L. E. Johnson Products, Inc.

L. E. JOHNSON PRODUCTS 67 L. E. Johnson Products, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 25-CA-3297 practices other than those found by the Trial Examiner. TRIAL EXAMINER'S DECISION October 13, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On August 1, 1969, Trial Examiner Lloyd S. Greenidge issued his Decision in the above-entitled proceeding, finding that 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 further found that Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed with respect to these allegations. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications set forth below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as amended herein, and orders that L. E. Johnson Products, Inc., Elkhart, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: In paragraph 1(d) of the Order and the fourth indented paragraph of the notice, supplant the words "like or related" with the word "other." IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that Respondent engaged in unfair labor 'We find merit in the General Counsel's contention that the unfair labor practices committed by Respondent strike at the heart of the employee rights safeguarded by the Act We shall therefor issue a broad remedial order herein STATEMENT OF THE CASE LLOYD S. GREENIDGE, Trial Examiner: This proceeding, with all parties represented, was heard on May 13 and 14, 1969, at Goshen, Indiana, on the complaint of the General Counsel issued on April 8, 1969, which was amended on April 28,' and the answers of L E Johnson Products, Inc., herein called the Respondent or Company. The pleadings present questions whether the Respondent violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, herein called the Act, by (1) discharging Mary Jane Grabarek,z on about November 7, 1968, and thereafter failing and refusing to reinstate her because she and other employees had joined and assisted the Union and engaged in union or protected concerted activities, and in anticipation of the Union's certification for the purpose of denying said employee the rights of union certification, (2) on November 22, 1968, telling employees the reason why it had discharged Grabarek; (3) in late October and November 1968, interrogating employees concerning their own and other employees' union membership, activities and desires, and (4) on or about November 8, 1968, giving employees the impression that it had engaged in prior surveillance of union meetings Briefs were filed by the General Counsel and Respondent and have been carefully considered by me. Upon the entire record in the case, his resolution of issues of credibility based upon the appearance and demeanor of the witnesses, and the briefs, the Trial Examiner makes the following. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges, the answer admits, and it is hereby found, that the Respondent, an Indiana corporation, is engaged in the manufacture, sale, and distribution of sliding and folding door hardware and related products at its plant in Elkhart, Indiana During the past year, in the conduct of its business, Respondent manufactured, sold and distributed at its Elkhart plant products valued in excess of $50,000 which were shipped from said facility directly to States other than the State of Indiana During the same period, Respondent purchased and received goods and materials valued in excess of $50,000 directly from points outside the State of Indiana It is, therefore, found that Respondent is now, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within The complaint , as amended, is based on a charge filed on December 6, 1968, by International Union, United Automobile , Aerospace and Agricultural Implement Workers of America, UAW, herein called the Union or Charging Party, a copy of which was duly served on the Respondent by registered mail on or about December 9, 1968 A motion by Respondent to make Amendment to Complaint More Definite was denied by Trial Examiner Frederick U Reel on May 8, 1969 'The General Counsel's motion to amend the complaint to correct an error in the name of the alleged discriminatee was granted without objection Thus, the name Mary Jane Grabarek was substituted for Mary Ellen Grabarek wherever it appeared in these proceedings 179 NLRB No. 10 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meaning of Section 2(6) and (7) of the Act, and the Board's jurisdictional standards iI THE LABOR ORGANIZATION INVOLVED The Charging Party is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A. Introduction There is no dispute, and it is found, that Leonard E Johnson, Jr , president, and Guy Lavon Johnson,' plant superintendent are, and at all times material have been, supervisors within the meaning of Section 2(11) of the Act and agents of the Respondent Further, the parties stipulated and it is, therefore, found that June Mary Rinehart is, and at all times material has been, a supervisor within the meaning of the Act Leonard and Guy Lavon are brothers and June is their sister. Organizational activity by the Union at Respondent's plant began on or about October 17, 1968. The campaign lasted from that time until December 10, 1968 when an election was held among Respondent's employees on separate petitions filed by the Union and the Employer on November 12 and November 14, respectively.' The Union won the election and was certified by the Board on December 18 The campaign was characterized by union meetings held on October 31, November 7, November 25, December 3 and December 9 and, by solicitations of signatures to authorization cards Respondent became aware of its employees' desire for union representation when the idea was still in a stage incubation and even before formal advent of the Union Thus, during the last week in September, employee Anna M Doyle told Guy Lavon Johnson, herein at times called Von, that some "people" had visited her home where they asked her to join a union Reports of union meetings and activities continued to flow to Von from other employees such as Jack Klip, Dean Grabill, and Bill Valentine, from Jack Goff, who advised that the Union had pledged to fight for the restoration of smoking privileges, and, from Dudley Frantz, who stated that the Union intended to seek the reinstatement of Grabarek and Florence Jo Ann Goff 5 As described in more detail below, the Union requested recognition from the Respondent by letter dated November 6 Most of the events with which we are here concerned occurred in the period between mid-August, the date Grabarek responded by letter to a newspaper advertisement placed by Respondent for female machine operators, and November 26 the date of a letter from the Company to all employees concerning the pending election. During this period, Respondent employed approximately 45 employees who were engaged in the performance of about 200 Jobs B. Interference, Restraint, and Coercion The complaint as amended alleges, and the answer to the amendment denies, that the Respondent, by Guy Lavon Johnson, (i) "on several unknown dates in late 'The name of this official appears as corrected at the hearing 'Cases 25-RC-3930 and 25-RM-268 'Goff left Respondent's employ voluntarily on November 8 October and November 1968 interrogated its employees concerning their own and other employees' Union membership, activities and desires," and (u) "on or about November 8, 1968, gave employees the impression that [it] had engaged in prior surveillance of Union meetings " During the hearing, the General Counsel announced that he relies on the testimony of Michael Penny to sustain the allegations of interrogation and impression of surveillance set forth heremabove. Penny came to Respondent's employ on July 24, 1968, and worked as a shipping clerk from that date until October 31 or early November 6 In the performance of his duties, Penny was required to enter Von's office several times each day to pick up and deliver bills of ladings. Consequently, he had developed a business friendship with Von Penny reported three or four conversations with Von in the last month of his employment which, allegedly, bear on the issues presented One took place in Von's office the morning following the initial union meeting held at the Labor Temple on October 31. According to Penny, Von said, on this occasion, "Well everybody seems excited this morning. What's going on'" Penny shrugged his shoulders and remained mute Penny testified that most of the employees had attended the union meeting the night before and were then engaged in an animated discussion about the Union. In response to a leading question from the General Counsel, Penny amplified stating that Von asked, "What the big doings was the night before," and he replied, "I don't know. There was a meeting " Von denied questioning Penny about the meeting. I deem it unnecessary to determine exactly what Von said to Penny the morning following the union meeting For the purpose of this decision, it will be assumed, without deciding, that Von made the statements attributed to him by Penny A discerning appraisal of what Von had to say to Penny, when considered in total context, shows that the remarks were nothing more than an attempt by Von to ascertain the reason for the excitement and excessive talk during working hours. In these circumstances, it is not reasonable to infer that the statements and questions created in the mind of Penny the impression that the Respondent had engaged in prior surveillance of union meetings Accordingly, I find no 8(a)(1) violation with respect thereto. Penny testified about another conversation with Von I week later on a payday in Von's office. The exact date is not clear from the record as Penny also testified that he left Respondent's employ about the latter part of October or the first of November While the witness was confused about the date, I am nevertheless convinced that, in late October or early November 1968, a conversation with Von did take place at which time the matter herein after reported was discussed On this occasion, Penny asked for a raise and Von replied that, as the Union was coming in, no pay increase would be given to anyone except to Bob Smith, Penny's brother-in-law, who would receive an automatic increase at the completion of the first 30 days of his employment ' At some point in the conversation, according to the credited testimony of Penny, Von asked 'The last entry in the payroll journal maintained for Penny shows that he worked 36 hours during the period ending October 31 (G C Exh 18 ) 'These findings are based on the credited and uncontroverted testimony of Penny The complaint does not allege that the decision to withhold pay increases during the Union' s organizational campaign constituted a violation of the Act L. E. JOHNSON PRODUCTS 69 Penny what he thought of the Union and Penny replied that he thought it was "a good thing" and would vote for it.' Nothing further was said by Von Penny also averred that "within a couple of days" of this conversation, Von asked the same question and received the same response Further, Penny credibly testified that, on still another occasion, presumably in the last month of his employment, Von asked whether the employees thought the Union was a good idea and Penny responded in the affirmative Penny's union feelings were not a legitimate matter of concern to Von and he transgressed permissible limits when he sought to induce Penny to reveal his own and other employees' prounion sympathies. Accordingly, I conclude and find that Von's conduct on these occasions was violative of Section 8(a)(I) of the Act.' The last reported conversation occurred about I week before Penny terminated his employment On this occasion, Penny was talking with some employees in the production area when Von approached and inquired whether Penny had taken care of orders previously assigned to him for processing Penny replied that he had not done so and Von asked what he was talking about To this, Penny retorted that Von knew because everyone was talking about the same thing. Von pressed his question and Penny then said, "Well, the union " Penny acknowledged that the questions were in the nature of a reprimand for talking when he should have been working Von's inquiries were intended to obtain information about Penny's procrastination on the job and not about his or other employees' union activities or sympathies The old adage is still true working time is for working Accordingly, I conclude that, in this conversation, Von did not engage in interrogation violative of Section 8(a)(1) of the Act C. The Discriminatory Discharge of Mary Jane Grabarek Respondent's operations include the manufacture of folding and sliding door hardware much of which entail the assembly of wheels, axles, hangers and door guides and putting nylon and rubber stops into metal parts In making these products, Respondent utilizes, among others, rotary dial and punch press machines with counter attachments In August, Mary Jane Grabarek learned, through a newspaper advertisement, that Respondent was seeking experienced female machine operators for employment and, on August 14, sent a letter in reply. Shortly thereafter, Von called Grabarek and invited her to the plant On August 26, Grabarek appeared with a neighbor, Florence Jo Ann Goff Both filled out applications and were invited by Von to tour the plant During the tour, Von showed the girls the rotary dial and other machines and Grabarek said that she was familiar with the operation of the dial machine At some point during the interview, Von observed that Grabarek had indicated on her application that she expected a starting rate of $1.70 per hour Von then told the girls that the starting rate was 'At first, Von acknowledged that he might have mentioned the Union but later denied asking Penny anything about the Union In view of his uncertainty and vacillation , and considering his demeanor on the stand, I do not credit Von's denial of the credited testimony 'Springfield Garment Manufacturing Company, 152 NLRB 1043, 1046, Armstrong Cork Company, 103 NLRB 133, 134, and 149, enfd 211 F 2d 843 (C A 5), Dan Howard Mfg Co. 158 NLRB 805, 806 $160 but that they would get a 10-cent increase automatically at the end of the first 30 days of their employment He went on to explain the Company's pay policy as follows employees receive three automatic pay increases of 10 cents each spread out over a period of 7 months - the first, after the initial 30 days, the second, following the next 90 days, and the third after another 90 days And, in accordance with his normal practice, Von advised the girls that new employees serve a 90-day probationary period at the end of which time, if mutually agreeable, they become permanent employees and receive Blue Cross and Blue Shield coverage at no cost if they select the individual plan, or pay the difference in cost if the family plan is selected.'° Either before or after the tour, Von told Grabarek and Goff that they were hired. However, Grabarek requested and was granted permission to report for work sometime after Labor Day. Grabarek commenced her employment as an assembly worker on September 911 and continued in Respondent's employ until November 7 when her employment was terminated under circumstances later detailed She signed a union authorization card on October 21 and, on that date or shortly thereafter, reported the fact to Anna M. Doyle. She also attended the October 31 and November 7 union meetings Grabarek was first assigned to the rotary dial machine. The wheel or disc on this machine has 12 stations and the operator is expected to keep them full at all times She was next detailed to assembling knobs, putting assembled knobs into bags, and sealing the bags. A knob is a two unit component consisting of a nylon outer casing and an aluminum anodized center piece Intially, the parts were glued together, later they were pressed together by the use of a small machine or were snapped into place manually by applying pressure from the thumbs Other jobs performed by Grabarek included assembling hinges and nylon guides, putting rubber bumpers into nylon stops and making top plates for hangers In all of this, June Rinehart was Grabarek's immediate supervisor and, when Rinehart was away on vacation from October 5 to October 25 or 26, Von assumed the direction of her work On or about October 9, Grabarek received the 10-cent pay increase mentioned by Von during the interview About 2 weeks later and on about October 23, Grabarek and Goff went to Von's office where Goff announced that they were quitting and were giving Von I week's notice thereof Von asked why and Goff said that they believed they could find work closer to their homes that was more rewarding financially Von told the girls that he disliked losing them and requested that they reconsider They agreed The following Monday, Von approached Goff at her work station and asked if she had made up her mind Goff replied that she had not According to the credited testimony of Goff, Von expressed a wish that they stay adding that it would help him in many •.,ays. Finally, sometime before lunch on Thursday, October 31, Von again approached Goff this time stating that he would like to know her decision without further delay as he makes out the timecards on Saturdays Goff then declared that she would remain. Von inquired about Grabarek but Goff referred him to Grabarek as she "could not speak for her" Before leaving, Von told Goff that he was glad she had decided "Applications for insurance coverage are filed by the Company about I month before the end of the probationary period "The pay journal maintained for Grabarek shows that she was employed on September 9 (G C Exh 7 ) 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to stay Von walked over to Grabarek and requested her decision. Grabarek asked what Goff was going to do and Von replied that she was going to stay Grabarek said she would too 12 Supplementing the last exchange between Von and Grabarek, Ann Doyle, who was about 3 feet away at the time, testified credibly and without contradiction, that Von said, "Mary I am making out the time cards, I wish you would reconsider." About 2 weeks before the discharge and close to the time Goff and Grabarek gave notice of their intention to quit, Von brought an order that Grabarek'had worked on to employee Betty Johns. In the general conversation that ensued, Von asked Johns, according to the credited and uncontroverted testimony of Johns, what she thought of "her" and told Johns the "girls" seemed to be working out "real well " Johns, who had worked with Grabarek and Goff, assumed Von was referring to the "new girls" . "Mary and Ann " II In view of the foregoing, and the entire record, I am satisfied, and I infer and find, that Von's reference in this conversation with Johns was to Grabarek and Goff Grabarek did not report for work on November 6 By letter dated November 6 and sent from its office in Mishawaka, Indiana, the Union requested the Respondent to bargain with it as the representative of a majority of Respondent's employees Respondent acknowledged receipt of the request on November It. In normal course, the Union's letter would probably have been received by the Respondent on November 7.1° Grabarek returned to work on November 7 with a bandaged index finger. Because of this, she was unable to continue with the job to which she had been assigned on November 5. About 8 a m. that morning, Rinehart reported Grabarek's condition to Von, told him that Grabarek was unable to resume her normal duties and advised that she was running out of work for Grabarek Von and Rinehart talked it over and decided to assign Grabarek to the job of assembling hangers This was done Apparently, hanger assembly work was not a full time pursuit as there were only a few orders for the product Sometime thereafter, Von checked Grabarek's timecards and found that she had worked only 3 full weeks in approximately 9 weeks of employment He then went to Leonard Johnson's office where he told Leonard of his conversation with Rinehart and of his findings with regard to Grabarek's attendance. Von suggested that they let Grabarek go and Leonard agreed Von then asked whether the discharge would have any bearing on "an organization of a union being done at this time" and Leonard replied, "as long as the record shows her work wasn't satisfactory it shouldn't have any effect on it." At the end of the workday, Von gave Grabarek two checks and, with regrets, told her she was discharged. The termination slip prepared for Grabarek reads, in pertinent part, as follows "Reason for Unemployment Unsatisfactory work accomplished during probationary period." D. The Events of November 22 and 26 About 10 a m on November 22, Leonard Johnson assembled the employees in the rest area where he delivered a campaign speech. The speech was prepared in advance and read verbatim except for circled items on an attachment which contained a listing of benefits conferred by the Company during the period of its operation.' S In his speech, Johnson, told the employees that the Union had requested bargaining rights by letter dated November 6 and that the request was rejected by the Company on November 11, that the Company and the Union had filed petitions with the Board, and that they had consented to an election to be conducted on December 10 Near the end of the speech, Johnson admittedly declared, "We want it made clear that we believe sincerely that you should vote against the Union." Although only noncircled items were mentioned in his recitation of benefits bestowed, Johnson testified that all were true including the circled items.16 After the speech, Johnson invited questions from the group. Betty Johns responded asking, "Why the girls had been let go when the week before they had been asked to remain " Leonard Johnson answered first, stating that Grabarek's work performance was not satisfactory and her attendance record was poor After this Von stepped forward and said he would amplify on Leonard's response A sharp dispute arose at the trial concerning Von's reply to Johns' question. The General Counsel called six witnesses to testify on this factual issue, four of whom were former employees of Respondent " Johns testified that Von said, ". this was before they knew about the union and that he wanted to, that they just, Mary just wasn't working out, she had missed a lot of work with illness, and that they had had to let her go " John's testimony was corroborated, in major particulars, by five other witnesses all of whom averred, generally, that Von said, with the Union coming in he felt he had to let Grabarek go. Respondent, on the other hand, introduced testimony of nine witnesses, five of whom were management representatives or relatives of management 18 Von testified that he responded to the question as follows. Grabarek had completed only 3 full weeks in 9 weeks of employment, the Company had tried her on many jobs but she didn't work out, only one applicant in a hundred is selected and retained, and it is not fair to the group to keep an employee who works a little slower than others At one point, Von categorically denied making any reference to the Union, at another testified that he did not recall using the word union and, still later, averred that he "could have mentioned union in some way." Called in general support, Leonard Johnson, Rinehart, union steward Margaret Arter, Koporc and Larry Johnson flatly denied that Von used the word union in his reply to the question or that he said Grabarek was let go because the Union was coming in Arter and Koporc also denied, Rinehart denied then could not recall, and Charles E "The findings of fact regarding these conversations are based on a synthesis of the testimony of Von, Goff, and Grabarek "The Trial Examiner clarifies his ruling on Respondent's objection to that portion of Johns ' testimony wherein the witness declared that she assumed Von's reference was to Mary and Ann (Tr p 139, 1 25, p 140, I I, 12-13) He now overrules the objection and permits the answer to stand "The record does not show the actual date of receipt "G C Exh 2 "In this group were the following (12) Gave time off whenever anyone wanted it No questions asked (4) We never pushed for more production, but we rewarded those who produced more ( 15) If you didn' t like certain jobs, we did not force you to do it We changed jobs for you "Johns, Mildred Waggoner, Robert L Smith and Vivian Evans "Leonard E Johnson, Jr, Guy Lavon Johnson, June Mary Rinehart, Rudy Koporc, Jr - assistant sales manager and son of the general sales manager, and Larry Johnson - Leonard's son L. E. JOHNSON PRODUCTS 71 Harrington denied, the admitted and established testimony of Leonard Johnson to the effect that he told the employees to vote against the Union Other witnesses offered by the Respondent - Murry Dale De Camp (Johns' step-brother), Thomas Crowder and Harrington - testified generally that they could not recall whether Von used the word union And, George Arthur Ludlow, another witness for the Respondent, after testifying as to Von's reply and stating that he had no present recollection of Von having mentioned the word union, finally announced that he could not remember Von's reply It is to be noted that, in the two foregoing versions of Von's response, Johns' testimony was supported, in basic essentials, by the testimony of Waggoner, Smith and Evans. And, although these witnesses had quit Respondent's employ, there is no evidence of ill feeling on the part of any of them toward the Respondent and I do not believe any part of their testimony was contrived or is the product of imagination Accordingly, I credit Johns' testimony and the mutually corroborative testimony of Eugene Ives, Hazel Syson,19 Waggoner, Smith and Evans and find that Von spoke on the occasion set forth in the testimony as Johns said on the stand. Respondent's witnesses denied generally the statements attributed to Von by Johns but I do not consider these denials worthy of reliance for the following reasons. To begin with, Von vacillated and was uncertain in his denial of the credited testimony of Johns Secondly, the testimony of Leonard Johnson, Rinehart, Koporc and Larry Johnson must be weighed in light of their status, personal bias and interest in the outcome of this controversy and their interpretation of what Von said was obviously influenced by their own predilections More specifically, Rinehart contradicted the established record testimony of Leonard Johnson then vacillated, and Koporc, Harrington and Arter contradicted this testimony Finally, De Camp, Harrington and Crowder were uncertain as to Von's reply and Ludlow repudiated his earlier testimony In light of this contradiction, vacillation, uncertainty and repudiation, as well as demeanor, I do not regard the testimony of these witnesses as reliable as I do not credit them Later, the same day, Von went up to Johns at her work station and, according to the credited and uncontroverted testimony of Johns, said the girls "seemed to work out pretty well but when June came back from vacation . she . found that Mary's work just wasn't satisfactory " In a campaign letter to the employees dated November 26, Leonard Johnson reminded them of the Company's "liberal personal leave programs " E. Concluding Findings The General Counsel argues that Grabarek was discharged because of her own and other employees' union activity and, alternatively, that the discharge was made in anticipation of the Union's certification and for the purpose of denying Grabarek the rights of union representation For its part, Respondent contends that (1) there is no direct evidence that it had any knowledge or suspicion of Grabarek's union activity and (2) Grabarek was discharged for valid, nondiscriminatory reasons Grabarek was a probationary employee, having commenced her employment on September 9. At the time "Ives and Syson were employed by Respondent as of the date of the trial of her discharge on November 7, Grabarek had completed nearly 60 days of the probationary period with only about 30 days remaining before she would have acquired permanent status. On or about October 9, Grabarek received a pay increase Timecards and/or termination slips were introduced into evidence by Respondent to show that, in the period from January I, 1967, to the date of the trial, other employees were discharged for the same reason as Grabarek However, it is not without significance, that, of the 18 employees in this group, only 520 were employed more than 30 days and only Grabarek was shown to have been discharged after having received a pay increase When, on or about October 23, Goff and Grabarek gave notice of their intention to quit, Von asked them to reconsider And, when they delayed in their response, he pressed for an answer Finally, on October 31, before announcing her decision to remain, Von again asked Grabarek to reconsider It further appears from the record that, at or about the time Goff and Grabarek notified Von they were quitting, Von told Johns the girls, meaning Goff and Grabarek, were working out "real well " Grabarek signed a union card on October 21 and attended the first union meeting on October 31 While Grabarek did not tell any of Respondent's managerial officials or supervisors that she was a union member or that she had attended a union meeting she did relate the fact of her union membership to Ann Doyle, a conduit of information to Von. It is readily apparent from the record that Respondent had knowledge of union activity in the plant from its very inception and even before the formal advent of the Union. Respondent categorically denies, however, any knowledge of Grabarek's participation in the union effort at any time prior to her discharge It is true, of course, that knowledge of union activity is an essential element of the General Counsel's case and that the burden of proving this, as well as other essential elements, rests upon him However, knowledge may be established by circumstantial, as well as direct evidence, if there is substantial evidence warranting an inference of knowlege Here, there is undisputed direct evidence of company knowledge of union activity at the plant in the reports received by Von, starting in late September 1968, from Doyle and other employees, in the interrogation of Penny in late October and early November, and in the fact of pervasive union talk in the plant the morning following the union meeting on October 31 Thus, the evidence is sufficient, I believe, to justify an inference of company knowledge of Grabarek's involvement in the known union activity. The circumstances surrounding Grabarek's discharge, moreover, themselves lend further support to the inference that Respondent was aware of Grabarek's role in the union campaign For almost 2 months, Grabarek had been a satisfactory employee and such satisfaction was expressed in a pay raise and in an earnest appeal to her to reconsider a decision to quit Indeed, Von and Rinehart admitted that Grabarek was a quality worker adding, however, the observation that she lacked speed Respondent's position, therefore, rests upon its contention that Grabarek was discharged for unsatisfactory work performance during her probationary period. I find the contention lacking in merit for the "Grabarek, Carolyn Cannon, Donald H Shoemaker, Charles Parks, and William Hamilton Parks and Hamilton received increases but there is no evidence whether they quit or were discharged 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons set forth below In a pretrial statement Von assigned poor attendance as the primary reason for the discharge At the trial, however, he testified that poor attendance and unsatisfactory work were both factors with major consideration given to the latter With respect to her work, the only evidence of any criticism was the complaint voiced by Rinehart the morning of November 7 But this was not so much a criticism of Grabarek's work performance as it was of her inability to perform due to a physical handicap At the hearing, Von and Rinehart testified that Grabarek was among the "slowest" employees presumably because of a lack of dexterity in the use of her hands Neither, however, was able to name any other employee in the slow group And, although certain machines operated by Grabarek were equipped with counters, individual production records were not introduced assertedly because such records are not maintained The evidence as to Grabarek's alleged unsatisfactory work performance is, therefore, quite inconclusive Considering now the poor attendance contention, the evidence shows that, in almost 9 weeks of employment, Grabarek worked 3 full weeks, I hour short of completing another full week and, overall, averaged 34 hours per week By contrast, Penny, who worked about 15 weeks and also averaged 34 hours per week, completed only 2 full weeks in the first 9 weeks of his employment and 3 full weeks overall Similarly, Robert Smith worked 10 weeks, averaged 34.8 hours per week, and had 3 full weeks of work Both Penny and Smith quit Respondent's employ It is also significant, as the General Counsel points out, that William Ellis was rehired on April 4, 1969, after notice of "unsatisfactory attendance and punctuality record accomplished during probationary period " When there is considered, in addition to the foregoing, Leonard Johnson's statement in his November 26 letter about the Company's "liberal personal leave program" and his admission of the truth of circled items 12, 14, and 15 in his November 22 speech, it becomes clearly evident that neither production nor attendance were matters of primary concern to the Respondent in deciding whether to retain or rehire an employee Accordingly, I find that Grabarek's work performance and attendance records were not substantial factors in Repsondent's decision to discharge her. Moving to the question of knowledge of Grabarek's involvement in union activity at the time of her discharge, while there is no direct evidence that Respondent was aware of her participation therein, it is well settled that knowledge or suspicion of union activity may reasonably be inferred from the circumstances surrounding the discharge." Such an inference is warranted here from Respondent's admitted knowledge of widespread organizational activity in the plant, as early as the end of September 1968, when Doyle told Von that some people had asked her to join the Union, and continuing through October, when employees Klip, Grabill, Valentine, Goff, and Frantz reported to Von on union activity and meetings, the evidence regarding the interrogation of Penny in late October and early November; the probable receipt of the Union's bargaining request on the day of the discharge; the precipitate nature of the discharge, the fact that the discharge was made on the 59th day of Grabarek's employment or one day prior to the date the Respondent would have filed an application for insurance coverage for Grabarek under its normal practice and procedure, Von's inquiry of Leonard at the time the decision to discharge was being made as to whether it would have any effect on the organization that was going on indicating thereby that union considerations were a factor in the decision, the pretextuous nature of the reasons assigned for the discharge, the relatively small size of Respondent's facility and work complement, and the totality of those factors. Whether or not Respondent assumed Grabarek to be a leader in the union effort or whether she actually played a prominent role in the campaign is immaterial Respondent obviously decided that Grabarek was most vulnerable to discharge because of her probationary status and allegedly unsatisfactory work performance and attendance records The discharge was therefore sufficient to serve Respondent's purpose of discouraging union affiliation That Grabarek's union affiliation or activity was the motivating reason for the discharge is clearly evident from Von's November 22 statement to the employees. It will be recalled that, in response to a question from Johns, Von, on this occasion, declared that Grabarek was asked to remain "before they knew about the union." Since Respondent was aware of the organizational effort of its employees from about late September the statement could only have meant that Grabarek was asked to stay before Respondent knew of her involvement in the Union I find, therefore, on the basis of the foregoing and upon the entire record and the resolution of the issues of credibility that Respondent knew of or suspected Grabarek's membership in the Union and discriminatorily discharged her on November 7, 1968, to discourage membership of its employees in said Union 2I I further find that, by Von's interrogation of Penny in October and November 1968 as to his own and other employees' union sympathies and by his statement to the employees on November 22 as to the reason why he had discharged Grabarek, Respondent interfered with, restrained or coerced employees in the exercise of rights guaranteed in Section 7 of the Act. Even if this could be considered a mixed motivation case the result would be the same as I am convinced that "a substantial or motivating reason" for the discharge was Grabarek's union activity or affiliation. NLRB v. Whitin Machine Works, 204 F 2d 883, 885 (C A 1) See also N L R B v Elias Bros Big Boy, Inc, 325 F 2d 360, 366 (C A. 6), N L R B v. Barberton Plastics Products, Inc , 354 F.2d 66 (C.A 6). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent, 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 of commerce. V. THE REMEDY It has been found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. It will, therefore, be "See, e g N L R B v Lawson Printers, Inc. 408 F 2d 1004 (C A 6), enfg 159 NLRB 771 "N L R B v Link-Belt Co . 311 U S 584, 602 L. E. JOHNSON PRODUCTS 73 recommended that Respondent cease and desist from such unfair labor practices, and take such affirmative action as may be required to effectuate the policies of the Act It has been found that Respondent discriminatorily discharged Mary Jane Grabarek, on November 7, 1968, and thereafter failed and refused to reinstate her to her former position it will, therefore, be recommended that Respondent offer her immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay suffered by her as a result of the discrimination against her, from the date of the discrimination to the date of offer of reinstatement Loss of pay shall be computed as prescribed in F W Woolworth Company, 90 NLRB 289, and interest on such backpay shall be computed at 6 percent per annum, in accordance with Isis Plumbing & Heating Co , 138 NLRB 716 Respondent shall make available to the Board, upon request, payroll and other records necessary to facilitate the determination of backpay due. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following CONCLUSIONS OF LAW 1. L E Johnson Products, Inc , Respondent herein, is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and the jurisdictional standards of the Board 2 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act 3. By discharging Mary Jane Grabarek, on November 7, 1968, and thereafter failing and refusing to reinstate her because of her membership in the Union, Respondent has discriminatorily discharged said employee to discourage membership in a labor organization, thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4 By interrogating Michael Penny, in October and November 1968, as to his own and other employees' union sympathies and by telling the employees, on November 22, 1968, why it discharged Mary Jane Grabarek, thereby interfering with, restraining and coercing employees in the exercise of rights guaranteed in Section 7, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act employees because of their union affiliation or activity (b) Interrogating employees concerning their own and other employees' union sympathies (c) Telling employees that it discharged Mary Jane Grabarek, because of her union affiliation or activity. (d) In any like or related manner interfering with, restraining or coercing employees in the exercise of their right to self-organization, to form, join, or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, 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 or all such activities 2 Take the following affirmative action which, it is found, will effectuate the policies of the Act (a) Offer Mary Jane Grabarek immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings which she may have suffered by reason of the discrimination against her in the manner set forth in "The Remedy." (b) Notify Mary Jane Grabarek if she is presently serving in the Armed Forces of the United States of her full right to 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 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and compute the amount of backpay due under the terms of this Recommended Order (d) Post at its place of business in Elkhart, Indiana, copies of the attached notice marked "Appendix "I" Copies of this notice, on forms to be furnished by the Regional Director for Region 25, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof, and be maintained 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 ensure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. 14 IT IS FURTHER RECOMMENDED that all allegations of the complaint not specifically found to be in violation of the Act be dismissed RECOMMENDED ORDER Upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record, it is hereby recommended that Respondent, L E Johnson Products, Inc , of Elkhart, Indiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from. (a) Discouraging membership in International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or in any other labor organization, by discriminating in regard to the hire or tenure or terms and conditions of employment of its "In the event that this Recommended Order is adopted b) 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 25, in writing , within 10 days from the date of this Order, what steps it has taken to comply herewith " 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other labor organization, by discriminating in regard to the hire or tenure or terms and conditions of employment of our employees because of their union affiliation or activity, except as authorized in Section 8(a)(3) of the Act WE WILL NOT interrogate employees concerning their own and other employees' union sympathies WE WILL NOT tell employees that we discharged an employee because of her union affiliation or activity WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of the right to self-organization, to form, join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activites for the purpose of mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, in conformity with Section 8(a)(3) of the Act WE WILL offer Mary Jane Grabarek immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrimination against her WE WILL notify the above-named employee if presently serving in the Armed Forces of the United States, of her 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 L E. JOHNSON PRODUCTS, INC (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions they may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921