and told him to return to work." However, this was not the end of the matter as far as the Company was concerned . After Mundy left Fidler's office, the latter instructed Jarvis to "follow this through with the drivers," and Jarvis left. According to Jarvis' testimony, he interviewed both truckdrivers twice either that day (October 9) or the next. The first occasion he spoke to the driver alone and asked the question whether they had stopped Mundy or Mundy had stopped them to have the conversation . In each case the truckdriver advised that Mundy had in fact stopped them; whereupon Jarvis had the truckdriver repeat this statement in the presence of Fidler. On neither of these occasions was there any inquiry by either Jarvis or Fidler as to the subject matter of the conversation. On October 10, after Fidler had heard the recount of the incident from both truckdrivers, as aforesaid, he instructed Jarvis to bring Mundy back to his (Fidler's) office. Jarvis advised that this was not possible because he had just found out that Mundy had hurt himself the previous afternoon and had not reported for work that day. In this connection , it is uncontradicted that on "It seems noteworthy at this juncture that both truckdrivers called as witnesses by the Respondent corroborated Mundy's testimony to the extent of denying that Jarvis approached and said anything to them on this occasion Also Mundy's testimony that the incident occurred on October 8 rather than October 9 is substantiated by them , and I so find. "Testimony of Jarvis "Mundy testified that Fidler told him that he "had heard I had been doing too much talking down there , and that if 1 didn't watch it, he was going to have my job over it." The complaint alleges this to be a threat "to reprimand or discharge employees for engaging in activity for and on behalf of the Union." I have heretofore found that , although Mundy may have attempted to and did state that the substance of the conversation related to union activity , it is clear from Mundy's own testimony cited above, the testimony of Jarvis and Fidler, and subsequent events discussed infra, that the management personnel were not seeking to learn the content of the conversation - indeed they sought deliberately to eschew it. Even according to Mundy's version of the incident , Fidler's threat related only to his "doing too much talking down there " without any reference to the Union. I am unable to agree with the General Counsel that this sort of evidence is sufficient to support a finding of violation of Sec . 8(a)(1), and will recommend that the complaint be dismissed to that extent. October 9 Mundy was in the process of setting a doorway bar - a bar that one places across the doorway upon which to lay boats when one is loading them - and that the leadman was holding him up while he was performing this function. When Mundy told the leadman that he was ready to get down, the latter released him and Mundy fell on a timber lying on the floor. In the process he twisted his ankle. One of the leadmen asked him if he wanted to see a doctor, but Mundy replied that he did not think he was hurt that badly. He continued to work the rest of the day, which consisted of finishing the loading of that boxcar as well as the loading of two more trailers, without any particular trouble from the ankle. However, at home that evening, the ankle began to swell to the extent that Mundy could not walk on it. The following morning, on October 10, Mundy testified without contradiction that he called the plant and told the secretary what had happened and that he was going to the doctor. She directed him to contact the plant doctor and get an appointment.18 Meanwhile, back at the plant on the afternoon of Thursday, October 10, Fidler and Jarvis were discussing the situation respecting Mundy. Fidler inquired whether Mundy had reported the accident and/or injury, and Jarvis said no. Accordingly, it was concluded that Mundy had, within the past 24 hours, committed infractions of three company policies: (1) loafing on the job; (2) lying to supervisors (respecting who started the conversation with truckdrivers); and (3) not reporting "an injury accident." It was then decided that Mundy's timecard would be "pulled" until it was ascertained why he did not report the injury. The two men them summarized their actions to Plant Manager Reid who confirmed their conclusion. Reid testified that he reviewed Mundy's work record for the purpose of determining whether or not there was anything there to strengthen his case, but concluded in the negative. It is clear from the record that the decision to discharge Mundy was made that Thursday afternoon as Reid testified: Q. [By Mr. Wacknov] And you had determined not to fire this man until he had a hearing, is that correct? A. We had determined to fire him, unless there was something that we did not know about that he could enlighten us on and that would mitigate the circumstances. Q. Could you tell what conceivable thing he might have said to you that would have made you change your mind? A. I can't think of anything. The final interview took place on Monday, October 14, when Mundy reported to work. Present at the interview, which took place in Fidler's office, were Fidler, Jarvis, and Mundy. Fidler advised Mundy that he was being discharged for three infractions, which Jarvis described "was enough for discharge:" loafing on the job, lying to a supervisor, and not reporting an injury.19 Mundy "The company doctor does not reside at the plant but is a private physician. Mundy saw him that day and his diagnosis was that there was no fracture but only a bad sprain The doctor wrapped the ankle and instructed Mundy to stay on crutches for a couple of days. "According to Mundy's testimony, the three reasons listed by Fidler were "not reporting an injury, lying to supervision , and not getting along with supervision " The latter factor , according to Jarvis' testimony, was listed by Fidler, but was stated to have nothing to do with the discharge. This factor doubtless related to a situation which arose prior to the advent of the Union and apparently involved a personality conflict between Assistant Foreman Boomis and Mundy which commenced long before their employment at the Respondent . Mundy had approached Reid about 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acknowledged that he was aware of a rule requiring the reporting of injuries, but averred that he did not think he had been "hurt that bad ." When Fidler advised Mundy that they had followed up his story with the two truckdrivers and they had stated that it was Mundy who commenced the conversation with them , Mundy told Fidler that he knew that the management officials would believe the truckdrivers rather than him, and inquired whether Reid was aware of the decision to discharge him. Mundy requested an interview with Reid , which was granted. Reid told Mundy that he had been kept advised of the situation, and had confirmed the decision to discharge him. Mundy became rather angry and told Reid that he would be hearing from either the CWA or the NLRB. Analysis and Concluding Findings In N.L.R.B. v. Great Dane Trailers, Inc.," the Supreme Court preceded to set forth and explain the elements and burdens of proof involved in the establishment of a 8(a)(3) violation . The Court distinguished between a situation : ( 1) where the employer conduct was "inherently destructive" of employee rights, in which case "the employer has the burden of explaining away, justifying or characterizing `his actions as something different than they appear on their face,' and if he fails, `an unfair labor practice charge is made out"'; (2) "On the other hand, when `the resulting harm to employee rights is ... comparatively slight, and a substantial and legitimate business end is served , the employer's conduct is prima facie lawful,' and an affirmative showing of improper motivation must be made. . . Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him."2' Applying the foregoing principles to the case at bar (I will assume that the instant situation falls within category 2 above), the General Counsel proved a prima facie case of discrimination violative of Section 8(a)(3) by showing that (1) Mundy was engaged in conduct protected by Section 7; (2) that the Employer knew about it," and was strongly opposed to the Union coming into the plant;" and (3) that shortly thereafter Mundy was summarily discharged. 2° this matter around the first of September and requested a transfer out of the department . However, this request was denied by Reid . There is no evidence of dissatisfaction by Mundy with supervision since that time I deem it unnecessary for the purpose of making the ultimate disposition of this issue to resolve the particular variance in testimony, and will assume the correctness of the Respondent's witness' recollections on this point for the purpose of discussion. "388 U.S. 26. "Id at pp. 33-34. "In its brief, Respondent argues that the record does not show "with the necessary degree of clarity that it had knowledge of union activity on Mundy's part at the time of his discharge" (p. 47). 1 disagree The leaflet incident of October 3 in which Mundy affirmed his union sympathies to Foreman Jarvis is direct evidence of such knowledge. Also, it is reasonably inferrable that Jarvis saw Mundy wearing his union button that day. Finally, Reid implied knowledge of Mundy's union activities by his testimony that, were Respondent seeking to rid itself of active union adherents, there were some much more militant than Mundy. "On October 17, 3 days after the discharge of Mundy, Respondent sent a letter to all employees over the signature of Plant Manager Reid in which was expressed the Respondent's strong opposition to the Union's The burden then shifted to the Employer "to establish that it was motivated by legitimate objectives .. " In this case, Respondent relies, as it must, upon the three infractions cited to Mundy as being, in Foreman Jarvis' language, "enough for discharge." However, upon close scrutiny, I cannot agree that under all circumstances of the case including Plant Manager Reid's recognition that discharge is a "pretty final action and we wanted to make sure we were being just, but firm ... " the Respondent sustained its burden. Thus, at the outset, two of the "infractions" resulted from a single incident which, even according to Respondent's witnesses' versions, encompassed no more than a minute or two of the employees' time. As previously discussed, the rule under which Respondent imposed the discipline was itself vague and indefinite even to Respondent's management officials. It was clearly not a rule which absolutely proscribed discussion between the truckdrivers and shippers since it was openly acknowledged by Foreman Jarvis that there were times when "certain important things" might justify an exception to the rule.2S Yet, in their subsequent investigation of the incident, the evidence is clear that Jarvis and Fidler, for reasons not explained in the record, studiously avoided any inquiry of the three employees involved as to the substance of the conversation and the necessity for it. In any event, disciplinary action in the form of a verbal reprimand was issued to Mundy for "loafing on the job." That action, however, did not close the incident. Rather, Fidler then instructed Jarvis to "follow this through with the drivers" for the ostensible purpose of ascertaining whether or not they were subject to disciplinary action. The result, however, was not only that the truckdrivers were held blameless in the situation but that, as a result of their statements which were credited by the Respondent's agents, Mundy was held subject to further discipline arising from the same incident. I am inclined to believe that, were not another consideration involved, the Respondent, having meted out a verbal reprimand as a result of the incident, would have been content to let the matter rest there. However, at that point, Fidler instructed Jarvis to bring Mundy before him again, when he learned that Mundy was not present because of his accident the previous day. It is of course true, as Respondent argues, that an employee may be lawfully discharged for failing to report coming into the plant, and asserting that, inter alto. "We will fight the union outsiders with every ounce of energy we have by using every legal means necessary for the best interest of our good employees ." (G. C Exh. 5.) While the letter was not attacked in the complaint as a violation of the Act, it may nonetheless be utilized in assessing motivation Southern Desk Company, 116 NLRB 1168, 1174-77, enfd. 246 F 2d 53 (C A 4, 1957); see also Hendrix Manufacturing Company, Inc v. N.L R.B, 321 F.2d 100 (C.A 5, 1963), in which the court said that a "legally anti-union" speech "is properly 'background' against which to measure statements , conduct, and the like made by other management spokesmen , " Affirmed. Independent, Inc. d/b/a The Daily Advertiser v. N L R.B , 406 F 2d 203, fn I (C.A 5) "Respondent takes issue with this conclusion in its brief (p. 45) where it is stated: "Rather than summarily discharging Mundy, Respondent gave him a full opportunity to be heard." I cannot accept this argument in the face of Plant Manager Reid 's testimony, above quoted, to the effect that unless, during the final interview , there arose extenuating circumstances of which he could not conceive, Mundy would be discharged . See, e g., United States Rubber Company v. N L R.B., 384 F.2d 660 (C.A 5, 1967), where the court stated: "Perhaps most damning is the fact that both Brewster and Morales were summarily discharged after reports of their misconduct . . without being given any opportunity to explain or give their versions of the incidents." "Jarvis asserted that the main purpose of the rule was to stop "lengthy talks which did not refer to business matters " STARCRAFT CORPORATION 51 an accident or for violating company safety rules. However, this is only correct if, in fact, such is the "true purpose" or "real motive" for the discharge.26 However the circumstances here do not, in my judgment, satisfy this criterion. Thus, industrial experience teaches that there are a multitude of occurrences in a modern day manufacturing plant which might come under the classification of an "injury-accident" which are never reported simply because they are so insignificant that an employee would be embarrassed in so doing . Examples would be such things as a particle in an eye which is quickly removed, a bitten tongue in the cafeteria, a small blister , and so on, ad infinitum. If such an incident is utilized by an employee for his personal advantage (such as providing an opportunity to leave the plant) and the accident remains unreported, there would certainly be good reason for a reprimand . In the instant case, however , Mundy concluded initially that the accident was noninjurious, and showed his industry and loyalty to the Employer by continuing to work the remainder of the day. It was only that evening that the accident showed itself to be injurious, and the fact is that Mundy reported the injury to the Employer the following morning. However, these factors were given little if any significance by Respondent's officials who, rather, bore down on Mundy's failure to report the accident immediately because of possible large economic liability which could accrue to the Company as a result.2i That this was not of real concern to Respondent in this case is reflected by the cavalier fashion in which it was handled by management officials. Thus, although a supervisor is also required to make a written report of the accident, Jarvis' testimony is quite vague as to when, if ever, he accomplished this. His testimony on this point is as follows: Q. [By Mr. Wacknov] My question is, have you ever made a report on Mr. Mundy's accident or injury whichever it was? A. I'm sure I did. Q. When did you make this report? A. Possibly Monday after we had talked to him. Q. Do you know that you made it Monday after you had talked to him? A. I said possibly I made it Monday, I don't recall exactly if it was Monday when I made it. Q. What did you do about investigating this matter in order to make out your report? A. I couldn't talk to the man, he wasn't there on the day the injury happened. When we talked to him on Monday this is when, I don't recall exactly when I made the report whether it was on Monday or not. Q. Could that have been a week later a week after Monday? A. I don't think so. Q. Do you have that report in your file, Mr. Jarvis? A. It should be in the accident reports or in the main office file. "See Radio Officers' Union v. N.L R.B., 347 U.S 17, 43; Local 357, Teamsters [Los Angeles-Seattle Motor Express/ v. N.L R.B., 365 U.S 667, 675. Stated another way: "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity." N.L.R B v Symons Mfg Co., 328 F 2d 835 (C A. 7). "Reid testified as to two cases where the Company had been involved in the settlement of injury claims of several thousand dollars in which no accident report had been filed. Neither Plant Manger Reid nor Production Manger Fidler testified that they were certain that an accident report was filed in this case not did the Respondent produce such a report at the hearing. Under all conditions, I can only conclude that, contrary to the requirement, a written report in this matter was never filed by the foreman and that the only real significance of the incident was to provide Respondent with a "cause" for the discharge. The frailty of Respondent's defense is further revealed, in my view, by the admission of Production Manager Fidler that had Mundy's derelictions occurred over a long period of time, "it is very possible that Mr. Mundy would not have been discharged"; but, since the infractions were telescoped in a short period of time, they assertedly provided sufficient cause for discharge. However, for the reasons heretofore cited, it appears that both incidents were blown up entirely out of proportion to their intrinsic worth and I can only conclude that the reason for doing so was because Respondent had another motive, which was the real motive for the discharge.38 Finally, Respondent contends, as Reid testified: "If we were going after union, militant union participaters [sic], there was fairer game than Mr. Mundy I thought." However, the record establishes, as previously noted, that Mundy was one of the first and most active adherents of the Union initially, and that Respondent knew about it. The fact that it did not thereafter weed out other union adherents does not detract from a finding of discriminatory motivation as to one of them. See, e.g., Nachman Corp. v. N.L.R.B., 337 F.2d 421 (C.A. 7). I conclude that Respondent did not sustain its burden of establishing that the discharge was prompted by legitimate objectives, and, accordingly, I find that the discharge of Mundy on October 14 was in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's interstate operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Starcraft Corporation, Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Communication Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against employees in order to discourage union membership among its employees, "I find appropriate to the instant situation the language of the court in the recent case of Shattuck Denn Mining Corporation v. N.L R.B., 362 F.2d 466, 470 (C.A 9) If he [the Trial Examiner] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal- an unlawful motive - at least where, as in this case, the surrounding facts tend to reinforce that inference. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent engaged in,, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Gary Mundy by terminating his employment because he engaged in activities protected by the Act, I will recommend that the Respondent be ordered to offer him immediate 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 the discrimination against him. Backpay shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the Respondent discriminated against Richard Stevens by suspending his employment because he engaged in activities protected by the Act, but the Respondent having already reinstated him and made him whole for any loss of earnings , I will not recommend reinstatement and backpay as to him. My Recommended Order will only require that the Employer notify all employees of such action by the posting of a notice to that effect. RECOMMENDED ORDER Upon the basis of the foregoing findings and conclusions, and upon the entire record in this case, I recommend that the Respondent, Starcraft Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Communications Workers of America , AFL-CIO, or any other labor organization, by discharging or otherwise discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening employees with reprisals should they wear union buttons in the plant. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization , to form , join, or assist Communications Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Gary Mundy immediate and full reinstatement to his former - or substantial equivalent position without prejudice to seniority or other rights and privileges previously enjoyed, and make him whole for any loss of earnings suffered as a result of the discrimination against him in the manner provided in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant and necessary to analyze and determine the amount of backpay due and the rights of Gary Mundy under the terms of this Order. (c) Notify Gary Mundy 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. (d) Post at its Independence , Kansas, plant copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 17 , after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.30 IT IS FURTHER RECOMMENDED that the complaint herein be dismissed as to all alleged but not herein found. "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "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 17 , in writing, within 10 days from the date of this Order, what steps 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 discourage membership in or activities on behalf of Communications Workers of America, AFL-CIO, or any other labor organization, by discharging or otherwise discriminating against our employees in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT threaten our employees with reprisals should they wear buttons in the plant. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Communications Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in STARCRAFT CORPORATION other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. We have offered Richard Stevens immediate and full reinstatement to his former position without prejudice to any seniority or other rights and privileges previously enjoyed , and have made him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL offer Gary Mundy immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed , and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL notify Gary Mundy if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with 53 the Selective Service Act and the Universal Military Training and Service Act, as amended , after discharge from the Armed Forces. Dated By STARCRAFT CORPORATION (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816-374-4181.