Robinson-Nugent, Inc.

ROBINSON-NUGENT, INC Robinson-Nugent, Inc. and International Union, United Automobile , Aerospace & Agricultural Im- plement Workers of America, UAW. Case 9-CA- 5693 May 25, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On December 28, 1970, Trial Examiner Frederick U. Reel issued his Decision in this 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 affirma- tive action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Deci- sion with supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the Re- spondent, Robinson-Nugent, Inc., New Albany, In- diana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recom- mended Order. ' We agree with the Trial Examiner that Respondent, for discriminatory reasons, refused to permit employees Freiberger and Wolfe to make up the hours they lost while attending meetings at the Board's office In ordering Respondent to reimburse these two employees for wages they lost, we do not pass upon the propriety under the Public Contracts Act of Respondent permitting its employees to work a ninth daily hour on straight time We are concerned only with Respondent's failure to provide work opportunities to its employees on a nondiscriminatory basis The rate of such compensation is a matter between Respondent and its employees, or their collective- bargaining representative, if designated, subject to such control or regulation as any state or Federal agency with appropriate jurisdiction may have im- posed 547 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FREDERICK U. REEL, Trial Examiner- This proceeding, heard at Louisville, Kentucky, on October 20 through 22, 1970,' pursuant to a charge filed June 16 and a complaint issued August 10, presents questions as to whether Respond- ent, herein called the Company, engaged in various acts of interference, restraint, or coercion shortly before and im- mediately after its employees selected the Charging Party, herein called the Union, as their bargaining representative, denied overtime to employees in reprisal for their having participated in a representation proceeding before the Board, and discharged or laid off several employees in reprisal for their union activity or for the Union's victory in the election. Upon the entire record in this proceeding, including my observation of the witnesses, and after due consideration of the briefs filed by General Counsel and by the Company, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, an Indiana corporation engaged at New Albany, Indiana, in the manufacture and sale of screw ma- chine products and electronic hardware, annually ships goods valued in excess of $50,000 to customers located outside the State, and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act II THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion The Union conducted an organizing campaign at the Com- pany's plant in the late winter and spring of 1970, culminat- ing in the Union's winning Board elections in the main pro- duction unit on June 3 and in the tool-and-die maker unit on June 24. The Company was admittedly opposed to the advent of the Union, but for the most part kept its opposition during the campaign within lawful bounds. With one exception, the allegedly illegal conduct herein discussed occurred shortly after the Union's victory in the first election. 1. The complaint alleges that during the last 2 weeks in May 1970 one of the-Company's supervisors, Jo Ann Wathen (now Mrs. Leist), told employees that she knew which em- ployees had attended union meetings, thereby creating the impression that employees' union activities were under sur- veillance The allegation is supported by the testimony of two employee witnesses, Jane Crozier Taylor and Marlene Skaggs, both of whom place the episode as occurring a week or two before the Board election of June 3, but who differ as to whether the supervisor's comment was or was not made in the course of a discussion in which another employee had said she was unable to get to union meetings because she could not get a "baby sitter." Taylor quotes the supervisor as saying, "I know who has attended the meetings and who is for the Union. Girls, let's get busy " Skaggs first testified that the supervisor had said she knew who had been to the union meetings, and then modified her testimony to read "pretty sure who had been to the Union meetings and hadn't." Mrs Leist denied making such a statement and testified that she "would have no way of knowing who was going to Union meetings." ' All dates herein refer to the year 1970 unless otherwise stated 190 NLRB No. 107 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am inclined to credit the testimony of Taylor and Skaggs, the latter apparently a disinterested witness. I also note that some supervisory personnel (not Mrs. Leist) attended some of the early union meetings. I find that the comment in ques- tion was made, and that its natural tendency was to make the employees think their union meetings were under company surveillance. The statement therefore violated Section 8(a)(l) z 2. Employees Peggy Rosenbarger and Virginia Lloyd tes- tified that in a conversation with their supervisor, Ira Smith, 2 days after the Union won the election, Smith stated that the Company would close its doors rather than operate under a union-security clause. There is some uncertainty in the tes- timony of the employees as to whether Smith used the phrase "union shop" or "closed shop." Smith's version of the con- versation is that the employees told him they had heard that the Company's chief officer had said at a supervisor's meeting that the Company would close down rather than agree to a closed shop, and that he (Smith) replied that the statement was untrue. Again I am inclined to credit the employees' version of the conversation, for both Lloyd and Rosenbarger impressed me with their apparent candor, and the latter was a compara- tively disinterested witness I have some doubt, however, whether the testimony as credited warrants the finding of a violation and, if so, whether any remedial order should issue The complaint alleged that Smith threatened "employees with layoffs and plant closure in order to discourage em- ployees' membership in or activities on behalf of the Union." The evidence falls somewhat short of that, establishing at most that the Company prior to the start of bargaining was not prepared to bargain in good faith over a union-security clause. As the Company would not be obligated to grant a union shop but only to bargain in good faith on the subject, a "threat" to close down rather than grant a union shop amounts to nothing more than a statement that the Company will stand firm on that issue even in the face of a strike. Under all the circumstances I find that the evidence on this issue fails to sustain the allegation 3. The complaint alleges that upon the Union's victory in the June 3 election the Company retaliated by promulgating rules prohibiting employees from having snacks at their work stations, by restricting employees' use of the vending ma- chine, by discontinuing free coffee for employees, and by discontinuing its practice of giving birthday presents to em- ployees and to their spouses The record establishes the fol- lowing facts. Employees David Freiberger and Nancy Voyles testified that prior to June 8 the employees had been permitted to eat snacks while at work, but after June 8 the privilege was limited to "break" times. Freiberger also testified that the employees in the tool-and-die room, who prior to June 8 had used the vending machine in the screw machine department on the same floor, thereafter had to use the vending machine on the next floor. Several employees testified that free coffee, one of the benefits of employment which the Company re- ferred to in its March 1970 Policy Manual, was discontinued on June 8. Several employees also testified that prior to June 3 the Company had regularly given each employee $5 on the employee's birthday, and had regularly given a small present to the employee's spouse on the latter's birthday. The March 1970 "policy manual" expressly refers to this "custom" of the Company. This practice was apparently silently discontinued ' The complaint alleged that the same supervisor threatened employees with economic reprisals if they selected the Union to represent them I dismissed this allegation at the conclusion of General Counsel's case for lack of evidence when the Union won the June 3 election, for several em- ployees testified that since then their spouses' birthdays had passed without the customary token, and one employee, Mar- lene Skaggs, whose birthday fell on June 5 had not received the customary $5 or any other gift from the Company on that date in 1970. (Other witnesses asked about the matter had birthdays in earlier months of the year.) The Company offered no explanation for the changes with respect to time for going to the vending machines or for cessation of the birthday remembrances. It explained the free coffee matter on the ground that the coffee had formerly been paid for out of vending machine profits, which had been substantially curtailed in May 1970, because the Company at that time absorbed an increase in the cost of soft drinks.' In August the Company increased its charge for soft drinks, and the free coffee was resumed. As to sending the tool-and-die department to the upstairs vending machine, the Company showed that that department took its "breaks" at a different hour from the screw machine department, and that the use of the upstairs machine worked no hardship on the employees in the tool-and-die department. I am inclined to accept the Company's explanations with respect to the two foregoing matters, and not to attribute the discontinuance of the coffee and the use of one vending ma- chine to the Company's annoyance over the union victory in the election. The coffee expense had been the subject of prior concern, and the increased expense in May furnishes a credi- ble explanation for the Company's action. The required use of the upstairs vending machine is too trivial a matter to be construed as a reprisal, and it is not unreasonable for the Company to have decided to limit disturbances in the screw machine department. The other matters, however-restric- tions on when employees could eat and discontinuance of birthday gifts and remembrances-are unexplained, and it is fair to draw the inference that they represent responses by the Company to the employees' selection of the Union over the Company's strongly expressed opposition. Denominating the birthday presents as "gifts" does not lessen the impact of their discontinuance, as the long line of "bonus" cases established. I find that by these actions the Company violated Section 8(a)(1) as alleged in the complaint.' B. Alleged Discrimination 1. Denials of overtime On Wednesday, May 13, employee David Freiberger at- tended a meeting at the Board's Regional Office in connection with the then pending representation case. Representatives of the Company were also present. Freiberger, who was em- ployed in the tool-and-die department, did not return to work that day, and hence lost a day's pay. The next day Freiberger asked his foreman, Larry Koetter, if he (Freiberger) was to work overtime the remainder of the week. The department regularly worked an 8-hour day, but often operated a ninth hour during which employees could continue to work. Koet- ter, after inquiring of J. W Robinson, the operating head of the plant, told Freiberger that he was not to work overtime that week To quote Freiberger, Koetter said "J W. Robin- son said if I wasn't needed to work May the 13th, then I wasn't needed enough to work the rest of the week overtime " Employee William Wolfe remonstrated with Koetter that "it ' The previous fall, before the start of union activity, the Company had indicated that coffee would be supplied only out of vending machine profits. Those profits proved adequate until May 1970 ' I see no need to comment on the probable violations of Section 8(a)(5) and (3) involved in these actions, as no such violations were alleged and no significant change in remedy would result ROBINSON-NUGENT, INC was kind of unfair" to Freiberger as Koetter let other people in the department make up time . Koetter replied that he told Robinson it might be an unfair labor practice and that "Mr. Robinson said he didn't care " On Monday , June 8, Freiberger and Wolfe attended a simi- lar representation case meeting at the Board 's office. Frei- berger did not return to work that day, but Wolfe did and worked an hour overtime . Thereafter, Supervisor Koetter told both men they were not to work overtime the rest of the week, although Wolfe did in fact work 1 hour overtime on Friday, June 12. Koetter told Wolfe that overtime was being withheld because Wolfe had attended the meeting .' Frei- berger had told Koetter the preceding week that for personal reasons he would be unable to work overtime the week of June 8. Robinson testified that , when Koetter first raised the prob- lem of Freiberger 's working overtime on the days following the May 13 meeting, he (Robinson) objected to paying an overtime rate to an employee who had deliberately absented himself from "straight-time" employment. Koetter later told Robinson, according to the latter's testimony , that the em- ployee was willing to work the overtime hour each day at "straight-time" pay, but at this "a little red light went on in [Robinson's] mind" because the Company was handling con- tracts for the Federal Government and was therefore obli- gated under the Public Contracts Act, 41 U.S C. Sec. 35, 40, to pay overtime for hours in excess of 8 in any day. Robinson further testified that the Public Contracts investigator had not appeared at the plant in from 5 to 7 years , that on his last visit he told the Company that employees who missed a day and volunteered to make it up by working for "straight time" during overtime hours could do so provided this practice was not regularly engaged in , and that to Robinson's knowledge this practice was followed on several occasions. Upon these facts it seems reasonably clear that Freiberger would have been permitted to work an additional hour at straight time on May 14 and 15, but for the fact that his absence on May 13 was for a purpose obnoxious to the Com- pany, namely, his appearance at the Board office in support of the Union . Freiberger's claim for similar compensation after the June hearing must fall, however , as the record war- rants the finding that , even before attending the hearing, he reported himself unavailable for overtime in that week Wolfe's claim for June is somewhat similar to Freiberger's for May. Wolfe testified that his standard day at that time included an hour of overtime On Monday, June 8, the meet- ing began at 12.45 p.m. and Wolfe was back at work at 2.15 p.m., so it seems reasonable to conclude that Wolfe lost 2 hours of work . But for the discriminatory motivation de- scribed above, he would have been permitted to make up those hours on Tuesday and Wesnesday, and he would have had a regular overtime hour on Thursday. In holding, as I do, that the Company unlawfully deprived Freiberger of 2 hours' pay and Wolfe of 3-% hours' pay I am not unmindful of the fact that, had the Company permitted them to work a ninth daily hour at straight time, this could have contravened the provisions of the Public Contracts Act. The record is clear that the Company would have committed such a violation (apparently with the tacit approval of a Labor Department inspector) but for the Company's unlaw- ful antiunion motivation . I am well aware of the doctrine enunciated in Southern Steamship Company v . N.L.R.B., 316 U.S. 31, 46, that the Board should not administer the Act "so single-mindedly" as to "ignore other and equally important ' In view of Wolfe 's undemed testimony as to Koetter's statements of the reason for denying Wolfe overtime work, I reject the Company 's contention that no daily overtime was being worked at that time 549 congressional objectives ." There the Court, by a narrow majority, held that a strike on board a vessel away from home port violated the mutiny provisions of the Criminal Code The case is distinguishable in that here the Employer himself normally engaged in the conduct which contravened the Pub- lic Contracts Act, and chose to hide behind its provisions only for the purpose of discriminating against employees who exercised rights under the National Labor Relations Act We thus face the dilemma of either permitting the Employer to commit the latter violation with impunity or of saying that he should have violated the Public Contracts Act. In view of the Employer's normal readiness to commit the latter viola- tion , and his own representation that the Federal authorities viewed that "violation" as a technicality which they would waive, I find a violation of the National Labor Relations Act. 2. The 1-day layoffs The complaint alleges that the Company laid off three employees on June 8 and another on June 10, each for 1 day, "because of their membership in and activities on behalf of the Union, and/or in order to discourage employees' mem- bership in, and activities on behalf of the Union " The evi- dence shows that on the morning of June 8, about an hour or two after work commenced , the Company told at least six employees (two of whom were not union supporters) to "clock out" for the balance of the day as there was no work for them, and that two other employees were similarly treated on June 10. The Company had never taken such action before, and this fact coupled with the Union 's victory in the election the preceding Wednesday underlies General Coun- sel's contention that the layoffs were at least in part a result of the Company's irritation at the employees ' vote for the Union The Company , however, introduced evidence that work was unusually slack at this time, a fact conceded by witnesses called by General Counsel. Although the circum- stances give rise to suspicion, the evidence does not prepon- derate in favor of the General Counsel 's contention, and the allegation should be dismissed. 3 The layoffs of Lasley and Lloyd Employees Diana Lasley and Virginia Lloyd were mem- bers of the Union's in-plant committee, a fact of which the Company was aware when it laid them off early in June. The question with respect to each is whether her layoff resulted either from her own union activity or the Companys resent- ment of the union victory in the election or whether the Company's motivation was purely economic in character. Lasley, hired in November 1969, worked until injured in an automobile accident on May 3. She was ready to resume work on June 8 but has never returned because the Company has told her it has no need for her and that she still is in layoff status. Lasley's work was of high quality , but until a few weeks before the accident she was largely confined to a special job, somewhat different from the other work in her department, for a particular customer . This work was discontinued early in April and has never been resumed because of the cus- tomer's financial difficulties. On Wednesday, June 3, Lasley went to the plant to vote and to advise her supervisor that she would be returning to work on the following Monday . On Friday, however, an office secretary telephoned Lasley not to come in because there was no work for her. She has never been put back to work, but has been told she will be called if and when she is needed. The Company's position, of course, is that Lasley's recov- ery from her injury unfortunately coincided with the severe decline in work described above in connection with the 1-day layoffs, and that it was this coincidence , rather than the coin- 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cidence of the Union's victory in the election, which caused her layoff. The matter is not free of doubt, and there is evi- dence supporting the General Counsel's position, including the fact that immediately before the election Lasley's super- visors were apparently ready to have her return on June 8. On the other hand, the record is clear that no new employees have been hired even though a few left the Company's employ between June 8 and the date of the hearing. Assuming that someone was to be laid off, the choice of Lasley may not have been based on her union activity In a sense it was the "line of least resistance" for the Company to continue her layoff rather than reinstate her and lay off another employee. Also, her major work had been on the now discontinued product. On balance I find that General Counsel failed to sustain his burden of proof with respect to Lasley. I reach a similar result with respect to Lloyd, who was laid off from the plating department and has never been replaced Lloyd had been employed since March 1967 and had experi- ence in several departments, in all of which she was on the whole satisfactory On Monday, June 8, however, her super- visor in the plating department told her there was no more work for her there, and took her to the molding department supervisor, who advised her that there was no work for her in that department or elsewhere on that day, but to return on Thursday She worked in plating that Thursday and Friday, June 11 and 12, and was then laid off until further notice. She was called back for one-half day's work in plating on June 18, and then heard nothing' further until late July when she was offered a job on a slug-making machine, which she rejected as too dangerous Lloyd had injured her hand on that ma- chine some time before, and no other woman had ever been asked to operate it. At this point she offered to remain in layoff status but the Company told her she had to quit if she rejected the job on the machine, so she "quit." Several weeks thereafter, in October, the Company needed an employee in the plating department, and June Lawson, who had been with the Company for 7 or 8 years, answered the Company's request "for someone who would be interested in coming down and learning the plating process." I have already indicated my acceptance of the Company's position that on June 8 its business was such that layoffs were necessary In Lloyd's case as in Lasley's I find that General Counsel failed to sustain the burden of proving that her selec- tion for layoff at this time was caused by her union activity Indeed the Company's recall of Lloyd on two occasions in the next 10 days is some evidence of its good faith. In my view, Lloyd should have been recalled for the plating vacancy which occurred in October. By that time, however, she had "quit" because she would not accept the job on the slug machine offered her late in July. This so-called "quit" was in fact a "constructive discharge," for Lloyd's refusal of the machine job was patently reasonable, and the Company could have acquiesced in her suggestion that she remain in layoff status. The supervisor, William Schmelz, testified that he required her to resign at that time because he understood that as long as she was listed as merely laid off he could not hire anyone else for the machine job. But there is neither allegation nor proof that the Company took that position in late July because of Lloyd's union activity, and I therefore make no finding that the "constructive discharge" was dis- criminatorily motivated. In short, I view the treatment of Lloyd in July and October as working an injustice, but not as a violation of the Act 4. The discharge of Jane Crozier Taylor At noon on June 9 the Company discharged Jane Crozier Taylor, who had failed to report for work at the start of the day and had failed to notify her supervisor of her absence The issue in her case is whether union activity was a contribu- tory cause of the discharge Mrs Taylor, who was first employed in September 1968 in the assembly department under the supervision of Jo Ann Wathen (later Mrs. Leist), had attended union meetings, and was present when her supervisor said that she knew who attended the meetings and who was for the Union Gary Taylor, an employee in the tool-and-die department to whom Mrs. Taylor was married on the night preceding her dis- charge, was, as the Company knew, a member of the Union's in-plant organizing committee. The employees, supervisors, and company officials were aware that Gary and Jane planned to be married, but the event transpired sooner than expected, as the expected date was June 20. On the night of June 8, after the ceremony, Gary Taylor attempted to telephone his supervisor to state that he would not be in, but he was unable to reach him Jane Taylor made no attempt to call, but it is clear that any such attempt would have been fruitless, for that same evening employee Judith Windell tried to call Jo Ann Wathen and was told by the latter's son (acting at his mother's direction) that she took her business calls at the Company between 8 a.m and 4:30 p.m. That night Gary Taylor telephoned Robert Fritz, a fellow employee in his department, asking Fritz to tell the tool-and- die supervisor and Jane's supervisor that they had just been married and would not be at work the next day.' The em- ployee told the tool-and-die supervisor, but not Jane's. Early the next morning, about 6 30, Jane Taylor tele- phoned her sister, Mrs. Steen, with whom she normally rode to work and who, like Jane, worked under Jo Ann Wathen, telling Mrs Steen to make other transportation arrange- ments, and to ride with another employee who also worked under Wathen. Jane did not tell her sister to report Jane's intended absence to their mutual supervisor When Jane failed to report for work that morning, her supervisor, Wathen, made no effort to ascertain the reason for the absence; she did not inquire of Jane's sister (although the supervisor was well aware of the relationship), and she did not inquire of the tool-and-die supervisor as to whether Jane's fiance (as Wathen then thought of Gary Taylor) was at work or knew of Jane's absence. At 10 o'clock, 2 hours after the starting time for her shift, Wathen consulted her supervisor, J. W. Robinson, as to what to do about an absent employee. Wathen recommended that she pull the timecard, and dis- charge the employee unless she had a good excuse Robinson conseled her to wait until noon. Promptly at noon, when the lunchbreak began, Wathen "pulled" Jane's card A few minutes later the Taylors arrived at the plant, where they were greeted with congratulations from their fellow employees. Jane, accompanied by her child of a previous marriage, went to her work area, where Wathen saw her The latter apparently was incensed over the presence of the child, in violation of the plant rules which require visitors to have a pass, although this rule had frequently been ignored (by other supervisors) in the case of visiting children Wathen was also annoyed that Jane was wearing a "yellow lace type dress," a clear indication that she did not expect to work that day Wathen learned from Jane that the Taylors had dust been married (indeed Wathen understood that the ' Jane and Gary had already received permission to take a week off after their marriage, but this was granted at a time when the anticipated date was June 20 ROBINSON-NUGENT, INC. marriage had occurred that morning), and that Fritz had been entrusted with the message which Wathen never re- ceived At this Wathen stated that Jane did not work for Fritz, but for her, and that, as far as she was concerned, Jane did not have a job Robinson later supported Wathen's deci- sion. The Company's rules direct employees who are to be ab- sent to let their supervisors know in the morning. The record establishes, however, that previous discharges for violations of this rule had been imposed after the employees in question let more than 1 day pass without reporting. Wathen herself had had no previous occasion to enforce the rule. Robinson testified that various supervisors differed in the severity of their enforcement. As a matter of law, it is perfectly clear that Wathen could have fired Jane Taylor for not reporting in. For that matter Wathen could have lawfully fired her for wearing a yellow dress or for bringing her child to the plant, or for any other reason, good or bad, or for no reason-excepting only antiun- ion motivation. The question is whether antiunion considera- tions entered into Wathen's decision to discharge Jane Taylor rather than merely to reprimand her, administer other disci- pline, or overlook the offense under all the circumstances. As to this Wathen's (Mrs Leist's) testimony is revealing, and I quote it here at some length (emphasis supplied): Q. Now did you say that, you said this was a hush, hush morning? A. Yes sir Q. Can you explain what you mean by that? It isn't clear to me. A Well, if you've got a bunch of girls sitting at one table, about the length of this one, and you walk up to it and some two or three people are, two people are missing, generally, they are going to say, where are they at? Did they call in and it didn't happen this morning There wasn't much said that morning. I don't think there was anything said but somebody always asked, is the kid sick? Is she sick? TRIAL EXAMINER' Did they know Windell had been laid off the day before? THE WITNESS. Yes sir. It was no secret Q They knew other people in the plant were laid off, too? A. Yes sir. MR MITTENDORF: That sounds too good to be true. You had all of these women there and nobody said any- thing. Were you concerned about what might have oc- curred? THE WITNESS' I was wondering what was going on but I did not ask them. I had two sisters on the line and if anything- Q Two sisters? A. Joan and Jane and another one that rode with them and surely someone was going to know and they should have offered the information Q. If it was a matter of concern, why didn't you ask? A. Well, I just didn't. Let's put it that way. It was the attitude, the attitude the day before and I'll go on and say further than that. There was something in the air. Q Well, now the day before, on the 8th, you were working on an hour to hour basis and looking, as a matter of fact, you had to send somebody home that day. The next day, were you actually busy? A. We weren't overly busy, no. I don't remember what we were working on the next day but Jane hadn't showed up Judy didn't show up until 10.00 o'clock so there was 551 a few hours, there could have been a new order come in Q Well, was there? A I imagine there was some work of some kind that came in. Like I said, we were hollering for them before they ever hit the floor or hit her work sheets. Q. Well, were you busy on the 9th? A. I would say we were not overly busy but busy enough to keep the crew I had. * Q. But at 12:00 o'clock, as I understand, right at 12:00 o'clock, you went down and pulled her time card? A. Yes sir, I imagine so. Several of the employees were going downstairs at the same time. TRIAL EXAMINER' Were you pretty angry about it by that time, I mean? THE WITNESS: I would say, I was angry that morning by her not showing up and I had to train somebody else to do the job and then Judy Windell being out the same morning but still I didn't know what I was going to do about it. Q. The atmosphere in the place was irritating that morning, too, but it is not so unusual any more, would you put it, the hush, hush attitude that was disturbing, too? A. Yes. Q. And that had been going on for some time? A. Yes sir. Q. Some weeks? A. Yes sir Q. And that had been disturbing to you for some weeks, is that right? A Yes. I used to have a very nice relation, I always thought, with the girls and then it got so nobody talked to nobody. Q. And then you nodded yes to my question, that it had been disturbing to you for some weeks? A. Yes. Q. Can you attribute it to anything, in particular? A Well, I would imagine it had to do with the Union? Q. Did you at the time imagine that it had to do with the Union? A. No Q. When did you start imagining that it had to do with the Union? A. Well, all-let me back up a little bit. All of this hush, hush and everything, I would say had to do with the Union. Q. You say that now. What I am asking, did you think then that it had to do with it? A That morning? Well, that whole several week period. Yes, in a way. The witness made no secret of her antipathy to what she termed the "union hokey pokey" that "was going on." I am satisfied from her own testimony, quoted above, that this antipathy played a significant part in her decision to dis- charge Mrs. Taylor, and that but for that antipathy Mrs Taylor would not have been discharged It follows that the discharge violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1 The Company by withdrawing benefits because of the employees' choice of the Union to represent them and by a supervisor's statement that she was aware who attended un- ion meetings engaged in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Company by refusing to permit employees to work certain hours because they attended representation case meet- ings on behalf of the Union and by discharging June Taylor, in part as a result of the union activity at the Company, engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act THE REMEDY I shall recommend that the Company be ordered to cease and desist from its unfair labor practices, that it reinstate Jane Taylor with backpay, that it give Freiberger 2 hours' pay for the refusal to let him work a ninth hour on May 14 and 15, and Wolfe 3-% hours' pay for the refusal to let him work a ninth hour on June 9, 10, and 11 (the last date at an overtime rate), and that it reinstate, retroactively to June 3, 1970, the practice of giving gifts to employees and their spouses, at least until such date as that practice shall be altered as the result of collective bargaining with the Union. I shall not recom- mend that the Company be ordered to reinstate the snack eating privileges which it modified, for at this comparatively late date I regard that matter as trivial and better left to the negotiations of the Company and the Union All sums due under the Order should bear interest as provided in Isis Plumbing & Heating Co., 138 NLRB 716, and Taylor's back- pay should be computed as provided in F W. Woolworth Company, 90 NLRB 289. Finally, for reasons indicated in B. V. D. Company, Inc., 157 NLRB 978, 982, fn 6, I shall omit the "Armed Services" reference from the notice. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 The Respondent, Robinson-Nugent, Inc., its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, or in any other labor organiza- tion, by discharging, withholding work from, or in any other manner discriminating against employees in regard to their hire or tenure of employment or any terms or conditions of employment (b) Revoking or withholding privileges or gifts previously regularly enjoyed by employees where such action is taken because employees have exercised their right under the Act to be represented by a labor orgainzation (c) Advising employees that it or any of its supervisors knows which employees attend union meetings (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Sec- tion 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Present to the employees and to their spouses, in the amount and for the period described in the section of the Trial Examiner's Decision captioned "The Remedy," the birthday gifts which the Company, contrary to its preexisting policy, ' In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes did not present following the Union's victory in the election of June 3, 1970 (b) Reimburse David Freiberger and William Lee Wolfe, in the manner set forth in The Remedy section of the Tiial Examiner's Decision, for sums due them because of the refusal to let them work a ninth hour on May 14 and 15, and June 10, 11, and 12, respectively, because of their attendance on behalf of the above-named Union at representation pro- ceedings held under the auspices of the Board. (c) Offer immediate and full reinstatement to Jane Crozier Taylor to her former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to her seni- ority or other rights and privileges, and make her whole for any loss of pay suffered by reason of her discharge or refusal of reinstatement, all in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (d) 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 Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order (f) Post at its plant at New Albany, Indiana, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by the Respondent's representative, shall be posted by the 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 9 8 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN OR- DER OF THE NATIONAL LABOR RELATIONS BOARD " ' In the event that this recommended Order is adopted by the Board, after exceptions have been filed, notify said Regional Director in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge, withhold work from, or otherwise discriminate against any employee because of his activity on behalf of the International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, or because our employees have selected that Union, or any other union, to repre- sent them. ROBINSON-NUGENT, INC WE WILL NOT Spy upon, or convey the impression that we are spying upon, union meetings by stating that we know which employees attend such meetings. WE WILL NOT withhold benefits from employees be- cause the employees have selected a union to represent them WE WILL NOT In any other manner interfere with, restrain, or coerce any employees in the exercise of their right to support the UAW or any other labor union WE WILL, effective as of June 3, 1970, make the birthday gifts to employees and to their spouses which we normally made prior to the employees' selection of the Union as their bargaining representative. WE WILL reimburse David Freiberger and William Lee Wolfe for wages they lost because of our refusal to permit them to work certain hours following their at- tendance at a Labor Board representation proceeding WE WILL offer Jane Crozier Taylor reinstatement to the job from which she was discharged June 9, 1970, or 553 to a substantially equivalent job, and pay her for losses she sustained as a result of that discharge ROBINSON-NUGENT, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. 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 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.