Pate Manufacturing Co.

PATE MANUFACTURING COMPANY Pate Manufacturing Company and George Berek and Local Union No. 73, Sheet Metal Workers Interna- tional Association, Party to the Contract. Case 13-CA-10834 June 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 23, 1972, Trial Examiner William Feldesman issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief and the General Counsel filed a brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Pate Manufacturing Company, Broadview, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions we adopt, pro forma, the Trial Examiner's dismissal of Respondent's motion to dismiss the complaint on the basis of the decision in Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB No 150 TRIAL EXAMINER' S DECISION STATEMENT OF THE CASE WILLIAM FELDESMAN, Trial Examiner : This case, initiat- i By agreement of the parties the deposition before trial of Julio Mendoza was taken under oath before a notary public on December 13, 1971, shortly before he left this country for Peru Offered by the General Counsel into evidence at the hearing, the deposition was admitted, without objection, although the Respondent did not necessarily concede the truth of all Mendoza's testimony 2 The Respondent appended to its brief certain documents , designated as Resp. Exh A, which were not offered or received in evidence at the hearing. 197 NLRB No. 126 793 ed by the filing of a charge by George Berek on August 23, 1971, was tried before me in Chicago, Illinois, on January 3 and 4, 1972, upon a complaint issued by the General Counsel on December 29, 1971, against Pate Manufactur- ing Company, Broadview, Illinois, herein called the Respondent, and naming Local Union No. 73, Sheet Metal Workers International Association, herein called the Union, as "Party to Contract." The Respondent on December 13, 1971, filed an answer containing an affirmative defense. As amended at the hearing, the complaint alleges that by discriminatorily discharging George Berek and Jesse Eaton because they "engaged in Union and/or protected concerted activity," and by conditioning the reinstatement of Eaton on his withdrawal of his charge, the Respondent committed unfair labor practices in violation of Section 8(a)(3), (4), and (1) of the National Labor Relations Act. The Respondent denies the commission of any unfair labor practices, asserting that the discharges of Berek and Eaton were for cause, and that withdrawal of the charge by the latter was not made a precondition to his reinstatement. By its affirmative defense and by separate motion the Respondent seeks at the threshold of this proceeding to have the Board decline jurisdiction and dismiss the complaint because of griev- ance-arbitration provisions in its contract with the Union. These are the broad issues that have been presented in the case. Upon the entire record, after seeing and hearing the witnesses and observing their demeanor on the stand,' and after due consideration of the briefs filed by the General Counsel and the Respondent,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent admits, as the complaint alleges, that it is and at all material times has been an Illinois corporation engaged in that State in manufacturing steel fabricated products used in the installation of air-conditioning equipment; and that during the calendar year 1971 in the course of its manufacturing operations it received gross revenue and earnings in excess of $500,000, and gross earnings in excess of $50,000 from the sale of products shipped directly to States outside Illinois. I find upon the foregoing, as the Respondent further admits in accordance with the complaint, that the Respondent is and at all material times has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find on the evidence, and in conformance with allegations of the complaint which the Respondent does not deny, that the Union is and at all material times has The General Counsel moved to have me strike and disregard the Exhibit. Thereafter, the Respondent filed a reply . The motion is granted . Contrary to the fears expressed- by the Respondent in its reply, I have drawn no adverse mferences from its failure to produce the documents at the hearing. The Respondent also submitted proposed findings of fact and conclu- sions of law. To the extent they are adopted in this Decision, they are approved ; in all other respects they are rejected. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been a labor organization within the meaning of Section 2(5) of the Act. III. THE THRESHOLD ISSUE OF "DEFERRAL TO ARBITRATION" As already noted, the Respondent moved that the Board decline jurisdiction and dismiss the complaint, pointing to the grievance-arbitration provisions of its collective-bar- gaining agreement with the Union and citing as principal authority for its position the Board's recent decision in Collyer Insulated Wire Co., 192 NLRB No. 150 (1971). It contends that the Board in its discretion should step aside and eschew jurisdiction-that the grievance-arbitration provisions of the contract should be considered by the Board as the sole method of seeking relief and as providing the sole forum in which relief might be sought. Apparently to strengthen his opposition to the motion, the General Counsel moved to strike from the answer the affirmative defense which parallels and is elaborated on by the Respondent's motion. Ruling on both motions was reserved. The Respondent's motion is denied for reasons which follow: ruling on the General Counsel's motion is academic and unnecessary. In this case the Respondent is accused of violating the Act by discharging employees Berek and Eaton for their union or protected concerted activity, and by imposing as a condition to the reinstatement of Eaton his withdrawal of the charge. (The charge, signed and filed by Berek, alleges statutory violations in regard to both himself and Eaton.) The Union did not participate in the hearing, nor was an appearance entered on its behalf. (At the close of the General Counsel's case, he withdrew from the complaint for lack of evidence averments that the Respondent violated the Act through an illegal arrangement with the Union. Thus, the ostensible basis for his naming of the Union in the title of the complaint as "Party to Contract" was removed.) Insofar as the discharges of Berek and Eaton are concerned, the evidence shows that for all practical purposes there may have been compliance with step 1 of the contractual grievance procedure and the need to satisfy step 2 may have also been obviated. But the Respondent asserts that no formal grievance was ever submitted under the contract on behalf of either employee, and it is clear that step 3 was never taken as provided in the agreement .3 There has been no arbitration award, no recourse to arbitration, which may be invoked by "either party"-the Respondent or the Union-if the grievance has not been "satisfactorily settled" by the "Joint-Company-Union Disputes Board" at step 3. Very short time limits required to be met at each prescribed stage of the grievance- arbitration procedure, including arbitration itself, long ago expired? The Respondent made it quite plain on the record that there was a fatal failure to invoke all the steps of the grievance procedure, that is not now offering to arbitrate, and that it would interpose its procedural defenses if arbitration were sought by another. There is no 3 The matter of the alleged conditional reinstatement of Eaton was never made the subject of a grievance or complaint under the contract 4 But by "mutual consent of both parties," the Union and the Respondent, after they have both waived steps I and 2, "any grievance question that the Respondent takes the position that arbitration is debarred. Apart from the grievance-arbitra- tion provisions of the agreement and a clause prohibiting the Respondent from discharging any employee "except for proper cause," or from otherwise discriminating "against any employees," all of which furnish the Respon- dent with grounds to make the "deferral to arbitration" argument, the contract has absolutely no bearing on the issues in this unfair labor practice case. Their resolution by the Board on the merits in no way depends on the interpretation of any wording of the agreement. The Board is simply not called on to resort to the contract to determine if the discharges of the two employees and the circumstances of the reinstatement of one violated the Act. Collyer was a very different case, involving an unfair labor practice charge by the union-party to a collective agreement against the employer-party to the contract, _collective rights claimed through refusal-to-bargain allega- tions, and construction of contractual provisions to decide the merits of the alleged unfair labor practices. Further- more, it appears to have been within the range of the Board's expectations that, as a result of its dismissal, actual arbitration on the merits would occur-at least not be frustrated by the employer-respondent-and comport with the standards for hearing and determination established in Spielberg Manufacturing Company, 112 NLRB 1080 (1955). The Board's dismissal was not peremptory, but condition- al, and the "wait and see" reasons it assigned for such qualified action are significant. That Collyer does not stand for the proposition that the mere presence of grievance-arbitration provisions in a collective agreement will cause the Board to refuse jurisdiction is reflected by the Board's decision in Gateway Transportation Co., Inc., 193 NLRB No. 1 (1971), issued after and notwithstanding Collyer. There, as here, the statutory rights of the individual were allegedly concerned; there, as here, unfair labor practice charges had been filed by an individual; and there, as here, no contractual interpretation was necessary to reach the unfair labor practice issues. There, the Board exercised its jurisdiction despite the existence of contractual grievance-arbitration procedures. In the case at bar the facts demonstrate even more persuasively that the Board should assert jurisdiction and perform its statutory functions, as it is unmistakably clear that the Respondent is not tendering grievance- arbitration procedures as an alternative method of resolv- ing the issues on their merits but would on the contrary strongly resist any recourse to such procedures by another. In Collyer itself, unlike here, not only did the Board have before it both parties to the collective agreement, but the possibility that the employer-respondent would be willing to arbitrate and that arbitration would take place was not thought to be unreal. Here, it would seem, the individuals concerned have no standing by themselves to institute arbitration proceedings, and even assuming they were successful in enlisting the aid of the Union to bring such proceedings on their behalf the Respondent would seek to involving lost wages in which the [Respondent ] may be called upon to make restitution to the aggneved employees" may be submitted "directly to the Joint Board" at step 3 PATE MANUFACTURING COMPANY preclude them from having their "day in court" by its raising of a defense that is tantamount to the dilatory plea of the running of a statute of limitations which is much shorter than the brief 6-month period prescribed by Section 10(b) of the Act. To do as the Respondent demands would appear to deny Berek and Eaton any hearing at all by a neutral third party on the merits of the alleged statutory violations. See Tulsa-Whisenhunt Funeral Homes, Inc., 195 NLRB No. 20 (1972), distinguishing Collyer on somewhat similar grounds-the absence of a contractual provision for binding arbitration. I find that it would negate the purposes of the Act to decline jurisdiction and dismiss the complaint, and that it would effectuate those purposes to dispose of this case on the merits. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Discharges of Berek and Eaton Berek started to work for the Respondent on February 5, 1971, and Eaton on July 22, 1970. Berek was employed as a shear operator, Eaton as a welder. On August 21, 1971, a Saturday, the Respondent discharged both. It advanced as the immediate and principal reason for their severance their alleged dereliction of duty the day before. Both unsuccessfully sought on August 23 to have the decision to terminate them reversed. As set forth in Section B, below, Eaton, under circumstances that subsequently developed, was reinstated by the Respondent about 3 months later. But Berek was never reemployed. James Jarvis, an employee of the Respondent and, according to his credible testimony, an uncle of Berek by marriage, was the Union's shop steward at the plant. He had served in that capacity as long as the Union had been the collective-bargaining agent for the Respondent's production and maintenance workers and at the time of the hearing in this case had held the position for 13 months. For the last 2 weeks in July 1971, he was away from the plant on vacation, and Berek acted as shop steward in his place. Jarvis had earlier recommended to George Lila, the Union's business agent, that Berek serve as shop steward during his vacation and Lilja had approved. Berek had been merely a rank-and-file member of the Union before this; he joined it about 2 months after he commenced working for the Respondent. At the time of the hearing he was no longer a member. Berek's case rests on his activities during his 2-week tenure as acting shop steward, particularly his presentation to the Respondent of four complaints concerning other employees. One of the complaints was Eaton's. Eaton was a rank-and-file member of the Union who never held any 5 On cross-examination Eaton admitted that his memory has always been faulty and that he was not truthful in one respect in the prehearing statement he gave under oath to a Board agent not long after the charge in this case was filed While I am not persuaded to disregard his testimony when it is not directly in conflict with anther's, especially if it is corroborated or if it is unrefuted by a currently employed official of the Respondent Eaton implicates who was not shown to be unavailable as a witness, I do not otherwise credit or rely upon it 6 On direct examination, Berek testified that Krimmel wished to reduce Schuler's pay, on cross-examination , however, he corrected his testimony so that it became meaningful and is as found above r Dickey testified that he "didn't even think of [ Berek ] as a shop steward 795 office or other position. His case is predicated on his protest to Berek, conveyed by Berek to the Respondent, of lack of air on one job; his frequent complaints to the Respondent, made directly and through Jarvis, about excessive smoke in the plant, complaints which were discussed by Eaton with his fellow employees, who also voiced them to the Respondent; and the Respondent's apparent bracketing of him with Berek as employees who led their coworkers in discussing working conditions and expressing discontent with them. Whether the Respondent discharged Berek and Eaton because of these circum- stances, or because of their alleged misconduct on August 20, 1971, is the critical issue for decision. The uncontroverted testimony of Berek and Eaton5 shows, and I find, that Eaton complained to Berek, while he was acting shop steward, of Eaton's assigned task to weld solely on the inside of a large metal "curb" that was being fabricated as a foundation for air-conditioning parts, without being rotated in the usual manner to weld also on the outside, with the consequence that Eaton lacked sufficient air and had trouble breathing. Berek testified that Eaton's assignment was part of a new "assembly line" procedure in which three other welders worked only on the outside of the curb. Berek observed Eaton's difficulty himself and mentioned the matter to Fred Krimmel, the Respondent's plant manager, who at the time of the hearing in this case was no longer working for the Respondent, having left its employ about September 1, 1971, and who did not testify as a witness. Krimmel, a 25- year member of the Union, told Berek that he, Krimmel, did not care, that he was "the boss," and that he would run the shop as he wished. Berek, as acting shop steward, learned from Charles Schuler that Krimmel proposed to demote Schuler from leadman to welder but continue to pay him the leadman's higher rate 6, Berek thereupon spoke to Knmmel, who explained that he was not satisfied "with the job [Schuler] was doing." Berek took the position that what Krimmel wanted to accomplish was prohibited by the Respondent's contract with the Union and that the other welders "wouldn't go along with it." Krimmel replied that he would "work his way around," that "he was going to see." Berek reported the conversation to Schuler. Berek then spoke to Harry Dickey,'at the time Respon- dent's treasurer and production adviser, and when the hearing in this case was conducted its vice president and treasurer. In his conversation with Dickey, Berek men- tioned both the Eaton and Schuler complaints.? Dickey responded that as soon as Ray Resech, a high managerial official of the Respondent, returned from his vacation, Dickey would "straighten ... all the problems out." As at the time," and, insofar as the complaints of other employees were concerned and not Berek's personal matters, Berek talked to him only about the Schuler incident But Dickey also testified that individuals often came to him with their complaints when they received no satisfaction from the plant manager, and I think it likely the practice was followed here with respect to the Eaton complaint, notwithstanding that Berek was speaking on behalf of another, especially since the Schuler grievance was admittedly brought to Dickey's attention by Berek and this was a small plant which at the time in question employed only about 18 employees . I therefore credit Berek's testimony that he spoke to Dickey about both matters and Berek's version of the conversation between them 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dickey testified without contradiction, the proposed change in Schuler's status "never came about." And as Berek's undenied testimony reveals with respect to Eaton's welding only on the inside of a curb, "they only did that for one or two days on that curb and then that was that." As acting shop steward, Berek talked to employees about the way Krimmel "was running the job." He talked to Krimmel of the general dissatisfaction of employees with working conditions in the plant, informing Krimmel of his and their views that Knmmel "wouldn't listen to anyone. He wanted everything done his way. He wasn't interested in the safety of it, or anything else, just as long as he got the production out." Berek also spoke to Dickey about this subject.8 Berek further testified that as acting shop steward he discussed with Dickey the job .of lifting and placing, by means of an overhead crane and hoist, coiled steel with two plates weighing about 150 pounds. Berek complained to him that only one man was assigned to this work and that it required two. Dickey responded that "he'd get it straightened out as soon as [Resech] came back from vacation."9 I find, as Berek additionally testified, that Dickey then spoke to Knmmel about this complaint, Krunmel asked Berek to come to his office, and Krimmel there told Berek that if there were "any complaints or any grievances," he would "sit down and listen." Berek's undenied and credited testimony indicates that a written grievance was filed regarding this matter and that for as long as he was employed by the Respondent "there were still a lot of times when only one man would do the job." Eaton's complaint to management via Berek about being required to weld exclusively on the inside of a curb has already been discussed. Eaton credibly testified without contradiction that he constantly complained of excessive smoke in the plant, from which he became ill on a number of occasions, that. he and the other welders talked about it among themselves, and that he complained of it directly and through Jarvis to various representatives of the Respondent including Knmmel.10 John Gavin, Eaton's leadman at the time, testified, and I find, that excessive smoke was a problem in the plant when "they had all the welders going," that other employees complained about it, and that Eaton protested to him "along with everybody else." Dickey, as he testified, also received complaints about smoke in the plant from "the Company president down," and may have received one from Eaton. On August 2, 1971, Jarvis returned to work from his vacation. That morning Krimmel called Jarvis into his office and told Jarvis, as Jarvis credibly testified without denial, "that he wanted to fire George Berek and Jesse Eaton for being troublemakers." Jarvis also testified, and I find, that in the course of this conversation Knmmel related that during Jarvis' absence Berek had presented a 8 I find that Berek spoke to Dickey for the same reasons discussed in fn. 7, supra. 9 For substantially the same reasons discussed in fn. 7, supra, I find that this conversation between Berek and Dickey occurred as testified to by Berek. 10 These complaints to management were not formal grievances, submitted under and in accordance with the literal provisions of the contract, but were informal protests 11 In his testimony Eaton described this writing as part of a running private joke he had with leadman Dan Gurstenberg, a good friend of his, grievance to Krimmel and had also complained to Dickey; that Berek and Eaton were "standing around talking a lot"; and that "there was something written on a welding table in back and it was an obscene suggestion ." it Later that morning Jarvis informed Berek and Eaton of this conversation. They denied they were "troublemakers," and Berek protested to Jarvis that he saw no reason to be discharged because he had presented a grievance. Still later that morning, as Jarvis testified without denial, Jarvis spoke to Dickey about the matter, conveying to Dickey Berek's protest to Jarvis, and Dickey announced that "they would not be discharged at the time." During the morning Jarvis informed Berek and Eaton that "they weren't being fired at the time." On the same day, after working hours, which ended at 4:00 p.m., Krimmel summoned Berek, Eaton, and Jarvis into his office. Berek and Eaton testified, and I find, that Krimmel said he believed them to be "troublemakers," like "agitators," and was disposed to fire them, but at the moment felt he lacked sufficient grounds. Jarvis, as they further testified, declared that he was opposed to their discharge. As Eaton credibly testified, Krimmel com- plained of an "attitude" problem among the men and asserted he was "pretty sure" Eaton and Berek "were the cause of this." Berek testified credibly, and I find, that Krimmel said that Berek and Eaton "were talking to the employees about the way he was running the job"; that they "were out to get him and the [Respondent]"; and that since Berek "became the assistant steward while Jarvis was on vacation . . . [Berek] had given him a hard time," although Krimmel did not specifically refer to any of the complaints Berek had presented while he was acting shop steward. Eaton testified, and I find, that he, Eaton, brought up the subject of obscene writing on work tables and explained its harmless nature;12 and also that Krimmel mentioned that he and Berek "were talking quite a bit." Both Berek and Eaton further testified, and I find, that Krimmel said he had no fault to find with their work. According to Eaton's undisputed testimony, which I credit, Krimmel proclaimed that Eaton and Berek "would be put on probation," that "he was going to watch [them] for a little while," and that "if [they] were the cause of his problem, he was going to fire [them]. If not, he would apologize." Two or three days after this meeting, Lilja, the Union's business agent, came to the plant on one of his periodic visits. Jarvis told him that Krimmel had complained that Berek and Eaton were "troublemakers" and wanted to fire them. In consequence, that day another meeting was held in Krimmel's office, this time with Lilja, as well as Krimmel, Jarvis, Berek, and Eaton in attendance. Jarvis testified, and I find, that at this meeting Krimmel again referred to Berek and Eaton as "troublemakers" and said that grew out of a statement by another worker that Gurstenberg was a "company spy " Eaton and Gurstenberg "started joking about it." Each would write on a table with a "magic marker" pen something about the other being "a spy " The writing was of a water soluble substance that could be washed away at a later date. Eaton heard that Knmmel saw the writing about Gurstenberg and "got mad." At the subsequent meeting on August 2 Eaton and others had with Krsmmel, which is discussed below, Knmmel told Eaton that he believed Eaton "was degrading one of his leadman," and Eaton explained that it was merely a joke. 12 See fn. 11, supra. PATE MANUFACTURING COMPANY 797 "he wanted to have them fired," but Lilja rejoined that "they couldn't be fired ... that he didn't have cause to fire [them] at the time." As Jarvis also testified, there was a discussion of the work performance of Berek and Eaton, and there was agreement that it was "good" and the Respondent had no complaints to make about it. Berek testified, and I find, that Krimmel said Berek and Eaton "shouldn't talk," and Lilja told Krimmel that, as long as they did their work, Krimmel "can't tell [them] who to talk to." Moreover, Eaton credibly testified without contradic- tion that Lilja told Krimmel that if Eaton and Berek continued their good work they "didn't have to worry about being dismissed or talked about [for] expressing complaints," and that what they "wanted to say to the other employees was [their] business." Krimmel, according to Jarvis' further testimony, which I credit, indicated he was still under the impression Berek and Eaton were "troublemakers," and would "give them a trial period" to prove that he was wrong. Approximately 2 weeks later, on August 20, 1971, Berek, Eaton, and another employee, Julio Mendoza, at different times in the morning, each informed his leadman, Gavin, of his intention to leave about noon that day, 4 hours before work ended, to take care of personal matters. Berek told Gavin he had some personal business to transact, Eaton that he was driving by car to St. Louis, and Mendoza that "he had to take [his] wife to the doctor." Gavin, no longer in the Respondent's employ at the time of the hearing,13 credibly testified, and I find, that he informed them they could leave and proceeded to advise Krimmel that they were "going to leave early." Dickey testified on cross-examination, and I find, that, while he did not "know for a fact," he "believed [Knmmel] was" told by Gavin, before they actually quit the plant premises, that they were going to leave. I find, as Dickey further conceded, that, insofar as he knew, Krimmel had made no effort to insure that they remain. Dickey also credibly testified, in regard to requests of employees for time off, that "the practice in the plant has been, if it does not interfere with production, the employee has a valid reason for it. We have granted it." That "personal business" was, within rather liberal limits, a "valid reason," is abundantly revealed by the evidence, including the testimony of Berek and Eaton in regard to the unrestricted manner in which 13 As indicated later, August 20 was Gavin's last day of work for the Respondent. Gavin had found other employment and left the Respondent's employ at the end of working hours at 4:00 p.m. 14 To the question put to him on cross-examination whether the rules were still in effect in July and August 1971 , Dickey answered "yes and no " He explained that Knmmel "took them down" because he "thought some of the terms rather vague and he was going to clarify them, which was never done " But Dickey also testified, and I find, that, to his knowledge, the employees were never notified that the posted rules had been altered. 15 Eaton testified that there was an order to be welded . But this testimony does not indicate the order had to be welded and work done by Berek, Eaton, and Mendoza that afternoon . Consequently, his testimony does not conflict with Gavin's In any event, I find Gavin's testimony to be the more reliable 16 Dickey testified that on August 20 he checked with Knmmel about 1.30 or 2-00 p in. on the progress of a "rush order" and learned from Krimmel of the absence of the three men Referring to them as "key employees," Dickey also testified that because of their absence the "rush order" was not completed that day, that 4 hours of overtime work the next day, Saturday, a nonscheduled work day, was necessary to finish it; and that, since truckers do not pick up on Saturday , the order was not shipped they were permitted to take off early, Gavin's confirming testimony that "personal business" as a reason was not questioned, and rules of the Respondent, posted in the plant in May 1971, which provided that for "Excessive Early Punch Out for Personal Business," there would be "(2) Warnings & Discharge." 14 In light of the requirement that there be no interference with production, and of Kriminel's failure to take any action to halt the early punching out of these employees when he had ample advance opportunity to do so, and based on Gavin's favorable demeanor on the stand, I credit Gavin's further testimony, and find, that Krimmel told Gavin "it was all right" for Berek, Eaton, and Mendoza to leave early, that he had no need for them that afternoon, "that it wouldn't interfere with any of the work." 15 All three employees left the plant together about noon. I find, as Gavin additionally testified, that the early departure of these three employees caused no operational problems, that no work that required completion on August 20 was "held back, not completed," because of their absence that afternoon.16 Berek, Eaton, and Mendoza all drove to the Broadview Bowl, a building complex containing a bowling alley and adjoining bar and restaurant, located nearby the Respon- dent's plant.17 There, they had a few drinks, went to another bar, where they played pool and drank some more, and then returned to the Broadview Bowl about 4:00 p.m. to join other employees in a farewell drink with Gavin, who that day left the Respondent for other employment and was being tendered a farewell party by his fellow workers. They had a few additional drinks and spoke to Gavin, and then left, Berek to drive Eaton to Eaton's house and then proceed elsewhere, and Mendoza to go to his own home. Mendoza's sworn deposition shows, and I find, that his wife had an appointment with a doctor, whose office hours commenced at 2:00 p.m.; that Mendoza at 2:00 p.m. noticed the time and decided he would take her to the doctor's office that night; and that he did in fact take her there that evening. Berek testified, and I find, that during the afternoon he made several telephone calls to the home of a friend whom he was "supposed to call . . . and meet . . ." and with whom he was to go to a third person in regard to a job as a until Monday. Dickey acknowledged that "Berek's portion of that particular order had been completed," but added that 4 hours of shearing work for Monday was necessary to stay "ahead of the welders" and this was done on Saturday. There were of course other employees in the plant, two other leadmen and the other crews, including other welders and at least one other employee who could do the work of Berek as a shear operator. Indeed, according to Dickey, it was with such employees that the "rush order" was filled and advance shearing performed on Saturday I find it difficult to believe that Krunmel would not have known of a "rush order" that had to be finished on August 20 whose completion on that day depended so much on the work of Eaton, Berek, and Mendoza, and, if he did know, that he would not have made some attempt to keep these employees on thejob until 4:00 p.m I conclude that Dickey in his testimony greatly magnified the effect of their absence during the afternoon of August 20. Similarly, I cannot credit his testimony that, when he asked Knmmel why he "had let them take off early," Knmmel replied that "he had not given them permission They just told him they were going and they had gone " Rather, as indicated above, I credit Gavin's testimony of Gavin's conversation with Krunmel, and I therefore find it improbable that Knmmel would have answered Dickey as Dickey testified he did. IT The plant is situated in Broadview, Illinois. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mechanic. In short, Berek was in the process of seeking other employment. Berek failed to reach his friend that afternoon, but he succeeded over the weekend and finally met the third person. Eaton testified, and I find, that he did not leave for St. Louis until the night of August 20. One of the tires on his car collapsed "about 60 miles out," he apparently had no spare, and his father came and "picked [him] up." Dickey testified that on August 21 Krimmel reported to him that he went to the bar of the Broadview Bowl about 5:00 p.m. on August 20 "to join the others in a farewell drink for John Gavin" and found the three men there. "From all indications and reports," Dickey testified Krimmel further reported, "the three men had been dunking," and their condition was such that "it couldn't have been done in 15 or 20 minutes." Dickey also testified that Krimmel additionally reported that "All indications were that these men had not given the proper answer [sic ] for taking off." Dickey further testified that he and Krimmel "discussed it and I agreed with him and I approved his request to fire" them. I find that Krimmel reported to Dickey substantially as Dickey testified, that there was discussion between them, that Krimmel request- ed that he be given permission to take disciplinary action against the three employees, and that Dickey approved. Later findings deal with the form of the disciplinary measure against Mendoza and the actual reasons why Berek and Eaton were discharged. On the same day, August 21, as Dickey testified, Dickey "made out" checks for the full pay to that date of Berek, Eaton, and Mendoza, while Knmmel tried to reach them and inform them of the disciplinary action taken against them, and Dickey then gave the checks to Knmmel to mail. Dickey, as he conceded, did not overhear Krimmel telephoning any of the employees concerned. Eaton testified, and I find, that Knmmel telephoned him sometime in the morning of August 21, asked him if he enjoyed himself "at the party" and why he was not in St. Louis, and told him that his check was in the mail and that he "should tell George Berek that his check was in the mail, too; that [they ] weren't needed at Pate anymore." is Eaton communicated with Berek and informed him of Krimmel's call and the fact that they were discharged.19 I find, in accordance with Mendoza's sworn deposition, that Krimmel telephoned Mendoza about 4:30 p.m. on is Berek had no telephone at home 19 Berek called Jarvis at his home the next day to tell him that he and Eaton had been fired , and Jarvis advised him "to come down Monday morning" and they would "discuss it and see what the situation was." 20 As Knmmel was not a witness at the hearing and did not otherwise give evidence, there was no direct contradiction of Mendoza 's testimony in his sworn deposition Seeming tangential conflicts, through Dickey's testimony, lack sufficient cogency to warrant rejection of Mendoza's testimony Thus, although Dickey insisted he fired Mendoza, he conceded that "he turned this responsibility over to Fred Knmmel," who had initiated and recommended disciplinary action, and that, as found above, he did not overhear Knmmel's telephone conversations with any of the disciplined workers That Mendoza was sent a check on August 21 in full payment for his work to that date, while consistent with a discharge, is not necessarily incompatible with and does not disprove a suspension And though Dickey testified that on the following Monday, in a telephone conversation with Mendoza, he was "under the impression [Mendoza ] was fired," because Mendoza "asked for his job back," such words, even if spoken, could have been used to request cancellation of a suspension Moreover, I later credit August 21, announced "I fired Jesse [Eaton] and George [Berek] and I'm going to give you two days suspension," and then asked "Well, what happened yesterday?" Mendo- za further testified, and I find, that he answered that he had taken his wife to the doctor and "that he could prove it." As Mendoza's deposition also shows, Krimmel in- formed him he was an asset to the Respondent and was needed and that was why he was only suspended for 2 days. Mendoza testified unequivocally, and I find, that he was never fired.20 Berek and Eaton arrived at the plant early on Monday morning, August 23, and Krimmel gave them 10 minutes to turn in their tools and appliances and leave the premises. They did as they were instructed and then waited outside the plant for Dickey's arrival. After Dickey arrived later that morning a meeting was held in his office. Present at the meeting were Dickey, Knmmel, Jarvis, Berek, and Eaton. Mendoza's sworn deposition shows, and I find, that during that morning the following occurred. He called the plant and spoke to Krimmel, telling Krimmel he "was sorry [he] did something [he] wasn't supposed to do, and that [he] wanted to go back to work." Krimmel asked him to call back in a half hour. Mendoza did so and was connected with Dickey. He thereupon told Dickey the "whole truth," the "whole thing," and Dickey said he would call him again in a few minutes . Ten minutes later Krimmel called Mendoza and informed him that he could come back to work after lunch (thereby rescinding his suspension). Krimmel said "We need you. You will be able to make Grade A welder" (the position Eaton held and the highest paid under the contract between the Respondent and the Union). Mendoza returned to work on Monday, August 23, after lunch.21 Mendoza's telephoning took place while the meeting in Dickey's office was being conducted. At that meeting, as Dickey testified, it became evident that, from 12 noon to 4:00 p.m. on August 20, Berek had not actually gone any place to take care of personal business, and that Eaton had not actually left for St. Louis. It also appears from Dickey's undisputed testimony, and I find, that Berek and Eaton each gave excuses that seemed contradictory and implausi- ble. Jarvis asked Krimmel why Berek and Eaton had been fired and Mendoza only suspended, and Krimmel replied that Mendoza's "work record was good and this was the the testimony given by Mendoza in his deposition with respect to his conversations with Knmmel and Dickey on August 23, and it does not appear from that testimony that Mendoza indicated he was fired 21 With respect to Mendoza's conversation with Dickey on August 23, Dickey's undisputed testimony explains in detail, and I find , that Mendoza told him that he had not taken his wife to the doctor until the night of August 20; that he, Berek and Eaton had not "done the things they said they were supposed to do," that "he had done wrong and he was regretful," and that he was asking the Respondent for reconsideration But to the degree Dickey's testimony is at variance with Mendoza's regarding that conversation and Mendoza's conversations with Knmmel on August 23, I do not accept Dickey's, for Dickey, as I have found, was prone to color his testimony to present the most favorable case for the Respondent, and Mendoza, about to leave the country, was more disinterested in the outcome of this case In particular , I do not credit Dickey's testimony that he told Mendoza "we would rehire him He would be suspended," and his further testimony that "I believe we only suspended him for the one day, had him report on Tuesday," and later "It was either Tuesday or Wednesday." PATE MANUFACTURING COMPANY first time he's done that." As Eaton's testimony on cross- examination shows, Knmmel "stated this has gone on before, of us [Eaton and Berek] leaving early."22 Eaton also credibly testified that Knmmel "mentioned it looked like" Berek and Eaton "were trying to put the screws to the company and that he had learned [they] were at the bowling alley," and that the major complaint he had to make was that they "had lied about the reasons why [they] wanted to take off on Friday afternoon." Dickey testified that after questioning Berek and Eaton "I was thoroughly convinced both of them had lied; both when they gave their reasons for leaving early they had been lying to me in the office. I didn't think the company had to tolerate this, and at this point said I confirmed [Knmmel's] firing. I considered the matter closed. That was it." He also testified that the past records of early punchouts and absences of Berek and early punchouts of Eaton were a factor in his determination, although not the primary reason for his decision, and that the credibility of the excuses given by Berek and Eaton for previously being away from work was placed in question by their behavior on August 23. As for the disparate treatment of Mendoza, who had admitted his "mistake," Dickey testified that this was Mendoza's "first offense."23 Dickey explained other "offenses" of Berek and Eaton that he took into account as follows: "What I consider excessive absenteeism and the reasons they had given me, which I at the time believed which I now did not feel I could really believe all their reasons they had given me for taking off." Concluding findings on the question of the Respondent's motivation for the discharges of Berek and Eaton are set out later. Berek credibly testified, and I find, that Dickey and Krimmel finally indicated that they were going to think over the matter of his discharge and Eaton's. Eaton testified credibly, and I find, that Dickey said he did not "want to undermine Knmmel's authority" and would "leave the matter entirely up to Fred Knmmel," 24 and that Krimmel "said he'd think about it." As Eaton also testified, he and Berek then waited for a while in the lobby of the plant and left when it appeared that Knmmel was not "going to make up his mind that day." Subsequently that day Berek and Eaton drove to the Board's Chicago offices and Berek filed the charge in this case. About I week later Jarvis informed Berek that there had been no change of mind and that he and Eaton were fired. 22 Timecards of Berek and Eaton received in evidence and related testimony of Dickey and Eaton demonstrate that Berek and Eaton had left early on previous occasions and that Berek had been absent before. But there is no evidence, and it is not contended by the Respondent, that they ever left early without permission Nor is there any evidence that any one of Berek's absences , as distinguished from early departures, violated the Respondent's rules And there is no convincing evidence that Berek and Eaton were ever warned for excessive or improper early punchouts, or that Berek was ever warned for excessive or improper absences, notwithstanding Dickey's strained and unimpressive testimony that he instructed a succession of plant managers to issue warnings to Berek, that he believed Eaton and Berek had been warned , that "it was discussed that they were going to be warned," and that he was told by the plant managers they had been warned Dickey admitted that he had no direct personal knowledge of any such warnings, that no written warnings were ever given, and that he never placed any notation of excessive early punchouts or absences in Concluding Findings 799 As acting shop steward for the Union, Berek discussed working conditions with employees and presented griev- ances to Krimmel and Dickey. Clearly this was union and protected concerted activity cognizable under Section 7 of the Act and entitled to the safeguards provided by Section 8(a)(3) and (1). Eaton's complaints to management about excessive smoke in the plant were shared by his fellow employees, who voiced to management their own protests regarding the matter and whose concern with it was therefore well known to the Respondent. Hence, Eaton's complaints were likewise within the purview of Section 7.25 Eaton's grievance concerning lack of air on one job, related to ventilation and thus to smoke in the plant, was submitted to management as a union matter though Berek, as the Union's acting shop steward, and also constituted activity insulated by Section 7 and 8(a)(3) and ( 1) against employer reprisals. Moreover, Knmmel's remarks and conduct disclose that the Respondent coupled Eaton with Berek, acting as the Union's shop steward, as the leaders in the employees' discussions of working conditions and in expressing the employees' dissatisfaction with them. Disciplinary action against Eaton or Berek taken by the Respondent in that belief and for that reason would of course also violate Section 8(a)(3) and (1). The Respondent contends, however, that it was not motivated by any of these activities in discharging Berek and Eaton, that their severance was actuated primarily by what they did on August 20 and what they said on August 23, and incidentally by their past work attendance records. It also argues that, by taking time off early on August 20, Berek and Eaton caused the Respondent to suffer operational difficulties as well as financial harm. In the submission of complaints to Krimmel and Dickey, Berek as acting shop steward commented unfavorably on the manner in which the plant was being operated by the Respondent and by Krimmel in particular. Berek made the points that, in the matter of Schuler's proposed demotion, Krimmel would be violating the union contract and the welders would not acquiesce; that the lifting and placing of coiled steel and heavy plates by one man was unsafe; that the method of fabricating a curb with one man welding solely on the inside of the curb was injurious to the assigned welder (Eaton); and that Krimmel "wanted everything done his way" with the single-minded purpose of getting "the production out" and was not interested in the safety of workers or other relevant factors or in hearing Berek's personnel file Nor is there any evidence that anyone connected with management ever placed any such notation in the personnel file of either Berek or Eaton. The rules posted in the plant in May 1971, which have been noted above, provided that for "Excessive Absenteeism" there would be "(2) Warnings & Discharge." 23 Dickey testified that Mendoza had been employed for only about 3 months 24 Dickey testified only that he could not "recall" saying he was "going to sustain their firing because [he ] didn't want to undermine Mr. Krimmel's authority " And insofar as his saying that he would "leave the matter up to Fred Knmmel" is concerned , he testified that he "honestly" did not "believe" he said it, he had "no reason" to say it and did not "recall it " This testimony is scarcely a clear-cut denial of Eaton's, which I therefore have credited 25 Carbet Corporation, 191 NLRB No 145 (1971), and cases cited therein 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any discussion. Eaton's general complaints about excessive smoke and his grievance of welding only on the inside of a curb must be considered together with Berek's complaints and later events, including the revelation that Krimmel objected that Eaton and Berek were talking to the other men about the way he, Krimmel, was "running the job." On August 2, the very day Jarvis returned from his vacation and Berek's tenure as shop steward ended, Krimmel summoned Jarvis and told him he wanted to fire both Eaton and Berek because they were "troublemakers." Krimmel informed Jarvis, among other things, that Berek had presented a grievance to Knmmel and also com- plained to Dickey, and that Berek and Eaton were "standing around talking a lot." Jarvis spoke to Berek, who protested that he could see no reason to be discharged for having presented a grievance, and Jarvis went to Dickey about the matter and referred to Berek's protest. In a meeting with Jarvis, Berek, and Eaton after work that same day,' Krimmel again referred to Berek and Eaton as "troublemakers," like "agitators," and said he was dis- posed to fire them but, lacking sufficient grounds, would place them "on probation." He complained that Berek and Eaton were talking to other employees about "the way he was running the job," and that they were "out to get him and the [Respondent]." Significantly, he stated that Berek had "given him a hard time" while Berek had served as the acting shop steward. Knmmel acknowledged that he found no fault with the work of either Berek or Eaton. Still another meeting was held a few days later with the same participants, but with Lilja, the Union's business agent, added. Again Krimmel referred to Berek and Eaton as "troublemakers," again he stated he wanted to fire them, again he said he had no complaints to make about their work, and again he indicated they would be given a "trial period." Especially noteworthy at that meeting is Krim- mel's admonition that Berek and Eaton "shouldn't talk," and Lilja's insistence that as long as they did their work they could speak to whomever they wanted and express complaints, and that whatever they "wanted to say to the other employees was [their] business." I find that, had Berek and Eaton been discharged at this juncture, the Respondent, with respect to each, would have committed unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. I also find that the Respondent, through Krimmel, sought to stifle Berek and Eaton and to prevent them from engaging in activities protected under the Act. And I further find that Krimmel served notice that any future misstep by them would be regarded against this background of his resentment of their exercise of statutori- ly guaranteed rights and would be dealt with accordingly.26 About 2 weeks later the Respondent considered that that misstep had been made, and it used the event to the utmost, discharging Berek and Eaton. On Friday, August 20, Berek, Eaton, and Mendoza, each assigning the need to take care of some personal matter, left work 4 hours early, not only with the permission of their leadman, Gavin, but with the advance knowledge of Krimmel, who told Gavin they were not required that afternoon and who did nothing 28 After Jarvis spoke to Dickey on August 2 and conveyed to him Berek's protest, Dickey told Jarvis that Berek and Eaton "would not be discharged at the time." Dickey no doubt was aware of what was occurring and to keep them on the job. Their absence alone created no operational problems and inflicted no financial loss. I have already noted that Dickey greatly magnified the effect of their absence that afternoon. At worst, moreover, since they were entitled to no pay for the hours between 12 noon and 4:00 p.m. of August 20, and it appears from the timecards received in evidence that time and one half is paid for Saturday work, the Respondent incurred the loss of only half pay for 4 hours of Saturday work performed by three other employees, and it shipped an alleged "rush order" on Monday rather than Friday, assuming the order would have been picked up by a trucker after 4:00 p.m. on Friday. There is no evidence of the loss of a customer or other business to the Respondent's financial detriment, or of any loss of good will, as a consequence of the absence on Friday afternoon of Berek, Eaton, and Mendoza. The effort to exaggerate the impact of their absence is indicative that the Respondent itself felt the necessity to shore up its assertion that it fired Berek and Eaton for valid, lawful reasons. As will be seen, the Respondent in other ways strained to support that position. None of the three employees actually went any place to take care of personal business, and when Krimmel joined Gavin's fellow employees at the Broadview Bowl for a farewell drink to Gavin he saw Berek, Eaton, and Mendoza and inferred as much. On Saturday he reported this to Dickey and asked for permission to fire them. Dickey approved this precipitate action. No questions had been asked of them, no hearing given to ascertain if they had been diverted from an originally legitimate purpose for good reason or bad or possibly by human failings that could have been excused under all the circumstances. "Personal business" includes a wide variety of subjects and both Krimmel and Dickey must have known that the countenancing of such an all-encompassing excuse as- sumed that employees would interpret their "personal business" quite broadly and perhaps too flexibly. On the facts of this case, especially considering that Berek and Eaton were permitted to leave with the knowledge of Krimmel and that the Respondent was not injured by their absence, the extreme penalty of discharge was so dispro- portionate to any wrongdoing by Berek and Eaton as to lead to the conclusion that their protected activity was at least the principal reason for their severance. Berek and Eaton were fired, and Mendoza was suspend- ed for 2 days. This uneven action on Saturday is further evidence that the prior union and protected concerted activities of Berek and Eaton were the predominant, if not the only, reasons for the Respondent's harsh treatment of Berek and Eaton. It was not until Monday, August 23, that Berek and Eaton gave contradictory and implausible excuses for not having gone where they were supposed to have been. Hence, this conduct could not have been a basis on Saturday for their discharges. Moreover, Mendoza avowed when he spoke to Krimmel on the telephone on Saturday that he took his wife to the doctor and "could prove it," and yet he was only suspended. There is no reliable evidence that Berek and Eaton were approved Knmmel's conduct But Krimmel had taken the initiative in proceeding against Berek and Eaton and, as subsequent events show, continued to do so PATE MANUFACTURING COMPANY 801 ever warned for having left work early on previous occasions or that Berek was warned for previous absences. Yet, Dickey asserted that a factor in the decision to discharge them was their past work records. The Respon- dent's most recently posted rules, which had not been altered although they had been "taken down," indicate that for excessive early departures two warnings were required before discharge, and that for excessive absentee- ism again two warnings were necessary before discharge. In other words, contrary to the evidence elicited in this case, not only would excessiveness have to be demonstrat- ed, but then two warnings would have to be issued before discharge could be imposed for either early departures or absences. Dickey also insisted that the "lies" told by Berek and Eaton on August 23 27 placed in question the credibility of the excuses they gave for prior early punchouts, and absences. But those "lies" had not been told when they were fired on Saturday, August 21. Furthermore, it stretches credulity beyond the breaking point to accept Dickey's testimony that, in his view, the "lies" raised such doubts as to the validity of the excuses Berek and Eaton had offered for prior early departures and absences, that those previous happenings were "offenses," making Berek and Eaton "repeaters," in contrast to Mendoza, who was only a "first offender." On August 23 Dickey turned to Krimmel to decide the final fate of Berek and Eaton. The Respondent was quick to cancel Mendoza's suspension after he had asked for leniency and made a clean breast of things on August 23, but the determination to separate Berek and Eaton, who had already been disparately treated, remained unchanged. It is significant that such heavy reliance was placed on Krimmel, who had also proposed the discharge of Berek and Eaton on August 21, and it was predictable that there would be no change of heart. For it was Krimmel who during the week of August 2 had sentenced Berek and Eaton to probation because he resented their exercise of rights safeguarded under the Act.28 I find that the Respondent's discharge of Berek and Eaton on August 21 was for the reason, or substantially for the reason, that they had engaged in union and other activities protected by the Act, and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act with respect to each of them. B. The Reinstatement of Eaton Krimmel's separation from the Respondent, Eaton called Dickey and asked to be reinstated. Dickey informed Eaton that he, Dickey, "would have to talk to" Resech, another important official of the Respondent referred to earlier, about rehiring Eaton, and would "get back" to Eaton. Thereafter, in a store in LaGrange Park, Illinois, where Eaton lived, Eaton had occasion to meet Resech and spoke to him directly about returning to work for the Respon- dent. Resech told Eaton that Dickey had mentioned the subject to him, that "he had to get back and talk to" Dickey about it, and that either they would communicate with Eaton or Eaton should get in touch with them. Sometime later Resech approached Eaton while Eaton was parked at a cab stand during his working hours as a driver for the LaGrange Cab Company and asked him if he "still wanted to come out to work." Eaton replied in the affirmative and was told by Resech, as Eaton testified under cross-examination, that he would be required to drop his unfair labor practice charge if he wished to return to the Respondent's employ. Eaton answered "Okay. No problems." Resech instructed him to go to the Respon- dent's plant the following Monday, November 29, 1971.29 On November 29, Eaton met with Dickey in the lobby of the plant. Dickey asked him why Dickey should rehire him, and Eaton responded. Eaton's "new neatness," maturity and improvement were discussed. To Dickey's inquiry "Are you willing to act more like a man?", Eaton answered "Yes." Dickey at that point said "In that case, I will rehire you." Dickey excused himself, went into the office, called legal counsel, and discussed with him the matter of the withdrawal of the charge. Counsel suggested certain language which Dickey wrote on a slip of paper. Dickey returned to Eaton and informed Eaton he had consulted with legal counsel and "would like for [Eaton] to withdraw from the case." He had obtained some paper, which he gave to Eaton. He also handed Eaton the slip containing the wording he had received from counsel and said "I want three copies," and "I would like to have this in your handwriting." Eaton complied, copied the language from the slip verbatim, and signed the finished document. Dickey caused it to be mailed to the Board's offices.30 It reads as follows: 11-29-71 I hereby withdraw my charge against Pate Mfg. Co., case No. 13-CA-10834, dated August 23, 1971; effective immediately. Eaton was reinstated by the Respondent, without backpay, after a reemployment interview at the Respon- dent's plant on November 29, 1971; on December 1, he began to work for the Respondent again. The important question to be answered is whether the Respondent on November 29 conditioned his reemployment on his withdrawal of "his charge." About 1 month after his discharge and following 27 Berek and Eaton were fighting for their jobs on Monday, August 23, against the backdrop of Knmmel's unfair treatment of them during the week of August 2, and were obviously "covering up" to make it appear that their conduct on August 20 was not as bad as it seemed 28 Even on August 23 Krimmel mentioned, among other things, that Berek and Eaton "were trying to put the screws to the company" Jesse H. Eaton Jr. Although Eaton testified that on November 29 Dickey informed him flatly that he would "have to drop the charges" in order to be rehired, Dickey categorically denied ever making such a statement. For reasons already indicated, I do not credit Eaton's testimony where it 29 The facts in the foregoing two paragraphs are based on Eaton's uncontradicted testimony, which I credit. 30 The foregoing findings in this paragraph are based on Dickey's essentially uncontradicted and credited testimony Eaton credibly testified that he used carbon paper to make copies, and that he returned them and the original to Eaton, retaining nothing. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD squarely conflicts with another's, and I therefore accept Dickey's denial. Certain facts and inferences unfavorable to the Respon- dent do, however, remain Resech, an official in the employ of the Respondent whom it did not call as a witness, had told Eaton, as I have found, that Eaton would be required to drop the charge if he. wished to be reemployed Furthermore, setting the Resech incident aside, it is of considerable importance that Dickey did not assure Eaton that he was at liberty to do as he pleased-to withdraw or not to withdraw the charge-and that he would be reinstated whatever his decision might be. To be sure, Dickey told Eaton he was rehired before he was asked to prepare and sign the withdrawal document. But the request was made while the interview was still in progress, before Eaton had actually started to work, and with Eaton cast in the role of a supplicant. These were circumstances in which the labor relations aphorism held particularly true that even a slight suggestion by the employer is regarded by an employee as a powerful command. The language used by Dickey to secure the withdrawal instrument, moreover, amounted to at least a firm request and was hardly calculated to give Eaton the impression that he had a free choice. Dickey must have realized all this and was under an affirmative obligation to disabuse Eaton of the reasonable notion he undoubtedly harbored that his withdrawal of the charge was a precondition to his reinstatement, if in fact Dickey was not exacting withdraw- al as the quid pro quo for reemployment. Taken together with the Resech episode, Dickey's behavior on November 29 leaves no room to doubt that the Respondent did indeed impose on Eaton as a condition precedent to his reinstate- ment the requirement that he sign the withdrawal docu- ment. I conclude and find that the effect of the Respon- dent's total conduct, and of Dickey's conduct alone, was to make Eaton's rehiring and continued reemployment subject to his dropping of the unfair labor practice charge. Section 8(a)(4) of the Act provides that it is an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act " The charge in this case was filed by Berek, not by Eaton, but Eaton credibly testified without contradiction that he accompa- nied Berek to the Board's Chicago offices when Berek signed and filed it, and it alleges on behalf of each that the Respondent discharged them because they engaged in activities protected by the Act. For an employer to discharge or otherwise discriminate against an employee because he is named in a charge filed by another is nevertheless a violation of Section 8(a)(4). Kanmak Mills, Inc, 93 NLRB 490, 492-493 (1951); Burnside Steel Foundry Company, 69 NLRB 128, 136 (1941) It is equally clear that even an applicant for employment or reemployment is an 31 As the product of the Respondent 's unlawful actions, the withdrawal instrument was and is altogether void and inoperative , having no effect on the continued conduct of these proceedings Lacking in merit, however, is the Respondent's argument in its brief that it "appears totally illogical that the commission of a totally ineffective act can be the basis for a discrimination charge under Section 8(a)(4) " Not only does this argument put the cart before the horse , but it leads to the inadmissible conclusion that, whereas failure to extract a withdrawal document from an employee as a precondition to his reemployment is a violation of the Section , success in that endeavor is not It makes no difference that in the latter instance, "employee" within the meaning of the Section. John Hancock Mutual Life v. N.L.R.B, 191 F.2d 483, 484-486 (C.A.D C.); Kanmak Mills Inc., supra, at 493, In 7. Here, of course, Eaton, having been discharged in violation of Section 8(a)(3) and (1) of the Act, was an "employee" under Section 2(3) of the Act. Even a refusal to grant initial employment is to "discriminate" as the Section forbids. John Hancock Mutual Life v. N.L.R.B., supra. Finally, it has long been established that the conditioning of reinstatement on the withdrawal of a charge is to discriminate because of the filing of the charge and in contravention of the Section. N.L.R.B. v. St. Mary's Sewer Pipe, 146 F.2d 995, 995-996 (C.A. 3), Brunswick-Balke- Callender Company, 131 NLRB 156, 158 (1961); Kanmak Mills Inc., supra. I therefore find that the Respondent violated Section 8(a)(4) of the Act by imposing on Eaton as a precondition to his reemployment his dropping of the charge. I also find that by this conduct the Respondent violated Section 8(a)(1) of the Act, for the Board, citing other cases, has declared: "It is well settled that an employer who discriminates against an employee because he has filed charges under the Act violates not only Section 8(a)(4) but also 8(a)(1)." Local 138, International Union of Operating Engineers, AFL-CIO, (Charles S. Skura), 148 NLRB 679, 681, In 8 (1964). Moreover, I further find that whether or not there was "discrimination ," the Respondent separately violated Section 8(a)(1) by restraining and coercing Eaton in his right to file or be named in a charge under the Act. Cf. the Charles S. Skura, supra, at 681.31 Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Pate Manufacturing Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 73, Sheet Metal Workers Interna- tional Association, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging George Berek and Jesse Eaton because they engaged in union and other activities protected by the Act. 4. The Respondent violated Section 8(a)(4) and (1) of the Act by conditioning the reinstatement of Jesse Eaton on his withdrawal of the charge in this case , which named him as a discriminatee. 5. The aforesaid unfair labor practices affect commerce within the meamng of Section 2(6) and (7) of the Act. unlike the former, reinstatement is obtained by the employee, for the price imposed and paid is discriminatory and unlawful under Section 8(a)(4), the employee being placed by his employer in a category separate and distinct from that of other applicants for reemployment and required to do more than is demanded of them "Discrimination" under Section 8(a)(4), it should be noted, is not hedged about with qualifying language as is "discrimina- tion" under Section 8(a)(3) In any case , as found above , the Respondent independently violated Section 8(a)(I), whether or not there was "discrimi- nation " v a vi vvvl PATE MANUFACTURING COMPANY 803 THE REMEDY I Cease and desist from Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and from like or related invasions of the employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the purposes and policies of the Act. It has been found that the Respondent discharged George Berek and Jesse Eaton on August 21, 1971, in violation of Section 8(a)(3) and (I) of the Act, and thereafter discriminated against Jesse Eaton on November 29, 1971, in violation of Section 8(a)(4) and (1) of the Act. It has also been found that Eaton was reinstated on November 29, 1971, and returned to work for the Respondent on December 1, 1971 It will therefore be recommended that the Respondent offer George Berek immediate and full reinstatement to his former or substan- tially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against -him by payment of a sum equal to that which he normally would have earned, absent the discrimination, from the date of the discrimination to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F W. Woolworth Co, 90 NLRB 289 And it will be further recommended that the Respondent make Jesse Eaton whole for any loss of earnings suffered by reason of the discrimination against him on August 21, 1971, by payment of a sum equal to that which he normally would have earned, absent that discrimination, from August 21, 1971, to December 1, 1971, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F W. Woolworth Co, 90 NLRB 289 Backpay shall carry interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be additionally recommended that the Respondent preserve and make available to the Board, on request, all payroll records, social security payment records, timecards, personnel records necessary and useful to determine the amounts of backpay due and the rights of reinstatement under the terms of this recommendation. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended-32 ORDER Respondent, Pate Manufacturing Company, Broadview, Illinois, its officers, agents, successors, and assigns, shall: 31 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 33 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 (a) Discouraging membership in Local Union No. 73, Sheet Metal Workers International Association, or any other labor organization of its employees, by discharging or in any other manner discriminating against employees in regard to hire or tenure of employment or any other term or condition of employment because of their union or concerted activities. (b) Discriminating against employees because they have filed or been named in charges under the Act (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer George Berek immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of the Respondent's discrimination against him in the manner set forth in the section hereof entitled "The Remedy." (b) Make Jesse Eaton whole for any loss of pay suffered by reason of the Respondent's discrimination against him on August 21, 1971, in the manner set forth in the section hereof entitled "The Remedy " (c) Preserve and, on request, make available to the Board and its agents, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records relevant and necessary to the determination of the backpay due and the right of reinstatement provided under the terms of this recommended Order. (d) Notify George Berek, in the event that he is now serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (e) Post at its office in Broadview, Illinois, copies of the attached notice marked "Appendix "33 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.34 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 " 34 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith " 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local Union No. 73, Sheet Metal Workers International Association, or any other labor organization of our employees, by discharging any of our employees or discriminating in any other manner in respect to their hire or tenure of employment or any term of condition of employment. WE WILL NOT discriminate against our employees because they have filed or been named in charges under the Act. WE WILL offer to George Berek immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered as a result of our discrimination against him. WE WILL make Jesse Eaton whole for any loss of earnings suffered as a result of our discrimination against him. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. Dated By PATE MANUFACTURING COMPANY (Employer) (Representative) (Title) We will notify immediately George Berek, 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 of 1948, as amended. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 conscutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing 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 60604, Telephone 812-353-7572.