Federal Pacific Electric Co.

FEDERAL PACIFIC ELECTRIC COMPANY Federal Pacific Electric Company and International Brotherhood of Electrical Workers, AFL-CIO. Cases 11-CA-4171, 11-CA-4177, and 11-CA-4197 February 28, 1972 DECISION AND ORDER BY CHAIRMAN AND MEMBERS FANNING AND KENNEDY On September 30, 1971, Trial Examiner Benjamin A. Theeman issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recom- mended Order, as herein modified. 1. The Trial Examiner found, and we agree, that the Respondent violated Section 8(a)(1) of the Act by threatening and interrogating employees, and creating the impression of surveillance. 2. We also agree with the Trial Examiner's finding that Respondent discharged employee Walter Lane in violation of Section 8(a)(3) and (1) of the Act. We find, however, contrary to the Trial Examiner, for reasons set forth below, that Respondent did not violate Section 8(a)(3) and (1) by discharging employee Richard Fox. Richard Fox, a probationary employee, had been active in the Union. The Respondent knew that Fox was an active union adherent and in fact some of the violations of Section 8(a)(1) were directed at him. How- ever, the record also establishes that Fox received two valid written warnings on March 6, 1970, for violating a company rule against solicitation of which he was well aware, and for making an avoidable on-the-job mistake which was potentially costly to Respondent. On the next working day, March 9, Fox became em- broiled in a controversy over calling a fellow employee an abusive name. When asked about the incident, Fox got into an argument with his supervisor, sarcastically called him "a great god," and in mock gesture, bowed down to him. It was at this point that Supervisor Ma- landes reported the incident to Carter, the industrial relations manager, who then discharged Fox. In our view, the insubordination manifested by Fox, when coupled with the written warnings on the previ- ous working day, and the fact that Fox was a proba- tionary employee, provided ample justification for his discharge. While we recognize that Fox was known to have been active in the Union and that the Respondent 195 NLRB No. 116 609 may well have welcomed the opportunity of dispensing with his services, neither Fox's activities nor Respond- ent's attitude toward him justified Fox's misconduct, which we are convinced was the controlling reason for his discharge. Accordingly, we find that Fox's dis- charge was for cause and dismiss the allegation of the complaint related thereto. 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, as modified below, and hereby or- ders that the Respondent, Federal Pacific Electric Company, Albermarle, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 1. Delete paragraph 2(a), 2(b), and 2(c) and substi- tute therefor the following: "(a) Offer to Walter Lane immediate and full rein- statement to his former job or, if it no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole in the manner set forth in the section of this Decision entitled `The Remedy.' "(b) Notify immediately the above-named in- dividual, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. "(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 2. Substitute the attached notice for the Trial Ex- aminer's notice. 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 the chance to give evidence, it has been decided that we, Federal Pacific Electric Company, have violated the National Labor Relations Act, and we have been ordered to post this notice. The National Labor Relations Act gives you, as em- ployees, certain rights, including the right to self- organization; to form, join, or help unions; and to bar- 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gain collectively through a representative of your own choosing. Accordingly, we give you these assurances: WE WILL NOT try to discourage you from be- coming or, being a member of International Broth- erhood of Electrical Workers, AFL-CIO, or any other union, by discharging any employee or in any other manner discriminating against our em- ployees in regard to hire or tenure of employment or any other term or condition of employment because of their union membership or activities. WE WILL NOT threaten any of our employees with discharge because of their union membership or activity. WE WILL NOT create an impression among our employees that their union activities are under surveillance. WE WILL offer Walter Lane his former job or, if this job no longer exists, a substantially equiva- lent position, without prejudice to his seniority'or other rights and privileges, and make him whole for any loss of pay, with 6-percent interest, he may have suffered as a result of our discrimination against him. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization. FEDERAL PACIFIC ELECTRIC COMPANY (Employer) Dated By (Representative) (Title) WE WILL notify immediately the above-named in- dividual, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Tele- phone 919-723-9211, Extension 360. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN A. THEEMAN, Trial Examiner: The complaint' as amended at the hearing alleges that Federal Pacific Electric Company, (Respondent),, by (a) threatening employees if they joined or engaged in union activities, (b) creating an impres- sion of surveillance of its employees' union activities, (c) in- terrogating employees about their,union activities, and (d) unlawfully discharging Walter Lane, Richard Fox, and Jea- nette Lowder has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (the Act). Respondent ,denies the unfair labor practices but admits the discharges. A hearing was held after due notice before me the duly designated Trial Examiner on April 19, 20, and 21, 1971, in Albermarle, North Carolina. All parties appeared and were represented by counsel. They were given full opprotunity to participate, adduce evidence, examine and cross-examine wit- nesses, and argue orally. Respondent and counsel for the General Counsel submitted briefs which have been fully con- sidered. Upon the entire record in the proceeding and from my observation of the witnesses, I make the following: FINDINGS OF FACT I BUSINESS OF RESPONDENT Respondent is a Delaware corporation engaged in the manufacture of low voltage distribution equipment with a plant located at Albermarle, North Carolina. During the year preceding June 1970, which year is a representative period of its operations, Respondent at its Albemarle plant received raw materials valued in excess of $50,000 directly from points located outside North Carolina. During the same period, Respondent manufactured, sold, and shipped from the Al- bemarle plant directly to points outside North Carolina finished products valued in excess of $50,000. It is found that Respondent is and has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues are sufficiently set forth in the Statement of the Case above. ' The cases were consolidated for hearing. A consolidated complaint was issued on June 9,1970. The charge in Case 1I-CA-4171 was filed on March 9, 1970, a first amended charge on July 22, 1970, and a second amended charge on April 14,1971; in Case'11-CA-4177 on March 11, 1970, and in Case 11-CA-4197 on March 26, 1970, and an amended charge on July 22, 1970. At the hearing, the complaint was amended among other things to eliminate all allegations as to William Kenneth Rodgers and Michael Loflin as alleged 8(a)(3) discharged employees. The charges were filed by Interna- tional Brotherhood of Electrical Workers, AFL-CIO (the Union). FEDERAL PACIFIC ELECTRIC COMPANY 611 B. The Credibility of Witnesses The determination of the facts herein has been difficult. The unraveling of the tangled skein due to the many conflicts in testimony has been painstakingly done. In many instances, a resolution of credibility of witnesses was required. The testimony of Fox has been credited over that of Pollock with regard to the conversation about union activity. In other instances Fox's testimony has not been credited. The reasons for the differences have been stated where necessary. Lane was found to be, a credible witness. In most matters Lowder has not been credited, except in relation to Privette's state- ment concerning union activities. In making these credibility determinations the pertinent testimony of all witnesses has been considered as well as their demeanor. In addition, incon- sistencies and conflicting evidence were considered. The ab- sence of a statement of resolution of a conflict in specific testimony or of an analysis of such testimony does not mean that such did not occur. See Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1161. To the extent that a witness is credited only in part, it is done upon the evidentiary rule that it is not uncommon "to believe some and not all" ; of a witness' testimony. N.L.R.B. v. Universal Camera Corpora- tion, 179 F.2d 749, 754 (C.A. 2). C. Background Respondent, at its grounds in Albermarle, has two plants: the plastics plant and the assembly plant where the action in this proceeding took place.' In the plastics plant there were employees known as "molders" and "material handlers."' Molders molded electrical parts by putting "preform," a type of crude plastic, into a machine, which molded and stamped out an electrical part. The molder stacked the completed parts in boxes at his machine. Material handlers brought the preform to the molders. This was their primary function. Material handlers also supplied the molder with other items such as plastic dust, inserts to go into parts, boxes to put parts in, etc.' Production stops when the mold machine is out of preform, plastic dust, or some other item. In the assembly plant employees assembled and packed' finished items for shipment. One of these items was a wall thermostat. According to the manner in which Respondent classified the job, employees were paid regular hourly wages or were paid on incentive (also known as rated) pay.' Material han- dlers received an hourly wage; molders and packers received incentive pay. The following persons are admittedly supervisors: Jack A. Carter, manager of industrial relations; Irving Pollock, manager, plastics plant; William Privette, foreman, instru- ments; Wesley Melandes, foreman, plastics; and Cecil Al- mond, foreman, plastics. They are alleged to have committed unfair labor practices between the period of about February 10 and March 23, 1970. 3 Respondent employs about 600 people The record does not show the number of departments or of employees involved in the campaign. ' Fox and Lane were material handlers. ° See third par., sec. C, below for a detailed account of the handler's duties. 6 Lowder was a packer. 6 When employees received incentive or rated pay they were known to be "on production." D. The Union Campaign The Union started an active organizing campaign of Re- spondent's employees in February 1970.' About February 8, an organizer of the Union met with Irving J. Pollock, manager of the plastics department. He told Pollock the Union was going to organize the plant. About February 10, the employees of Respondent were addressed by John De- Torre, general manager of Respondent. He stated the Com- pany's position with regard to the Union.' In February, three union meetings took place, at least one of which was attended by 40 to 45 of Respondent's employees. In mid-February 1970, the Union distributed sheets among the employees to be signed which stated that the signers became members of a voluntary organizing committee.' During the last week of February, the Union distributed union buttons which many of the employees wore while at work thereafter. By February 28, 46 employees signed up as voluntary organizers. On March 1, 1970, the Union sent a letter to Respondent notify- ing it of the union organization and enclosing the signed sheets. On March 3, Respondent posted a notice in each of the two plants listing the names of the employees of that plant who had become organizers.10 The notice continued with the following statements showing Respondent's opposition to the Union: You can be sure that no employee will ever receive any special or preferred treatment by this company because they are involved in any union activity or are placed on any type of committee. You may be asked to sign a union card by some union organizer. The organizer may say it is "just to get an election." This is highly misleading! If the union gets enough cards signed, the union doesn't have to ask for an election. It is a common union trick nowadays for the union organizers to give these cards to the company and ask the company to look at the signatures. Then they say no election is necessary, because the cards say you have already "authorized" the union to "represent" you. Don't sign a union card-because if you do, you could lose your right to a secret ballot election. Don't give up your right to hear both sides and then vote in secret. You need to understand the many bad, things about giving up your rights to some outside union organizer. Fox was discharged on March 9; Lane on March 6;" and Lowder on March 23. Each employee attended union meet- ings, wore union buttons, and signed authorization cards. Lane and Lowder were 2 of about,12 to 15 employees who procured the signatures of other employees on cards and turned the signed cards in to the Union. ' In August 1969 a meeting between a union organizer and about five employees occurred, but there is no evidence of any continuing activity afterward B What he said is not in the record. There is no question that Respondent was opposed to the Union ' The Union had issued instructions to the employees that union activi- ties should not take place during working hours but during coffee and lunch breaks and before and after working hours. Employees were aware of Re- spondent's policy of no union solicitation during working hours '° There were 13 in the assembly plant including Lowder, and 29 in the plastics plant including Fox and Lane. 11 Michael Loftin, another voluntary organizer, was discharged about March 6. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Interrogation, of Threats to Employees and Creation of Impression of Surveillance 1. Carter warns Thompson about union activity at the plant Edward Thompson was an automatic machine operator employed by Respondent since August 20, 1966. He left on January 15, 1971. On February 13, 1970, he went on medical leave and was operated on for a hernia on February 15, 1970. He left the hospital 5 days later. His claim for workmen's compensation in connection with the hernia was denied. About March 10, he came to the plant to discuss with Carter the fact that he was not receiving workmen's compensation.'2 During the conversation, Thompson mentioned that it looks "like the Union is moving in on y'all over here." The conversation continued as follows: A. He says, "Yeah," he says, "They are, but we're gonna give'em hell." And I says, "Well, you havent' got too much to worry about. You got a lot of old people in here, that I wouldn't think would be signing cards or getting cards signed. Q. Then precisely what did he say? A. He said, "Well, the biggest problem we have, we got so many niggers," he said, "and they every one signed a damn card." Q. Then what was said, if anything? A. And then a few words in between, and he says, "Well, we have a list of the names of the organizers," and he said, "We're going to get rid of every one of them." Says, "We have ways to do it." Said, "Some of 'em may cost us, but we're gonna get rid of 'em." Thompson is credited and Carter's denial is not credited. Respondent argues in it brief that Thompson's credibility was weakened because of the following testimony brought out on cross: A. I was the first to mention the Union. Q. Okay. And did you make the statement to Mr. Carter that you didn't want to have anything to do with the Union? A. I told Mr. Carter that-I didn't make the state- ment that I didn't want to have anything to do with the Union; I said if it comes to the place where I have the problem of fighting for a job, me and my wife'll be mov- ing out. The Examiner fails to understand how or why Thomp- sons's failure on direct to make the statement beginning "if it comes etc." weakens Thompson's credibility. On direct Thompson admitted he opened the subject dealing with the Union. 2. Pollock threatens Fox Pollock became friendly with Fox after Fox was employed by Respondent. In January 1970 they discussed various mat- ters including union activities. Fox made known then that he was prounion. These discussions continued after the union campaign started and the Union and its campaign were dis- 11 Carter is not credited when he testified that this conversation occurred specifically on March 24. Any corrobative effect that may be intended by the submission in evidence of Respondent's employees status notice dealing with Thompson is also not credited. The status notice shows that on March 24 Thompson went back to work. Thompson credibly testified he was in the hospital 5 days after the operation The visit "was on into March . Somewhere around the tenth, maybe... "The purpose of the visit in ques- tion, as admitted by Carter, was to discuss the fact that Thompson was not receiving workmen's compensation The record shows that that item plus the union activity in the plant were the items discussed. cussed.13 The conversations.were as follows: (1) About Febru- ary 6, Pollock told Fox that he had met McInnis (the union organizer) the night before and was not impressed by him. (2) Pollock told Fox that the employees who favored unions were "college kids and young -blacks."t (3) About February 14, Pollock told Fox that there was nothing to stop Respondent from closing the plant down and moving,to Puerto Rico if the Union came in. Specifically, Pollock said that G. E. made that move when it was bothered by the Union. Pollock stated "maybe it wouldn't be so bad to go to Puerto Rico." (4) About February 15, Pollock told Fox that he knew who had attended the union meeting the previous day and that at least three people came to him and told him what went on. About the same time Pollock asked Fox for a union card., (5) Re- spondent was considering Fox as material for a foreman's or inspector's job. About mid February, Pollock told Fox that he ought to watch his step "and play it cool if I expected to get the foreman's job or the inspector's job." Pollock also said that Carter had told him to break off relations with Fox, referring to the latter as "the long-haired boy in the plant." Pollock informed Fox that he had told Carter that he was getting information from Fox and Carter should leave him alone. (6) About February 19, Pollock asked Fox "how come [he] didn't go to the Union meeting the night before." Fox answered that he didn't cut work for that purpose. Pollock said that he knew who was there and what happened. (7) About February 20, Pollock told Fox he knew who the ring leaders of the union, activities were and named three of the employees. (8) 'About February 29 Pollock told Fox that there were 43 employees at the last union meeting and "10 of them were his." It is found on the reocrd as a whole that Pollocks' state- ments to Fox set out in (3) and (5) above constitute threats, and his statements set out in (4), (6), (7) and (8) advised Fox that Respondent knew of the union activities of its employees and created an impression of surveillance. Such threats and impressions of surveillance are coercive in violation of Section 8(a)(1) of the Act. 3. Privette threatens Lowder In the packing department, Privette on several occasions threatened Lowder because of her union activities: (1) In the last week of February 1970, Lowder startedto wear her union button in the plant. Privette noticed it and told her tht she "had better not wear it in the plant"; (2) on another occasion, Privette told Lowder that the ladies who wear buttons "had bettter look around and see how hard it is to,find jobs"; and (3) after the union campaign started, Privette stated "the plant would close down before they's ever let the Union come in.,, Each of these statements constitutes a threat and is found to be coercive in violation of Section 8(a)(1) of the Act. F. Richard E. Fox 1. Background Richard E. Fox was employed by Respondent in the plas- tics plant from December 31, 1969, to March 9, 1970, when he was discharged "for misconduct connected with his work." It is found that Fox was discharged for his union activities in violation of Section 8(a)(3) of the Act. 13 Pollock admitted that he held many discussions with Fox but denied making threats and the statements creating the impression of surveillance hereafter listed Fox is credited FEDERAL PACIFIC ELECTRIC COMPANY 613 When first employed Fox was given a handbook to read entitled "Your Information Manual." Pages 5 and 6' con- tained a paragraph entitled "Service Tenure." The latter stated in part, "The first six (6) months of employment is deemed to be probationary.... During this trial period your employment may be severed at any time." Fox admitted that he had received a copy- of the manual and had read it. He testified he did not recall that the manual said anything about probation but "It might've." It is found that at all times while in the employ of Respondent Fox knew he was on probation. All during the time he was employed he was a student attending Pheiffer College -in Albemarle with expectations of graduating in May 1970. He became a molder when hired and about a month later as hereinafter discussed became a material handler. He worked on the second shift from 4 p.m. to 12 midnight.14 His foreman at first was Wes Malandes and later Cecil Almond. Both of the latter reported to Manager Irving Pollock. 2. Fox's union activities On or about February 15, Fox signed a union card. He attended two union meetings in February. About February 20 he signed one of .the committee sheets as a voluntary organ- izer and his name appeared on the list posted by Respondent on March 3, 1970, on the bulletin board of the plastics plant. About the same time Fox started wearing a union button. His union activities were known to Respondent. 3. Respondent considered Fox supervisory material and gave him privileges In January 1970, Harvey Marcus, chief inspector, quality control, at Pollock's suggestion interviewed Fox as a candi- date for an inspector's, job. At Marcus' request, Fox took a test required by Respondent of all candidates. He passed the test on February 3, 1970. Some time afterward, Fox was told that he would be considered for an inspector's job." Pollock, at different times when talking to Fox, told Fox that he qualified for a foreman's job. - Fox changed his job from molder to material handler after a conversation with Foreman Almond. Almond advised Fox that a handler is not always occupied; that there would be spare time between servicing the molders; that if he brought his books to the plant he could read and do his college work. On March 3, when the lists of the union organizing commit- tee were posted, Almond countermanded these instructions. He told Fox that reading and studying in the plant were to cease; that Fox was not allowed to speak to anyone; and that when not performing a specific task he was to stand next to Almond's desk.l6 " The material handler came in from 15 to 30 minutes before the shift started to supply the machines with preform (plastic powder) so that the machines were ready to operate when the molders anved at 4. 1' Fox testified that he was offered an inspector's job in February. Re- spondent asserts there was no inspector's job available then and no inspec- tor's job was offered Fox. That Fox was refused a promotion because of his union activities is not alleged as a violation of the Act. Accordingly, it is not considered necessary to resolve this point. It is sufficient for the purposes of this decision that Respondent thought well enough of Fox and his capabilities to consider him a candidate for promotion 16 Almond denied he gave permission and-rescinded it. He is not cred- ited Respondent offered testimony of several witnesses that they did not see Fox do college work on the job. The significant fact is that Fox was given a privilege which was then taken away from him because of his union activities. 4. Fox asks Tucker to join the Union Tucker was a molder in the plastics department." He was opposed to the Union. About March 3, Fox approached Tucker during working hoursand asked him, "Why don't you sign a union card." The first time was 10 p.m., the second at 10:20, and the third at 11:30.11 On each occasion Tucker answered "I'm not interested." The third time, Fox re- sponded "Anybody that doesn't sign a union card is sixty years old and a rat fink."" Fox admitted that he was aware of the company policy "that you could not solicit for the Union when you are supposed to be working." On March 6, 3 days later, Tucker reported the above events to Foreman Almond.20 The latter wrote out a warning slip charging Fox with "Soliciting workers for union activities during working hours: 3/3/70-10:00, 10:20 and 11:30." Fox refused to sign the slip telling Almond "this I did not do." Almond testified that before he wrote up the warning he spoke to Fox, "asked him had he solicited," mentioned Tuck- er's name and "gave him the times";-and that Fox replied he had not done so. Fox in his testimony states "When I went to work on March 6 ... Cecil Almond... gave me a piece of paper to sign. I read it over and it said something about soliciting Union activities during working hours. I told him this I did not do, so I refused to sign the warning slip." Fox further states Almond said nothing, "He just gave me the piece of paper." On cross-examination Fox admitted that he was aware that the warning stated that he had solicited for the Union on three occasions. Yet, he asserted that he asked Almond- for no particulars with regard to these occasions, nor did he request the name or names of the people he was alleged to have solicited. It is concluded that Fox under these circum- stances is not credited and that Fox knew what Almond was talking about when he presented the warning to him. It would have been the reasonable thing for Fox to inquire for some particulars when so vaguely accused. The foregoing conclu- sion is strengthened by the events of March 9, the day of Fox's discharge. According to Fox, in his interview with Pollock, the latter mentioned the solicitation warning slip. Fox replied "I didn't do it, so I didn't sign it.... You know it was a frameup." Here again it is not considered reasonable that Fox should refer to a "frameup" without knowledge of the particulars constituting the "frame. 1121 Fox did not specifically deny at the hearing that he had solicited Tucker to sign a union card or that he made the "rat fink" comment. Nor are the denials made to Almond and Carter of the general statements contained in the warning considered such specific denial. Accordingly, on the record as a whole, it is found that Fox addressed Tucker three times on March 3, 1970, as stated above. Further it is found that the conversation constituted solicitation during-working hours to join the Union. 11 Tucker, when he testified at the hearing, was not employed by Re- spondent - 18 Breaktime on this shift was 10:30 p.m. for 8 minutes. " It is concluded from observation of Fox and' Tucker that during the time they were employed by Respondent they were not friendly; there existed an antagonism between there; and they tended to "ride" each other This antipathy played a part in this episode and the "s.o.b." episode dis- cussed in subsection 6 of this section. 11 No special significance is attached to the fact that a 3-day lapse oc- curred. 31 No weight is given to General Counsel's assertion that Fox did not know until the day of the hearing that Tucker was the person involved. 614 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD 5. Fox spills the preform On March-6, Almond issued another written warning to Fox. The events leading to this.warning, are as follows: About 8 p.m. on March 6, Fox filled up one of the automatic ma- chines with preform material. No bucket was placed under the overflow chute with the result that the preform material spilled on'the floor. Almond made'out the warning slip read- ing, "Did not place barrel- under powder overflow spout, 'operator has enough experience on job to know this .1112 Fox raised no objections and signed the warning slip. 6. Fox is discharged There are conflicts in the testimony of the persons who testified to the events of March 9 leading to the discharge of Fox. As, already stated, the resolution of the conflicts in- cluded consideration of the demeanor of the witnesses and required a detailed study of the testimony. On the basis of the foregoing and on the record as a whole, it is concluded that the events of that day occurred in the- following manner: - On March 9, Fox came to work -early. He first spoke to Pollock and the two previous warnings came up in the con- versation. Pollock placed great emphasis on the "union solici- tation" warning and depreciated the "plastic overflow" warn- ing.23 Fox also saw Marcus who, told him he didn't know whether he'd be able to give Fox the inspector's job because Respondent was cutting back. When Fox reported to work he found out that Wes Ma- landes was substituting as foreman for Almond who was away that day. Malandes commented on Fox' union button. Fox started filling the machines with preform when Tucker told him to get him some boxes. Fox told Tucker he would get him some boxes when he gave them to everybody else but first he had to put, the preform up?' Tucker reported this action to Malandes who ordered Fox to give Tucker boxes which Fox eventually did.25 A little while later Tucker re- ported to Malandes that Fox had called him "an ass-kissing Federal son, of a bitch."25 Malandes took this up with Fox. Fox told Malandes that Tucker, was a liar. Malandes either deliberately or mistakenly understood that Fox was calling Malandes "a liar." Malandes replied, "You can't talk to me like that, I'm your foreman, and you should show respect for me, at least." Fox answered, "You're not my foreman, Cecil [Almond] is my foreman." Malandes answerd, "I'm your foreman as long ' as Cecil is out."'In'return Fox replied, "You're a great god and I'll bow down to you," and stretched his arms out and bowed down to Malandes.2' Malandes called Carter who asked that Fox 32 Fox testified that he "shovelled the plastic back into the blcket,.which was reused in the machine." Almond testified that he "explained to [Foi] that the powder was valuable, and it was all ruined. any, contamination at all will cause it to'form blisters on the part " Almond further testified that Fox shoveled the overflow powder into' a barrel and left it, then at Almond's order one of the boys pulled the barrel around and scrapped it. This fact is not an issue in Fox's discharge and need not be resolved. " See the fatter part of the last paragraph of subsection 3 of this section " It is conceded by all parties that the primary function of the material handler is to get the preform to the machines. Fox admitted on cross- examination that it was part of his "job as a material handler to provide the boxes for the molders." 1' Fox testified on cross-examination that he did not go for the boxes when first asked to get them by Tucker and Malandes. " The Examiner recalls that Malandes testified not to "Federal" but used the present participle of a four-letter word also starting with 'f' and now generally accepted. Fox credibly denied that he called Malandes a liar., Q Did Mr. Malandes accuse you of having called Tommy Tucker an s o.b ? A. That's correct. come,to his office.-Malandes picked up Fox who insisted that he wanted a witness to the discussion. Carter gave permission through, Malandes, Fox selected his witness and they all went to Carter's office., Carter' asked Fox about the events that happened. Fox again denied that he had called Tucker, an s.o.b. Carter than asked Fox about calling Malandes a liar. The significant con- versation that occurred after that is not clear. According to Carter, Fox admitted he called'Malandes a liar but did so because Fox thought that Malandes had accusedhim of curs- ing Tucker.2S It is found that Fox did not admit that he called Malandes a liar. The alleged explanation, "he '(Fox) thought that Malandes had accused him of cursing Tucker,",does not hold up. (1) It does not hold call for a "You're a liar" re- sponse. (2) Such' a response is considered unreasonable par- ticularly following, as it does, Fox's'saying Tucker is a liar when- Malandes told Fox of Tucker's accusation. (3) Ma- landes'. testimony contained in the, footnote does not help clarify the alleged conversation in Carter's office. In any event, it appears that Carter gave no weight to the accusation that Fox called Malandes "a liar."' Carter did not include that action as a cause for Fox's discharge. Carter ended the meet- ing by stating, "Because of your 'history with us, and because you are a probationary employee, and because you have had previous warnings, I am going-to terminate your employ- ment, in keeping with our practice on this type of probation- ary release."29 A security guard escorted Fox out of the build- ing at' one door while Malandes went in another direction. Q What did you say? A I denied it. Q. How did you deny it9 In denying it, did you tell Mr Malandes that he was a liar? A. No, that's incorrect. Q. Did you say anything about lying? A. I said Tommy was lying, if I remember correctly Q But you did say something about lying? A That's correct. Malandes is credited as to the remainder of the conversation. Fox did not deny that he went through the "great god" routine. The impression created by Fox on the stand is that he would have performed such a gesture An act of the same nature occurred later when Fox shouted that Malandes was a "Fascist" after Fox was' discharged. (See the last ' two sentences of this -portion of this Decision.) Fox on cross-examination was asked whether Malandes had pointed out that he was Fox's foreman. Fox responded as follows, Q. During this discussion, did Mr Malandes make any statements to you pointing' out that he was your foreman? A' No, he didn't, not that I recall. Q Well, are you saying you don't remember one way or the other? A I don't believe he did. Q. Do you deny that he said anything to you about being your foreman that day? ' A.'I can't deny it because I don't recall word for word Q Okay, fine Did you make any statement to Mr. Malandes to the effect that Mr Almond was your foreman? A. No, none. These answers show that Fox was equivocating with regard to whether the word foreman was mentioned in this exchange The impression created by Malandes on the stand was of an individual who would be deeply affronted if his authority or position were challenged or belittled. It is considered that his recall of, such an incident would be strong. " Malandes on this point testified, "so Carter asked-him, `What about calling your foreman a liar?' And [Fox] said at that time he thought I was accusing him of calling Tucker that, or calling him that, and Jack [Carter] asked me did I call him anything like that I said, `No'.. " The separation noticc,'issued 9 days later, contained approximately the same language "Failed to make probationary period. Used abusive languge to fellow employees and received previous written,warniuigs for violation of company rules " Malandes, disagreeing with Carter, supplied what was missing from Carter's testimony. He, testified that Carter said, "I'm going to terminate you for insubordination," etc. FEDERAL PACIFIC ELECTRIC COMPANY 615 When leaving the plant Fox called Malandes a "Fascist" several times in a loud voice. Conclusions as to Fox's Discharge It is found on the record as a whole that the preponderance of the evidence leads to the conclusion that Fox was dis- charged in violation of Section 8(a)(3) of the Act because he engaged in union activities. A finding that Fox had called Malandes a liar would alter that determination. Failing such a finding, it is clear that no valid cause for discharge was specified by Carter. In a plant of this kind the use of abusive language among the employees would not be unusual and, while it might warrant a warning, under normal circum- stances it does -not warrant dismissal. The spilling of the preform was insufficient cause; otherwise Fox would have been discharged when it occurred. The same applies to the violation of the union-solicitiation rule which was of a mild nature. The failure to make the probationary period would not have been called forth but for Fox's union activities. Respondent's actions prior to October 3 showed they wished Fox to continue as an employee: (1) they actively considered him foreman or inspector material; and (2) they offered him special privileges to do homework on the job. The strong antiunion attitude of Respondent, the sudden reversal of Re- spondent's attitude toward Fox after the October 3 posting, the proximity in time of the warnings given Fox to the Octo- ber 3 posting, and the' showing that two other union em- ployees were discharged at around this,time, all lead to the conclusion that it was Fox's union activities that were the real cause of his discharge . It is so found. G. Walter Lane 1. Background Lane had been employed by Respondent as a material handler for about 1 year when he was discharged on March 5, 1970. The stated reason for his discharge was "refused to do job assigned." When he started Lane was paid $1.60 per hour. When he was fired he was paid'$1.90 per hour. The difference resulted from three increases Lane had received. One was an across- the-board increase, the other two were merit increases. The first merit increase was paid about 1 month after Lane was hired. The other about 3 months later. Home, the foreman who recommended Lane for the increases, told Lane on the first occasion he "was the best material handler he'd ever had." On the second occasion, Lane was offered another job, and Home told him to stay and he would get him another raise. Lane stayed and got the raise. Home also told Lane what his duties as a material handler were: to get the preform to the molders; to get the molders containers (boxes) to keep their manufactured parts in; to keep their finished parts away from the molds; to keep a production record of how much they produced; and to fill up the automatics. Home showed Lane no written job descrip- tion of the duties of a material handler. About November 1969, Home quit and Malandes became foreman in his place. There is no evidence that Malandes then gave any instructions to Lane with regard to the work that Lane was doing or changed his routine. Lane was employed on the first shift which started at 8 o'clock. Lane came in at 7:30 in order to get the lines set up for the molders to start at 8 o'clock. This operation consisted of getting the preform ready and supplying empty containers (boxes) for the manufactured parts. As stated before inade- quate preparation caused production to stop. The material handler generally did no cleanup work. Re- spondent employed a porter for that purpose. Lane worked 5 days a week. There were weeks when Respondent needed help on Saturdays to clean up. Lane frequently worked on Saturdays and was paid overtime at time and one-half. Usu- ally he and a preform maker were the Saturday workers. No molders worked on Saturday. The Saturday work generally was to clean up new molds when delivered bywashing the oil and grease off them, sweep the plant, and if oil spills existed put Zipzorb on them30 On Saturdays, Lane performed no material handler duties. 2. Lane and the union campaign Lane early became aware of the union campaign . He signed a union card in September 1969. On February 16, 1970, he signed the committee sheet as a member of the voluntary organizing committee. His name was on the list posted by the Respondent in the plastics department on March 3 .He signed up several other employees. On March 3, he commenced wearing a union button . On March 4, in the plant during a. break Lane and Malandes were near each other. Lane was wearing his button." Malandes said to him, "Are you for that junk? There's no hope for you." 3. Lane is discharged On March 5, Lane was a little late in getting the molds ready for the day's work. This was caused by the fact that some of the molds had been out of order on the previous shifts. Lane still had to finish supplying the preform to the molds and had to get some more boxes for the molders. It was about 8:05 or 8:10.32 Malandes came up to him and told him to put down some Zipzorb on an oil spill near one of the machines. Lane told Malandes that he had to get the lines.up and get preform and that putting down Zipzorb was not normally his job." Malandes then told' him to get the preform and Lane finished getting the supplies. During this time, the porter put down the Zipzorb. About a half-hour later, Ma- landes asked Lane if he had put the Zipzorb down. Lane answered, "No, but it was down." Malandes declared "that's right, because I had to go get the porter myself to do it" but, even though it was down , it didn't make any difference; he was going to give Lane a warning slip. Malandes , wrote up a warning" stating "Employee wouldn't put zip-zorb on floor as I instructed." He asked Lane to sign it . The latter opted not to sign it. 30 An absorbent powder poured on the oil spill to take away the slipperi- ness of the oil. Used generally as a safety measure. " Malandes testified that he never saw Lane wearing a union button; that "if he did he took it off when I got there and put it on when I left " The quotation weakens the denial. Carter testified that Lane was wearing a union button during the discharge interview Lane is credited. 1 1 According to Lane's credited testimony. " Lane testified that putting down Zipzorb was normally the porter's job but that on two previous occasions he had seen a mechanic and employee who ran the automatics put down Zipzorb . The mechanic was fixing an oil line that had burst and was required to lay down the Zipzorb to complete his job The automatic operator was an individual whose job includes a waiting time when he is sitting idle with no other assignment . Malandes testified that on occasions he has laid down Ztpzorb . This time, even though he considered the oil spill a hazard, he did not put down Zipzorb because he "had asked Lane" to do so. This leads to the conclusion that Malandes was willing to permit an alleged dangerous condition to continue in order to get something on Lane, to establish that Lane had violated a company rule. Obviously, though it was Lane's first offense, Malandes was out to get him and the reason was Lane's union activity. 11 This was the first warning, oral or written, Lane received 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 45 minutes later Lane was called in, to Carter's office. There, Lane told Carter, "Putting down the zipzorb, that's not normally my job." Carter told him it was part of his job and read from a book," "a material handler's job is to keep it clean, and neat around the work area." Carter then called in Malandes and went over the matter with him. Lane was asked to sit outside because Carter wished to discuss the case with Pollock, When Lane was called back Carter told him he was "terminated for refusing a job assignment."36 Conclusions as to Lane Home never told Lane that it was his duty during his regular workday period to clean up and put down Zipzorb on oil spills. Lane stated that, the entire time he was employed with Respondent, he never laid down any Zipzorb or was ever asked to. Carter and Malandes both testified that Lane admit- ted he had previously laid down Zipzorb on days other than Saturday. Their testimony is not credited." On the record as a whole,' it is found that (1) laying down Zipzorb was not considered part of the material handler's normal job and (2) prior to this occasion Lane had neither been asked to or had laid down any Zipzorb other than on Saturdays. On the record as a whole, it is found that'the preponder- ance of the evidence shows that if it were not for Lane's union activities he would not have been discharged for the Zipzorb episode.38 Respondent seized on this episode as a pretext to discharge Lane. It is so found. Lane, like Fox, was not one of the leaders of union activi- ties. This does not lessen the effect his discharge would have on prospective or other union members. The lesson obviously was: this will happen to you also if you join the union or are active on its behalf. H. Jeanette Lois Lowder 1. Introduction Mrs. Jeanette Lois Lowder was employed as a packer of wall thermostats in the assembly plant. After working from April to August 1968, she was rehired in April 1969. Then, she worked on an hourly basis. Her job was placed on production, i.e., incentive pay rate, on February 11, 1970. Lowder continued on production until her discharge on March 23, 1970. Respondent's reason for the termination was " ... violation of company rules after repeated written warn- " Malandes called this book the "manuscript of a material handler." Carter referred to it as the "manual of job descriptions." However, neither the excerpt nor the book was identified at the hearing or placed in evidence. No evidence was introduced to show that such a job description had been previously given to or read to Lane or any other material handler. The Company's handbook contained the following on p. 15• All employees are expected to observe these rules. Violation of any of these Regulations is cause for disciplinary action up to and including dismissal. s x t 9. Insubordination or refusal to work on job assigned. Lane testified he had read the handbook when first hired by the Company but had no recall regarding it. " Malandes testified that he recalled one time when he asked Lane to put down Zipzorb just after Malandes became foreman, that "It was in the middle of the week, around Wednesday." Such specific recall of what was an inconsequential item when it occurred is considered highly improbable and, in keeping with Malandes' general unreliability, is not credited. 38 Respondent placed in evidence six separation notices showing that employees had been separated because they had "Refused to do job as- signed " No weight is given to these notices. All occurred prior to the union campaign. The events leading to each notice are not shown. ings." The General Counsel erroneously asserts she was dis- charged for her union activities. 2. The 1969 Christmas float In November 1969, the employees in the thermostat de- partment elected Teresa Burdette, a Negro, to represent the department and ride on the Company's Christmas float. Lowder told Hartsell, Palmer, and Trull, three of the,girls who voted for Burdette, that they were "nigger lovers." Trull complained to her supervisor Bill Privette. Privette spoke to Lowder and told her "that this kind of talk would cause disruption in the department, and not to be doing this." No written warning was issued. About a month later on December 23, Privette, held a meeting of all the employees in the department, Lowder at- tended. He told the employees that the department was hav- ing a problem about gossip and the spreading of rumors in the department and that it was getting out of hand and employees were spending more time talking than working. Further, he told them that if the rumors and gossip continued he would give written warnings to those involved. The meeting broke up. Privette then went to each employee, Lowder included, and repeated the same warnings individually. 3. Lowder's first written warning On January 7, 1970, Lowder received her first written warning for carrying rumors about certain employees not doing their work. Lowder admitted that she had passed the rumor on, but she said that it had originated with Trull," Lowder signed the warning, which was also signed by Pri- vette and Floyd Culp, the latter's superior.40 At this time, all the employees in the department were informed that they were not supposed to be talking to each other whole "on production." 4. Lowder's second written warning On March 3, 1970, another written warning was issued to Lowder by Privette and Culp. This one she refused to sign. The events preceding this warning occurred as follows: On March 2, 1970, Grigg, an industrial engineer for Respondent, was at Lowder's station discussing a mechanical problem then existing on her job. During the conversation Lowder told Grigg" that Privette didn't "know what he's doing out here." Further, Lowder told Grigg that a fellow employee, Kay Thompson, was cheating on her job41 and that Privette knew about it. Grigg reported these statements to Culp. Culp told Grigg he would check into it. A little later the 'same morning, Thompson and Privette appeared in Culp's office. Thompson was in tears. She complained that Lowder had been making obscene gestures in her direction and "had called her a tramp and a whore on several occasions." Culp decided to take the whole matter up with Jack Carter, manager of industrial relations. In Carter's office in the presence of Carter, Privette, and Culp, the cheating story, was repeated. Thompson also re- peated her story that Lowder had stated on several occasions that Privette was incompetent in running his department, that he "didn't have sense enought to run his damned job." At Carter's request Culp checked,the records. He reported to Carter that Lowder's charge about Thompson's cheating was completely unsupported. " Trull was also given a written warning. 40 His title was general foreman, instruments 31 A fully credited witness. 11 Thompson counted or calibrated thermostats Lowder stated she had turned in a count of 500 when she had actually counted 90. FEDERAL PACIFIC ELECTRIC COMPANY 617 On the morning of March 3, Lowder was called into Car- ter's office. The matter was discussed with her by Carter, Privette, and Culp. Lowder denied making the statement about Prlvette or interfering with Thompson's personal life. When asked what she did say concerning these two, she responded, "You know so much, you tell me." Lowder ad- mitted, however, that she had made the statement about cheating but asserted she had only repeated what another employee had told her.43 Carter told Lowder that Thomp- son's work record had been checked and had proved her innocent of any cheating. He then told Lowder that a written warning would issue which would be "her final warning, and that any further violation of company rules would have disci- plinary action up to and including dismissal." Culp wrote up the warning which provided "Mrs. Lowder was informed by J. Carter that any further complaint about her from fellow workers could result in disciplinary action up to and includ- ing dismissal." Lowder read the warning but refused to sign it. 5. Lowder's third written warning On March 6, 1970, another written warning was issued to Lowder by Privette which she also refused to sign. On this day, Lowder was away from her work station at the work station of another employee named Palmer. Lowder was ask- ing Palmer for information about the nature of her work and how it was done.44 Both these employees were on incentive pay; i.e., on production. Privette went over and asked Lowder what she was doing there. He told her she shouldn't leave her work station to talk and conduct personal business. Lowder replied "You can't stop me. You can't tell me where to stay. I can go anywhere I want to go." Privette told her he was her foreman, that she was being insubordinate, and to return to her work station. Culp was out at the time, so Privette re- ported the incident to Carter. Carter told Privette to bring Lowder to his office. There, Lowder told Carter she had not been insubordinate and had been with Palmer on company business. Carter agreed with Privette and told her this was the second time this week she had been to see him, that she was still creating problems, that she had already received verbal and written warnings, and that this would be her final written warning and if there were any more complaints about her he would have to terminate her. 6. Lowder's termination On or about March 19, 1970, a group of the female em- ployees in the assembly department got together and decided they wished to speak to Carter about the situation in the thermostat department 4' More particularly they wished to 43 This employee had left Respondent's employ on February 22, 1970. 04 According to Palmer's credited testimony. Lower asserted she was at Palmer's station to determine if there were "any more thermostats ready to pack " On the record as a whole Lowder is not credited. 4' These individuals were Willie Hunnicutt, Hattie Burris Brown, Linda Henry, Rudy Eudy, Betty Hertsell, Gerry Palmer, and Kay Thompson The record does not show the position of Brown or Palmer with regard to the Union. The other five admitted they were opposed to the Union All seven testified they went to Carter's office voluntarily and had not been requested to do so by any company official or supervisor Hunnicutt told some of the others she "was just about fed up and I was going to talk to Mr. Carter and get things straightened out up there." Henry testified that Kay Thompson was "going to the office and say that if there was anything that I wanted to, talk to Mr. Carter about that now was the time " Eudy testified that she told "some of the girls if they ever went. . . I'd be willing to go because I was being fed up. I didn't want to go by myself and some of them said they were going, so I went, too." On cross Eudy modified this to say Thompson "said some of the ladies were going about the trouble and if I wanted to go I could. And I went." Hartsell testified she "lust got tired complain about the difficulty of working because of the rumor spreading and gossiping in the department done by Lowder that had continued through the month of March. As a result, the seven individually got permission from Privette to clock out and report to Carter. Carter spoke to.each separately and each left a signed statement with him.46 Carter testified that as to each one of them the "substance of their conversation with me was that they were having a problem with Jeanette Lowder in the department, gossiping, passing rumors and harassing them in certain ways.... "47 Later on Monday Carter reviewed the seven employees' statements with Culp and Privette. He told them that something had to be done about the problem that "we are spending time trying to solve, and we are not doing anything about it." They decided to speak to Lowder again. When she came up, Carter read parts of the statements to her but did not show them to her. Lowder told Carter that she was being framed, "that Bill Privette and Kay Thompson had gathered these people up [as] part of a conspiracy.... " Carter then asked Culp to take Lowder out to a conference room while he checked her charge. In their absence, Carter pressed Privette about Lowder's charge and convinced himself that Privettg was not involved. He recalled Culp and Lowder' and told he ,that she was "still being disrespectful to her supervisor." Then he released her from employment with Respondent because she had had verbal, written, and final warnings. 7. Lowder's union activities Lowder signed a union card on February 10, 1970, and turned it in to the Union. During February she attended several union meetings. In the latter part of February she procured signatures on union cards from 8 to 10 employees (neighbors) after working hours and in their homes. These cards she turned over to another employee who in turn gave them to the Union." About the last week in February she started wearing a union button at work and continued to do so until her discharge. She signed the union committee sheets as a voluntary organizer and her named appeared on the list posted by Respondent on the bulletin board of the assembly plant. Privette was aware that she was wearing the button and spoke to her about having signed a union card. There is no question that Respondent was aware that Lowder was a union member. of hearing all that gossip.. about Kay" so she said "I'm going to go" and she did Palmer testified the previous day she "had told Kay that something needed to be done, that we couldn't go on working with all this commotion going on all the time. So I said, If you'll make an appointment with Mr.Carter ... I'll go along and tell about all this disturbance that's going on . . just let me know . " Thompson testified that "this thing had been building up for some time and the day before several of the girls had said they were tired, too, and they would go ... and complain ... and the idea struck me that that was the time ... and I couldn't take any more " d4 Because of the lateness of the hour on March 20, Carter finished with the interviewing on Monday, March 23 "r Some of the major items of gossip attributed to Lowder referred to (1) Brown and her "boss man" holding hands and "stuff like that"; (2) the alleged parking lot infidelity of Thompson, linking Thompson's name with Privette's, calling Thompson a whore, and making obscene gestures at her, calling Thompson' husband at his place of business,, and generally poking fun at Thompson, (3) the fact that Palmer was an alcoholic, and (4) her dislike for Privette as shown by various vulgar statements she made in referring to him and her statements regarding his inability to run the depart- ment. The seven employees mentioned items of gossip, some duplicating others. No all the items are listed above. "a The record does not disclose that Respondent was aware that Lowder had procured the additional 8 or 10 signatures. Privette did admit that in March 1970 Lowder told him she had "signed up everybody in your depart- ment " 618 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD 8. Lowder's discharge was not illegal The General Counsel contends that (1) Respondent was "partially motivated by an illegal purpose" in its discharge of Lowder and (2) that Respondent fabricated the entire set of circumstances commencing with the warning of March 3 using the warning of January 7 (given before any union ac- tivity started) as the keystone of the fabrication to give verisimilitude to the whole "game plan" for removing Lowder, a known union adherent. Respondent contends Lowder was discharged for cause. On the record as a whole, the preponderance of the evidence leads to the conclusion that Respondent legally discharged Lowder. It is so found. In its brief the General Counsel states he believes the Lowder warnings of March 3 and March 6 were pretextual but does not show the basis for his belief. As shown hereafter, it is concluded the two warnings were valid As to the March 23 dismissal, the General Counsel's brief states "the manner in which the aggregation of women was assembled to go to Carter's office ... their hostility as witnesses, and their tes- timony that- they were antiunion"' .... shows clearly that Re- spondent developed the idea presented by Mrs. Lowder's January 7, 1970, warning into ,a scheme for removing another union adherent from the plant." Again, though listing these items, the General Counsel does not deal with them in depth. In disagreement with the General Counsel's conclusory state- ment, it is found that the actions of Respondent on March 20 and 23, though not entirely free from suspicion, show that Lowder's discharge was legal, The warning issued to Lowder on March 3, 1970, was warranted by her actions. Nothing in the record, shows, nor does the General Counsel specify, in what manner it was pretextual. Lowder admitted that she passed along the rumor that Thompson had cheated. Grigg, a fully credited witness, to whom she had made the cheating statement, testified that Lowder had also talked to him about Privette's incompe- tency. This was one of the factors that Kay Thompson re- ported to Culp later the same morning when she complained about Lowder,. Lowder' s denial that she did not make the demeaning statements about Privette is not credited. Similarly, the record is convincing that the warning issued to Lowderon March 6 was also warranted. Lowder admitted she was away from,her duty station talking to Palmer" but denied that she was away from her station on personal busi- ness. Her denial is not credited." Admittedly, both employees were on production. Lowder admitted that she told Privette "You can't stop me, you can't tell me where to stay. I can go anywhere I want to go." By being away from her station and talking about personal matters while on production, Lowder was in violation of the company rules and merited a warning. The` matter was immediately discussed in Carter's office and he issued a final warning to her. The written warning issued immediately thereafter. As with warning number 2, nothing in the record indicates, nor does the General Counsel specify, how warning 3 was pretextual.11 An analysis of the testimony of five of the seven employees who complained to Carter on March 20 and 23 gives rise to the suspicion that,the complaint may have been the result of an organized effort. Certain expressions occur in the tes- timony of each employee that are identical in wording. This 04 As stated in fn 45, five of the witnesses were opposed to the Union 90 Palmer was one of the seven employees who went to Carter on March 20. She is not one of those who is shown as in favor of the Union " Palmer testified that Lowder was not talking business . Lowder was unclear in her testimony . She confused the events leading to the March 3 and the March 6 warnings. " The fact that the warnings were issued during the union campaign has been considered. consistency and identity may be coincidental" or they may be the result of a "frame-up." If it was a coincidence, the wit- nesses were describing to Carter theactions of Lowder as they occurred before they went to his office. The language then is not attributable to Respondent. If it was a "frame-up" there is no showing that Respondent was the perpetrator. The record shows that Thompson spoke to the women before they went up to Carter. Lowder testified that she was being framed by Privette and Thompson and stated as much to Carter at the time of her discharges" Lowder did not accuse Respond- ent of framing her. Thompson and Privette were the butt of much of Lowder's comments. They were aware of her remarks. If a conspiracy had been cooked, it would appear, reasonable for either or both to be the chefs. The assertion by General Counsel that the "frame-up" was attributable to Respondent does not re- ceive support from the record except by inference that Re- spondent induced Thompson or Privette or both to, start the ball rolling. There is insufficient evidence in the record to support such an inference, and the General Counsel does not specify the facts that do support it." It is well established that an employer has the, right to discharge an employee for cause but not for union or,con- certed activities. The record on the whole shows that Lowder had for about 4 months indulged in actions that could, lead to her discharge, actions about which she had,received a succession of warnings. Lowder's discharge on March 23 occurred because Respondent reasonably believed that she had continued in her improper behavior subsequent to her last warning and that this behavior was having an undesirable effect on her fellow employees. Though she was a known union adherent, and was personally subject to threats con- cerning her union activities, there has been insufficient show- ing that, the discharge was in any way attributable to her union affiliation or actions on its behalf. Accordingly, it is found that Respondent's discharge of Lowder was not viola- tive of Section 8(a)(3) of the Act. IV. THE EFFECT UPON COMMERCE OF RESPONDENT'S UNFAIR LABOR PRACTICES The activities of Respondent set forth in section III, above, occurring in connection with the operations described in sec- tion I, above, have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States and tend to lead to labordisputes burdening and obstructing commerce and the free flow of commerce. "Hunnicutt- "and [Lowder] was conthnuously staring at us and I couldn't do my work." Brown. "And then [Lowder] was staring at me.... And if I got out of her sight, she'd get up on her toes where she could see me and stare at me like I was going to do something she was going to miss." Eudy: "Well, you'd sit there working and she'd stare at you. Well, she was always staring at you, and you feel somebody staring at you " Hartsell., "Well, the gossip that upset me so bad was about Kay ... and she was upsetting everybody by her staring .. " Palmer.- "Well, I was just tired and fed up with it And another thing, I couldn't work with somebody staring at me Everytime I'd look up, Jeanette would be staring at me." Lowder testified she saw Pnvette and Thompson "going around talking to some girls . in our department and they they went over into two other departments and talked to them. And Kay made several trips into the other departments talking to these girls." On cross Lowder further testified that "Kay Thompson and Bill Privette had set the thing up .... Because l had saw Kay and Bill go talk to them several times the day I went to the office " " This situation is parallel to that of the proof of company knowledge It is well established that the General Counsel has the burden of proving knowledge beyond mere suspicion or surmise Mook Weiss Meat Packing Company, 160 NLRB 546, 549, Kayser-Roth Hosiery Co, Inc, 166 NLRB 372 FEDERAL PACIFIC ELECTRIC COMPANY 619 V THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, it is recommended that it cease and desist therefrom and take such affirmative action as appears neces- sary and appropriate to effectuate the policies of the Act. Having found that Respondent's violations include dis- criminatory discharges, and since it is considered that there exists a danger of commission of other unfair labor practices, it is recommended that Respondent be ordered to cease and desist from infringing in any other manner upon rights guar- anteed by Section 7 of the Act. Having found that Respondent discriminatorily dis- charged Walter Lane and Richard T. Fox, it will be recom- mended that Respondent offer each of the dischargees a full and immediate reinstatement to his former position or, if that job no longer exists, to a substantially equivalent position of employment, without prejudice to his seniority and other privileges and that each be made whole for any loss of pay he may have suffered as a result of Respondent's unlawful con- duct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record herein, I make the following: CONCLUSIONS OF LAW 1. Federal Pacific Electric Company is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in the acts found and described above, Respondent has unlawfully threatened employees about their union activities and has created among its employees an im- pression that Respondent has had the employees' union ac- tivities under surveillance, all in violation of Section 8(a)(1) of the Act. 4. By threatening employees with discharge and otherwise interfering, restraining, and coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act, as found above, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. 5. By discharging Walter Lane and Richard T. Fox for their union activities, as found above, Respondent has dis- criminated in regard to the hire and tenure of employment of the said and other employees thereby discouraging member- ship in or activities on behalf of a labor organization, thereby engaging in unfair labor practices within the meaning of Sec- tion 8(a)(3) and (1) of the Act. 6. The aforesaid conduct constitutes unfair labor practices affecting commerce within the meaning of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:56 56 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and Recommended Order herein shall, as provided in 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. ORDER Federal Pacific Electric Company, Albermarle, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of any of their employees in International Brotherhood of Electric Workers, AFL-CIO, or any other labor organization, by discharging or in any other manner discriminating against any employees in regard to hire, tenure of employment, or any other term or condition of employment because of their union or other protected concerted activity. (b) Creating the impression that it has the employees' union activities under surveillance, or threatening employees with discharge because of their activities on behalf of Interna- tional Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organ- ization, to form, join, or assist any labor organization, to bargain collectively with representatives of their own choos- ing, to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activity. 2. Take the following affirmative action which will effectu- ate the policies of the Act: (a) Offer to Walter Lane and Richard T. Fox immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify immediately the above-named individuals, 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. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due to Walter Lane and Rich- ard T. Fox under the terms of this recommended Order. (d) Post at its plant in Albemarle, North Carolina, includ- ing its plastics plant and assembly plant, copies of the at- tached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by the Company's representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith." 5' 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 11, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges any unlawful conduct other than that found above.