Wolverine World Wide, Inc.

WOLVERINE WORLD WIDE, INC. 441 Wolverine World Wide, Inc. and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 7-CA-8068 September 30, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 29, 1971, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended, 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 the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondent also filed a brief in answer to the Charging Party's exceptions. 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, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications.' In addition to the violations of Section 8(a)(1) found by the Trial Examiner, we find that the Respondent also violated Section 8(a)(1) in the following respect: On June 15, 1970, conversations were instituted by Plant Manager Lovell and Superintendent Vanderwa- ter with employee Richard Dard, who had signed an "open letter" of June 9 espousing the Union's cause. When Dard expressed his dissatisfaction with condi- tions of work, he was asked whether there was general I We find merit in the exceptions of the Charging Party to the failure of the Trial Examiner to order that the Respondent remove from its personnel files discriminatory warning notices issued to the employees named in the Trial Examiner's Decision This remedy is appropriate to remove the effects of the discrimination found and our Order shall so provide Gateway Transportation Company, 190 N LRB No 26 Chairman Miller does not agree that Respondent violated Section 8(a)(1) by interrogating Sims insofar as she was questioned whether she dissatisfaction and whether it would help if depart- mental committees were formed by the Respondent. When Dard indicated an interest in this question, a discussion ensued as to how many employees from each department should serve and how they should be chosen. The Trial Examiner found that the above conversa- tions only amounted to a legitimate solicitation of Dard's opinion as to the utility of a committee to handle grievances and fell short of suggesting forma- tion of a committee, as alleged in the complaint. We disagree. These discussions were initiated by the Respon- dent's inquiries as to both the nature of employee dissatisfaction and whether the formation of commit- tees would help and progressed to the point of actually considering the employee composition there- of. In the context of the Respondent's unlawful opposition to the Charging Union, these statements not only indicated the Respondent's preference for such an arrangement, but, also, employees would rightfully lead to more favorable disposition of their grievances. Accordingly, we find that the Respondent further violated Section 8(a)(1) through these conver- sations. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Lat'or Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, Wolverine World Wide, Inc., Big Rapids, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as herein modified. 1. Add the following as the new paragraph 1(c) and reletter paragraph 1(c) as 1(d). "(c) Suggesting the formation of a grievance committee as an alternative to the Union." 2. Add the following as paragraph 2(d) and reletter paragraphs 2(d) through 2(f) consecutively: "(d) Remove from their personnel files any refer- ence to, and rescind, the written warnings issued for discriminatory reasons to employees named in the Trial Examiner's Decision and make provision that these warnings shall not be used as a basis for further disciplinary action against said employees." had engaged in worktime solicitation in contravention of a lawfully promulgated plant rule Similarly, he would not find the 8(a)(l) violations based on the statements made by Forelady Yost to employee Pontz, on June 17, those made by Foreman Hendricks to employee Owens, and Superintendent Vanderwater's conversation with employee Derby on April 13 The evidence with respect to these allegations, in the view of Chairman Miller, shows little more than the type of noncoercive banter to be expected in the course of a union campaign. 193 NLRB No. 54 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Substitute the attached notice for the Trial Examiner's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The trial held in Big Rapids on January 19, 20, and 21, 1971, in which we participated and had a chance to give evidence, resulted in a decision that we had committed certain unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, and this notice is posted pursuant to that decision. The National Labor Relations Act, as amended, gives all employees the following rights: To organize themselves To form, join, or support unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities In recognition of these rights, we hereby notify our employees that: WE WILL NOT coercively interrogate our em- ployees concerning their membership in, or activi- ties on behalf of, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. WE WILL NOT interfere with the lawful distribu- tion of union literature; WE WILL NOT keep the self-organizational activities of our employees under surveillance or make statements to give them the impression that we are doing so; WE WILL NOT threaten our employees with the loss of their jobs or loss of benefits or that we will close our plants, if they choose Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, to represent them in collective bargaining; and WE WILL NOT acquiesce in the circulation of antiunion petitions among employees during working hours. WE WILL NOT suggest the formation of a grievance committee as an alternative to the Union. WE WILL NOT discharge any of our employees or discriminatorily issue oral or written warnings to them to discourage their membership in Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, nor will we suspend them on the basis of such warnings. WE WILL offer Sandra Lynn Murray immediate and full reinstatement to her former job or, if this job no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of her discharge. WE WILL make whole Albert W. Derby for the loss of pay which he suffered when suspended for 3 days from June 26, 1970. WE WILL remove from their personnel files any reference to, and rescind, the written warnings issued to employees named in the Trial Examiner's Decision and make provisions that these warnings shall not be used as a basis for further disciplinary action against said employees. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other 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 as authorized by Section 8(a)(3) of the Act. WOLVERINE WORLD WIDE, INC. (Employer) Dated By (Representative) (Title) We will notify immediately Sandra Lynn Murray if presently serving in the Armed forces of the United States of the right to full reinstatement upon applica- tion after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. 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, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226-3200. WOLVERINE WORLD WIDE, INC. 443 TRIAL EXAMINER'S DECISION SIDNEY D. GOLDBERG, Trial Examiner: This case, involving allegations of company interference with an organizational campaign among its employees, was tried before me January 19, 20, and 21, 1971, at Big Rapids, Michigan. The complaint,' issued pursuant to Section 10(b) of the National Labor Relations Act, as amended (the Act), alleges more than 40 incidents, between April 13 and August 12, 1970,2 claimed to constitute interference by Wolverine World Wide, Inc. (respondent or the Company), in the self-organizational efforts by its employees with the assistance of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO (Amalgamated or the union), and several acts of discrimination against employees to discourage their membership in the union. Respondent answered, admitting that it was engaged in commerce and had in its employ certain supervisors named in the complaint, but denying the commission of any of the acts alleged as unfair labor practices, and the issues so raised came on for trial before me as set forth. All parties were represented, afforded an opportunity to adduce proof, cross-examine witnesses , and argue on the facts and the law. The General Counsel presented his arguments in oral summation and respondent has filed a brief, both of which have been carefully considered. For the reasons hereinafter set forth, I find that the record supports many of the allegations of interference, that respondent discriminated against several of its employees and that it discharged Sandra Murray to discourage employee membership in the union. Upon the entire record herein, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. The parties The complaint alleges that, during the year 1969, the Company imported into Michigan, from points outside that State, materials valued at more than $50,000 and that it exported, from its plants in Michigan to points outside that State, products valued at more than $50,000. The answer admits these allegations and that the Company is an employer engaged in commerce. I so find. The complaint also alleges that Amalgamated is a labor organization and, at the trial, respondent so conceded. 2. Background The Company is engaged in the manufacture of boots, shoes, gloves, and other leather products, operating plants in Michigan, Iowa, New York, and other States. Its principal offices are at Rockford, Michigan, and its two plants at Big Rapids, Michigan, designated as B/F and C, are the only ones involved in this case. Since November 1969, Amalgamated has been engaged in a campaign to organize the employees in the Company's Michigan plants.3 Prior thereto, in November 1968, a charge was filed by a Teamsters Local, growing out of an incident at the Ithaca plant, and a complaint alleging violations of Section 8(a)(3) and (1) of the Act was issued. When the case came on for trial before Trial Examiner Boyls on February 12, 1969, the parties stated that they had arrived at a settlement whereby the employee alleged to have been unlawfully discharged would waive his right to reinstatement and would be paid a specific sum in satisfaction of lost pay; that respondent would withdraw its answer; and that a Trial Examiner's Decision might issue on the uncontroverted complaint. Accordingly, on March 28, 1969, Trial Examiner Boyls issued a decision finding that the Company had maintained an unlawful antisolicita- tion rule; that it had coercively interrogated its employees concerning their union activities, interests, and desires; that it had improperly prohibited its employees from wearing union buttons; that it had threatened to close the plant if the union should become the employees' bargaining representative; and that it had made statements to employees to convey the impression that it was keeping their union activities under surveillance. An order, directing the Company to cease and desist from those activities, as well as from any other activities interfering with its employees' exercise of rights granted in the Act, and requiring it to post an appropriate notice, was issued with the decision and the Respondent complied with it. 3. Chronology of events During the week of April 6, while the plants were shut down, there was a conference between some representatives of Amalgamated and Albert W. Derby, an employee in plant C and, on April 13 the first day of resumption of operations, he was questioned concerning it by Keith J. Vanderwater, the plant superintendent. Thereafter, on several occasions in May and early June, management representatives questioned employees con- cerning union activities, and disciplinary warnings were issued to Derby and his wife. Under date of June 8, the union issued an invitation to respondent's employees to attend a meeting on Saturday, the 13th, at the town hall in Paris, about 5 miles north of Big Rapids. On June 9 there was distributed, outside respondent's plants in Big Rapids, copies of an "open letter," stated to be "From Wolverine World Wide worker-to worker" and signed by 48 employees. The employees stated that they had investigated various unions, that they had come to the conclusion that Amalgamated was a "good, strong union," and that they urged fellow employees to sign its authoriza- tion cards. Immediately following distribution of the "open letter" Sandra Murray, whose name was on the letter, was discharged, and, thereafter, several incidents occurred in which other employees whose names were on it were either questioned concerning union activities or had warning notices issued to them. As scheduled by the notice of June 8, the union meeting i Issued October 22, 1970, on a charge filed July 9, 1970, and an 3 These plants are as follows: Plant C at Big Rapids, Plant B/F at Big amended charge filed August 27, 1970 Rapids, Plant D at Ithaca, and Plant A at Rockford. 2 All dates are 1970. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was held on June 13 . As it was concluding, employees noticed that a car standing across the road was occupied by Dan Elliott, one of the factory foremen, and he remained there as the employees left the meeting . Also close to the meeting place was Jack Ward, another foreman. On June 19 the Company mailed to each employee, and posted on its bulletin boards, a letter setting forth the "ground rules" during union organizing campaigns. Throughout this period, and continuing until August 12, the Company was involved in a series of questionings, warnings, threats, and other conduct alleged by the complaint to constitute unlawful interference and discrimi- nation. 4. The issues The General Counsel contends that all the allegations of the complaint have been proved; that those matters requiring proof of improper motive, but possibly lacking it, may take such proof from its presence in other incidents; and that respondent's course of conduct during the period involved constituted a pattern of interference and discrimi- nation violating Section 8(a)(3) and (1) of the Act. The respondent contends that any incidents of interroga- tion which may have occurred were isolated and without coerciveness; that the strictures placed on the distribution of handbills were unimportant; that with respect to the threats, they either were not made or were not meant as threats, but were mere expressions of opinion or jocular exchanges; that the warnings were all properly issued for deficient workmanship and that no surveillance was practiced or indicated. The discharge of Mrs. Murray is claimed to have been bawd solely upon economic considerations and the choice of this employee rather than one junior to her was made solely on their comparative efficiency. 5. Discussion and conclusions a. Interrogation As stated above, respondent's first knowledge of union activity among its employees in Big Rapids was evidenced by the conversation on April 13 when Superintendent Vanderwater of Plant C stopped at the work station of Albert W. Derby and said: "I heard you had company while we were off."4 When Derby answered that lots of people come to his place, Vanderwater asked whether there had not been some union people out to see him and what union they represented. Derby said they were from the "boot and shoe union" and Vanderwater remarked that "we had been in the union before" and that there were "some places the union might be all right" and in others "not so good." Vinderwater, admitting the conversation, first testified that he had only asked Derby whether he had been visited "by a third party" but he finally conceded that he had referred to a union. Under the circumstances, I regard Vanderwater's testimony as a concession of the accuracy of Derby's account and find that the exchange 4 The plant had been shut down the previous week. 5 It is undisputed that the Amalgamated union authorization cards were white occurred as described by Derby. Vanderwater's approach to Derby indicated that surveillance was being maintained over him and his visitors and that such surveillance was connected with his union activity. Accordingly, I find that such conduct constituted interference with employee rights under the Act and was violative of Section 8(a)(1) thereof. Incidents of interrogation of employees by respondent's supervisors subsequently occurred as follows: May 11. On this date, Mable Sims testified, she was summoned to the office of Clem Lovell, plant manager of Plant C, and found Lovell there with Ronald Todd, a section manager in the plant. Todd made the statement that Mrs. Sims was handing out union cards on company time and asked her whether it was true. Mrs. Sims said she did not have to answer the question and Todd then said he had been told that she was doing so. Mrs. Sims answered that the information was false, that she was not handing out cards on company time, but that what she did on breaktimes and after working hours was her own business. Todd then said that, with her poor attendance record, the Company had a good excuse to fire her but had not done so. At that point Mrs. Sims stated that she would have to have the rest of the week off because her son was scheduled for eye surgery; that she had given a note from the doctor to her foreman, and that he had given her permission to be away. Todd said that "all this time off from work was going to have to stop" and that he knew of a shop where a woman was denied time off to bring her husband home from a hospital. Todd testified, but he was not questioned concerning this incident and Lovell, admitting that there had been a meeting with Mrs. Sims on that date, testified that, although she did not say so, she seemed dissatisfied with her supervisor. Lovell could not recall any of the details and he was evasive and unimpressive in his testimony. I accept that of Mrs. Sims and find that, by both the interrogation concerning the union cards and the implied threats to fire her and to refuse time off, respondent's agents interfered with, restrained, and coerced this employee in violation of Section 8(a)(1) of the Act. May 22.• Ted Pontz testified that, while he was at his machine in Plant B/F, he heard Jack Wright, a section manager, ask Irene Shannon, working near him, whether she had signed "one of those white union cards" 5 and, if so, from whom she had received it. He did not hear her answer. Wright did not testify and Pontz' account stands uncon- tradicted. This inquiry was not related to any matter with which respondent was legitimately concerned and it was, by its very nature, coercive. Accordingly, it violated Section 8(a)(1) of the Act. End of May: Hugh Fulkerson, an employee at Plant B/F, was approached at his work station by Annabelle Yost, a forelady in another department, who asked him whether his "whole family was union."6 Fulkerson replied: "Maybe we are and maybe we aren't" and Mrs. Yost walked away. Mrs. Yost admitted having had a conversation with Fulkerson about this time concerning the union and testified that she asked him whether he had had a quarrel 6 Albert Derby, Betty Derby, Sandy Caudill, and Jack Lisco, all related to Fulkerson, are employed at Plant C , and Sharon Vincent, his sister-in- law, is employed at Plant B/F WOLVERINE WORLD WIDE, INC. 445 with Mrs. Derby about signing a union card. Her testimony was so confused and evasive and her demeanor on the stand so unimpressive that, except insofar as it supports Fulkerson, I reject her testimony as not truthful. Accord- ingly, I find that the encounter occurred as Fulkerson testified. Since there was no legitimate reason for respondent to make inquiries concerning the union sympathies of employees or their relatives, such inquiries are coercive and violative of Section 8(a)(1) of the Act. June 10: On June 9, Charlotte Pontz, an employee in Plant B/F whose name is signed to the "open letter," was distributing copies of it to employees entering and leaving that plant. As she was walking along the sidewalk in front of the plant, carrying the copies in her hand, she met Annabelle Yost, her forelady. The following morning Mrs. Yost came to Mrs. Pontz at her work station, looked over her shoulder for a time, and then asked her why she did not like her job. Mrs. Pontz said she did like her job, whereupon Mrs. Yost said, "I saw your name on the list." Mrs. Pontz said her name was there and Mrs. Yost asked her why she felt she needed a union. Mrs. Pontz said she did not think the people "were getting a fair shake" and, when pressed for examples, referred to uneven wages for the same amount of work, whereupon Mrs. Yost walked away. Mrs. Yost testified that on the morning of June 10 she brought some unfinished work back to Mrs. Pontz but that Mrs. Pontz was defiant and said: "Don't make something of it." Mrs. Yost then said: "Have you got a problem? Everytime I come back to talk to you, you act like there is something wrong: there must be something about your job you don't like." She also testified that the subject of the union came up in some way she cannot recall and that Mrs. Pontz refused to talk about the union on company time. To this, Mrs. Yost testified, she said: "Is that your problem, because I know you had your name on that list," and that they then talked about the union but she could not recall what was said. As noted several times in this decision, Mrs. Yost was a most difficult and evasive witness. Her testimony is replete with self-contradictions, and her demeanor while testifying convinced me that her account of the matters under inquiry was designed to protect herself or the respondent rather than to answer questions truthfully. She was not a credible witness and I reject her testimony. Accordingly, I find that Mrs. Pontz correctly described the incident and that Mrs. Yost conducted herself on this occasion as a minor despot, making a studied effort to frighten and coerce this employee concerning her union activities. Her conduct violated Section 8(a)(1) of the Act. June 10: Shirley Kooistra, whose name is signed to the open letter distributed on June 9, was approached at her machine the next morning by Section Manager Ronald Todd and asked why she had signed it. Mrs. Kooistra answered that she did not want to talk about the union on company time but Todd assured her that it would be "all right to do so." She then said that the markers, of whom she was one, could not make their "rate"; that their request that the Company revalue the rates had been refused; that they had to carry their own work to the tables, whereas the employees in the fitting room had their work brought to them, and that they had to sort out the shoes, which also took time, but they were paid only for work "at the table." Todd then asked her if she thought the employees would benefit from the union and said that union dues would cost "quite a bit." When Mrs. Kooistra suggested that a union contract "would probably improve the insurance and rates," Todd answered that, if the union came in, the employees would lose "small benefits," like smoking between breaks. Although Todd testified, he was not questioned concern- ing this interview with Mrs. Kooistra and her testimony stands uncontradicted. I accept it and find that Todd's insistence that she discuss the union tended to compel her to disclose her attitude toward it and thereby interfered with rights guaranteed her under the Act and violated Section 8(a)(1) thereof. Moreover, Todd's threat concerning the loss of benefits if the union came in constituted coercion and restraint, also violative of Section 8(a)(1) of the Act. June 12: Ted Pontz testified that he heard Orville Hendricks, a foreman, ask employee Ruth Owens whether she was going to the "open meeting," 7 and that he said she should because "the drinks are free." Mrs. Owens answered: "I am sorry, but I cannot talk about the unmentionable." There is nothing in the record to indicate that either respondent or anyone else had specifically said that talk about the union was forbidden but there was employee testimony of a general impression to that effect. In itself, this exchange would appear to be innocuous but it cannot be separated from respondent's many incidents of interference at this time of intensive self-organizational activity. Under the circumstances, this bit of jeering by a supervisory official must be regarded as one more item in the pattern of respondent's harassment of employees engaged in self-organization. June 15: Richard Dard testified that Vanderwater came to his work station about 7:30 a.m. and engaged him in conversation concerning working conditions at the plant. The conversation opened with Vanderwater asking how a dance over the weekend had turned out. Dard said he had not been able to attend but had sold some tickets for a $2 profit, to which Vanderwater remarked that the money would pay Dard's union dues for a month. Dard said: "Let's not get started on that subject" but Vanderwater persisted by asking Dard why he believed people had signed the open letter. Dard answered that they were dissatisfied with rates of compensation and working conditions and that he, himself, was "on the fence." Dard then accused Vanderwater of having asked another employee whether he, Dard, was pushing the union and Vanderwater denied having done so. Although this incident, standing alone, might not be coercive, it must be considered in conjunction with the recently antecedent circulation of the open letter, followed by the discharge of Sandra Murray and the other incidents set forth herein about this time. So viewed, I find that 7 The union circular dated June 8, which invited all those who received it to attend, also stated "You may invite any of your fellow or sister Wolverine workers from both the C and B/F plants." 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vanderwater's questioning of Dard was coercive and violative of Section 8(a)(1) of the Act. June 17: Charlotte Pontz testified that on this occasion she came to the end of the production line to show Floorlady Yost her percentage figure for the day. The figure was obviously satisfactory8 and Mrs. Yost said: "See, you don't need a union to do it." Mrs. Pontz simply walked away. A few minutes later Mrs. Yost came to Mrs. Pontz' work station and said: "You didn't like my saying that, did you?" Mrs. Pontz answered that it is a "free country" and that everyone was entitled to have an opinion, but Mrs. Yost replied "not really." Mrs. Yost then said: "you don't need five dollars to get what you want" and Mrs. Pontz, understanding the reference to be to the monthly dues of the union, answered: "It's seven-fifty and I can't get it myself." Mrs. Yost told her to look in the shops in Big Rapids that have unions and said that she would find that the wages were no better than at respondent's plants. Mrs. Pontz testified that Section Manager Culp was present at the conversation, but Culp was not a witness. Mrs. Yost testified that on this occasion Mrs. Pontz' work was going along "pretty good" but "hadn't come up to where it should be" so she went to talk with her about it. Although she denied that there was any discussion about the union she admitted having said: "Before I would pay five dollars for anything a month, I would make sure it was worth it." Mrs. Yost first testified that her statement about $5 a month had no reference to anything in particular but she then conceded that the question of the union had come up and her reference was to it. Once again I reject Mrs. Yost's testimony and find that the encounter occurred as Mrs. Pontz described it. If this incident stood alone, there might be some doubt concern- ing its coerciveness but, in view of the earlier conversation between these two women, I find that it was another item in a pattern of harassment of Mrs. Pontz and that it violated Section 8(a)(1) of the Act. End of June: Josephine Ringquist testified that it was late in June or the beginning of July when Ronald Todd, a section manager concerned with employee ratings, called her into his office for a conference. He said she did not have to talk about the union if she did not want to but he nevertheless asked her "why she signed." Mrs. Ringquist testified that they both knew they were talking about the "open letter" and that she answered that she did not think her retirement benefits, which she would soon be receiving, were adequate. During the conversation, which lasted about 45 minutes and was much longer than the customary 15-minute rating conference, Todd said that she was supposed to get a 10-percent raise but he would not be able to give it to her because "we could not make up the time." This phrase was not explained. Todd corroborated Mrs. Ringquist's account in most details and admitted that, although he could not recall whether she was producing above the rate expected of her, she did not receive an increase in her hourly rate. He could not recall whether they discussed the increase but he did recall that there was discussion of the union and her activities with respect to it. 8 Mrs Pontz testified , in connection with her account of the June 10 exchange with Mrs Yost, that her production percentage was approaching Mrs. Ringquist, who testified before Todd, stated that the refusal to grant her an hourly increase was discussed and I accept her testimony. Although the complaint does not allege this refusal as discriminatory, Todd's reference to it during the discussion of Mrs. Ringquist's union activities which he instigated constitutes restrain and coercion violative of Section 8(a)(1) of the Act. End of July: Fulkerson testified that one day toward the end of July, just before the plant was to shut down for vacation, Robert Sturdivant, one of the foremen, came to him and said: "I will be your new foreman after vacation and the first thing I have to do is get you away from the union." When Fulkerson asked why, Sturdivant said: "The union can't do you any good. The plant management had a meeting and you were brought up: they were asking if you would be for the union or not. I told them you were your own union and did as you wanted." Sturdivant did not testify: Fulkerson's testimony is not incredible and I accept it as true. Sturdivant's statements, that when he became Fulker- son's foreman it would be his job to get him away from the union and that management had "brought up" Fulkerson's attitude toward the union, may have had little actual effect on this particular employee, but only because of Fulker- son's strength of personality. They were, I am convinced, intended to coerce him by disclosing that management was giving his union activities particular attention and the statements were, therefore, violative of Section 8(a)(1) of the Act. End of July: During the last week in July, Doris Kirk testified, she went to the office of Plant Manager Jensen to discuss her request for transfer from splitting to cutting because the splitting work was diminishing and she felt that her seniority entitled her to the transfer. Both Mrs. Kirk and Jensen testified that, while they were discussing the matter, Jensen began to discuss the union and that he said: "I don't need to tell you that I know your name is on the open letter." Mrs. Kirk said that she was honest about it and that management knew her position. Jensen assured her that he did not hold it against her but that he did not want the union in the plant. Jensen then said: "You know you can always come to me or one of the supervisors with your problems and we can work them out without any third party." He then told her that if she would continue for 4 to 6 weeks as a splitter they would then see whether she could not be transferred to cutting. This did, in fact, occur. The testimony of Mrs. Kirk and Jensen agreed in every detail and it seems quite clear that Jensen held out a promise of more favorable consideration of employee requests on the basis of direct negotiation between employees and management rather than through union representation. Such promise of benefit interferes with employee rights of self-organization and violates Section 8(a)(l). While some of the foregoing incidents may not appear obviously coercive, they must be considered in their relationship to each other and to other elements in this case .9 115 8 See Lenkurt Electric Company, Inc, 169 NLRB 941. WOLVERINE WORLD WIDE, INC. 447 b. Interference with distribution of union leaflets On several occasions, employees distributed handbills on respondent's plant premises but outside the buildings. On June 9, they distributed copies of the "open letter," referred to above. On June 23, between 3:30 and 4 p.m., Lois Spencer, Mable Sims, and Betty Derby handed out union leaflets at the entrances to Plant C. Mable Sims testified that she was passing out the leaflets near the front door of the plant when Victor Schultheiss, respondent's employ- ment relations manager in Big Rapids, asked her to move out onto the sidewalk, 8 or 10 feet away, and she did so.10 On the same day, Betty Derby testified, she was crossing the parking lot with some handbills when Richard Mondrella, the night superintendent, drove his car into the parking lot and turned it toward her. She said: "Well, Rich, don't hit me, I will give you a pamphlet" and Mondrella told her to "get the hell off company property." it On July 2, Mrs. Ione Dard and Leonard Sims were passing out leaflets at the Plant C parking lot. Mondrella, who had just parked his car, came toward Mrs. Dard as she was about to give out a handbill and, according to Mrs. Dard, he shouted, "Get the hell off company property." Mrs. Dard said that she had a right to be there because she worked there and Mondrella demanded her name. She did not say anything and Mondrella said: "I will get you for this." He then went into the plant and soon reappeared at a doorway with Superintendent Lovell and Vanderwater, day manager of the plant. Mondrella admitted having seen Mrs. Dard passing out handbills on the parking lot but stated that he did not know her then and asked her what she was doing. He testified that she said nothing but thumbed her nose at him and that he then said he would "get even" with her. He denied having told her to get off the Company's property. Mondrella's promise to "get even" with Mrs. Dard makes little sense except in a context of an employment relationship and, therefore, I credit Mrs. Dard's testimony that she told Mondrella she worked at the plant Upon my general rejection of Mondrella's credibility as a witness, I find that his threat to "get even" was based solely upon Mrs. Dard's distribution of handbills. On July 9, according to the testimony of Richard Dard, he was passing out handbills on the parking lot of Plant C when Plant Manager Lovell told him that, under company policy, no soliciting was permissible on company property. Dard left. The following morning, Dard testified, Lovell came to him at his work station and told him that he had been within his rights in handing out the leaflets. Lovell corroborated Dard's testimony in every particular except the date, which he said he could not remember, although he adopted the June 9 date in the question of respondent's counsel. Dard also accepted the date used in the question of counsel-this time the General Counsel-but he also fixed it as a month following Lovell's 10 Schultheiss testified but was not questioned on this matter 1i Mable Sims, who was with Mrs Derby, corroborated her testimony in all details Mondrella denied having turned his car toward Mrs Derby but he admitted seeing her passing out union literature and, with respect to telling her to "get off company property," testified "I don't recall I don't think I did" On the basis of Mrs Sims' corroboration of Mrs Derby's testimony, of Mondrella's demeanor while testifying, and of the analysis of proposal to him that he organize an employee committee, discussed below, and I accept his testimony rather than that of Lovell. As Lovell recognized, the employees had the right to pass out circulars in the nonproduction portions of respondent's premises 12 and the supervisor's efforts to intimidate employees engaged in such distribution or to block or interfere with it violated Section 8(a)(1) of the Act.13 c. Surveillance of the union meeting In accordance with the notice distributed by the union, a meeting of Wolverine employees was held at the town hall in Paris on Saturday, June 13, beginning about 2 p.m. Between 60 and 80 employees were present and the meeting ended about 4 o'clock. Among the employees present were Ted Pontz, Hugh Fulkerson, and Betty Derby. Shortly before the close of the meeting, Ted Pontz testified, he noticed Dan Elliott, one of respondent's foremen, sitting in a car on the far side of the road and somewhat south of the point opposite the meeting hall. When the meeting ended, Pontz went over to Elliott and asked him whom he was waiting for but Elliott made no answer. As Pontz went back into the meeting hall, he saw another employee going over to talk to Elliott and then also come back into the hall. When Pontz again left the meeting hall at 4:30, Elliott was gone. At that time, however, Pontz testified, he saw Jack Ward, another of respondent's foremen, in a car some distance north of the meeting hall, near one of the stores on that side of the road, sitting partly turned around and with his head out of the window facing toward the hall. Hugh Fulkerson testified that, about 15 or 20 minutes before the close of the meeting, he saw Dan Elliott sitting in a car on the opposite side of the road and somewhat south of a point opposite the meeting hall. When the meeting ended, Fulkerson left the hall, walked over to Elliott, and asked him what he was doing there. Elliott, who had started the engine as Fulkerson crossed the road toward him, said he was going to the store and he drove away to the north. Betty Derby testified that she noticed Elliott in his car opposite the meeting hall about 10 minutes before the close of the meeting and that she saw Fulkerson go over to talk to him. There is no dispute that the Green Town Hall is located on the west side of U.S. Route 131 and that on the east side of the road at that point there is a shoulder along the road but nothing other than open land beyond that. There are some stores and a post office on the east side of the road but sketches submitted by both employee and company witnesses show that they are a considerable distance north of the point opposite the town hall. Elliott testified that between 12:30 and 1 p.m. on that day he received a telephone call from his son, who was in Portland, Michigan, on his way home. Elliott testified that Mondrella's credibility in this decision, I reject his denials and find that he acted as described by Mrs Derby and Mrs Sims. 12 Respondent's evidence that work was performed in the parking lots, i e, that broken lights were repaired and the area kept free of broken glass, is frivolous in this connection , and I disregard it as irrelevant 13 Stoddard-Quirk Manufacturing Co, 138 NLRB 615 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he forgot to tell his son that there was a bridge out on Twenty-two Mile Road between his home and U.S. 301 and he realized that it would be necessary for him to intercept his son and guide him home through Twenty-one Mile Road . He also testified that he needed a part for the bathroom he was overhauling and he could buy it in Paris when he met his son . Elliott left his home between 1.15 and 1:30 and testified that he reached Paris in 10 or 12 minutes, coming east to Route 131 on Twenty-one Mile Road, making a left turn into Route 131 and parking on the right, or east, side of that road a couple of car lengths north of the intersection . At that point, according to the sketch and measurements prepared by respondent, he would have been a couple of car lengths less than 784 feet south of a point opposite the town hall where the union meeting was held. Elliott testified that he waited at that point for about an hour, possibly more, before his son arrived; that he signaled his son to follow him to the hardware store in Paris, where he spent about 10 minutes buying what he needed, exchanging brief greetings with Jack Ward; and that he arrived home at or before 3 p.m. While he was waiting for his son, Elliott testified, both Pontz and Fulkerson came over and spoke to him He testified that Pontz asked him whether he was waiting for anyone and that Fulkerson told him there was a union meeting at the hall and he had come down to see what was going on. Although this matter was vigorously litigated at the trial, it appears that the testimony of Elliott and the testimony of the three employees are not mutually exclusive . Elliott testified that he had completed his wait for his son at Paris, made his purchase , and was at home by 3 o'clock. The three employees testified that they first saw him near the town hall shortly before 4 o'clock. Elliott testified that he waited for his son on Route 131 two car lengths north of its intersection with Twenty-one Mile Road and the company sketch shows this to be 784 feet south of the town hall. The employees testified that they recognized Elliott shortly before the 4 o'clock end of their meeting from inside the meeting hall and that Pontz and Fulkerson more or less walked across the road to talk to him. I am, consequently, compelled to the conclusion that , with the exception of one element, Elliott's testimony concerning the chronology of his trip to Paris to intercept his son may be true, but there is no testimony that, after he came home at 3 o'clock, he remained there: there is no evidence precluding the possibility that he made more than one visit to Paris that afternoon . If, as Elliott testified, it took him only 10 to 12 minutes to reach Paris from his home and he had reached home with his son by 3 o'clock, he could easily have returned to Paris and parked near the town hall, where the employees testified they saw him shortly before 4 o'clock. The one element referred to above is the pair of conversations which he admittedly had with Pontz and Fulkerson . That Elliott could have been recognized from inside the meeting hall, as Pontz, Mrs. Derby, and Fulkerson all testified , if he had been parked over 700 feet away I reject as inherently improbable, and I similarly reject any suggestion that Pontz and Fulkerson would have walked 700 feet down the road to talk to him. Accordingly, I find that Elliott was near the meeting place of the union shortly before 4 o'clock when the meeting ended and that it was then and there that he had the conversations with Pontz and Fulkerson . Since he gave no explanation for his presence there at that time and the physical surroundings at that point contain no clue to any other possible explanation for his presence, in view of his attempts at evasion, I find that he was there to observe the identities of the employees attending the meeting. Such surveillance tends to restrain employees in their exercise of self-organizational rights and, therefore, it violates Section 8(a)(1) of the Act. Jack Ward testified that he met Elliott in the store between 1:50 and 1:55, talked briefly with him and then went home, reaching there between 2 o'clock and 2:15. He testified that he left his home again at 3:15 or 3:20 to go to Reed City, about 8 miles north of Paris, to keep an appointment with a lumber dealer at 3:30 and that he was at the lumber company for a little while. While Ward was not directly asked whether he had been parked near the town hall about 4 o'clock, the implication of his testimony was that he was not at the point where he was placed by the testimony of Pontz because he was at Reed City at that time. Interestingly, however, respondent's counsel goes no further than to state in his brief that: ... it is at least doubtful as to whether Messrs . Elliott and Ward were at the places described at the time the union meeting ended. The lack of connection between this issue and the testimony of Elliott has been noted above . There are several reasons why a similar implication , sought to be drawn from Ward's testimony, must be rejected. In the first place, even if Ward's statement were taken at its face value, he indicated that he arrived at the lumber company about 3:30 and was there between 45 minutes and an hour . This would keep him in Reed City until about 4:30 at the latest, and he certainly could drive the 5 miles of open road to Paris in less than 10 minutes to be there about 4 : 30, since all the lengths of time and hourly references are approximate. It is not, however, necessary to be concerned with precise arrivals, lengths of stops, and departures because the lumber company employee with whom Ward claimed to have had the appointment testified that the establishment had closed on that day at noon and that neither he nor any other employee with whom Ward could have conferred was there that afternoon . This lumber company employee had no interest in this case , he testified simply and forthrightly, and I accept his testimony as true . Accordingly, I reject Ward's testimony and find that the facts related by Pontz truthfully describe the situation . It was Pontz' testimony that at 4:30, when he left the meeting hall, Elliott was no longer parked on the east side of Route 131 but Ward was parked on that side of the road somewhat north of the meeting hall and that Ward was sitting in his car with his head out of the window looking toward the hall as the employees were leaving . In this position he was able to note the identities of those in attendance at the meeting and, by his presence, to indicate to them that they were being watched . I find that this constituted interference with the employees' right of self-organization and violated Section 8(a)(1) of the Act. WOLVERINE WORLD WIDE, INC 449 d Threats The name of Richard Dard, a company employee for more than 20 years, appears on the "open letter" distributed June 9 Early in the morning on June 10, Clem Lovell, the factory manager, came to him at his work station and said, in the presence of several other employees: "I see you are not satisfied with working here " Dard answered: "Well, Clem, I didn't sign the open letter because I was not satisfied with working here. I signed it because I am not satisfied with some of the conditions that exist here." Lovell responded- "We are going to have 100 percent operators on all the machines or they aren't going to be operated" and he walked away. Dard testified that his relative efficiency as a toe laster at that time was 86 percent and that at no time in the past had the Company insisted on 100-percent efficiency, that only two of the six toe lasters were doing better than 100 percent; that the rate of efficiency had recently been set so high that it was very difficult to reach it, and that the employees had been told that their wage scale would not be cut so long as they maintained their efficiency at its then level. Even at the periodic conferences on efficiency, when employees were routinely urged to raise their efficiency ratings, Dard testified that he had never been told that he was required to attain 100 percent. Lovell admitted that he had talked with Dard on June 10 but claimed that it was only about "handbills." He conceded, however, that he talked with a lot of people about performance and that he probably did tell Dard he would have to raise his efficiency to 100 percent He denied having said that they would have 100-percent operators or none at all. Lovell was generally an evasive witness and his demeanor on the stand was defensive. I find that Dard's testimony truly reflects the conversation of June 10 and that Lovell's remarks were a threat that, unless Dard raised his efficiency to 100, he would lose his job. In view of its background, this threat constituted coercion and restraint with respect to the exercise of employee rights and violated Section 8(a)(1) of the Act June 9• The "open letter" was circulated among plant employees during the afternoon. At 7 or 8 that evening an antiunion petition was circulated and it is discussed below. Shortly after the circulation of this petition, Donald Whiteside, a Plant C foreman, came to employee Albright, who had refused to sign it and, according to the testimony of Kurtis Winkler, an employee working in that area, shouted that "if we don't keep the union out we will be all out looking for jobs." Sometime soon afterward, Winkler testified, he was called into the office for an evaluation of his job performance and Whiteside made the same remark directly to him. In mid-July, when Winkler was again called up to the office of Night Superintendent Mondrella with several other employees to discuss errors in matching shoes to lasts, Mondrella opened the subject of the union, saying that, "if the union gets in, we are going to be hurting for jobs, every one of us." Whiteside was very vague in his testimony- he conceded that, on the occasion of the antiunion petition, the question of the union had come up but he could not recall what was said and did not remember whether he made the statement that they would be out looking for work . He also was unable to recall whether he made a similar statement directly to Winkler but only because, he said, he had received a list of "do's and don'ts" with respect to the union. Mondrella, who testified, was not questioned concerning the incident described by Winkler On the basis of Winkler's testimony and Whiteside's evasiveness on the stand, I find that both Whiteside and Mondrella made the statements attributed to them and that they constituted threats violative of Section 8(a)(1) of the Act. One Saturday or Sunday evening in the latter part of July, employee Beatrice Johnson testified, she was in the Pans Bar, a restaurant and dance hall in Paris, and saw Plant Superintendent Mondrella there. They had been acquain- tances for a number of years and, as she passed his table, Mondrella took her by the arm and asked her to sit down because he wanted to talk to her. Mondrella said that he had heard that she had been "a bad girl." Mrs. Johnson said she had always been a bad girl and Mondrella then said: "I hear you are for the union." At that point, Mrs. Johnson testified, she said she did not wish to discuss it and she got up and left. Later that evening Mondrella again attempted to get Mrs. Johnson into conversation concern- ing the union by calling remarks to her from his table about 10 feet away. When he told her she had better be at work on time the next day 14 she said she always did and Mondrella responded: "If you were on nights you would be fired." On a Sunday night about 3 weeks later, Mrs. Johnson testified, she again met Mondrella in the Paris Bar during plant vacation and he said he was off for a month. When Mrs. Johnson was skeptical, saying he had the same 2 weeks as all other employees, Mondrella said: "You are going to get a lot longer vacation if you get a union in there," and followed this by saying that he had another job lined up to which he could go if the union came in. A few minutes later, Mondrella came over to her table and said he would like to be working for the union because they made a lot of money but that, if the union came in, within 6 months the Company would "move south" to save on wages and they would all be out of jobs. Mondrella conceded his long acquaintanceship with Mrs. Johnson and admitted having talked with her several times in the Paris Bar, but he denied having said that if she were on the night shift she would be fired, and he could not recall saying that he had a job lined up elsewhere or that, if the union came in, the Company would shut down within 6 months and move south. Mrs. Johnson's testimony was direct and it was given with considerable conviction but Mondrella was evasive and unimpressive. I accept Mrs. Johnson's account as accurate and find that on these dates (probably July 19 and August 9) Mondrella made threats to Mrs. Johnson that interfered with employee rights under the Act and violated Section 8(a)(1) thereof. 14 Mrs Johnson had been working on the day shift for 3 years, although she had previously worked nights , and Mondrella was the night-shift superintendent 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD e. Disparate enforcement of a nonsolicitation rule Hugh Fulkerson testified that in the morning on June 27,15 he was called into the office of Dewey Smith, superintendent of Plant B/F. He was accused of having given a union card to a fellow employee during working time and told that the Company would not allow it. Fulkerson denied having done so: he said that his son sold copies of a weekly paper and was delivering them to plant employee-customers on the evening shift; that because there were machines in operation he would not permit his son to go about the plant alone; and that while he was in the plant an employee asked him for a union authorization card but he refused to give one, asking the employee instead to wait until the next break and come outside to his car for it. Fulkerson testified that the employee did come outside and that a card was delivered to him as requested. Fulkerson also testified that he has sold and delivered other products to employees in the plant, including the wife of Foreman Elliott, and that other employees take orders for, and deliver merchandise to, employees in the shop. Dewey Smith, using the same June 27 date, testified that he spoke to Fulkerson about solicitation because he had union cards with him and because he sold newspapers in the plant. He testified that he could recall "writing him up" and, therefore, he believed that he gave Fulkerson an "oral warning," but there is no evidence that there was a warning in Fulkerson's file in connection with this occurrence. Moreover, although Fulkerson was one of the signers of the "open letter," the complaint does not allege that he was given a warning or that there was any other discrimination against him. Accordingly, I cannot find that the activities of Smith in this case amounted to a violation of the Act. f. Discussion concerning employee committee On June 15, Richard Dard testified, Plant Manager Lovell came to him at his work station, asked him why he thought the people were dissatisfied, and whether it would help if committees were formed in each of the departments "to try to resolve some of these problems." Dard said he thought it might be a good idea but, the way he saw it at that time, "the union is going to win." Lovell said he didn't like to see a "twenty-year man" dissatisfied and left. At 2 p.m. on the same day Superintendent Vanderwater questioned him along the same lines. Dard answered that "something has got to be done" and he "figured the union would be the only way to go" but that "if we could work out something, fine." Dard testified that they discussed the matter further, getting into the specifics of how many employees from said department should serve and how they should be chosen. Vanderwater corroborated Dard's testimony fully but Lovell evaded, said he "may have talked with him" about employee grievances and, when asked directly whether he had suggested to Dard that he, Dard, form a plant committee, answered, "I don't remember . . that." In view of Vanderwater's corroboration and Lovell's evasive- ness, I accept Dard's credible testimony on this point and find that they solicited Dard's opinion concerning the utility of forming an employees' committee to handle grievances. While I have no doubt that Lovell and Vanderwater were motivated by a desire to divert Dard's loyalty away from the Amalgamated,16 and crediting Dard's testimony fully, nevertheless their conversations with him fell short of actually suggesting formation of such committee 17 and they did not actually solicit such grievances for adjustment.18 Accordingly, I cannot find, in these inquiries, interference, restraint, or coercion violative of Section 8(a)(1) of the Act. g. The antiunion petition On June 9, after the "open letter" was distributed, an employee on the afternoon shift named Horner approached employee Kurtis Winkler, showed him a paper with the words "anti-union petition" written across the top, and asked him to sign it. Winkler refused and Horner moved along, soliciting other employees to sign it. One of the employees so solicited, Jerry Albright, told Horner to "get the hell away from me with the petition" and Horner left. According to Albright, Homer said he had permission from Foreman Whiteside to circulate it. A few minutes later, Whiteside came into the area and a shouting match erupted between him and Albright over Homer's circulation of the petition. According to Albright, he stopped Whiteside and asked him why he "let Horner go around with this petition," since the employees had received instructions from the Company not to do this during working hours, and Whiteside answered that Horner was worried about his job. Whiteside added that he, also, did not want a union in the plant; that it had had one in the past; that they were no good; and that he and some others had run the union out. Whiteside also stated, according to Albright, that he knew Horner was circulating the petition and that he added that he knew "what kind of guys worked in the casing area" because none of them had signed this petition. Winkler, who observed the argument between Albright and Whiteside, testified that Whiteside asked Albright why he did not sign the antiunion petition and, raising his voice, so that all about could hear, said that if they did not keep the union out they would all be looking for jobs. According to Whiteside, he went looking for Homer, who was away from his machine and, as he passed Albnght's station, Albright came shouting at him and accused him of being "behind all of this." When he asked Albright what he was talking about, Albright said that Homer was "taking a list around" but that he said he knew only that Homer was not at his machine. Whiteside denied asking Albright why he did not sign the petition, but admitted that he knew about the petition because Horner had asked him whether he could take it around. Whiteside testified that he answered Horner's question by saying "I don't believe you can" and that he would have to find out. He had gone to find out, Whiteside said, when Horner was taking the petition around. With respect to the statement attributed to him that, if the union came in, everybody would be on the 15 June 27 was a Saturday and the testimony indicates that the plant 18 Dard had signed the "open letter " does not operate Saturdays The precise date of this incident is 11 Compare L C Cassidy & Son, Inc., 171 NLRB No. 136 unimportant and I find that it occurred on Monday, June 29 18 Compare Sears, Roebuck and Co, 182 NLRB No. 68. WOLVERINE WORLD WIDE, INC. 451 streets, Whiteside testified that he "couldn't recall" making it. Whiteside also testified that Horner was given neither a warning nor a suspension for his conduct in leaving his work station and soliciting signatures on the petition and that when he reported the incident to Mondrella, he was given no indication that Horner should be punished. Whiteside was not an impressive witness; he was self- contradictory in saying that, in his argument with Albright, the question of the union "came up" but that nothing was said about it; and he was evasive. On the basis of his own testimony I find that, while there is no evidence that he instigated the antiunion petition, his conversation with Horner about circulating it implied that he favored-or, at least, did not oppose-his doing so. Moreover, I find that he adopted and gave support to the petition by asking Albright why he had not signed it. I also find that Whiteside told the employees that if the union came in they would all lose theirjobs. By the foregoing conduct of Whiteside I find that respondent interfered with, restrained, and coerced em- ployees in the exercise of self-organizational rights and violated Section 8(a)(1) of the Act. h. Warnings Respondent maintains a system of written warnings which, when given, are entered in the employee's file and form the basis for disciplinary action.19 The complaint alleges that the following warnings, administered to the respective employees involved, consti- tuted discrimination to discourage their membership in, or support for the activities of, the union. (1) May 28: Betty Derby As set forth above, Albert Derby was the original employee contact with Amalgamated and, as far back as April 13, management had questioned him concerning it. On May I1 and 22, it has been found, supervisory personnel interrogated plant employees concerning solicita- tion and signing of union authorization cards and, on a date only defined as "around the end of May,"20 Forelady Yost asked Fulkerson whether his "whole family" was union. Fulkerson's family, he testified, included Albert and Betty Derby, whom he identified as "brother-in-law and sister-in- law," and Mrs. Yost testified that she knew them all. On May 28 at 8:30 a.m., Mrs. Derby was called from her "cigarette break" into the conference room by Donald Nelson, her foreman. Section Manager Todd was present. 19 All the warning slips in this record are on the same printed form but some are on white paper and some on yellow in the upper right hand corner there are two boxes, one marked "1st Notice" and the other "2nd Notice " Some of the slips in evidence are without marks in either of these boxes, there was testimony that such slips are called "oral warnings", and on some slips in evidence, without marks in either box, the written material states, "This is an oral warning " Although the testimony with respect to Albert Derby indicated that it was his "third warning" which resulted in his 3-day suspension, the three slips in the series dealing with him are consistent with the foregoing procedure The first slip, dated May 28, is not marked in either of the boxes, the second, dated June 23, has a mark in the box designated "Ist Notice" and it states 1 1 . the next time it will result in 3 days off", the third slip, dated June 26, has a mark in the box designated "2nd Notice," refers to the slip of June 23, and states that he is being given 3 days off This system, however, does not appear to have been According to Mrs. Derby, Todd asked her how long it had taken her to smoke the cigarette she had just finished. She said she did not know and that she had not even finished smoking the cigarette when she was called in. Todd then said they were going to have to "start cracking down on this smoking and absences." Mrs. Derby answered that she had not been absent. Todd responded that her "efficiency couldn't stand this," that she had been kept on the job for a year with her efficiency remaining "the same," 21 and that she had been smoking since she had been there. She was then given an "Employee Warning Notice," which she refused to sign. The warning states, inter alia, that she "spent too much time at smoking area" but neither of the boxes in the upper right corner of the slip was checked.22 Mrs. Derby testified that employees who smoked were permitted, between 8:15 and 9 a.m., to go to the designated area and smoke one cigarette and that the only other limitation on the privilege was that no more than two employees be in the smoking area at the same time. Mrs. Derby also testified that the smoking break she took that morning was no different from those she had taken previously and that she had often been observed, without comment, by supervisors. She said she had never been told of any time limitation and she had never received any warning or other intimation that she was doing something wrong. Nelson started by testifying that the smoking break was specifically limited to 3 minutes and that he observed Mrs. Derby in the smoking area for 9 minutes. He then conceded that no employee had ever been told to limit his smoking time but he took refuge in saying, "I think they all knew 3 minutes was the limit." He then testified that a sign was posted in the smoking area limiting the time an employee could remain there but finally conceded that the notice merely said that smoking there is limited to the two smoking break periods, 8:15 to 9 a.m. and 9:34 to 10:15 a.m. Nelson's testimony was, as appears above, unreliable and Todd, although his name is on the warning slip, testified that he had no recollection of talking to Mrs. Derby on May 28. It is obvious that Mr. and Mrs. Derby were regarded as active participants in the organizational activity among respondent's employees. Moreover, in Mrs. Yost's interro- gation of Fulkerson, which occurred about this time, she portrayed Mrs. Derby as an active solicitor of union authorization cards. In view of the notably unconvincing testimony of Nelson with respect to this incident, I draw the inference that he created the situation for the purpose of followed uniformly and the foregoing general summary is based upon the testimony and other evidence Respondent's "Employee Handbook" provides that "for just cause, and dependent on the importance of the rule that is broken, an employee may be discharged " The handbook also provides for "reprimands" or "time off" before separation and stipulates that "warnings" will be removed from employee unit records after I year. 20 The final week of May was from Monday, the 25th, to Friday, the 29th 21 Mrs. Derby testified that her efficiency at this time was between 67 and 75 but that no efficiency rating had ever been shown to her by the Company, she had seen the figure on "a sheet of paper" 22 This reduced the status of the warning notice to an "oral notice" but it was placed in her file and it would determine the status of the next warning she might receive 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intimidating Mrs. Derby and instigating a series of warnings that could result in disciplinary action against her. Accordingly, I find that the warning notice constituted discrimination to discourage her membership in the union and that it violated Section 8(a)(3) and (1) of the Act. (2) May 28, June 23 and 26 : Albert Derby Albert Derby received, on May 28, the first of the three warning notices that culminated in a 3-day suspension. This first notice was given to him on the same day, and at almost the precise time when Mrs. Derby received the warning notice described above. It was between 8 and 9 a.m., Derby testified, when Dale Durfee, his foreman, came to him at his work station and told him that he had inspected and passed two pairs of shoes with "bumpy toes." Durfee then gave him a warning slip which was countersigned by Vanderwater. The essential fact, that he may have permitted two pairs of defective shoes to pass, was not disputed by Derby: he testified that it might happen to him and to all other inspectors "a couple of times a month." 23 On previous occasions, however, the foreman would tell him "to watch them a little closer" and that no warning of any type was ever given. He also testified that George Hileman, the other inspector who worked with him, had defective shoes similarly brought back to him two or three times a month. Derby was active in distributing the "open letter" on June 9 and testified that several supervisory employees observed him doing so. Sometime before noon on June 23, Durfee issued another warning to Derby, this one labeled "1st Notices," specifying that "3 shoes" had been passed although "damaged" and stating that "the next time it will result in 3 days off." This was also countersigned by Vanderwater. Another distribution of union handbills, and respon- dent's reaction to it described above, occurred during the afternoon on June 23. Late in the afternoon on June 26, Derby was again summoned to the superintendent's office. Vanderwater greeted him by saying: "Here we are again. We have got some more shoes here; we are going to have to give you a 3- day suspension." At that time Plant Manager Lovell came in: he first made a statement that the shoes had to be "made better" and he then began to tell Derby about his experience at another plant in the area which was about to go union when he left it. They talked about mutual acquaintances for a short while and Vanderwater then said that he hated to do this to Derby because they had worked together so long. Vanderwater also said that Derby had always given the company "100 percent" of his work but the last "couple of weeks must have been bad ones" for him. Derby answered by telling Vanderwater "not to worry about it, because I know what the deal is all about" and that he then left the office. He remained away from work for 3 days as directed. Durfee did not testify and Vanderwater, who did, did not dispute Derby's testimony. He stated that the second and third warnings were given in his office. He also testified that his action in suspending Derby was in accordance with "procedures in our handbooks," but this statement was a broad approximation of established practice because the handbook, as stated above, makes only a very general reference to warnings. As noted above, there is no dispute that defective shoes were sometimes passed by the inspectors. The issue here is whether Derby, because of his union activities, was treated in a discriminatory manner with respect to his lapses. Derby testified without contradiction that, during this time, he saw both Durfee and Vanderwater bring back defective shoes to his associate inspector, Hileman, but that Hileman did not receive any warning notice until about a week before the trial. Under questioning by counsel for respondent on this matter, Derby testified that he was told by Hileman that Durfee, when he gave him the warning, said that Vanderwater had said that he, Durfee, had better give him one because he had given him, Derby, one. This testimony was not contradicted by Vanderwater who said only that he did not recall whether Hileman had been given any warning after the series given Derby. Neither Durfee nor Hileman was called to testify. On the basis of the foregoing testimony, I find that the warnings and suspension were discriminatorily adminis- tered to Derby to discourage his membership in the union and that respondent thereby violated Section 8(a)(3) and (1) of the Act. (3) June 11: Josephine Ringquist and Beatrice Johnson Mrs. Josephine Ringquist had been employed by respondent for 22 years as a stitcher. Sitting next to her, and doing the same work, was Mrs. Beatrice Johnson, who had been employed by respondent as a stitcher since May 1963. Their task was to stitch, or close, the back seams on shoes. Each unit of material came to them as two pieces of leather, placed face-to-face, that had been cut, then skived (i.e., pared or beveled to reduce the thickness of the two pieces of leather when they have been sewn together), marked, and had some other operations performed on them. Although not fastened, the two pieces of leather stick together. Both Mrs. Ringquist and Mrs. Johnson signed the "open letter" which was distributed on June 9. On July 11, about 9 a.m., their foreman, Donald Nelson, came to their work station, bringing a case of shoes upon which each of them had worked. He said that the sides which they had stitched together were mismatched, that it was theirjob to match the colors when the material came to them and that they were not to stitch the sides together until they had checked the color. Mrs. Johnson testified that she disputed the matter with Nelson at once, pointing out that the sides came to them face-to-face and that, considering the speed at which they are required to work, they could not possibly separate the sides to compare their colors. She also pointed out to him that the lights on their machines throw shadows making it impossible to compare closely similar colors. Mrs. Ringquist corroborated Mrs. Johnson and added that she 23 Derby testified, without contradiction, that he inspects between 1,500 and 1,800 pairs of shoes every day WOLVERINE WORLD WIDE, INC. 453 occasionally did catch mismatched sides when the differ- ence was notable and the two pieces came apart. She also testified that mismatched sides which she had sewn together were sometimes brought to her attention but that it was the responsibility of the cutting room to match the colors and she had never been given a warning for sewing mismatched sides. Nelson testified and confirmed that he had given both Mrs. Johnson and Mrs. Ringquist "oral warnings" because of the mismatched shoes. He claimed that he had told these employees to check the color of the sides but his testimony was generalized and evasive. His recollection of when he had told Mrs. Johnson and Mrs. Ringquist to check was that he "couldn't recall": he also couldn't recall the month and thought it possible that it might have been 1 year or 5 years since he told it to them Based upon Nelson's testimony and his demeanor while giving it, I find that these employees had never been told that it was their duty to check the pieces of leather for color match before sewing them and that the procedure which they descnbed does not contemplate their doing so. Respondent's evidence with respect to these employees was so contrived that, bearing in mind the fact that their names were on the "open letter" distributed only 2 days earlier, I infer that respondent's action was discriminatory and designed to discourage their membership in the union. Accordingly, I find that these warnings constituted conduct violative of Section 8(a)(3) and (1) of the Act. (4) June 11 • Anna Petersen Anna Petersen had been employed by respondent for 18 years and, for the past 3 years, had worked as a "marker," using a machine which made guidelines for the stitchers. In the afternoon on June 11, she was summoned to the office by Donald Nelson, her foreman, and told that she had marked some shoes too lightly He said that they would have to bring down the cost of production and said she would be given an "oral warning." She was given the shoes to remark. Mrs. Petersen testified that certain pins on her machine which held the marking die in place were too short; that the dies often slipped out of place; and that, on previous occasions when the markings were crooked, Nelson usually just told her about it, although in March, when it had also happened, he made out a slip that he characterized as an "oral" warning.24 She also testified that the pins in the machine were replaced, after the June incident, with longer pins and that it thereafter operated satisfactorily. Nelson confirmed Mrs. Petersen's testimony but said that he did not think it was the fault of the marking machine that the shoes were marked too lightly because he expected the employee to build up the base of the die with scraps of leather. He conceded, however, that the pins had been replaced. Mrs. Petersen was one of the signers of the "open letter" distributed 2 days earlier and June 11 was a day of considerable activity by respondent found herein to constitute unfair labor practices. Although respondent's basis for a written warning to Mrs. Petersen is not shown by this record to be obviously without merit, Nelson's testimony nevertheless convinces me that, except for her signature on the "open letter," Mrs. Petersen would not have had another warning25 placed in her file. With the exception of the March incident, previous errors attributa- ble to the defective machine had not been so treated and I infer that the purpose of this warning, considering its timing, was to discourage her membership in the umon. Accordingly, I find that the giving of this warning violated Section 8(a)(3) and (1) of the Act. (5) June 24: Lois Spencer Lois Spencer had been in respondent's employ for 10 years, all the time as a skiver, whose task is paring or thinning the edges of the leather so that it can be sewed. She had signed the "open letter" distributed June 9. Between 3:30 and 4:30 p.m. on June 23, after her work was over, Mrs. Spencer, together with fellow employees Betty Derby and Mable Sims, handed out union leaflets to employees entering and leaving the parking lot. One of the cutting room foremen entered the lot as she was passing out the leaflets. At 8:30 the next morning, Mrs. Spencer was called into the superintendent's office by her foreman, Donald Nelson. Also in the office were Section Manager Todd and Plant Superintendent Vanderwater. They asked her whether a case of shoes and boots, still in the process of manufacture, had been worked on by her. Mrs. Spencer's number was on the ticket and she conceded that she had worked on it. On one pair of the six in the case she had skived too sharply and had cut off corners on the four pieces making up the two shoes in the pair. They asked her how long she had worked at skiving and, when she said 8 years, they said that anybody on the job that long should know better "than to put through work like that." They then said that they would have to give her a warning notice and they did so. It is marked "1st Notice." Mrs. Spencer testified that she skived 1,500 pairs of shoes each day and that some of their parts were occasionally skived too thin or had their corners cut off. She also testified that her fellow workers also made the same errors and that the damaged parts were routinely called to their attention with the request to be more careful. She conceded that prior to June 24, Nelson told her and the two other skivers that they were making a lot of "cripples," i.e., damaged parts, and that they should "watch it." All three of the skivers, according to Mrs. Spencer, make some errors but no warning notices have been issued to them on the basis of such routine errors.26 Nelson confirmed Mrs. Spencer's testimony except that he thought she skived only 1,200 pairs of shoes per day. His testimony contains no explanation for the issuance of a written warning to Mrs. Spencer under circumstances which, I find, did not normally result in such warning. While her union activity could not immunize her from justifiable discipline, her undisputed testimony shows that the errors involved herein did not normally result in written 24 The slip has no mark in the upper right corner 26 The warning slips given on May 26 to Mrs. Spencer and Mrs Howell, 25 This warning slip is not in evidence and its character, i e, whether another skiver, are identified with work on a specific shoe pattern, No "oral" or "1st Notice," cannot be ascertained 2044, but there is no further testimony concerning it 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warnings. Accordingly, I find that, but for Mrs. Spencer's action in passing out union leaflets the previous day, the warning would not have been issued. By issuing the warning, respondent discriminated against her to discour- age her membership in the union and violated Section 8(a)(3) and (1) of the Act. (6) June 26: Leonard Sims Leonard Sims had been employed by respondent for 8 years, the last 7 of them as a "shag cleaner" whose task it is to clean and buff the uppers of shoes to remove excess cement . He signed and helped distribute the "open letter" on June 9 and, on June 23, his wife27 distributed union leaflets in the parking lot. In the morning on June 26, Sims testified, his foremen, McIntyre and Marks, came to him at his work station and Marks showed him a shoe on a rack, stating that Sims had damaged it. Sims conceded that he "could have done it"; Marks told him he "had better be careful" and Sims replied that he would, he did not make a habit of doing it on purpose. After 3 o'clock that same afternoon, Marks brought Sims to the superintendent's office where he found Foreman McIntyre, Superintendent Vanderwater, and Plant Manager Lovell. Vanderwater reminded Sims that he had been warned earlier that day about damaging shoes; Sims answered that he had not done it on purpose and he would try to do better, but Vanderwater continued by saying that three pairs had been damaged in another rack and they would have to give him a warning slip. Lovell said they were going to have to put a stop to damaging shoes and handed him the warning slip but Sims refused to sign it. Sims then remarked that it was not too bad, after 7 years, to get a warning slip for bad work. Sims testified that he handled between 900 and 1,100 pairs of shoes each day and he conceded that he had damaged shoes, but he stated that it happened less often than twice a week. He testified that, whenever he recognized that he had damaged a shoe, he put it aside to show the foremen. He also conceded that damaged shoes had been brought back and shown to him, principally in an effort to determine how the damage was done, but he had never received any warning except an oral warning in 1963 or 1964 when he started on this line. Vanderwater's testimony was not in conflict with that of Sims. In claimed contradiction of Sims' testimony that he had never had a written warning for defective work, respondent introduced another written warning-which had been given, however, for being absent. The proof on this issue is notably weaker than on many of the others in this case. However, on the basis of Sims' record in not receiving warning notices although he conceded that he damaged shoes about twice a week, his signature and that of his wife's on the "open letter", and the recent handbilling activities of his wife, I find that, but for the union activities of Sims and his wife, this warning notice would not have been given to him. Accordingly, it constituted discrimination to discourage his membership in the union and violated Section 8(a)(3) and (1) of the Act. (7) July- 3: Shirley Kooistra Shirley Kooistra had been employed by respondent as a marker in Plant C for slightly more than 2 years when she signed the "open letter" distributed June 9. As detailed above, the next morning she was interrogated by Section Manager Todd and warned about a loss of benefits if the union came in. It is to be noted that she shrugged off Todd's warning by saying that, if the union came in, "The company would probably be upset for a while but they would settle down in time," and that her principal complaint was that the markers could not make the production standard. On July 2, union leaflets were again distributed in the parking lot by Mrs. lone Dard, Leonard Sims, and some other employees. In the afternoon on July 3, Foreman Nelson brought Mrs. Kooistra to Todd's office. Todd said she had marked some shoes "off," i.e., in the wrong place, and Mrs. Kooistra said she knew it because she had pulled the shoes "off the line" and given them to a floorgirl for recutting so that they would not be worked on by other employees. Todd said that they would nevertheless give her "a white slip," a warning. Mrs. Kooistra further testified that the dies on the marking machines were defective and that she had to put "shims" underneath them to get marks on the shoes; and that when the dies slipped, she had marked the shoes off. Todd also brought out some sample shoes that she had marked incorrectly but she testified, without contradiction, that she had marked them as directed but the directions were wrong. Mrs. Kooistra testified that she had made occasional errors that were known to her supervisors, but that she had never been called to the office to discuss them or had a personal warning, although there had been group warnings to all three markers in which they were told to be careful. Todd did not contradict anything Mrs. Kooistra said but simply confirmed that he and Nelson had talked with her on July 3 about some wrong marking. On the basis of Mrs. Kooistra's testimony, it appears that there was nothing unusual about occasional marking errors, particularly when the employee himself weeded out the rmsmarked material. It is also uncontradicted that any errors in the marking of the sample shoes were not due to inadequate performance by Mrs. Kooistra. It is also undisputed that the marking machinery was defective and that Mrs. Kooistra had been given no warnings, although she made occasional errors. The only explanation in the record for this change in respondent's treatment of Mrs. Kooistra lies in the inference, which I draw, that she was an apparently unrepentent signer of the "open letter" and that the distribution of union leaflets on July 2 stimulated Todd to prejudice the status of a union sympathizer. Accordingly, I find that the warning28 issued against Mrs. Kooistra constituted discrimination to discourage her membership in the union. Such conduct by respondent violated Section 8(a)(3) and (1) of the Act. 27 Mable J Sims was addressed as "Mrs Sims," she gave the same while this proof is not conclusive and might not justify a finding were it an address "Route 2, Reed City," as he did, they are the only two persons issue, it is sufficient for this purpose. named Sims on the "open letter," and they are both employed at Plant C 28 The slip is not in evidence and its potency is, therefore, unknown WOLVERINE WORLD WIDE, INC. 455 i. The discharge of Sandra Lynn Murray Sandra Lynn Murray worked for respondent on two separate occasions. Her first period of employment began March 15, 1968, and she worked for precisely one year before taking maternity leave and subsequently resigning. On April 27, 1970, she returned to respondent's employ but, since there was no vacancy in the fitting department, where she had formerly worked, she was assigned to the finishing department, washing shoes on the 4:30 to I I p.m. shift. The washing of shoes is performed by five women who work side-by-side facing a conveyor belt above the tubs. They take their stations in their order of seniority, with the one longest on the job having the first place in the direction from which the racks of shoes come to them. The senior washer takes her choice of shoes off the belt, choosing those which, she believes, will be quickest and easiest to complete and will yield her the highest return.29 The second washer gets second choice, and so on down the line to the fifth washer, who must take what remains. Mrs. Murray, of course, took the fifth place when she began to work in April, but on the following day another employee, Katherine Lee, was hired so Mrs. Murray moved up to fourth place where she was until she was discharged. On June 8, Stafford, foreman of this group of washers, held monthly work review conferences with the three senior washers, but he was not able to get to Mrs. Murray that evening so he told her that he would see her the following evening. Mrs. Murray signed the "open letter" about 2 p.m. the following afternoon, and it was distributed shortly thereafter. She went to work as usual, at 4:30 p.m. About 8 p.m., Stafford called her to the cafeteria for a conference. He told her that her job production was "too low" for the time she had been there and that she was to be terminated that evening. Mrs. Murray asked whether Katherine Lee, the most junior employee, was also to be terminated and Stafford said that Lee was being given the rest of the week "to better herself on the job." Mrs. Murray protested that her discharge was unfair and asked Stafford whether she was being discharged because she had signed the "open letter." Stafford said it was not but Mrs. Murray insisted that there could be no other reason for her discharge and asked to see Night Superintendent Mondrella. She asked Stafford whether she should finish out her evening's work and Stafford refused; she asked whether she could continue until 9:30 and he again refused. Mrs. Murray then went to Mondrella's office but she learned that he was not in the plant that evening. She did see, however, Victor Schultheiss, the employee relations manager. She told Schultheiss that she had been terminated by Stafford and Schultheiss answered that her production was low. Mrs. Murray picked up the top copy of several of the "open letters" that were lying on his desk, showed him her signature on it, and said that was the reason she had been fired . Schultheiss said it was not and he defended Stafford. He then asked her what time she was "all done working" and she said she guessed it was "as of right now." Schultheiss told her that she could not go back into the plant alone since she no longer worked there; he accompanied her back to her work station and either he or Stafford kept watch over her until she took her purse and left about 9 p.m.30 According to Mrs. Murray's testimony, which was not contradicted, she had never been given any kind of warning concerning the quantity or quality of her work. Due to the fact that she and Katherine Lee made up their work reports together, Mrs. Murray testified, she knew that Lee's performance was just about the same as hers. Stafford's complete testimony with respect to the discharge of Mrs. Murray consists of the following three questions by respondent's counsel on direct examination: Q. Mr. Stafford, were you involved with the termination of an employee named Sandra Murray? A. Yes. Q. Upon what did you base your decision to terminate Sandra Murray? A. Upon her work production. Q. Where did you get the figures for her work production from? A. From the cards that they in turn turned in. The balance of his testimony was devoted to a description of the card system and to respondent's effort to lay a foundation for the receipt into evidence of Katherine Lee's card.31 Stafford, however, made no reference to any comparison between the work records of Mrs. Murray and Katherine Lee. In appraising the testimony of Stafford, who claimed that it was he who made the decision to terminate Mrs. Murray, consideration must be given to the uncontroverted testimony of Beverly Gardner who, at the time of Mrs. Murray's employment as a washer, was the senior employee and first in the line. She testified that when she was hired as a washer in August 1969, the man who was foreman at the time told her that she had a 6-week period to learn the job and, at that time, if she had not brought her production up to the point desired, she would receive a warning slip and be given another month to bring her production up; and that if, at the end of that month, her production was still not up, she would receive another warning, to be followed, if appropriate, by transfer or discharge. Mrs. Murray's discharge, it is to be noted, occurred 6 weeks and a day after she began working as a washer. It appears, therefore, that Stafford did not follow the established procedure. Joyce Martiny, who was third in seniority and worked just above Mrs. Murray, began working as a washer early in 1970. She testified that, even when she was the last in the line, there were no written warnings, although at each of their monthly meetings they were urged to pick up speed. She also testified that she was never threatened with discharge for failure to pick up speed and that, although the number of washers varied during her employment, no washer had ever been discharged for failure to make production. 29 Different types of shoes have different amounts of compensation June 10" but no objection was raised to the proof on the ground of fixed for various operations The compensation may be fixed in terms of variance in date This variance is insubstantial and has been ignored. "time" or "productivity " 31 The card was received in evidence with strongly expressed 30 The complaint alleges that Mrs Murray was discharged "on or about reservations concerning its reliability and probative weight. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Relations Manager Schultheiss, however, gave an account differing from that of Stafford. He testified that on June 8, he conferred with Stafford and concluded that they "had too many people in the area . . . and the performance of the people was not up to par." They decided to "relieve" one employee but would wait to see the "performance cards" before making a decision so that the employee with the "lowest work record for that week" would be separated.32 He then confined the competition for separation to the two "probationary employees," Murray and Lee, because the others, having been there over 90 days, had "seniority." He also testified, however, that the performance of these senior employees was higher than that of the other two. The performance cards of Murray and Lee for the week ending May 30 were received the morning of June 9 and they showed, Schultheiss testified, a performance record of 56.5 percent for Murray and 63.1 percent for Lee.33 There is no explanation for the use of cards showing production figures more than a week old, since the employees testified that the standards of compensation for the work they performed were already on the cards when they received them at the beginning of the week and each day they simply filled in the quantity of each type of work performed and the number of hours they worked,34 so that computation of each employee's efficiency, on the basis of the two sets of figures, is a comparatively simple matter. More important than the questionable reliability of the comparative efficiency ratings shown on the cards is Schultheiss' admission that these ratings were not the sole criterion which he used in choosing the employee to be discharged. The two other elements which entered into his decision, he testified, were that Mrs. Lee had formerly worked for respondent 10 years but Mrs. Murray had worked only one year, and that Mrs. Murray could not be transferred back to her previous department because the foreman there, under whom she had formerly worked, would not have her. These matters ment examination. Based upon his statement that Lee previously worked 10 years for respondent, although he did not know the department, Schultheiss drew not only the conclusion that Lee was a "longevity employee" but that Mrs. Murray, who 32 Schultheiss testified that, although he personally did not tell any of the employees of the intention to reduce the force, stated that "to his knowledge" the supervisor did, but he admitted he did not hear him do so. Joyce Martiny, one of the washers, testified that prior to Mrs. Murray's discharge neither Stafford nor any other management representative told them that anyone was to be discharged 33 A considerable amount of testimony was devoted to the data on the cards, its origin , the calculations based upon it, and the uses to which it is put, but nevertheless the origin of and justification for some of the elements remained unexplained. Although the Lee card was received on a very unsatisfactory foundation, since it could have been concocted for the purpose of this litigation , the calculations on the two cards showed the above efficiency ratings for the two employees 34 There is also no explanation for the fact that both cards show the employees working only the first 4 days of that week, although Schultheiss testified that it was a 5-day, 40-hour week, and he testified that he did not know why the cards showed only 4 days. 35 Big Rapids is the site of Fems State College, a component of the Michigan State University system . There is nothing to show what Schultheiss knew about the academic status of Mr Murray but it is to be noted that at the time of the trial of this case, more than 7 months later, Mrs. Murray gave her address as "West Campus, Big Rapids." had worked one year, "would be leaving Big Rapids upon the graduation of her husband." 35 Schultheiss conceded that Mrs. Murray had never told him this and no justifiable basis is shown for this assumption which he made or his claimed reliance upon it. The other element relied upon by Schultheiss was his statement that he chose Mrs. Murray for discharge because the foreman in the department where she had formerly worked would not accept her. The reasoning of Schultheiss exhibited by this statement seems strangely awry; if Murray's former supervisor would not accept her on transfer and, inferentially, Lee's would, does that constitute a justification for discharging Murray?36 Another, and more serious, deficiency in Schultheiss' use of this denigrating argument is that, since the record proves it to be without basis in fact,37 it constitutes a slur justifying an inference of both recklessness and malice. Respondent's assigned bases for the discharge of Mrs. Murray have been rejected as groundless,38 but it is undisputed that, only a few hours before her discharge, the "open letter," signed by Mrs. Murray and other employees supporting the Amalgamated, had been distributed outside the plant and Mrs. Murray saw several copies in a pile on Schultheiss' desk. Also important in this connection is the uncontradicted testimony of Mrs. Murray that she was discharged at 8 p.m. but not given her final check at that time. If the choice of Mrs. Murray as the one to be discharged had been made, as Schultheiss testified, when the performance cards were received on the morning of the 9th, it would seem an appropriate step and a simple matter for respondent's office force to have prepared her final check sometime during the day before her reporting time at 4:30 p.m. and it also would appear likely that Mrs. Murray would have been notified of her termination when she reported instead of after 8 p.m. If, on the contrary, the decision was not made until the distribution of the "open letter" between 3:30 and 4, or even later, it is understanda- ble that the clerical staff would be unable to prepare her check in time. I also take into consideration the abrupt timing and manner of the discharge , as well as Schultheiss' discourtesy in refusing to permit Mrs. Murray to pick up her belongings without surveillance.39 While Schultheiss testified that he denied Mrs. Murray's 36 Schultheiss did not claim to use this as a test of their comparative efficiencies. 31 Schultheiss testified that a man named Stripco was Mrs . Murray's foreman in the prefitting room and that, for reasons unknown to Schulthetss, he did not want her back in that department . Mrs. Murray testified on rebuttal that her previous work was in the fitting department and that her foremen during that period were Jim Laviska, Bryan Scott, and Donald Nelson. She knew there was a man named Stripco in the area at the time and that he was a supervisor because he wore a white shirt but she never worked for him. She also testified that, when she was interviewed by Schultheiss for reemployment, she asked to be placed in the fitting department but Schultheiss said there was no opening there . While this interview was in progress , she testified, Laviska came in and greeted her, Schultheiss asked him whether it was a good idea to hire her bark , Laviska said, "She's a good kid", and Schultheiss hired her . Mrs. Murray's testimony was not controverted and I find it to be an accurate account of the interview. 38 An additional reason for rejecting respondent's contentions is the fact that Schultheiss, by the contradictions in his testimony and his demeanor while testifying, impressed me as a not credible witness. 39 See Laney Tank Lines, Incorporated, 166 NLRB 1053, 1059. WOLVERINE WORLD WIDE, INC. 457 accusation that her signature on the letter was his real reason for discharging her, I find, on all the credible evidence, that it was precisely that and that he discharged her to discourage membership in the union. His action, therefore, constitutes a violation by respondent of Section 8(a)(3) and (I) of the Act. j. Additional conclusions Although it has been necessary to examine and adjudicate, separately, each of the acts and occurrences alleged in the complaint as an unfair labor practice and, for the purpose of such discussion, the acts and occurrences have been grouped with others of a similar nature, it must be kept in mind that each of the items litigated stands not in isolation but in a vital relationship to each other. As the court of appeals recently stated: Each 8(a)(1) violation contributed to an anti-union pattern which gave color to each.40 Accordingly, a chronological summary of the events herein is set forth to show this interrelationship. Union activity Apr. 6: Union representatives meet with Albert Derby Company reaction Apr. 13: Albert Derby questioned by Vanderwater; given impression he is under surveillance May 11: Mable Sims interrogated concerning union cards; threatened with refusal of time off May 22: Irene Shannon interrogated concerning union cards May 28: Betty Derby given warning notice for smoking break May 28: Albert Derby given warning notice for passing defective shoes End of Fulkerson interrogated May: about union status of members of his family 40 New Alaska Development Corp, et a! v N L R B (C.A 7), March 22, 1971, enfg. 175 NLRB No. 131. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union activity Company reaction June 9: "Open Letter" signed June 9: Antiunion petition by 48 employees is circulated with implied distributed outside consent of respondent; plants. threats made that plant will close June 9: Sandra Murray is discharged June 10: Charlotte Pontz interrogated concerning her reasons for signing "open letter" June 10: Shirley Kooistra interrogated concerning her reasons for signing "open letter" and threatened with loss of benefits June 10: Threat by Lovell to Dard that operators would be required to attain "100% efficiency" June 11: Warning given Johnson and Ringquist for failure to check colors June 11: Petersen given warning for light marking June 12: Foreman Hendricks questions Ruth Owens on her attendance at the union meeting* WOLVERINE WORLD WIDE, INC. 459 Union activity COMPany reaction June 13: Union meeting at town June 13: Elliott and Ward hall in Paris engage in surveillance of union meeting June 15 : Plant Manager Lovell "consults" employee about formation of of employee committee* June 17 : Charlotte Pontz interrogated concerning union dues June 23: Handbills passed out June 23 : Supervisors Schultheiss in parking lot by and Mondrella attempt Spencer , Mable Sims, to bar handbill dis- and Betty Derby tributors from premises June 24 : Spencer given warning for damaging corners in skiving June 26: Albert Derby issued 2nd warning for passing defective shoes June 26: Leonard Sims issued warning for damaging shoes in cleaning June 27: Harassment of Fulkerson re union cards* End of Ringquist interrogated June: concerning her reasons for signing "open letter" 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union activity Company reaction July 2: Handbills passed July 2: Attempt by Mondrella out by Lone Dard and to intimidate and bar Leonard Sims distributors of handbills July 3: Shirley Kooistra issued warning for marking errors 3d week Threats of plant in July: closing by Mondrella End of Fulkerson told that July: his new foreman would try to get him away from the union; also told that he was being watched End of Doris Kirk promised July : favorable consideration of application for transfer if employees would "negotiate directly" with management Aug. 9: Threats of plant closing by Mondrella WOLVERINE WORLD WIDE, INC. 461 6. The effect of the unfair labor practices upon commerce The activities of respondent, set forth in finding of fact 5, above, occurring in connection with its operations de- scribed in finding of fact 1, 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. 7. The remedy Having found that respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take affirmative action designed to effectuate the purposes of the Act. Having found that respondent, by administering warning notices to certain employees, committed unfair labor practices, I shall recommend that it expunge the warning notices from the files of those employees. Having found that respondent, by suspending Albert W. Derby, committed an unfair labor practice, I shall recommend that it make Derby whole for the loss of wages he suffered by the suspension, with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that respondent, by discharging Sandra Lynn Murray, committed an unfair labor practice, I shall recommend that it offer her reinstatement to the position she held on June 9, 1970, or, if that position no longer exists, to a position substantially equivalent thereto, without loss of seniority or other rights and benefits, and that it make her whole for any loss of compensation she may have suffered, computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and with interest as prescribed in Isis Plumbing & Heating Co., supra. In view of the nature and extent of the unfair labor practices found herein to have been engaged in by Respondent, which indicate its determination to interfere aggressively with its employees' rights of self-organization, I shall recommend a broad cease-and-desist order herein.41 Upon the foregoing findings of fact and upon the entire record herein, I reach the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The union is a labor organization within the meaning of Section 2(5) of the Act. 3. At the time of the activities set forth in the Decision, Clem Lovell, Donald Whiteside, Victor Schultheiss, Henry Jensen, Keith John Vanderwater, Dewey Smith, Richard Mondrella, Jack Wright, Ronald Todd, Lynn Todd, Dale Durfee, Daniel W. Elliott, Jim Laviska, Orville Hendricks, Donald Nelson, Robert Sturdivant, Thomas Stafford, Jack D. Ward, and Annabelle C. Yost were supervisors of 41 N L.R B v Entwistle Mfg. Co, 120 F 2d 532, 536 (C.A 4, 1941) 42 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 , and recommended Order herein shall, as provided in respondent within the meaning of Section 2(11) of the Act and acted as its agents. 4. By coercively interrogating employees concerning their self-organizational activities, or their union sympha- thies and activities; by interfering with employee distribu- tion of handbills in nonworking areas; by placing the union meeting under surveillance and giving employees the impression that their union activities were kept under surveillance; by threatening to close the plants and discontinue their employment; and by permitting the circulation of an antiunion petition, respondent has interfered with, restrained, and coerced employees in their exercise of rights guaranteed by the Act and committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By issuing warnings to employees under circum- stances not normally resulting in such warnings and by suspending Albert W. Derby on the basis of such warnings, respondent discriminated against those employees to discourage their membership in the Union and committed unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By discharging Sandra Lynn Murray, respondent discriminated against her to discourage her membership in the Union and committed an unfair labor practice within the meaning of Section 8(a)(3) of the Act. 7. By the unfair labor practices set forth in conclusions of law 5 and 6, respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed in the Act and committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 42 ORDER Respondent, Wolverine World Wide, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their self-organizational activities, their union sympathies or activities, their membership in or activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organiza- tion; interfering with employee distribution of union or organizational handbills in nonworking areas of the plants; placing union meetings under surveillance or giving employees the impression that their union activities are being kept under surveillance; threatening to close its plants and discontinue employment because of their employees' exercise of self-organizational rights guaranteed by the National Labor Relations Act, as amended; or by permitting the circulation of antiunion petitions. (b) Warning, suspending, or discharging any employee to 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. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discourage his or her membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form organizations, to join or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organiza- tion, to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to Sandra Lynn Murray immediate and full reinstatement to her former position or, if that position no longer exists, to a position substantially equivalent to that which she held immediately prior to June 9 , 1970, without prejudice to her seniority or other privileges, and make her whole for any loss of wages in the manner set forth in the section of the Decision entitled "The remedy." (b) Notify immediately the above-named individual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement , upon application after discharge from the Armed Forces , in accordance with the Selective Service Act and the Universal Military Training and Service Act. 43 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 ORDER OF THE NATIONAL LABOR RELATIONS BOARD." (c) Make Albert W. Derby whole for any loss of pay he may have suffered by reason of his suspension on June 26, 1970, in the manner set forth in the section of the Decision entitled "The remedy." (d) 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 the amount of backpay due under the terms of this recommended Order. (e) Post at its Plants B/F and C in Big Rapids , Michigan, copies of the attached notice marked "Appendix." 43 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 7, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith 44 The allegations of the complaint, insofar as not found by the Decision to be violative of the Act, are hereby dismissed. 44 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.