Regal China Corp.

REGAL CHINA CORPORATION 585 Regal China Corporation and Carlos Gene Leonard and Franklin O. Brown and International Chemical Workers Union. Cases 13-CA-10354, 13-CA- 10367, and 13-CA-10473 February 25, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 22, 1971, Trial Examiner Paul E. Weil issued the attached Decision in this proceeding. There- after,, the Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt' his recommended Order. violation of Section 8(aX1). By its answer, timely filed, Re- spondent admitted certain jurisdictional facts and that the Union was a labor organization but denied the comission of any unfair labor practice. Respondent further alleged in its answer that the issue concerning the refusal to rehire Linda Vowles is not properly before the Board because the alleged refusal to rehire took place more than 6 months prior to the filing of the Union's charge with the Board and accordingly, issuance of complaint is contrary to the provisions of Section 10(b)'of the Act. On the issues thus raised the matter came on for hearing before me on August 9 through 13, 1971. All parties were present. The Union, the Respondent, and the General Counsel were represented by counsel, all parties had an opportunity to adduce relevant and material evidence, to argue on the record and to file briefs. Briefs have been re- ceived from the General Counsel and Respondent. On the entire record in this proceeding and in contemplation of the briefs I make the following: FINDINGS OF FACTS 1. THE BUSINESS OF RESPONDENT Respondent is a corpoxtion' doing business in the city of Antioch, Illinois, nialiufacturing and selling pottery products. Respondent annually ships goods valued in excess of $50,000 from its Antioch, Illinois, plant directly to custom- ers located in States other than the State of Illinois. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Regal China Corporation, Antioch, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On February 2, 1971, Carlos Gene Leonard filed a charge with the Regional Direc- tor for Region 13 (Chicago, Illinois) alleging that Regal China Corporation, hereinafter called Respondent, violated Section 8(a)(1), (3) and (5) of the National Labor Relations Act by discharging Leonard for engaging in protected' ac- tivity. On February 8, 1971, Franklin O. Brown filed a charge with the said Regional Director alleging that Respondent violated Section 8(a)(1) and (3) by discharging Brown for engaging in protected activity and on March 22, 1971, Inter- national Chemical Workers Union, hereinafter called the Union, filed a charge against Respondent alleging that Re- spondent violated Section 8(a)(1) and (3) of the Act by the discharge of Carol Webb for engaging in protected concerted activity. On July 15, 1971, the Regional Director, on behalf of the General Counsel of the National Labor Relations Board, hereinafter called the Board, issued an order con- solidating the three cases, a consolidated complaint, and a notice of hearing. The complaint alleges that Respondent violated Section 8(a)(3) of the Act by the discharges of Leon- ard and Brown and by its refusal to rehire Linda Vowles and that Respondent by the above conduct and by various other acts interfered with, restrained and coerced employees in 195 NLRB No. 114 II. THE LABOR ORGANIZATION INVOLVED The Union is alabor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent operates a plant in Antioch, Illinois, where it manufactures primarily two products: ceramic lamps and ceramic whiskey bottles in various shapes and forms. The ceramic ware is baked in a very hot kiln which turns it into high quality china. The Union has attempted to organize Respondent's em- ployees since 1959. The most recent organizational campaign prior to the hearing culminated in an election conducted by the Board in March 1970. The Union lost this election after what appears to have been a vigorous campaign by both Respondent and the Union. On the morning of the election, March 27, 1970, a handbill was passed out by Linda Vowles Signed by her as committee- woman of the ICWU Regal China'Qrganizing Committee criticizing treatment allegedly given her by Respondent and urging the employees to vote for. the Union. Two weeks later the general manager of Respondent, . Jerome Greenberg, delivered a speech to the employees pointing put that the election was over, that another election; could not be con- ducted for a year and answering Mrs. Vowles comments and accusations contained in her election day leaflet. Mrs. Vowles and her husband left Respondent's employ on that day, voluntarily. On September 14, 1970, Linda Vowles-attempted to be rehired by Respondent: Although Respondent was at the time hiring employees it refused to hire her. I The General Counsel alleges that Respondent is an Illinois corporation. Respondent in its answer alleges that it is a Delaware corporation. It is immaterial to determme the State of incorporation of Respondent. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 18, 1970, Respondent discharged Franklin 0. Brown. Respondent contends that Brown was discharged for cause. On January 19 Respondent discharged Carlos Gene Leon- ard allegedly for cause. The failure to rehire Vowles and the discharge of Leonard and Brown are alleged by the General Counsel as violative. The General Counsel contends that they form a pattern of discrimination engaged in by Respondent in contemplation of the possibility or probability of renewed union activity looking to an election to be conducted after the 1-year anniversary- of the prior election. Because of the nature of Respondent's defense it is neces- sary to set forth the process by which Respondent's product is manufactured. Respondent uses machinery invented by General Manager Greenberg specifically for the purpose of casting bottles and lamps of ceramic material. The machinery consists of benches some 30 feet in length which have provi- sion to hold- a line of molds for the manufacture of the product. The benches are so constructed that the molds are placed on them in a row where they can be filled by the caster from -a hose overhead which brings the ceramic material in liquid form; called slip, into the mold. The caster determines the,length of time that the mold remains upright so that the slip forms a crust around the side of the mold, determining the time on the basis of numerous variables including the heat, the humidity, the amount of use which the molds, which are constructed of plaster, have had, inasmuch as the plaster becomes impregnated with water with use,, and the size and thickness of the finished product desired. From the consideration of these variables the caster sets a clock for a period which with lamps varies from 1 to I- Y, hours and with bottles somewhat less. When the clock reaches the time selected the benches automatically tilt the molds, permitting the remaining slip to run into a trough from which it is returned to the central reservoir. There remains a residue of approximately the final thickness of the product, known as ware, on the inside of the mold. The ware is permitted to dry with the mold closed for a certain length of time, again based on the same variables as the time during which the slip remained in the mold. The molds, which are in two pieces in the case of lamps or three pieces in the case of bottles, are opened. The ware dries a short time and is removed from the molds by the caster and placed on boards 3-feet long which in turn are placed on a storage area above the benches called the stillage. If "the ware is removed too soon from the mold it will be too soft to support its own weight. In this case, after being placed on the board, and in turn in the stillage, it will settle, generally away from the side which was first exposed when the mold was opened, inasmuch as the other or back side would be wetter than the side which had been exposed. This causes the ware to lean. Such pieces are known as "leaners." When ware has been exposed in the opened mold and not taken out of the mold for too long a time it may crack as a result of the fact that it shrinks as it dries, and the upper portion' dries faster. Also projections in the bottom of the ware catch on the sides of the mold and may crack or deform. In the case of lamps, when the mold is first opened and the exposed surface reaches a proper point of dryness, the caster drills a hole near the base for the wire of the lamp. Similarly when the mold is opened the caster breaks off and discards from the ware the neck which has formed in the hole into which the slip is poured. When the molding operation is complete, after the ware is placed in the stillage, it is collected by individuals, called ware haulers, on trucks which are placed in a dryer for varying periods of time after which they are taken to a finishing process where they are glazed, painted and reglazed to make decorative lamps and bottles. Both Brown and Leonard were employed as casters. Each of them operated four benches such as were,described above. Franklin O. Brown Brown was hired in 1968 as a caster and continued in that capacity until his discharge on December 18, 1970. He took no part in the early stages of the union organizational cam- paign in 1969 because of an adverse personal opinion to unions, but near the end of the year a few months before the election, was converted to the union cause. Thereafter, ac- cording to his testimony, he became an ardent union sup- porter wearing signs on his clothing, making and distributing buttons and talking to employees about the Union. On Janu- ary 8, 1970, he was given a warning for making distasteful and critical remarks about Respondent to employees at the plant. On this occasion he had a conversation with General Manager Greenberg, who told Brown he was a bad influence on some of the boys in the casting department and stated that he must not be satisfied or he would not be trying to get the Union into the plant. A few days thereafter, Brown testified, Greenberg accosted him at his bench and asked what he wanted with the Union, what good it would do him. Green- berg also said, "Well, you can have your fun now and I will have my fun later."2 Brown was about an average or perhaps better than aver- age caster. The record reveals that all casters made a certain amount of scrap and that 3 or 4 percent was the average. Brown testified that he had been criticized for making bad ware during his entire tenure with the Respondent. At some time during the summer of 1970 he was criticized by Super- visor Jenkins for producing bad ware. At this time he was producing bottles. As a result of this criticism, which Brown testified he did not feel he deserved because he had not run the bottles'in question, he placed marks on the molds so that he could determine if he was blamed for poor ware when he had not in fact run it. Shortly thereafter Jenkins brought him some bottles that were defective. Brown told Jenkins that he had not run them because they did not bear his mark. He showed Jenkins the mark made by the marked mold and Jenkins told him that thereafter if any molds were to be marked that Jenkins would mark them. Shortly thereafter Jenkins commenced placing marks on the molds. Brown then pointed out to Jenkins that the same molds were used by the night force and there was no way of knowing whether the night shift or he had run the bottles that were defective. Some time thereafter Respondent commenced the use of numbered markers with which the casters were to stamp the bottom of the mold. These incidents are characterized by the General Counsel as harassment of Brown. However, the evidence ap- pears to predominate that all employees were constantly be- ing accosted by Jenkins with regard to defective ware pro- duced by them and it does not appear that Brown's problems in that regard were any worse than the norm. On December 18, according to Brown's testimony, he com- menced work at 6 o'clock in the morning, the normal starting time. He poured his first set of molds, but when it was time for them to be dumped one of the four benches stuck. Brown attempted unsuccessfully to make the machine work and called on another employee working beside him to assist him He, too, was unsuccessful, whereupon Brown called for the maintenance, man, Pinkerton, who came and repaired the 2 Greenberg denied the first conversation. With regard to the second, Greenberg denied recalling any such conversation, but admitted when re- called as a surrebuttal witness that he had a conversation during the football season in which he might have used an expression similar to that quoted I credit Brown , who was partially corroborated by the testimony of another employee, Sellers. REGAL CHINA CORPORATION 587 bench apparently in a short period of time. By this time the ware had set up too long and was no longer usable. Brown discarded this ware pursuant to instructions from Jenkins. Thereafter Jenkins and Brown had a number of conversations concerning bad ware, some of which apparently Brown had made and some he had not. Brown was having trouble with his molds on this date because inasmuch as it was Friday, the end of the week, the molds were saturated with water. Jenkins told Brown that the molds were too wet and told him to turn his fans on to the molds for about 15 minutes. According to Brown, he did so. Jenkins returned in about 15 minutes and told him to open up the molds. When he opened the molds he found that the ware had gotten too dry and had cracked. Jenkins told Brown to throw away the four or five pieces on each end and that the rest were usable. According to Brown, shortly thereafter Jenkins pointed out some more dry ware and told Brown that he was going to give him a warning slip. Brown asked for a copy of the warning slip and Jenkins refused to give it to him until Brown caused him to check with the personnel manager who advised him to give Brown a copy. Shortly thereafter Jenkins told Brown to report to the personnel office where he was dis- charged. The personnel manager, according to Brown, of- fered him an alternative of quitting , to keep his record clean, which he accepted. Respondent's accounts of the incidents are considerably different. The testimony offered from the entire supervisory hierarchy sums up to the following : that on the evening of December 17 the ware hauler, who also had the function of inspecting the merchandise, discovered a large amount of defective merchandise which he called to the attention of Jenkins. Jenkins ascertained that the ware had been produced by Brown and from the condition of the ware deduced that it had been taken from the mold while still too wet. Jenkins took the matter up with his supervisor, Foreman Jester, who in turn took it up with Greenberg. Both Greenberg and Jester also examined the ware and came to the conclusion that Brown should be given a warning slip the next morning. The following morning the personnel manager , made out a warn- ing slip which he gave to Jenkins to give to Brown. Brown signed the warning slip and received a copy. Thereafter Jen- kins kept a close eye on Brown, and Brown's work did not improve. He continued taking the ware off the molds while it was still wet. Jenkins advised Brown to open the molds, put the fans on them, let the ware dry out and then when he would take the ware out of the molds they would be all right. Jenkins came back shortly thereafter and found that the molds were open, and fans were on and the ware was over- dried. He stated that Brown turned to him and said, "Are those dry enough for you?" Brown and Jenkins then took out the ware and threw away what had cracked, retaining the rest. Jenkins reported the incident to Foreman Jester, Plant Manager Taubitz and General Manager Greenberg . Green- berg inspected the ware himself and determined from his inspection that it had been dried with the fans with the molds open, so that it was overdried on the top and still wet on the bottom. He concluded that this had been a deliberate act by Brown and determined that he should be discharged . Accord- ingly, he instructed Jenkins to send Brown to the personnel office where he was discharged. Discussion and Conclusions No union organizational campaign was taking place at the time of Brown's discharge. There is no evidence that Re- spondent had any knowledge that any union activity had continued after the election in March 1970. The General Counsel contends that Respondent discharged Brown and later Leonard in an effort to remove two of the more active union supporters in contemplation of a campaign for an elec- tion in March 1971 .' There is no showing that Brown and Leonard were leading union advocates. As a matter of fact, Respondent showed that various other persons were named as members of the union committee in letters and telegrams to Respondent, but neither Brown no Leonard were so named. It is clear that Brown was neither the best nor the worst among the casters. A composite of the testimony of the super- visory hierarchy indicates that they considered him one of the better casters and capable of doing better work than he was doing. There is no issue that on December 18 Brown was first given a warning for producing bad ware and thereafter was discharged. I do not credit Brown's testimony that he was given the warning after lunch and discharged immediately thereafter, with no intervening circumstances other than his demand for a copy of the warning notice. The record appears clear that warning notices are made on a multicopy docu- ment, one copy of which is uniformly given to the employee when he signs the warning notice, and the copy of the warn- ing notice placed in evidence reveals Brown 's signature. I can see no reason and none is suggested by the General Counsel why in this instance Respondent should hesitate to give him his copy. According to testimony of various Respondent's witnesses the warning notice was signed by Brown early in the day when Personnel Manager Donofrio came into the office. Thereafter, the incident of the overly dried material took place. I do not believe Brown's testimony that the fans were placed on the closed molds for a period of 15 minutes and that the ware overdried as a result thereof. Considering that this took place on a Friday when the molds were unusu- ally wet, in view of all testimony in this proceeding, I do not believe that fans could cause the damage done with the molds closed . I credit the testimony of Greenberg that when he inspected the ware it was cracked and broken as a result of overdrying on one side and that this condition could have resulted only from the fans being placed on the ware with the molds open, which is what Supervisor Jenkins testified took place. On the other hand, I credit Brown's testimony that Jenkins told Brown to put the fans on the open molds for 15 minutes and that Brown did exactly as he was told to the end that when Jenkins returned, in about 15 minutes , the damage was done. Whether this resulted from inattention on Brown's part or from a decision on his part to follow Jenkins' instruc- tion to the letter even though it resulted in ruining the ware, I do not find necessary to determine . It is clear that on Jen- kins' return to the scene, Brown exhibited the overdried ware and asked "Is this dry enough for you?" Jenkins obviously took this statement as a taunt. He im- mediately tore the ruined ware out of the molds and, as he testified, threw it on the ground indicating , to me, that he was angry and immediately reported the incident to his superiors, who reacted by ordering the discharge. I conclude that Brown's discharge was occasioned by a combination of dissatisfaction with his work which may or may not have been justified and Jenkins ' angry reaction to Brown's question of whether the ware had become dry enough for him. I find insufficient substantial evidence on the record as a whole on which to predizate the decision that the discharge resulted from Respondent's union animus or a ' The Respondent's contention that he had no knowledge of Brown's union activities in the 1970 election is rejected As found above, General Manager Greenberg spoke twice to Brown about his union activities prior to the 1970 election In view of Greenberg 's admitted recollection of the antiunion attitude displayed before that by Brown, I do not believe that he failed to notice or could have forgotten Brown's change of position. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desire on the part of Respondent to discriminate against em- ployees to discourage union activity. Accordingly, I shall recommend that the complaint be dismissed insofar as Brown's discharge is alleged to be violative to the Act. Carlos Gene Leonard Leonard was employed by Respondent since 1968 as a caster. The evidence of Respondent's supervisory staff uni- formly characterizes him as a willing but inept employee whose work was normally of poor quality. The evidence of his fellow employees adduced by the General Counsel is uniform that his work was about average. On July 16, 1970, Leonard was given a warning slip for dirty molds.' The warning slip went on to say "This is to confirm verbal warnings given you on numerous occasions concerning your quality of ware and specifically the poor condition of your molds." Leonard made no complaint at the time that he had not been given verbal warnings prior thereto as stated by the warning slip, but at the instant hearing denied that he had ever been given verbal warnings prior to July 16, 1970. He explained the warning on that date stating that he had just returned from his vacation and the molds had been left dirty by whoever ran them while he was on vacation. He left work at noon on July 15 because of his wife's illness and the molds which he left filled had been emptied by Supervisor Jenkins. When Jenkins saw the condition of the molds he designated three other employees to clean them up before Leonard's'return. The Company's records show that Leonard returned on Monday, July 13, from his vacation. Accord- ingly, it appears that he worked with the molds for 2-% days during which time he would normally have used each of them at least 15 times.' I conclude that, in fact, Leonard had a problem keeping his molds clean. Leonard, in addition,,tes- tified that the molds were worn out when he came back from vacation. This is somewhat corroborated by the testimony of one of the three men who was appointed to clean them up; that his brother had used the same molds for about 90 cast- ings. The record reveals` that molds are normally good for 90 to 100 castings, but that a good caster who handles his molds carefully can get as many as 150 castings from a mold. The employee who had used the molds prior thereto was identified on the record as a good employee, so it is not inconceivable that the molds 'were in better condition than a mold would normally be after 90 castings. Whatever the worn condition of the molds may have been, such a condition does not, in my opinion, necessarily render it impossible to keep the molds clean. I conclude that, in fact, Leonard was validly warned about a recurring problem of keeping his molds clean. On the night of January 18 James Stanley, a ware hauler, one of whose functions was to count and inspect the ware as it was put into the dryer, found a truck with some 44 or 45 bad pieces which he called to the attention of Jenkins and Jester in accordance with his normal custom.' 4 If the molds are not properly cleaned between castings they produce bad ware If they are dirty on the faces of the casting, which come together, a gap is left through which the slip leaks out The lowering of the slip in the molds causes the upper portion of the ware to have extremely thin walls, ruining the ware. If the dirt is on the inside of the mold on the casting surfaces it will cause imperfections in the cast. ' Jenkins' statement that Leonard had been working with the molds for at least 4 days was as obviously wrong as Leonard's statement that he had just returned from his vacation The parties consumed much time at the hearing litigating whether or not the bad ware was picked up by Stanley or by another ware hauler, Jack Johnson. There is no evidence that Johnson had any part of the function of inspecting ware, all of which appears to have been done by Stanley. I do not see that it makes any difference who picked up Leonard's ware on that day The evidence reveals that on January 18 the ware haulers had fallen behind and the stillage over the benches operated by Leonard as well as those surrounding him were filled. Accordingly, it, might have been that some of the ware from surrounding benches had been placed by the caster in Leon- ard's stillage on that day and might have been intermingled with Leonard's on the truck. At any rate, according to the testimony of Jenkins, he and Jester both examined the ware called to their attention by Stanley and determined that it was bad because it had been taken out of the molds too wet causing the pieces to lean, some to collapse, and causing indentations where the wire holes were cut. Jester called the bad ware to the attention of Plant Manager Taubitz. Taubitz testified that as far as he was con- cerned Leonard should be terminated at this time, but left it to Jester to speak to Leonard the next morning (Leonard had already gone home for the evening) and if he was satisfied that Leonard's work would improve or that there was a valid explanation for the bad ware, he could keep Leonard on. The next morning according to Jester, he caused Leonard' s time- card to be removed from the rack so that Leonard would speak to him before he started work. Leonard testified that he, came in, found his timecard out of the rack, and went ahead and made his first pour. When Jester came in Leonard asked him why his card was not in the rack. According to Leonard's testimony Jester told him that he was no longer needed and his timecard was not supposed to be in the rack, sent him home and told him to come back when the personnel office was open, and talk to Donofrio, the personnel manager. Leonard came back about 9 a.m., at which time he demanded of Donofrio that he pay him immediately if he was being discharged. Donofrio stated that he had no checks, but told Leonard to come back later and he would give him a check, which is what occurred. At the time he gave Leonard the check Donofrio caused Leonard to sign a termination slip. From Donofrio's testimony it appears that he informed Leon- ard that it was necessary to sign the separation slip in order, to get his check, although he denied that he would have withheld the check if Leonard had refused to sign the slip. The slip, which is in evidence, states that "employee separa- tion due to poor quality of ware produced. Employee has had written and verbal warnings concerning this condition." Be- low this language is written "employee also refused to view condition of his ware on the date of separation." The latter language• on the separation slip refers to tes- timony of Jester that when he spoke to Leonard he first told him that he had bad ware and tried to show it to him but that Leonard walked away muttering something to himself. In view of Leonard's reaction, Jester determined that it would be ineffectual to try to improve his performance and deter- mined, to go ahead with the discharge in accordance with Taubitz' instructions. The above account, which is based largely on Respondent's evidence, reveals nothing more than a normal discharge of a marginal employee for excessively bad work. However, the General Counsel urges that the record as a whole reveals additional considerations that militate against such a finding. The General Counsel contends that the following matters reveal a discriminatory purpose in Leonard's discharge: 1. Leonard was first employed as a mold maker in the mold shop. He was transferred out of the mold shop to casting, but on several occasions thereafter was transferred back or loanded to the mold shop for periods of days or weeks when Respondent required more mold making capacity. On the last such occasion shortly before Christmas 1970 Leonard had worked for several weeks in the mold shop, during the course of which time he was assigned to train several new employees in the manufacture of molds, REGAL CHINA CORPORATION 589 The foreman of the mold shop was called as a witness and testified that at no time was Leonard any more than a mar- ginal employee in the mold shop and that he had never achieved any great competence . Accordingly, for this reason he was taken out of the mold shop and put into casting and brought back to molding only when the mold shop had such an excessive amount of work to do that the easier jobs were available to be given to Leonard . Mold Shop Foreman Howen testified that Leonard worked in the mold shop for a year, at the end of which time he did not produce enough good qual- ity molds to warrant his retention. The General Counsel placed in evidence the employment record of Leonard which reveals that he was hired on August 30, 1968, as a molder and that he was transferred to casting temporarily on October 14, 1968, and remained in casting. Mold Shop Foreman Howen testified that it takes 2 months to train a molder, but Leonard was in the mold shop only a month and a half. Accordingly, it did not appear that he was fully trained at the time he was transferred out. Howen agreed that during the first 2 months of any molder's experi- ence he could not be expected to produce top quality or quantity. If, in fact, Leonard's capacity in the mold shop was as poor as Howen and Respondent contend , it appears improbable that Leonard would have been used to train new molders as recently as December 1970. While these considerations'do not disprove Respondent's thesis that Leonard was a marginal mold maker , it appears that the evidence adduced by Respondent was at least some- what contrived to substantiate this claim. 2. At the time Leonard received the warning slip on July 16, 1970, Foreman Jester was on vacation and his paperwork was being done by employee Chilcoat , a regular caster. Chil- coat testified that on July 15 Supervisor Jenkins stated to him that Leonard "was going to feel funny when he came in the next day and received a warning slip" and that Jenkins was going to ride Leonard and make it so rough for him that he would have to quit, which would teach him a lesson for being prouniQn. Jenkins went on to say that he pitied the men that were for the Union; their days are coming.' The above comment by Jenkins again does not establish that the warning slip was not justified and in fact the evidence would seem to preponderate to the contrary , but it does establish first that at least Jenkins continued as late as July 1970 to bear animosity to Leonard because of his union activi- ties, and second that Jenkins stated prospectively to Chilcoat that he would take steps to make Leonard uncomfortable because of his union activities. 3. The General Counsel adduced evidence that about the first week in January a number of employees were having trouble with their molds because they were too wet. This could have been caused by the molds being used more regu- larly than they had been in the past. Leonard at this time complained to Jenkins who told him simply to do the best that he could with the wet molds. Other casting employees requested that Jester set up a plant meeting with Plant Manager Greenberg ' which Jester declined to do. Again this evidence does not establish that Leonard's ware was not bad, but it reveals that Leonard was not alone in having extra trouble with wet molds which from all the tes- timony in this proceeding would appear to have led to addi- tional trouble by all`casters in performing their work. ' Supervisor Jenkins testified that he did not recall such a conversation with Chilcoat However, he did not deny that it took place I find Chilcoat credible and I believe his testimony in this regard.' 4. Respondent produced two witnesses , Dennis Wagner and Kenneth Bennett, both of whom worked the evening shift as casters and both of whom testified that they had trouble with the molds left by Leonard because he would leave his molds and benches dirty . Wagner testified that he complained more than once about Leonard leaving dirty molds , both for bottles and for lamps, that he knew that they were Leonard's because of the production cards left on the benches at the end of the day shift, and that he also complained about dirt in the molds of other employees, some of them more than once. He first testified that his complaints about Leonard started around January 1971 , then stated that he was not good on dates and that he could not say when it was , but he com- plained over a period of several months. Bennett testified he had had occasion to work at the benches during the evening shift that had been used by Leon- ard during the day shift. He testified that he had had prob- lems with molds left by Leonard on at least four occasions, the last of which was toward the last of December 1970. He testified that he found the molds in bad shape, cleaned them up, ran them and put in a complaint to the night Foreman. He testified that he had complained a number of times about Leonard and had complained about other employees, but named only Franklin Brown . He testified that all his com- plaints about Leonard took place over a period of about a month and a half before Leonard 's discharge. Bennett's testimony about the condition in which Leonard left his molds was marked by one thing. He testified positively that he was talking about bottle molds rather than lamps, and the record is clear that Leonard was working exclusively with lamps throughout the fall of 1970 until his discharge. Similarly, with regard to Wagner , he testified that he com- plained about Leonard leaving both bottle and lamp molds dirty. It appears that testimony of both Wagner and Bennett was not substantiated by the facts on which it was based, if in fact, they had complained about Leonard's bottle molds being dirty, the complaints must have taken place many months before his discharge. Whether the mistake was in their assumption that Leonard was the employee who left bottle molds dirty in December and January or in placing the events in December and January that should have been placed during the summer when Leonard was still running bottles cannot be determined . Both Wagner and Bennett would appear to be chronic complainers intent on protecting their own reputations by showing that the faults which they found to exist were not caused by their activities. At any rate, I do' not credit their testimony to the extent that I would base a finding that any of Leonard's molds came to their attention in December or January immediately preceding Leonard's discharge. 6. The General Counsel points out the testimony of em- ployee Reuben Pace that shortly after Leonard's discharge he had ^ a conversation with Jenkins during which he asked Jen- kins why Leonard was , discharged. According to Pace, Jen- kins answered that "That is just one, there are more. We are going to get them one by one . You know why we fired him, he was a union guy and that is why we fired him." Although Jenkins testified at great length after Pace's testimony was offered, he was not asked about the conversation and accord- ingly, it stands undenied on the record . Pace appeared to be a credible witness. I find , therefore, that the conversation took place as he reported. 7. According to Supervisor Jenkins after July 16, when he gave the warning slip to Leonard, he put Leonard only on lamps and increasingly gave him only the easier lamps to do because he was not competent to do the more difficult lamps. However, the lamps which were bad on January 18 included a number of lamps of a style which was characterized by 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various employees including Chilcoat, who was admittedly one of the best casters, as among the most difficult lamps to cast among Respondent's styles. 8. Although the General Counsel does not make a point of it, casting department daily reports placed in evidence by Respondent for the period January 5 through 19, 1971, reveal that Leonard's production of lamps was not substantially different than that of other casters casting the same category of lamps, that his totals, although not the highest, were above average and that his losses were less than the average of other employees running similar lamps. The daily reports also re- veal that it is not unusual for employees to have losses of 10 to 30, lamps in a day's time.' Although Respondent has shown that the bad ware which it found was found after it had been put on the stillage and accordingly, would not be reflected in the loss figures shown on the casters' daily report, the evidence of Jenkins that he was watching Leonard closely and the evidence adduced from numerous sources that ware is not put on the stillage if it is obviously bad but is thrown out by the caster who marks it off on his daily report, leads to the deduction that Leonard was probably not producing scrap at any greater rate than other employees. The above considerations place ,Respondent's defense in an entirely different perspective . It appears that Respondent in- deed maintained animosity against Leonard because of his union activities, and indeed against all of the leaders in the union activity. Respondent selected a period when all of the employees were having difficulty with their ware, possibly because of the saturated condition of the molds, to get rid of Leonard whom Jenkins had been watching closely for just such a reason . When charged with a violation as a result of the discharge Respondent attempted to support its pretext with the testimony of fellow employees which I have found incredible. Under all the circumstances disclosed in the record and with reference to the factors specifically set forth above in the numbered paragraphs, I conclude that Respond- ent discharged Leonard because of his union activities and in order to discourage membership in the Union , or any other union, in violation of Section 8(a)(3) and (1) of the Act. Linda Vowles Linda Vowles was allegedly refused rehire by Respondent on September 14, 1970.' Respondent has contended at all times that the inclusion of this allegation in the complaint is barred by Section 10(b) of the Act, contending that the only charge upon which the discharge of Linda Vowles could be predicated is that in Case 13-CA-10473'filed by the Union March 22, 1971 . I rejected this argument when it-was raised at the hearing pointing out that in none of the three charges was Linda Vowles mentioned and that the allegation concern- ing her could be entertained only under the printed language on the charges which states, "By the above and other acts above-named Employer had interfered with , restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act." Accordingly, the charge in Case 13- CA-10354 equally covers any allegations with regard to Linda Vowles. Further, the General Counsel contended that the discharge of Linda Vowles is closely related to the dis- charges of Brown and Leonard because she, too, was an active union participant in the 1969-70 union campaign'and the three were discharged as part of a "process of cleansing themselves of these union adherents." 8 The daily reports also show an increase in casting losses from and after January 9, which appears to corroborate the evidence that the molds for some reason were more difficult to run. I have carefully considered this latter contention since it was raised again in Respondent's brief. The. only relation between the matter of Vowles and the matter of Brown and Leonard is that each , are alleged to be violative of Section 8(a)(3) of the Act. Certainly nothing in any of the three charges would lead Respondent to believe that it was charged with a refusal to rehire an employee in September 1970. The General Counsel relies on a decision of the Board in Hotel Conquistador, 159 NLRB 1220,, in which , the Board found that allegations of violations of Section 8(a)(1) consisting of interrogation and giving the impression of surveillance are closely related to an allegation of discrimination when the sole subject of the 8(a)(1) activities was the alleged dis- criminatee. The Board there agreed with the Trial Examiner that the Board's recent decision in Champion Pneumatic Ma- chinery Co., 152 NLRB 300, is inapposite to its decision in Hotel Conquistador because that case "involved a whole diff- erent set of facts which .revealed on its face that the amend- ments in the complaint offered in that case were wholly un- related to the allegations contained in the union's charge in that case." In Champion Pneumatic Machinery Co. the Board, in agreement with the Trial Examiner , found that the General Counsel's power to extend his complaint beyond the allega- tions of the charge extends only to new allegations, "closely related to the violations named in the charge. "'The close relationship may be found where the events are closely related either in time or in character to those alleged in the charge. As in that case I cannot find that a refusal to rehire Mrs. Vowles on September 13 is closely related in time to a discharge in December and another in January. Nor can I find sufficient relationship 'with regard to the character of the alleged act other than that the allegations all sound in Section 8(a)(3). Accordingly, I am constrained ' to reverse my ruling made at the hearing and dismiss the allegation with regards to Linda Vowles as time-barred. ' Even were Ito rule differently with regard to Section 10(b) I would recommend that ,the complaint be dismissed with regard to Linda Vowles . The only support for her position is to be found in her own testimony that when she was refused consideration for rehire by Personnel Manager Donofrio he said, "Linda, we can't possibly hire you 'considering the Union and things when you left." I do not credit Mrs. Vowles in her direct testimony or in cross-examination. I was unim- pressed by her demeanor. Respondent makes much'of contra- diction of her testimony by a stipulation 'by both the General Counsel and the Respondent . I do not rely on that matter- the'evidence was collateral to the issues before me. Neverthe- less I found her testimony incredible on relevant and material issues. Mrs. Vowles admitted that, after she had purportedly quit on one occasion and had been rehired by Respondent, on her assertion that no one, especially including her husband, had the right to tell Respondent that she quit, 'she agreed with General Manager Greenberg that in the , future she would handle her own affairs and would not expect her husband's word to be taken for her actions, nor hers for her husband's actions, and that the Employer would follow the same course. Nevertheless, after the speech referred to in the early part of this Decision in which ,Greenberg referred to her activities, she walked out of the plant with her husband without saying a word to Respondent or any, of Respondent 's, hierarchy, while her husband said she and he quit. When she attempted to come back months later she was in the position of having left Respondent's employ without notice, this position having been achieved by her own actions in the past and insisted upon by her. Under those circumstances I do not believe,that Respondent would have any duty to reemploy her and I find REGAL CHINA CORPORATION 591 nothing in the action of Donofrio that leads me to believe that the Respondent's refusal to consider her for rehire was due in any way to her union activities. Accordingly, I would recommend, were the matter before me, that the complaint be dismissed with regard to the allegation that her discharge violated Section 8(a)(3). The Alleged 8(a)(1) Activity The General Counsel alleges that on or about February 19, 1971, Supervisor Agnes Philips interrogated an employee at Respondent's plant about the employees' union activities. The interrogation alleged is contained in the testimony of Carol Webb. Mrs. Webb testified that she had asked for time off from Supervisor Agnes Philips and had been denied. Thereafter, the day after the union meeting, Miss Philips asked her how come she went to the union meeting. Webb said she did not go to the union meeting and did not even go to work that day. Miss Philips rejoined "somebody knew about what you said because they brought it up at the meet- ing." When Webb denied that she had been to the meeting, according to her testimony, Miss Philips called her a liar and said that she had been told that there was a girl at the union meeting who had complained that her father was sick and Philips would not let her off. Philips denied that Webb had ever asked her to take off. Apparently the argument went on thereafter. Agnes Philips denied having such a conversation. Mrs. Webb identified three employees as being present during the conversation; Nell, Bobby, and Minnie. She testified that she knew none of their surnames. Mrs. Philips testified that a Bobby Sizemore, a Minnie Taylor and a Nell Julian worked near Mrs. Webb when she was employed. Minnie Taylor was called as a witness by Respondent. She denied hearing any conversation of the nature reported by Mrs. Webb . The other two alleged witnesses were not called to the witness stand, no explanation is given therefor. I do not credit the testimony of Mrs. Webb because of her demeanor. My subjective reaction is reinforced by what I conceived to be the inherent improbability of her story either that her supervisor would have refused her permission to take off a day or two to go to her father who was allegedly dying or that Mrs. Philips spoke to her in the language quoted thereafter. I consider it is quite possible that a conversation took place after the union meeting at which Agnes Philips denied having been asked and refusing to give Mrs. Webb time off under the circumstances; it is clear that the matter was brought up at the union meeting and I can well believe that Mrs. Philips was sensitive to the charge, but whatever was said at that time by Mrs. Philips is not reported by substantial credible evidence . Accordingly, I recommend that the allegation be dismissed. The General Counsel alleges that the statement of Super- visor Moman Jenkins to employee Pace , reported above in the discussion of Leonard's discharge, that Leonard was dis- charged because he was a union man and that the Company was going to "get them one by one," constitutes a coercive threat. I found that Jenkins made the statement and there can be 'no question that it constitutes a threat ' of discharge. The General Counsel also contends that a threat was ut- tered by Night Foreman Roswell Moody. The evidence on which his contention is based was presented by employee Martin Lusiak, who stated that he overheard a conversation in early February 1971 in which Moody stated to employees that the highest paid employee in the casting department, who used to be a favorite of the former plant manager and who put out real good quality molds and was doing very well, later got involved in some union work and was looked down upon by management and the other employees who did not like his work for the Union , that the quality of his molds went down and he was not doing his work, and that the employee would be all right again if he would just keep his mouth shut. The parties litigated whether Moody was a supervisor. He was at that time the foreman -designate on the night shift, having been appointed to take the place of the night foreman who was retiring. The retiring night foreman was still em- ployed at the time of this occurrence and Moody was engaged in assisting him. Moody had no supervisory authority at the time, but all employees knew that he was to become the supervisor upon the retirement of his predecessor and after completion of a training period . I find that Moody, although at the time he did not possess the authority of a supervisor, truly had crossed the line to the knowledge of the employees and was regarded as a management spokesman. With regard to Moody's statements, which he admitted making, I find no coercive impact. I do not believe that they constituted a threat in any regard . At best the statement that the unnamed employee's work had suffered and that he was looked down upon by both management and fellow em- ployees does not carry a message that the work suffered as a result of any action by Respondent or that the employee was in any way disadvantaged economically by the lowering of the esteem in which he had theretofore been held by manage- ment and his fellow employees . I find that the statement, although it was said by a person reasonably considered to be a management spokesman,' did not constitute a threat and is not violative of Section 8(a)(1) of the Act and I recommend that the allegation in regard to it be dismissed. CONCLUSIONS OF LAw 1. By discharging Carlos Gene Leonard because of his union activities Respondent has discriminated in regard to hire and tenure of his employment in order to discourage union activities in violation of Section 8(a)(3) of the Act. 2. By the foregoing conduct and by threatening that other employees would be discharged for similar conduct Respond- ent has interfered with, restrained and coerced employees in the exercise of their Section 7 rights and has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not violated Section 8(a)(3) and (1) of the Act in other regards as set forth above. THE REMEDY Having found that Respondent engaged in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including a provision that Respondent offer to Carlos Gene Leonard immediate and full reinstatement to his former or substantially equivalent posi- tion without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason thereof by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of Respondent's offer to reinstate him, together with interest thereon, less net earnings, if any, during such period. Back- pay and interest shall be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716. On the basis of the foregoing findings of fact and conclu- sions of law and on the entire record in this case and pursuant ' Hecks, Inc., 156 NLRB 760. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Section 10(c) of the Act, I hereby issue the following recommended: ORDER1° Regal China Corporation, Antioch, Illinois, its officers, agents, successors, and assigns-shall: 1. Cease and desist from: (a) Discouraging membership and activities in Interna- tional Chemical Workers Union or any other labor organiza- tion by discriminating in regard to hire and tenure of employ- ment of its employees in order to discourage membership or activities therein. (b) Threatening to lay off or discharge employees for en- gaging in union activities. (c) In any like or related manner interfering with, restrain- ing or coercing any employees in the exercise of their rights to self-organization, to form, join, or assist any labor organi zation, to bargain collectively through representatives of their own choosing, to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Offer to Carlos Gene Leonard immediate and full rein- statement to his former position or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority, or other rights and privileges and make him whole for any losses he may have suffered as a result of his discharge in the manner set forth in "The Remedy" section herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its plant in Antioch, Illinois, copies of the at- tached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by its authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith." IT IS FURTHER RECOMMENDED that the complaint be dis- missed in all other respects. 1° In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections. thereto shall be deemed waived for all purposes " 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 " " 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 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we vi- olated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representatives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with or re- strains or coerces employees with respect to these rights. WE WILL NOT discriminate against our employees for engaging in activities on behalf of the Union or on their own behalf. WE WILL NOT threaten to lay off or discharge em- ployees for engaging in union activities. WE WILL reinstate Carlos Gene Leonard to the posi- tion he held before our discrimination against him or, if that job no longer exists, to a substantially equivalent position, and make him whole for any loss of pay he may have suffered by reason of that discrimination. REGAL CHINA CORPORATION (Employer) Dated By (Representative) (Title) WE WILL 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 dis- charge from the Armed Forces, in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881, 219 South Dearborn Street, Chicago, Illinois 61604, Telephone 312-353-7572.