Universal Rundle Corp.

UNIVERSAL RUNDLE CORPORATION 253 Universal Rundle Corporation and International Brotherhood of Pottery & Allied Workers, AFL-CIO-CLC. Case 16-CA-4187 November 19, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 13, 1971, Trial Examiner George Turitz issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in other unfair labor practices alleged in the complaint, and recommended dismissal of such allegations. Thereafter, Respondent filed timely exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the brief, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein. The Trial Examiner found that Respondent's discharge of employee Robert Selph was discrimina- torily motivated in violation of Section 8(a)(3) and (1) of the Act. We find merit in Respondent's exception to this finding as we do not believe that the requisite unlawful motive can properly be inferred from the circumstances surrounding Selph's discharge. The record shows that Selph was hired by Respon- dent on August 10, 1970,2 and for the first 5 weeks worked at various tasks involved in getting the new plant ready for operations. On September 15 prod- uction commenced and Selph was made a former- glasser, operating a spray gun to coat the molds of bathtubs and shower units with polyurethane foam or with a resin-fiberglass material. This job required careful hand-eye coordination and quick responses and, as the Trial Examiner found, Selph's perform- ance was stiff and he could not get at ease with the spray gun. On October 9, Plant Manager Bell forwarded a memorandum to Plant Superintendent Wendel which stated that Selph's foam-spraying work was unsatisfactory, but, giving him the benefit of the doubt, he would be tried out on a warehouse job. At or about the same time, Selph requested a transfer to Respondent's warehouse as he disliked the foaming- glassing operation, finding it messy and ruinous to his clothing. On October 10, Selph transferred to a warehouse job, and, on the same day, was also informed that he had completed his 60-day probationary period, being entitled thereby to a 10-cent-per-hour wage increase and certain benefits.3 Selph's new job duties included the packing of finished units in cartons, clean-up work, the distribution of raw materials throughout the plant, and filing work in the administrative office. Certain of these duties caused Selph to move in and around all areas of the plant and gave him frequent contact with many of the other employees. On October 14, Selph, while packing a completed bathtub unit, was instructed to smooth down the overly thick foam insulation on a bathtub's back surface around the outside of its drain hole. In accordance with his instructions, Selph used an air- powered grinding tool to accomplish this task. While so doing, the grinder jerked and gouged a distortion in the side of the drain hole. To correct this, Selph then used the grinder to round out the distorted hole "until it looked nice," thereby greatly increasing its circum- ference. This corrective action made the entire unit unusable; it had to be scrapped as it could no longer be installed with and connected to plumbing fixtures of prescribed dimensions. At the hearing, Selph testified that he did not know what width the hole had to be, that he enlarged it "hoping it may be acceptable," ,and that while he realized a metal fitting had to cover the hole, he did not know the size of it: Selph was not given a warning or reprimand for this incident, but Foreman Williams and Superintendent Wendel pointed out to him his error and the fact that the unit had to be scrapped as a result thereof. On October 15, Superintendent Wendel found Selph in Respondent's grinding room operating a grinder on the skirt of a tub unit, although he was not assigned to perform such work or even be present in the grinding room. Selph had scalloped the edge of a tub with the grinder so that it would not sit flat on the floor and an hour of repair work was necessitated to correct the defect. Wendel told Selph that this was not his job and instructed him to stay out of the grinding room in the future.. During the same week, Wendel, while reopening some sealed cartons that Selph had 1 Respondent has requested oral argument This request is hereby 2 All dates herein are 1970, unless otherwise specified. denied as the record, the exceptions, and the brief adequately present the 3 This did not effect an increase in Selph's net wages, as the 'warehouse issues and positions of the parties job carried a lower base pay rate. 194 NLRB No. 21 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD packed, discovered that incorrectly placed staples on the outside of the cartons had marred the surfaces of the units enclosed therein to the extent that they had to be refinished. Selph was present when Wendel found these defects and they were pointed out to him. On October 16, Foreman Williams, while, in the employees' lunchroom, heard Selph loudly swearing and using profanity. Williams told Selph to watch his language as there were women seated at the next table. Later that day Williams reported the incident to Wendel, said that the women nearby had heard Selph and were' obviously upset by his language, and recommended that a warning be issued. Wendel then wrote out a "first warning notice" which he gave to Selph on the morning of the next workday-Monday, October 19. Selph spoke to both Wendel and Bell about the warning notice and, from their conversa- tions at the time and their testimony at the hearing, it does not appear that Respondent's officials consid- ered Selph's profanity to have constituted a serious breach of discipline. Shortly after receiving the warning notice, Selph posted it on Respondent's bulletin board.4 Bell discovered this on the morning of October 20, immediately became infuriated, and tore down the notice. He then went to Wendel's office, threw the notice on the desk, and said that he considered Selph's posting of it to be the rankest form of insubordina- tion. The next day Bell met with Wendel,5 discussed Selph's work record, and decided to discharge him. On October 22, Selph was given a discharge notice which listed as the reasons therefor his ruining of the tub unit by grinding the oversize drain hole, his improper grinding of the tub skirt when not assigned to that job, his marring of finished units by improper carton stapling, the lunchroom profanity incident, and the alleged insubordination involved in the posting of his warning notice on the bulletin board. Selph's union activities consisted of speaking in favor of the Union to some employees and showing them wage scales from the Union's contracts at two of Respondent's other plants and passing out authoriza- tion cards to from four to six employees,6 one of whom signed. With respect to Respondent's knowl- edge of this, its counsel stated at the hearing that at all times relevant to the issues herein Respondent was aware of Selph's union activities. Further, the record specifically shows that Selph made prounion state- ments to Foreman Williams on or before October 7, and that employee Lockhart made an unsolicited 4 Respondent's "Employees Handbook" provided that employees must get supervisory approval before a personal notice could be posted on plant bulletin boards. a Bell testified that Supervisors Williams and Lowe were also present at this meeting, while Wendel could not recall whether they were there or not. Unlike the Trial Examiner, we do not conclude from this discrepancy that such a meeting did not take place. disclosure of Selph's union activity to Plant Manager Bell on or about October 8. Although Respondent's discharge of Selph was made, therefore, with full knowledge of his union activity, there is no direct evidence which would establish that Respondent's action was motivated by unlawful considerations. However, in evaluating the circumstances which gave rise to Selph's discharge, the Trial Examiner conclud- ed that the reasons offered by Respondent to support the discharge were pretextual and, accordingly, he inferred that Respondent's true reasons were discrimi- natory. In so concluding, the Trial Examiner relied, in part, on the fact that no other employees were discharged by Respondent for poor performance, although the major portion of its bath and shower tub production during the period of Selph's employment was defec- tive to the extent of needing corrective work and a considerable number were unusable. Respondent excepts to this conclusion, asserting that it expected its employees to make mistakes during the early stages of this newly established plant, as they were inexperi- enced in the techniques of executing their assigned job tasks, but that Selph's deficiencies, and the resultant damage to production units-unlike those of other employees 7-manifested an inability to follow supervi- sory instructions and a serious lack of sensible judgment. We find the distinction drawn by Respon- dent between Selph's mistakes and those of other employees to be a reasonable one. Selph's initial distortion of the drain hole resulted from his inexperi- ence in operating the grinder, but his subsequent intentional enlargement of the hole was contrary to instructions and was clearly indicative of poor judgment. Similarly, his damaging of the tub skirt resulted from his performing work not assigned to him and his marring of the cartoned units was caused by his failure to follow instructions as to the placement and quantity of staples used. Thus, the principal job-related factor leading to his discharge was not merely production of defective work, but rather that the defective work resulted from a failure to follow instructions .8 Respondent also asserts that Selph's cumulative work -deficiencies would not alone have caused his discharge, but with that as background, his posting of the warning notice on the bulletin board-viewed by Plant Manager Bell as an act of defiance against 6 Respondent's complement of hourly rated employees ranged from 20 to 23. 7 The only specific evidence in the record with regard to another employee ruining a production unit pertained to employee Lockhart whose damage to a tub resulted from a 1/2-inch maladjustment in a newly installed grinding saw. 8 See Formed Tubes Southern, Inc., 188 NLRB No. 3. UNIVERSAL RUNDLE CORPORATION managerial authority-led to a review of his entire work record and the resultant discharge.9 In his Decision, the Trial Examiner devoted considerable discussion to the question of Selph's intent in posting the warning notice, rejecting, in the process, Selph's own explanation. We find, regardless of Selph's actual intent, that Plant Manager Bell interpreted it as an intentional act of insubordination and that such interpretation, under the circumstances, was a reason- able one. Respondent contended before the Trial Examiner that the retention of Selph as an employee through the completion of his probationary period on October 10 negates any discriminatory motive in light of Respon- dent's awareness, at that time, of Selph's union activities. The Trial Examiner rejected this conten- tion, concluding that Respondent could have formed an intention to get rid of Selph as early as October 8 without following through on it until it could establish a more convincing foundation for a discharge. Under the circumstances herein, we disagree with this conclusion as Respondent not only retained Selph after completion of his probation, but simultaneously therewith granted him the favor of a transfer from the foamer-glasser job which he disliked and performed poorly to the warehouse job he preferred and requested. We find it more reasonable to conclude that an employer intent on effecting a discriminatory discharge would refuse such a transfer request in expectation that the employee would either resign from the disliked job or continue to perform it unsatisfactorily and, thereby, supply a plausible reason for discharge. Further, we note that the duties of the warehouse job to which Selph was reassigned allowed him to have frequent contact and conversa- tion with employees in all areas of the plant. It does not appear likely that an employer contemplating discharge of an employee for promoting unionization would place that employee in a position to maximize his opportunities for contacting others. The Trial Examiner, citing the fact that Respondent never specifically warned Selph that his poor work or conduct could lead to termination, states that the absence of such warning, if accompanied by other indicia of discriminatory intent, would lend support to a finding of discrimination. Unlike the Trial Examiner, however, we conclude that the absence of specific warning herein does not, without more, support a finding of discriminatory intent as there is no proof that Respondent had any practice of giving particular numbers or forms of admonitions and warnings before effecting a discharge. Moreover, we find no basis for assuming that Respondent, because of its antipathy toward unionization of its plant, would necessarily resort to unlawful means to frustrate employee concerted activities.10 255 We conclude, in view of the foregoing, that the General Counsel has failed to prove that Selph was discharged for discriminatory reasons. Accordingly, we shall order that the complaint be dismissed with respect to the allegation that Respondent's discharge of Selph was violative of Section 8(a)(3) and (1) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that Respondent, Universal Rundle Corporation, Corsicana, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as so modified: 1. Delete paragraph 1(a) of the Trial Examiner's recommended Order and reletter paragraphs 1(b) and 1(c) as 1(a) and 1(b), respectively. 2. Delete paragraphs 2(a) through 2(f) of the Trial Examiner's recommended Order and reletter para- graphs 2(g) and 2(h) as 2(a) and 2(b), respectively. 3. Substitute the attached notice for the Trial Examiner's notice. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. MEMBER JENKINS, dissenting in part: For the reasons expressed in his Decision, I would affirm the Trial Examiner's conclusion that Selph was discharged in violation of Section 8(a)(3) and (1). 9 We note in this regard that there was no evidence in the record of any alleged insubordinate behavior on the part of any other employee io We do not regard Respondent's no-distribution rule, which was promulgated prior to the advent of the union activity at Respondent's plant, as indicative of an inclination to engage in the type of unlawful conduct here alleged. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: After a trial at which both sides had the opportunity to present their evidence, a Decision has been issued finding that we violated the law and ordering us to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT maintain or enforce any rule or policy prohibiting employees from distributing union literature during their nonwork time in 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nonwork areas, except under conditions set forth in the Board's Decision. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. UNIVERSAL RUNDLE CORPORATION (Employer) Dated By (Representative) (Title) 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, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE TURITZ, Trial Examiner: Upon a charge and a first amended charge filed by International Brotherhood of Pottery and Allied Workers, AFL-CIO-CLC (the Union) on November 18, 1970, and December 10, 1970, respective- ly, and served those same dates upon Universal Rundle Corporation (Respondent and, at times, the Company), the General Counsel of the National Labor Relations Board (the Board), through the Regional Director for Region 16, on December 21, 1970, issued and served a complaint and notice of hearing against Respondent. Respondent filed its answer in which it denied all allegations of unfair labor practices. A hearing on the complaint was held before me at Corsicana, Texas, on March 9, 10, and 11, 1971. The General Counsel and Respondent were represented by their respective counsel at the hearing, and the Union by an International representative. The General Counsel and Respondent have submitted briefs. Upon the entire record 1 and from my observation of the witnesses I make the following: 1 On April 5, after the close of,tbe hearing, I issued an order admitting into evidence Resp. Exh 6, which I had rejected at the hearing I have marked Resp Exh. 6 as having been received in evidence, and my Order, marked TX Exh. 2, has been placed in the exhibit file Submission of a duplicate of Resp. Exh. 6 is waived. 2 Unless otherwise specifically stated, all dates mentioned in this FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, Universal Rundle Corporation, is a Dela- ware corporation having a number of plants in various States of the United States. It maintains an office and plant at Corsicana, Texas, where it is engaged in the manufacture and distribution of bathtub and shower fixtures made of fiberglass and plastic materials, and of related products. In the course and conduct of its operations at the Corsicana plant Respondent annually sells and ships directly to customers located in States of the United States other than Texas products valued at in excess of $50,000. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act). II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Pottery and Allied Work- ers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction Respondent hired the first nonsupervisory employees at the Corsicana plant about July 27, 1970;2 actual pro- duction operations started approximately September 15. Until that date the employees who had been hired assisted in setting up the plant. Shortly after the hiring of employees began, Respondent issued an "Employee's Handbook," containing, among other things, various rules and regula- tions. A copy of the handbook was given to each employee. On September 22 the Union started a campaign to organize the employees. On September 29,3 and weekly thereafter, Respondent held meetings of the employees at which it urged them not to join the Union; and on October 1 it sent them a two-page letter in which it expressed, among other things, its "official position" that it did not want a union in the plant, its firm conviction that a union would not work to the employees' benefit but to their harm, and its intention to use every legal means at its command to keep it out .4 The issues litigated at the hearing were: An allegedly illegal no-solicitation rule orally promulgated by Respon- dent at one of the meetings; an allegedly illegal written no- distribution rule contained in the Employee's Handbook; and the allegedly discriminatory discharge of Robert Selph. B. The No-Solicitation Rule The Employee's Handbook included the following: Employees are not to engage in any type of solicitation, selling or other non-work related activity during work Decision were in 1970 3 This was the date testified to by Bell, Respondent's top official at the Corsicana plant. 4 The General Counsel stated that be did not allege that anything stated in the letter constituted an unfair labor practice and that he was requesting relief based solely upon the allegations of the complaint. UNIVERSAL RUNDLE CORPORATION 257 time. It is important that you not interfere with your work or the work of others. Selph testified that at one of the weekly meetings Bell, the plant manager, said, "We will not tolerate any union activities in this plant." This was denied by Bell. Lockhart, another witness called by the General Counsel, testified, "Julian Bell said that the labor organizers were not admitted on Universal Rundle grounds." Concluding findings as to the no- solicitation rule The General Counsel makes no claim that the handbook rule on solicitation was invalid but relies only upon a rule promulgated orally by Bell at one of the meetings. The oral rule as testified to by Lockhart, who impressed me as having a more accurate recollection of events at the plant than Selph, referred only to outside organizers. Respondent was within its rights in excluding nonemployee organizers from its premises. N.L.R.B. v. Babcock & Wilcox, 351 U.S. 105. I find that the General Counsel has failed to prove that Respondent promulgated a rule prohibiting employees from soliciting union membership or support during nonworking time. C. The No-Distribution Rule The Employee's Handbook contained the following on pages 26 and 27 under the heading, "Distributions and Solicitations." The distribution of written material adds to the problem of maintaining a clean and orderly plant. No employee shall distribute leaflets, handbills or other non-work materials in work areas of the plant at any time. Under "Rules and Regulations"5 it listed the following on page 29 as one of the "offenses which may subject an employee to disciplinary action": 10. Distributing or circulating written or printed matter of any nature on plant property during working or non-working time. Bell, describing the orientation talk he gave to each newly hired employee, testified: On distribution, I point out that we do not allow the distribution of any written or printed material anywhere in the working and non-working, or non-working areas of the plant at any time .6 Concluding findings as to the no- distribution rule It is arguable that the handbook contains some ambiguity in that on page 27 the distribution of literature is forbidden in work areas, but on page 29 the distribution is prohibited anywhere on plant property. However, it is an interference with employees' rights under the Act to subject them to rules which, although ambiguous, are reasonably subject to interpretation as forbidding protected activities. See G. C. Murphy Company, 171 NLRB No. 45, enfd. 422 F.2d 685 (C.A.D.C.). Moreover, whatever ambiguity might have been present in this case was dissipated by two things: (a) The prohibition on page 29 -applied specifically to nonworking time, which presumably would be spent largely in nonwork areas; and (b) Bell, as I have already found, told each employee individually that the prohibition applied to nonwork areas . I find that at all times since approximately September 15, 1970, Respondent main- tained in effect a written rule prohibiting the employees from distributing literature, including union literature, at any time on company property, whether in work or nonwork areas. Respondent contends that the rule was, in any event, justified because the constant use in its operations of a certain catalyst made it extremely important to avoid any danger of fire. The catalyst, a highly flammable liquid, was stored in a shed about 150 yards from the plant proper and was carried to the plant as needed, two 1-gallon bottles at a time. Respondent from time to time caused rubbish to be burned out of doors on plant property . It is thus plain that Respondent did not consider the fire hazard to be of such proportions as to require the absolute prohibition of literature, distribution outside the plant itself, yet its rule was applicable anywhere "on plant property ." As to the plant itself, the Employee's Handbook stated that Respon- dent furnished vending machines for various foods and beverages throughout the plant; under the heading, "For your safety-Good Housekeeping", it provided, "Deposit scrap paper and rubbish in receptacles which are found throughout the plant;" and certain areas in the plant were designated for smoking. Moreover, from time to time open fires were made on the floor in the middle of the maintenance department.? There is no evidence that Respondent took any special precaution with respect to the wrappings from the employees' lunches or from articles dispensed by the vending machines, or with respect to newspapers or any other combustible articles such as employees customarily bring on the premises where they work. No reason appears why the receptacles provided for those things would not have served as adequately to prevent any fire hazard from union literature. In view of the foregoing, and of the use of open fires in the maintenance department, and of the fact that smoking was allowed in some areas, I do not credit Bell's testimony to the effect that Respondent considered the fire risk so great that it required the prohibition of literature distribution in nonwork areas of the plant itself. I find that Respondent's no-distribution rule was an illegal restriction of the employees' rights under Section 7 of the Act and constituted a violation of Section 8(a)(1) of the Act. See Stoddard-Quirk Manufacturing Co., 138 NLRB 615. 5 The handbook stated that the rules and regulations were "posted throughout the plant," but in fact they were not so posted. 6 A moment later, with his attention directed to the passage on pages 26 and 27 of the handbook, he testified: "I tell them that . . we do not allow the distribution of leaflets, handbills, other non-work materials in work areas in the plant at any time...:' I have not credited Bell's testimony referred to in this footnote. The department was separated from the rest of the plant by a fire wall. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Discharge of Robert Selph 1. Introduction Respondent's Corsicana plant was devoted to the building of bathtub and shower fixtures out of fiberglass and plastic materials. The fixtures were formed round an appropriately shaped core or mold by spraying several layers of plastic and fiberglass materials on the mold. Some of the layers were subjected to rolling and/or heating processes. With the exception of Willie Wendel, the plant superintendent, not a single individual employed, from Bell, the plant manager, down, had had any prior experience in the manufacture of fiberglass products. As almost everybody was a learner, Respondent encountered considerable difficulty at the beginning in producing saleable units, and in October unsatisfactory units were lined up clear across one end of the warehouse, a distance of about 80 to 100 feet. From September 15, when production operations started, to September 30 Respon- dent placed about 71 units into production, of which only 7 were completed satisfactorily for shipment. From October I to 8 Al Bevin, a man with much experience, was at the Corsicana plant to help the local staff "get moving." He was Respondent's manager of manufacturing of fiberglass and was normally stationed in New Castle, Pennsylvania. In October Respondent placed 281 units into production, of which 94 were completed satisfactorily for shipment. At the end of October there were about 200 units on hand awaiting corrective work. As of that time 22 units placed into production since the beginning of operations were so defective as to be unusable and they had to be scrapped. 2. Selph's probation-August 10 to October 9 Selph, one of the earliest hires at the Corsicana plant, started to work for Respondent on August 10. Before production started he did miscellaneous work getting the plant ready for operation. He had applied for warehouse work, but when production started in September he was made a foamer-glasser, and one Mullins was given the warehouse job Selph had requested. The foaming job required good coordination. The foam had to be applied by moving the spray gun at an even speed in a fairly straight pattern and at the proper, unvarying, distance from the mold; and it was necessary frequently to shut off the foam and immediately flush out the gun. At the same time the operator had to bear in mind that the material contained an acid dangerous to the eyes. Wendel testified credibly that Selph's performance was "stiff," that "he couldn't get at ease with the gun." Nevertheless, Bell complimented Selph from time to time and on October 10, while he told Selph that his work as a foamer had not been good, Bell informed Selph that he had passed his probation and qualified for a 10-cent increase. As described more fully below, he transferred Selph at that time to the warehouse. 8 Bell testified that Lockhart said, "Say, I want to point out to you, that because Robert Selph and I are friends and I leave in his car, doesn't mean that I feel the way he does about the Union." However, Bell testified that the conversation took place at Lockhart's work station and 10 days to 2 weeks after Selph's termination. I found Lockhart more convincing than 3. Respondent's knowledge of Selph's union activities On September 22 Sanchez, a general International representative of the Union, began organizational activities among the employees. Selph spoke to the employees in favor of the Union, showing them the wage scales in effect at other plants of'Respondent. He passed out designation cards to employees, at least one of whom signed. The only other employee disclosed by the record as having participated in the organizational activities was Obie Lockhart. Selph commented to Williams, Respondent's foreman, the day after the second or third meeting held by Respondent, i.e., on October 7 or 15, that two good men with greater seniority had not received as large a wage increase as he and others had received, and that with the Union in the plant that would not happen. He also told Williams round the same time that Bell had been wrong in saying in one of the speeches that the Union had nothing to offer; he said he knew that the Union did have something to offer.` Selph customarily rode to and from work with Obie Lockhart, Respondent's maintenance man, who had been the first employee hired at the Corsicana plant. Approxi- mately 2 weeks or less before Selph's discharge on October 22 Lockhart had a conversation with Bell in the latter's office during which Bell brought up the subject of Robert Selph. This turn of the conversation worried Lockhart, who hastened to assure Bell that although he rode with Selph, he did not share his views about union activities. He went on to tell Bell that Selph had been talking to the employees about the Union, had been passing out union cards and literature, and had been showing them copies of Respon- dent's contracts with the Union at its other plants, including the wage scales in effect there. Bell listened attentively, nodded, and said, "I see." 8 4. Selph's transfer to the warehouse- October 10 Selph did not like the foaming-glassing operation, which he found messy, and in early October he requested a transfer to the warehouse job notwithstanding that he knew it carried a lower wage. On Saturday, October 10, immediately after completion of his probation, his request was granted. Mullins was put on the foaming-glassing operation and Selph was assigned to break him in .9 Respondent placed in evidence the following handwritten note on a printed form of the Company called "Fact-O- Gram," which Bell testified he forwarded to Wendel on October 9: Al Beavon [sic], during his visit, has indicated that Robert Selph's work as a foam sprayer is unsatisfactory by any standards. We will give him the benefit of the doubt and try him in the warehouse. (Cy Selph's file). By Julian A. Bell Date 10/9/70 Bell and have credited his testimony as to the content, time and circumstances of the conversation, and that the subject of Selph was brought up by Bell. 9 Mullins was found unsatisfactory and he was replaced after 3 weeks by a man whose performance was satisfactory. UNIVERSAL RUNDLE CORPORATION 259 5. The oversized hole-October 14 On October 10 Bell told Selph that on the warehouse job he would also have to carton the finished units, since there was not yet enough flow of product to warrant having both a warehouseman and a packager. Selph also placed appropriate markings on the cartons and set them in their designated places in the warehouse, received and unloaded incoming materials, drove a truck to pick up materials elsewhere, including Dallas, performed substantial clerical duties relating to shipping and receiving, delivered materials and supplies within the plant to the production and maintenance departments and the office, and did general cleanup work, using a forklift truck. He had much spare time on the warehouse job and was the one who made coffee for the employees. To keep him busy he was assigned for a time to construct a drain at the station where units were pulled from the molds; and in the course of the many trips his work required him to make through the plant he was able to devote much gallant attention to women employees. On October 14 Bell, accompanied by a group of visiting salesmen, passed Selph's cartoning jig, where Selph was engaged in packaging a unit. A salesman pointed out that the foam was too thick round the hole for the overflow drain of the unit which Selph was cartoning. Selph testified, "I was then told by Mr. Bell to get a grinder and grind this thing down." He explained, "In order for this tub to fit properly into a prescribed place, this foam had to be smoothed down for it to fit." Bell testified that he instructed Selph, "Robert, will you get that grinding tool and touch the overflow area lightly, to face it down so that it can go into the carton as it should." to Selph proceeded to grind the area in question but ended up with a hole in the tub so large as to make it unusable and it had to be scrapped, with a loss to Respondent amounting to $90. Selph testified that the grinder, which had a revolving disc abrasive driven by air power, had jerked and distorted the hole, and that he had then ground it out until "it looked nice." He testified, further, that he told Williams what he had done and that Williams came and looked at the tub and said, "The hole is too big, it won't work. Put it over there with the rest of the scrap." He also testified that Williams told him not to worry about it. Williams denied Selph's testimony about their conversation. He testified that he merely asked Selph the next morning if he had made the oversize hole, that Selph admitted it, and that he thereupon walked away. Wendel testified with reference to October 14 as follows: A. I talked with Mr. Selph about this. I brought him over to where the tub was, with the big hole in it, and I said, "Well, Robert, it looks like you have ruined that one." And he said, "Well, it went through before I knew what was happening." I said, "Well, Robert, that thing looks awfully thick to me, to have it just slip through like that." And he apologized for grinding the hole through the tub. Q. Did he tell you how it happened? 10 Wendel testified that normally the area round the overflow pipe was ground flat in the grinding room, but that it was done temporarily by the man doing the cartoning A new grinder, Yberra, was employed and instructed by Wendel on October 15. A. He said he was grinding the back of the tub and it just ground through before he knew it. Q. Was there any further conversation about that statement? A. Q. that? No, sir. What if anything did you say to Mr. Selph after A. About that particular incident? Q. Yes. A. Nothing. Q. What, if anything, did you say to him at that time or thereafter about facing off of overflow drain holes or tubs? A. (No response.) Q. Do you understand my question? A. Repeat it please. Q. After that, what, if anything, did you say to him about his future facing off of overflow drain holes? A. Later I did talk with him about grinding off to make sure that he did not grind through any more. I told him . . . only to grind very lightly, not to grind any more big holes in them. Q. (By Mr. Lederer) Did you report what had occurred here in your conversation with Selph to Mr. Bell? A. Yes, I did. Q. You reported your conversation with Selph to Bell, is that correct? A. Yes. Bell, without stating what was said, testified that on October 14 he discussed what had happened with Wendel. He also testified that on October 15 Wendel informed him that he had called Selph into the office and reprimanded him for grinding the oversize hole, saying, "Robert you know better than to put a hole through a tub like that. You have ruined the tub." Selph denied ever having been warned by a supervisor about doing improper grinding or having been reprimand- ed prior to his discharge for ruining the unit. Respondent placed in evidence a document which Wendel testified he placed in Selph's personnel file on October 14, and which read as follows:11 FIRST VERBAL WARNING NOTICE Universal-Rundle Corporation Name-Robert Selph Clock No. 7 Dept. Whse Date 10/14/70 On 10/14, you committed the following offense(s) against this Company's rules and regulations: #7 Damaging company property by grinding oversize hole in tub. You have received a copy of the Company Handbook and should be familiar with our rules and regulations. If there is anything you do not understand about your The italicized portions of this and subsequent forms described in this Decision represent filling in of blanks by pen. The rest of the quoted forms represents printed material. The word "verbal" in the present warning notice was also inserted by pen. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, or the Company rules, your foreman will be glad to explain. However, we must insist on observance of the rules. Your failure can easily be corrected, and your Company will give whatever help you need. Please do not let it happen again. W. J. Wendel Factory Manager, Foreman, Personnel Department I have received a copy of the above, Employee may sign here Witness The document was at no time brought to Selph's attention. Bell and Selph both testified that Selph was to grind the overflow area so that the unit could fit into something, Bell mentioning the carton and Selph "a prescribed place," meaning the place in the house where the unit was to be installed. In either case it is apparent that Selph was not told merely to "face down" the area to provide a proper seat for the washer, as claimed by Respondent, but to grind off an amount of material constituting a substantial obstruction to a proper fit. I find that the larger hole on Respondent's Exhibit 6 was the one made by Selph.12 Its carefully rounded, almost circular, circumferences and its less rough and less irregular walls were so different from the ragged, far from circular, hole Wendel testified he made in Respondent's Exhibit 7 for identification by simply grinding through that it corroborates Selph's testimony that it was not made by the same method as Wendel used. I have credited Selph's testimony as to how the oversized hole was made; i.e., that he rounded out the hole he had spoiled "until it looked nice." 13 I do not credit Wendel's testimony that Selph told him that the grinder simply went through the tub before he knew it. More important to the present issue is the question of what was said to Selph about the incident. Respondent claims that it administered discipline on this occasion in the form of a verbal warning by Wendel. Wendel's testimony about his conversation with Selph following the incident, quoted above, does not contain anything that could be called a warning. Pressed by counsel, Wendel finally testified, "Later I did talk with him about grinding off to make sure that he did not grand through any more. I told him . . . only to grind very tightly, not to grind any more big holes." I found Wendel's testimony unconvincing and have credited Selph's denial that he was warned or reprimanded for the incident prior to his discharge. I find that Respondent issued no verbal warning to Selph in connection with his grinding the oversized hole and that the record of such a warning placed in his file did not reflect what had occurred. was getting along, he saw Selph there grinding the bottom of the outside edge of a tub. Selph had "scalloped" the edge with the result that the tub would not sit flat on the floor. He testified also that he told Selph that that was not his job and that he should stay out of the grinding room. Selph completely denied the incident and denied ever picking up a grinder in the grinding room, or, indeed, ever using a hand grinder at all except on the occasion of the oversize hole. Joyce Rogers, who had started working for Respon- dent on October 5 and was stationed in the warehouse near the grinding room, testified that she had seen Selph use a grinder on two or three occasions.14 Wendel testified that the defect caused by Selph "could be corrected relatively easy" in "possibly an hour." He admitted that on one occasion in the latter part of September Lockhart, without being disciplined in any way, had sawed off the edge of a tub incorrectly. He explained that Lockhart's error had been made in the course of adjusting a saw by a tnal-and- error procedure, and was a "nun-of-the-mill thing" which was to be expected. When Lockhart showed Wendel what he had done, Wendel said, "Oh hell, don't worry about something like that . . . we've got something we can do with them;" and when foreman Williams saw the tub, he said "that he had been wondering how he was going to get that gold shower stall and now he knew." 15 In view of the testimony of Rogers, an impartial witness, that Selph did on several occasions use a grinder, I infer that he was being evasive about the skirt-grinding incident and find that it did occur as testified by Wendel. I also find that Wendel instructed him to stay out of the grinding room. Wendel testified that on October 15 he placed in Selph's personnel file and sent to Bell a "Second Verbal Warning Notice" referring to Selph. The Notice was on a form identical with the "First Verbal Warning Notice," with the printed word "First" lined through by pen and the words "Second Written" inserted. The statement of offense read as follows: On 10/15, you committed the following offense(s) against this Company's rules and regulations: # 7 Damaging company property by improperly grinding tub skirt. The document was at no time brought to Selph's attention. Wendel explained his filling out the warning notice form, as well as the one relating to the oversize hole, as follows: Oh, we only write these out to put in the file so that I will remember it or so it will jog my memory at the time that I go through their file and look for anything that I might be looking for in there. 7. Selph's cartoning-October 14 or 15 6. Improperly grinding the tub skirt-October 15 Wendel testified that on October 15, entering the grinding room to check on how the new grinder, Yberra, 12 Selph impressed me as sincere when he testified categorically that Resp. Exh 6 was not what he had worked on. However, while I have discredited much of Respondent's testimony, I do not believe that its officials would deliberately substitute a piece of a different tub from the one Selph had worked on. 13 As Selph was grinding with a large disc abrasive, an unsuitable too], Two of the visitors to the plant on October 14, the day Selph ground the oversize hole, namely Respondent's sales manager and its vice president of operations, criticized the fact that the cartons containing finished tubs were not it must be inferred that he worked at what he was doing rather painstakingly. The General Counsel conceded that he had ruined the tub 14 Rogers had quit Respondent's employ 6 days before she testified. 15 Wendel and Williams did not deny making those statements, except that Wendel insisted that only one tub was involved , whereas Lockhart testified that it was three. UNIVERSAL RUNDLE CORPORATION 261 upright, thus presenting a poor appearance. Bell testified that he and the two officials set up a conference call to Bevin at the New Castle plant to find out whether a similar problem had been encountered there, or whether Bevin knew the cause. Bell testified that that same day he gave the following "Factogram" to Wendel: During his visit, this date, Bob Carlson, V.P. operations, U/R complained of the poor quality in cartoning our units. Please straighten this out with Robert Selph-his work must improve (Cy Selph's file). By J. A. Bell Date 10/14/70 Wendel told Selph about the problem and said that he thought the cartoning had not been done properly. They opened some cartons. Selph testified that they consulted blueprints and ascertained that the cause was that the wooden skids at the bottom of the cartons had not been made correctly. Wendel testified that while one carton had an incorrectly adjusted top skid , the bottom skids were in good order and that he demonstrated to Selph that the cause of the trouble was that Selph had not assembled the cartons with sufficient care. Bell testified that it had been ascertained that the trouble was caused by the improper placement of the skids, together with the improper assembly of the cartons . I have credited Selph's account of the incident to the extent that I find that improperly adjusted bottom skids contributed to the problem. This phase of Selph's cartonmg was not mentioned in his discharge notice or interview. When the cartons were opened , Wendel pointed out to Selph that some of the staples, which he had wrongly placed, had marred the surfaces of the tubs and they had to be refinished.16 The refinishing had to be done over the course of an hour to allow for drying. The refinisher did other work in the meantime. Wendel opened other cartons and found tubs similarly marred ; but he did not claim that they had been packed after Selph had been informed of the problem. 8. Profanity in the lunchroom-October 16 Charles Williams, the plant foreman, testified as follows: On October 16 he sat at the same table in the employees' lunchroom with Selph and some other men during the entire lunch period; women, including Joyce Rogers, were at the next table. His attention was drawn by "very loud and abusive language" being used by Selph at the beginning of the lunch period; i.e., "god damn and shit." Selph did not address the remarks to anyone; Williams thought he was talking about what was in his lunch. He noticed that the women, including, specifically, Rogers, were obviously offended by Selph and he told Selph to watch his language since there were women at the other table. He was unaware of any other swearing by Selph during the rest of the lunch period; and he did not recall any conversation taking place between Selph and any of the women at the next table. That afternoon, at the conference he had with Wendel, the plant superintendent, at the close of work each day, he reported that Selph had used very loud, abusive language in the lunchroom, which had obviously upset the women-they were looking at each other-and he recommended to Wendel that a warning be issued. Wendel corroborated Williams as to their conversa- tion. He stated that he did not inquire of Williams what language Selph had used. He also testified that on October 19 he gave Selph the written warning described below because he had already received two verbal warnings, and he thought that a written warning might be more effective in getting Selph to realize that Respondent was "trying to keep him straightened out, to the point of not doing a thing of this nature." Rogers, who sat at the next table to Selph on October 16, testified that on that occasion Selph, opening his lunch, had exclaimed, "Well I'll be god damn, she didn't put a sandwich in for lunch," and that he proceeded to call his wife stupid and other names, including "bitch." 17 She testified, also, that he got into a conversation or argument with one of the women employees about adulterous romances going on back in their common hometown, and that during the entire lunch period Selph, talking loudly enough for everyone in the lunchroom to hear, used swear words, including several "god damns," "quite a lot" of hells, and at least one "son of a bitch." Rogers testified that, working in Respondent's and various other plants, she had heard those words previously. She also stated that she knew about the warning notice described below 18 and that Selph asked her and the other women employees if they knew whom he had offended. She testified, further: We all talked about it.. . . About who turned Robert in for using bad language in the lunchroom.... We were wondering who did it. I do not credit Williams' testimony that the women in the lunchroom appeared to him to be offended by Selph's language and find that they were not so offended. I also find that Selph did not use the coarse word for excrement. On October 19 Wendel summoned Selph to his office and handed him a warning notice on a form similar to the one used for the first and second "Verbal Warning Notices." 19 The statement of offense read: "Using Profanity In Lunch Room-10/16/70." Selph asked what the reason was and Wendel said that Bell had instructed him to write up,the form, adding that he had been reported by a woman for cursing in the lunchroom. Selph replied that he did not recall offending anyone with profamty and asked for the name of the woman. Wendel refused and Selph, with Wendel's permission, went to see Bell. He asked Bell who "this woman" was who had reported him for cursing. Bell replied that he was not at liberty to tell.20 16 Wendel testified about the two problems as though they had been discovered and taken up separately. I have credited Selph's testimony that the marring of the tubs was discovered when the cartons were opened to check on why they did not stand upright. 17 Rogers stated that she was not sure as to this epithet 18 Selph had posted the notice on the company bulletin board i9 The form, an earlier or later version of the other form, differed from the latter only in that the printed paragraph at the end did not include the sentence, "You have received a copy of the Company Handbook and should be familiar with our rules and regulations " Both forms were on distinctive green paper 20 Wendel denied telling Selph that he had been reported by a woman employee. He testified that he merely told Selph that he had been informed that some women had been offended and that when Selph asked for their names, he replied that he would not tell him Bell testified that he told Selph that he did not know who had turned him in and would not tell him if he did I have credited Selph's testimony about the two conversations over that of Wendel and Bell (Continued) 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent is correct in its contention that the Board cannot substitute its judgment for Respondent's with respect to what is a proper cause for discipline. It is, however, difficult, although not impossible, to credit a claim that in the year 1970 an employer would consider the language used by Selph on his own time-hell, bitch, god damn, and son of a bitch-worthy of a formal written warning. The women employees did not so consider it; they wondered who could possibly have reported Selph. Wendel in effect recognized that the written warning strained credulity. He justified it with the explanation that since two verbal warnings for damaging company property had not succeeded in discouraging Selph from swearing during his lunch hour, a written warning was needed to straighten him out. As Respondent had no formal system calling for a written warning after two, or any other particular number of, verbal warnings and this was supposed to be an ad hoc decision, Wendel's explanation lacked logic. It also lacked accuracy, since the alleged warning for the oversize hole was fictitious. In view of the foregoing, and of Wendel's false statement to Selph that a woman had complained, I am convinced that Selph's language was not considered by Respondent to be cause for a written warning. I find that the warning was issued in order to lay a foundation to justify the pretextual discharge of Selph which Respondent had already decided on. 9. Selph's discharge-October 22 On October 19, within 10 or 15 minutes after receiving it, Selph posted the first warning notice on the bulletin board.21 Bell testified that he discovered it the next morning and became infuriated. He said that he tore the notice down, went to Wendel's office and threw it on the desk, saying, "That tears it. I consider this the rankest form of insubordination, and I didn't propose to tolerate it." He testified further: I crumpled up the Warning Notice and threw it in the wastebasket.... [I ] went down to my office to sit down and cool down and think about it. Subsequent to that time, I called Mr. Wendel and Mr. Williams and Mr. Lowe together to discuss the matter. At that time, I came to the firm decision that Mr. Selph would be discharged. Bell testified that the meeting took place on October 21, and that the four officials had before them Selph's file containing the first warning notice and the first and second verbal warning notices. He also testified that "machinery," which he did not specify, was placed in motion to effectuate Selph's discharge. Bell's account of that meeting was not corroborated by the others he said participated. Wendel, in effect, contradicted it-he had no recollection of such a meeting; he recalled only speaking about Selph to Bell alone that day. I do not credit Bell and I find that the meeting described by him did not take place. I find that the decision to discharge Selph was reached in some other manner not disclosed by Respondent. On October 22 Selph was summoned to Bell's office and informed that he was discharged. Bell handed him a discharge notice on a printed form and orally gave as reasons for the discharge the same matters that were stated in the notice, which read in relevant part as follows: Name : Robert Selph Dept. Warehouse Date: 10/22/70 IT HAS PREVIOUSLY BEEN NECESSARY TO WARN YOU ABOUT THE FOLLOWING OFFENSES: Date : lOjl4/70. Offense: Date: 10/75/70 Offense: Date : , 1,O/l6/70 Offense: Damaging company property by grinding 4" hole thru overflow in tub unit. Damaging yco p y property by improper grinding apron of tub unit, not an assigned job. Using profanity in lunchroom. In addition to the above past record, on 10 / 19/ 70 you committed the following additional offense(s): Insubordination-'posting warningnotice on_bulletin board;_and at various times you damaged company proper by stapling bottom of carton to front, thereby marring units. It is with regret that we are compelled to release you from employment here. Signed: Julian A. Bell Factory Manager 21 The Employee's handbook included the following - "BULLETIN periodically on plant bulletin boards. .. If you wish a personal notice BOARDS. Information of importance and necessity to you is posted posted see your Supervisor first and get his approval." UNIVERSAL RUNDLE CORPORATION 263 Selph pleaded with Bell to reconsider, but Bell stood by his decision. He told Selph to come back in a week for his pay, but Selph said that he would continue punching in until he was paid. Bell thereupon had a special check drawn for him and he left.22 The Employer's Handbook contained the following under "Rules and Regulations:" Permissible types of discipline shall include: (1) Verbal correction or reprimand (2) Verbal reprimand confirmed by written warning (3) Disciplinary layoff from work (4) Discharge (5) A combination of the above An employee who is reprimanded will have the reprimand recorded and made a part of his permanent record. If a written warning is issued, the employee will receive a copy, a copy will go to the supervisor, and a copy retained by the Office Manager. 7. Careless or inefficient performance of duties. 16. The misuse, destruction or damaging of any company property or property of any employee. 19. Insubordination. E. Concluding Findings as to Selph's Discharge At the hearing Respondent went to great lengths to depict Selph as an inept employee. One searches in vain, however, for any proof that prior to the first warning notice for profanity Respondent ever gave Selph the slightest reason to think his work was so poor that it could affect his tenure of employment . Even Bell's statement to Selph at the end of his probation that he was not doing any good at his spraying station was not calculated to deflate Selph's secure feeling that he was part of something "like a family." It will be recalled that the plant was new, and everybody was learning. There is no law that requires an employer to warn an unsatisfactory employee that his poor work or conduct might eventually lead to termination of employment. Nevertheless, after an employee passes probation employ- ers, more often than not, do give some such warning; and its absence, if accompanied by other indicia of discrimina- tory intent lends support to a finding of discrimination. That Respondent normally acted on such a basis is disclosed by its own rules and regulations and, even more pointedly, by evidence it introduced at the hearing. In striking contrast to the absence of warnings in the true sense in Respondent's testimony as to what was said to Selph orally about his errors, the file Respondent built up breathed warning that his job was in jeopardy. To record the two alleged verbal "warnings" Wendel used a form which strongly implied the possibility of discharge. He testified that he filed those documents merely to jog his memory in the future. He did not explain why he used a form with the menacing paragraph starting, "You have received a copy of the Company Handbook", ,and ending, "Your failure can easily be corrected and your Company will give you whatever help you need . Please do not let it happen again." The filed papers had not been shown to Selph, and nothing remotely resembling that warning had been said to him ; and if Wendel's intent had been merely to jog his memory, he would have used some other form or a blank sheet of paper. Significantly, he went so far as to specify in his own handwriting in each case that the rule and regulation Selph had violated was "#7." I infer that Respondent used the form so that Selph's file would reflect warnings of danger to his job which in fact had never been given. The difference between Selph's personnel file with respect to the period from August 10 to October 13 and with respect to the period from October 14 to 16 is also striking. For the earlier period the sole adverse comment was the memorandum dated October 9 to the effect that he would not make a good foamer and would be given the benefit of the doubt and be transferred to the warehouse. Notwithstanding the far from perfect work he had been turning out and his causing the spray gun to gum up on a number of occasions, Respondent never found it necessary up to October 13 to document any incident with a record of any type of "warning." In contrast, for October 14, 15, and 16 records of three warnings for specific acts appear. Even more striking is the type of documentation that was introduced into Selph's file covering the period October 14 to 16. The October 14 record of a fictitious verbal warning for the oversize hole and the October 16 pretextual warning notice for profanity go far to establish that Respondent had embarked on a plan to get rid of Selph. The record of the October 15 "warning" also supports that conclusion. Wendel admitted that the damage caused by Selph's scalloping the tub "could be corrected relatively easy." Selph, Lockhart, and many other employees had been making many more expensive errors, as witnessed by the 200 units lined up in the warehouse at the end of October awaiting corrective work, and the 22 additional units that had to be scrapped. The employees responsible were not given "warnings" in the nature of discipline, such as Selph's. It is true that on October 15 Selph was doing unassigned work. However, it is significant that Wendel did not mention that fact in his report. Apparently Respon- dent's plant had not reached so smooth a stage of organization that that factor would have loomed large enough in Wendel's mind to warrant a formal record of a disciplinary warning; Wendel reported only the damaging of company property. That fact alone would not establish that the "warning" was pretextual. However, in view of the pretextual pattern disclosed by the October 14 and October 16 incidents and of the fact that the amount of damage was relatively slight, I find that the October 15 "warning" record sandwiched between them would not have been 22 The Employee's Handbook contains the following "You will be paid by check each Friday for work performed in the preceding week.... If you voluntarily terminate your employment with us, your final check will be distributed on the Friday following the last week work was performed.. ." [Emphasis supplied I 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made but for Respondent's already formed intention to get rid of Selph. Still to be considered is the question of Respondent's motivation in laying such pretextual foundation for discharging Selph. Respondent concedes that it was opposed to having a union, and the General Counsel has proved that Selph made prounion statements to Williams immediately after the second or third meeting, which would mean about October 7 or 14, and that Lockhart exposed to Bell Selph's specific union activity in showing the employees the wage rates in Respondent's unionized plants 2 weeks or less before Selph's discharge, which would mean October 8 or a few days later. Respondent points out that it refrained from terminating Selph at the end of his probation in the face of its awareness at that time of his support for the Union and contends that this negates any discriminatory motive. Respondent may or may not have been aware then that Selph was prounion, or that he was especially active, as disclosed to Bell by Lockhart. However, the fact that an employee is on probation does not give an employer immunity to discriminate against him. Bell could have formed an intention to get rid of Selph as early as October 8 without necessarily following through until he could establish a more convincing foundation for a discharge than was available at that time. The question is not as to what Respondent did on October 8, 9, or 10, but as to the warnings it claimed to have written on October 14, 15, and 16. On those days Respondent knew that Selph had been propagandizing the employees with its own wage rates in unionized plants. I find that Respondent issued the warning for profanity and filed the first and second verbal warning notices in Selph's personnel file because he was promoting the Union and in order to lay a pretextual foundation for his discriminatory discharge. Notwithstanding that Selph, after posting the notice, sought in sincerity to find out whom he had offended, I find that his purpose in posting the warning was neither to caution other employees nor to apologize. He was, rather, protesting Respondent's unjust and discriminatory action in issuing the warning for profanity. While he made unauthorized use of the bulletin board for this purpose, it can be inferred from Bell's testimony that that was not the important thing in his mind. What Bell objected to was that Selph was exposing an action of Respondent so patently unfair and discriminatory that all Selph had to do was to display it to the employees. Bell would have had the same, or even a stronger, objection if Selph, instead of making unauthorized use of the bulletin board, had showed the warning notice round in the lunchroom. It is unnecessary to decide whether Selph's action in posting the notice was a protected concerted activity. He was not discharged for that reason.23 Bell testified that he considered it rank insubordination. At the same time he testified that he and the rest of the managerial staff considered Selph a very agreeable person, and discussed that fact on October 21 when it was decided to discharge him. While I have not 23 The discharge notice discloses that Selph's cartoning deficiencies played at best less of a role in his discharge than the two grinding incidents I am omitting further discussion of those incidents beyond credited that testimony, it does make plain that Selph had not been insubordinate in the past-indeed, when Wendel gave him the warning notice he asked if Wendel objected to his talking to Bell about it. The fact is that Bell had decided to discharge Selph before the notice was posted; he was merely awaiting an opportune pretext and seized upon the posting for that purpose. Selph's unauthorized use of the bulletin board was not such flagrant misconduct in Respondent's eyes, if it was misconduct at all, as necessarily to call for his discharge . Distinguish Klate Holt Company, 161 NLRB 1606. I find that Respondent discharged Selph because he had engaged in union activity, and that Respondent thereby violated Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth above in section III, occurring in connection with its operations described in section I, 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 of commerce. V. THE REMEDY In order to effectuate the policies of the Act, I find that it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found and from like or related invasions of the employees' Section 7 rights, and to take certain affirmative action. While the present record does not warrant the conclusion that literature distribution in any nonwork area would constitute a fire hazard, the order which I am recommend- ing shall not be deemed to prevent Respondent from, promulgating a nondiscriminatory rule prohibiting such distribution in designated areas where it actually would constitute such a hazard. In that event, however, the rule and notices announcing it shall state expressly that it does not apply in other nonwork areas. The presence of the adverse notations and warnings in the personnel records of Robert Selph constitutes a constant `threat that he may suffer some disadvantage in the future from those warnings or notations. In order to ensure, and to give him and other employees assurance, that this will not occur, Respondent shall be required to expunge from its records the copy of the written warning notice issued on October 19, 1970, and the records which have been filed that verbal warnings were given him on October 14 and 15, 1970, as' well as of all notations with respect thereto. I am also recommending that Respondent' reinstate Robert Selph to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and that he be made whole for any loss of earnings suffered by reason of the discrimination against him. The amount of recalling that cartomng was only part of Selph's warehouse job, and he had been on the job only a few days. UNIVERSAL RUNDLE CORPORATION 265 backpay shall be a sum of money equal to the amount that he normally would have earned as wages from the date of the discrimination against him to the date of his reinstatement or offer of reinstatement, less his net earnings during said period, the backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294; and it shall include interest at the rate of 6 percent per annum, to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent shall also preserve and make available to the Board and its agents for examination and copying payroll and other records necessary for computation of the backpay. Upon the basis of the foregoing findings of fact and of the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Universal Rundle Corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. International, Brotherhood of Pottery and Allied Workers, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily issuing a warning notice to, and by discharging, Robert Selph Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The unfair labor practices described above 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 the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 24 ORDER Respondent, Universal Rundle Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Issuing warnings to employees based on conduct normally tolerated, or discharging them , or otherwise discriminating against them because of membership in, or activities on behalf of, International Brotherhood of Pottery and Allied Workers, AFL-CIO-CLC, or any other labor organization. (b) Prohibiting employees from distributing union literature during their nonworking time in nonwork areas, or promulgating or maintaining any rule or regulation 24 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, automatically become the findings, conclusions, decision, and order of the Board, and all objections thereto shall be deemed waived for all purposes. 25 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 containing such prohibition, except under conditions set forth in section V of this Decision entitled "The Remedy." (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Robert Selph to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Make Robert Selph whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner described in section V of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, work records, timecards, and all other data necessary to analyze and compute the backpay required by this recommended Order. (d) Notify Robert Selph if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Expunge from the personnel record of Robert Selph and from all other records of Respondent the warning issued to him on October 16, 1970, and all notations referring thereto. (f) Expunge from the personnel records of Robert Selph and from all other records of Respondent all notations stating that verbal warnings were issued to Robert Selph on October 14 and 15, 1970, for damaging company property. (g) Post at its office and plant in Corsicana, Texas, copies of the attached notice marked "Appendix." 25 Copies of the notice, on forms provided by the Regional Director for Region 16, shall, after being signed by a representative of Respondent, be posted 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 to ensure that said notices are not altered, defaced, or covered by any other material. (h) Notify said Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith 26 IT IS FURTHER ORDERED that the allegation of the complaint that Respondent orally promulgated a no- solicitation rule prohibiting its employees from soliciting union membership and support on company property during its employees' working and nonworking time be dismissed. 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." 26 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 said Regional Director for Region 16, in writing , within 20 days from the date of this Order, what steps Respondent has taken to comply herewith."