G & S Metal Products Co., Inc.

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J G & S Metal Products Company, Inc. and Internation- al Union, Allied Industrial Workers of America, AFL-CIO G & S Metal Products Company, Inc. and John W. Chase G & S Metal Products Co., Inc. and International Union, Allied Industrial Workers of America, AFL-CIO, Petitioner. Cases 8-CA-6349, 8-CA- 6440-2, 8-CA-6504, 8-CA-6538, 8-CA-6572, 8-CA-6577, 8-CA-6393, and 8-RC-8239 July 28, 1972 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 1, 1972, Trial Examiner John F. Funke issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its 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, as modified herein. 1. We agree with the Trial Examiner that Respon- dent violated Section 8(a)(1) of the Act by interrogat- ing an employee concerning the union activity of other employees and asking her to inform it of such activity. 2. The Trial Examiner found and we agree that by terminating the employment of Odessa Austin, Tina Scales, Juanita Smith, Mabel Head, Shirley Lowe, John W. Chase, and Bobbie Jean Chase for the purpose of discouraging membership in a labor organization Respondent violated Section 8(a)(3) and (1) of the Act. In addition, we agree with the Trial Examiner that Respondent's termination of Marilyn McManus Fuller, Gail Smiley, Carrie Cain, Mildred Steward, Aretha Allen, Celia Steplight, Narvella Johnson, Lois Sears, Betty Graves, and Melissa Mack did not constitute a violation of Section 8(a)(3) or (1) of the Act. However, contrary to the Trial Examiner, who found that Respondent discharged Richard Hornyak in violation of Section 198 NLRB No. 65 8(a)(3) of the Act, we find that the General Counsel has not shown by a preponderance of the evidence that the selection of Hornyak for discharge was discriminatorily motivated, and we do not adopt the Trial Examiner's findings, conclusions, and recom- mendations in this regard. Respondent contends that Hornyak was discharged because of his inefficiency. We find merit in Respondent's position. As more fully set forth by the Trial Examiner, Hornyak was hired as an assistant manager of the glue line on February 17, 1971. Hornyak engaged in picketing on June 3, 1971, and in soliciting union memberships as a member of the organizing commit- tee. Thereafter, he was transferred to several jobs. He was first transferred to the warehouse to perform utility and maintenance work; he was told that the work on the glue line was slow and that he would be transferred back to the glue line if work on the line increased. The record evidence indicates that, following Hornyak's transfer to a warehouse job, he was called into Respondent's office on July 14, 1971, where Vice President Roseman, and supervisors Hyde and Dowbroski, informed him that he would not be returned to his prior job on the glue line because he had made too many mistakes. Hornyak later received a reprimand from Hyde about washing up early. Supervisor Dowbroski also found it necessary to warn Hornyak not to be late after lunch break. On July 28, Hornyak, who had been assigned another more menial task as a result of Respondent's search of job assignments Hornyak could suitably perform, was given a written reprimand by Hyde, acknowl- edged by Hornyak, stating that his work was too slow. On Friday, August 6, Hornyak solicited another employee, Duncan, to leave Respondent and go with him to apply for a better Job at Palevsky's. Duncan declined and reported the incident to management. On August 9, three management officials came to Hornyak's work station at quitting time. One of the three, Schwartz, angrily told Hornyak that he did not mind Hornyak going to Palevsky's, but not to send any of the other employees there, and that his check would be ready in 15 minutes. Hornyak collected his check and left. The Trial Examiner found that, notwithstanding Hornyak's unsatisfactory work performance on his first job assignment and the several jobs he held thereafter, the written reprimands Hornyak received, and the soliciting of Duncan to join him in going over to Palevsky's to apply for a job, Hornyak would have been forgiven these transgressions were it not for his indiscreet participation in union activity, e.g., picketing, signing an authorization card, soliciting memberships, and becoming a member of the organizing committee. The Trial Examiner conclud- G & S METAL PRODUCTS COMPANY, INC. 471 ed that Hornyak's poor work performance was not intolerable until he became active in the Union. Finally, the Trial Examiner concluded that Respon- dent had a firm policy of ridding itself of all known and active union adherents on the flimsiest of pretexts. We disagree that Hornyak was discharged for pretextual reasons rather than for his poor work performance as an employee. Although Hornyak participated in the strike on June 3 by picketing, the record does not show that his transfer from his glue line job to general utility and maintenance work in the warehouse was in any way caused by his activity on behalf of the Union. In fact, there is unrebutted testimony by Hyde that Hornyak was too slow for the packaging line and was transferred to warehouse work; that Hornyak was given the job of placing inserters in pans and was too slow; and that Hornyak did not do a good job in the warehouse. Also, as indicated by the record, most of Hornyak's union activity, e.g., signing of an authori- zation card, membership in the organizing commit- tee, and soliciting of memberships, occurred at the time of the picketing. Although at the time of Hornyak's transfer from the glue line he was told by Supervisors Roseman and Hyde that he would be returned when work increased and he was later told by the same supervisors that he would not be reinstated because he made too many mistakes, the record does not support a finding that Hornyak's union activity and not his work was the real reason Hornyak was not reinstated to the glue line. The record is similarly lacking in evidence which would show that Hyde's reprimand of Hornyak for washing up too early and Dowbroski's warning to Hornyak not to be late after lunch break were in any manner related to Hornyak's union activity. In addition, the record indicates that on July 18 Hornyak was given a written reprimand by Hyde because his work was very slow. On that same date Hornyak had been given thejob of inserting liners in pans. Hornyak acknowledged the reprimand which indicated he was very slow and had completed only 2,000 pans in 5 hours, The job involved the manual insertion in pans which were already stacked up beside Hornyak. There is testimony that some individuals could place 1,000 or more such inserts in the pans during the period of an hour. Again, there is no substantial evidence in the record that the written reprimand given to Hornyak by Hyde was for other than its stated purpose. As to the Duncan incident, which the Trial Examiner found precipitated Hornyak's discharge, the Trial Examiner credited Duncan's testimony which contradicted Hornyak and which indicated that Hornyak approached Duncan on Friday, Au- gust 9, told him of a better job at Palevsky's, and asked Duncan to leave Respondent and go with Hornyak to apply for the job. Duncan testified further that on the same day that he declined Hornyak's invitation, he reported the conversation to Hyde, and he signed a written statement describing the incident. The record supports a finding, which we make, that Hornyak's invitation to Duncan to join him in applying for work elsewhere was, in Respon- dent's view, conduct which, in addition to Hornyak's unsatisfactory work performance, could not be tolerated and that Hornyak's continued employment was not in the best interests of Respondent. Further evidence that Respondent's displeasure with Hornyak's conduct was unrelated to union activity is shown by Hornyak's own testimony that, on the Monday following the Duncan incident, President Schwartz approached Hornyak at his work station and told him he was fired for soliciting Duncan to go with him to apply for work elsewhere. Hornyak stated that Schwartz was angry and was hollering. Schwartz said, "I don't care if you go to work for Palevsky's, but don't tell anybody else to go there." Hornyak also testified that Schwartz told him "your pay check will be ready in 15 minutes." Hornyak collected his check and left. As found above, the record evidence shows that Hornyak's work performance was unsatisfactory because he was too slow and performed poorly in the several jobs to which he was transferred and assigned pursuant to Respondent's stated intent of attempting to find jobs which were more suitable to his ability. In addition to the evidence of Hornyak's unsatisfac- tory work performance, there is evidence that Respondent became very disenchanted with Horn- yak when he attempted to persuade one of its employees to join him in applying for work else- where, in view of President Schwartz' spontaneous anger as expressed and displayed to Hornyak upon Schwartz' learning of the Duncan incident. Finally, the timing of Hornyak's discharge, occur- ring as it did on August 9, 1971, was more than 2 months after he had engaged in his union activities, which had all taken place on the date he engaged in picketing on June 3, 1971. Clearly, such a lapse of time between the date of the union activities and the alleged discriminatory discharge detracts from rather than supports a finding of unlawful discharge, particularly in light of the lack of evidence that Hornyak overtly engaged in union activity after June 3 and the existence of substantial evidence of conduct by Hornyak occurring after June 3 and constituting legitimate cause for discharge. Considering all the circumstances, including Horn- yak's unsatisfactory work performance, his attempt to persuade an employee to join him in applying for work with another employer, and the remoteness of 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hornyak's union activities from the date of his discharge, we conclude that the General Counsel has not sustained the requisite burden of proving that Hornyak was discharged in violation of Section 8(a)(3) of the Act. AMENDED CONCLUSIONS OF LAW Delete from the Trial Examiner's Conclusion of Law 2 the name of Richard Hornyak and add the name of Richard Hornyak to Conclusion of Law 4. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, as modified below, and hereby orders that Respondent, G & S Metal Products Company, Inc., Cleveland, Ohio, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommend- ed Order, as modified herein: 1. Delete from the Remedy recommended by the Trial Examiner the name of Richard Hornyak. 2. Delete from paragraph 2(a) of the recommend- ed Order the name of Richard Hornyak. 3. Substitute the attached notice, which deletes the name of Richard Hornyak, for the Trial Examiner's notice. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast for International Union, Allied Industrial Workers of America, AFL-CIO, and that said labor organization is not the exclusive representative of all the employees , in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. Juanita Smith, Mabel Head, Shirley Lowe, John W. Chase, and Bobbie Jean Chase reemployment in their former jobs. If those jobs do not exist we will offer them reemployment to a similar job and we will pay each of them for any loss of pay he may have suffered because they were fired for union activity. We will pay them interest on said money at 6 percent. All our employees are free to become or remain members of any labor organization or to refrain from becoming or remaining members of any labor organization except to the extent that such member- ship in a labor organization may be required by a union-security clause in a collective-bargaining contract lawful under Section 8(a)(3) of the Labor Management Relations Act. G & S METAL PRODUCTS COMPANY, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, 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 compli- ance with its provisions may be directed to the Board's Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-552-3715. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate any employee con- cerning the union activity of any other employee or ask any employee to inform us of the union activity of any employees. Union activity is an employee's own business. WE WILL NOT terminate, lay off, or discharge any employee because he has engaged in union activity. WE WILL offer Odessa Austin, Tina Scales, TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: This proceeding was brought before the National Labor Relations Board upon: 1. Charges filed by International Union, Allied Indus- trial Workers of America, AFL-CIO, herein the Union, against G & S Metal Products Company, Inc., herein the Respondent, in Cases 8-CA-6349, 6440-2, 6504, 6538, 6572, and 6577 alleging Respondent violated Section 8(a)(1) and (3) of the Act. Said charges were filed on April 1, May 26, July 8, July 26, August 17, and August 19, 1971. 2. Complaints issued by the General Counsel in said cases and an order consolidating said cases for hearing dated October 14, 1971. 3. A charge in Case 8-CA-6393 filed by John W. Chase G & S METAL PRODUCTS COMPANY, INC. against Respondent, alleging Respondent violated Section 8(a)(1) and (3) of the Act, dated April 26, 1971. 4. Complaint issued by the General Counsel in said case alleging Respondent violated Section 8(a)(1) and (3), dated June 10, 1971. 5. Answers by Respondent in said cases denying the commission of unfair labor practices. 6. Petition in Case 8-RC-8239 filed by the Union May 24, 1971. 7. Report on Challenged Ballots and Order Directing Hearing on Challenged Ballots, dated September 23, 1971. 8. Hearing held by me at Cleveland, Ohio, on Novem- ber 9 and 10, 1971. 9. Briefs received from the General Counsel and from counsel for the Respondent (in Case 8-CA-6349) on December 30, 1971.1 Upon the entire record in this case and from my observation of the witnesses while testifying I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is an Ohio corporation having its principal place of business at Cleveland, Ohio, where it is engaged in the manufacture, sale and distribution of metal house- wares. Respondent ships goods valued in excess of $50,000 annually to places outside the State of Ohio. Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. Laborers' International Union of North America, Local 860, AFL-CIO, herein the Laborers, is a labor organiza- tion within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts I. Case 8-CA-6349 The complaint alleges that on or about March 22, 1971,2 Respondent terminated the employment of Odessa Austin and on March 29 terminated the employment of Tina Scales in violation of Section 8(a)(3) of the Act. The complaint further alleges that Respondent, through its agents, interrogated its employees concerning their union activity and requested an employee to engage in surveillance of union activity in violation of Section 8(a)(1) of the Act. Odessa Austin testified that she was employed by Respondent as a packer on its day shift from the Tuesday following Labor Day in 1970 until discharged on March 1 On January 4 the Trial Examiner received a letter from Counsel for the Respondent strongly objecting to the introduction, for the first time, of the race issue as a factor in the case by the General Counsel in his brief The General Counsel's argument based on this issue will be dealt with in that part of this decision entitled "The Race Issue " I am, however, receiving in evidence on my own motion the letter of Respondent's counsel as TX Exh 473 22. On March 7 she contacted Booker Evans, representa- tive of the Union, who brought her some authorization cards which she took to the plant the next day, distributing them among employees at her break time and lunch hour. She said she talked to 9 or 10 employees on this day. On March 22 a person she identified only as a supervisor named Neal3 came to her about 2:30 and told her she was using the bathroom too much. She testified she had only been to the bathroom twice that day and knew of no rule limiting visitations. At 3:30 Neal shifted her to another job and at 4:30 a supervisor named James Moseley gave her an envelope with two checks and told here "they" were dissatisfied with her work. She had received no previous reprimands or warnings about her work. On redirect she testified that a union meeting had been scheduled for March 23 and that on March 22 she had spoken to several employees about it. Mary Hyde, Austin's chief supervisor, testified that at the time of Austin's discharge she prepared a report of the reasons. Foremost was the fact that she could not make an accurate count of the pans she packed. The cartons contained either 12 or 24 pans. Austin was shipping out cartons with only 10 or 11 pans, resulting in complaints from customers. On the day of discharge a complete order had to be "redone" because "there was nine pans, 10 pans, 11 pans in it, an order of over a thousand cartons." The second charge related to her absences from her station, which Hyde stated lasted as long as 15 minutes and resulted in holding up the line. She also left her station to get water and would bring back four or five cups. Hyde characterized Austin's relations with her fellow employees and her foreman as poor. Specific incidents were not set forth. On cross-examination Hyde testified that she had 37 girls working on the packing line but still knew who was packing certain orders and that an order could be traced back to the individual packer. She stated she had warned Austin about her deficiencies in counting and her water carrying about 3 weeks or a month before her discharge and that Austin later received another warning from James Moseley, line supervisor. Recalled, Austin testified that three girls worked on each carton, one putting the glue on the pan, the second labeling and the third packing. It was the practice for the girls to rotate this assignment, and as a result the blame for miscounting could not be fixed. Tina Scales, a sister of Odessa Austin, testified that she had been employed by Respondent as a packer from March 7 until March 29. During this brief period she received no reprimands or warnings. On a date she fixed as March 8 her sister called Evans who brought some cards "over" (presumably to Austin's house) and she and Austin signed and were given cards for distribution. The next day she and Austin talked to about 15 employees. On March 29 at quitting time a fellow employee named Mabel Head told her James Moseley wanted to see her and 1, not as factual evidence but merely for a complete record, since the issue was raised by the General Counsel after the hearing closed and without notice to Respondent its opposition should somewhere appear 2 Unless otherwise noted all dates refer to 1971 1 Later identified as Neal Bernstein , son of Mike Bernstein, night foreman 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he gave her an envelope with two checks telling her, "she told me to give you this." She was given no reason for her discharge. Mary Hyde testified that she fired Scales because it was impossible to train her and she prepared a report on her the day of her discharge .4 Hyde also testified that it was she and not Moseley who gave Scales her checks and that she told Scales at that time the reasons for her discharge. A prime witness for the General Counsel , Bobbie Jean Chase, gave testimony which related to more than one of the complaints herein (she was the alleged discriminatee in Case 8-CA-6577) and some of it is confusing. Chase had been employed in various capacities for approximately 4 years prior to her discharge on August 18. Chase testified that she had been asked to inform Respondent concerning any union activity by Hyde and Marvin Roseman, vice president, and had acted as an informer for about 3 years. She testified that on February 22 she reported to Roseman that Odessa Austin was engaging in union activity . Chase identified the union as the IAW (she obviously meant the Allied Industrial Workers) and told Roseman she had been invited to a union meeting at Austin's house on or about February 22.5 Austin reported to Roseman because Hyde was not at work on that day and when Hyde reported for work she reprimanded Chase for reporting to Roseman because he could get the company in trouble. During this conversation which would, to be consistent with the record be on or about March 23 and not February 23, Hyde told her that Austin had a sister working there by the name of Scales and that she (Hyde) would have to get, rid of Scales.6 Repudiating, at least in part, Bobbie Chase's testimony, Hyde stated that Chase never identified any employee as being a member of any union and was never requested by her to inform on any employee. She did not , howev9r, deny Chase's testimony that she told Chase that Roseman would get the company into trouble after he learned from Chase that Austin was a union member ; nor did she deny telling Chase that she would have to get rid of Scales. Roseman was not interrogated concerning any conversa- tions between himself and Chase so that portion of her testimony stands uncontradicted. Conclusions I find that both Austin and Scales were discharged in violation of Section 8(a)(3) of the Act. In doing so, I rely on the uncontradicted testimony that Austin was the first to contact the Union and that she and Scales received and distributed the first cards, most of which were distributed in the plant during their breaks and their lunch hours. Apart from the fact that this plant had been subject to prior organizational efforts,? I could not conceive that this new organizational thrust did not come 4 The report, however, was dated April 5 (Resp Exh 11) This states that her attitude was poor, she required constant supervision, her work was sloppy, and she was inattentive 5 These dates are obviously an error on the part of Chase since Austin did not contact the Union until March 8 and the meeting was to be held on March 23 6 The March 23 date is also suspect but the substance of the conversation and the approximate date are more important than the precise date and the employees were testifying to the best of their recollection as to events which to the attention of management. I credit the testimony of Chase despite her confusion on dates (the fact that she was a poor witness in this area does not make her an incredible witness) that she did inform Roseman that there was to be a meeting at Austin's house; also her testimony that Hyde told her Roseman might get the company in trouble- obvi- ously by engaging in unlawful antiunion activity-and that Hyde also told her she would have to get rid of Scales. Further reliance is placed on the reasons given her discharge. Austin had been employed for 7 months without official complaint concerning her work. The allegation that Austin could not count her pans correctly was not made until the time of her discharge and was not offered in evidence. I would also reject this allegation on the ground that, accepting Austin's testimony (which I do), the miscounting of the pans could scarcely be attributed to one employee when three employees shifted the work among themselves. The two other objections, that she went to the restroom too often and spent too much time bringing water to the other girls are totally uncorroborated by independ- ent testimony.8 I do not credit Hyde on her testimony regarding Austin and I can only believe that the faults ascribed to her were the product of afterthought. Her discharge coincided with the time fixed for the union meeting at her house and it could be expected to have serious impact on organization. As to Scales, the case is closer, but I would find that her discharge, which occurred during her probationary period, was motivated at least in part by the fact that she was the sister of Austin and therefore presumably active on behalf of the Union. (Her own testimony is that she was active.) Scales testified that she was never reprimanded for her work and that she was discharged without warning, facts which are not contradicted. The report which stated the reasons for her discharge was dated 7 days after the discharge was effected. While Hyde testified that she did not know that Scales was a sister of Austin I credit Chase's testimony that Hyde told her she knew they were sisters and would have to get rid of her. Respecting the allegations of violation of Section 8(a)(1), I find no evidence of unlawful interrogation of either Austin nor Scales. On the other hand, I credit Chase's testimony that she was requested by Respondent to report on any union activity which she observed. This request was made beyond the 10(b) period but her identification of Austin to Roseman occurred within the period and constituted a separate and independent violation.9 2. Case 8-CA-6393 The complaint alleges that in December, 1970, Respon- dent threatened an employee with discharge if he engaged in union activity, in violation of Section 8(a)(1) of the Act, and that on February 12, Respondent discharged John took place 6 to 9 months prior to the hearing 7 C & S Metal Products Company, Inc, 182 NLRB No 92. 8 Such generalities are suspect since they are seldom subject to either proof or disproof Nor can I see that she could fairly be criticized for carrying water to the other girls rather than carrying her own cup alone. A trip to the water cooler is a trip to the water cooler. 9 So also did her identification of her son John Chase as an instigator of union activity to Hyde, see infra G & S METAL PRODUCTS COMPANY, INC. 475 Chase because he engaged in union activity, in violation of Section 8(a)(3) of the Act. Chase testified that he was employed by Respondent as a general maintenance laborer from September 1970 until discharged. His immediate foreman was Gene Dombroski and above Dombroski was Mary Hyde. In October he was reprimanded by Dombroski and Hyde for spending too much time in the restroom and told that he would be fired if he did not increase his production In November he was threatened with disciplinary action for absenteeism occa- sioned by his visiting the V.A. for dental treatment. On the other hand, he testified that he received compliments from Harry Schwartz, president, Marvin Roseman, vice presi- dent, Dorbroski and Hyde, the last coming about 3 days before his termination from Roseman. The compliment was directed to the manner in which he was labeling cans.10 He also testified that when he quit in December after an argument with Dombroski, Dombroski asked him to return and he did. On Friday, February 12, he was given an envelope containing two checks by Dombroski and was told he was no longer needed. He was given no other reasons. Dombroski did not testify during the hearing. Chase's union activity consisted of calling the Laborers during the first week in February in an effort to initiate organization among the employees. A call was made from the home of his mother, Bobbie Chase, who warned him that he might be fired. He testified that he talked to several employees about forming a union but he never established direct contact with the Laborers prior to his discharge. Inexplicably, he asked Mary Hyde how he should go about forming a union and she told him to talk to the employees and then call the union, ask for cards and pass them out. Also inexplicably, Bobbie Chase testified that on or about February 3 she told Mary Hyde that the union had started up again, that she had nothing to do with it but that she (Hyde) knew that it was her son John that had started it. Mary Hyde denied that Bobbie Chase ever told her John Chase had started the Union. She did not testify respecting the alleged conversation with John Chase. On cross-examination Respondent established that Chase had been absent during his 22 weeks of employment for 9 days with a shoulder injury, 5 days with influenza and 2 days for dental treatment. Attendance records (Resp. Exh. 7) are inconclusive, but it appears that Chase had only one unexcused absence during 1971. No supervisor testified to the reasons for his discharge. Conclusions - While the employment period of John Chase was brief and his absences were frequent,ii his testimony that most of these were excused for illness is not contradicted. On the other hand, there is the credited testimony of Bobbie Chase that she told Hyde the Union was starting again and that Hyde knew it was her son, plus the uncontradicted testimony of John Chase that he asked Hyde how to start a union. He was discharged shortly after these conversations without notice and without being given any reasons. These facts are, I believe, sufficient to sustain the General Counsel's burden of proof and I find his discharge violated Section 8(a)(3) of the Act. I do not find any evidence to support the allegation that Respondent threatened to discharge any employee for union activity and this allegation will be dismissed. The threat to discharge John Chase if his production did not improve was made sometime before his union activity took place and before there was any union organizational activity in the plant. 3. Case 8-CA-6440-2 The complaint alleges that on May 24 Respondent discharged Marilyn McManus and on May 27 discharged Juanita Smith and Mabel Head in violation of Section 8(a)(3) and (1) of the Act. All three were employed in the packing department at the time of discharge. Marilyn McManus Fuller testified that she was first employed by Respondent in February and worked on the night shift. Shortly after her employment Mike Berstein "discharged" her and told her to get a physical checkup. A couple of months later she called Berstein about her job and was told he was not hiring. She then called Hyde who told her to report on May 5, on the day shift. Shortly after her reemployment she signed a union card at the request of Virginia Small, another employee. The card was signed on her break time and this was the extent of her union activity. On the day of her discharge she was put on the line wfth another girl and had difficulty operating her machine, which was new to her. At break time she changed machines with the other girl who did such a good job Fuller could not keep up with her. Later Moseley and Hyde asked her what the trouble was and she was shortly called to the office where she was given a pink slip by Hyde and a brown envelope containing her check. Juanita Smith testified that she had been employed by Respondent from the last week of June 1969, until May 27, 1971. Sometime in 1970 she was given a copy of a manual of working rules but could not identify it as the same as Respondent's Exhibit 8.12 She did, however, testify that the manual she received contained a rule requiring an employee to notify the company if he was absent for 3 days. She was first informed of union activity by John Chase and later signed a card with the Union (given her by Austin) became a member of the organizing committee, kept records and passed out cards.i3 She was never warned or reprimanded for her work, but 3 or 4 days before discharge she was told by Richard Hornyak that she was "set up to be fired." Hornyak, also an alleged discriminatee, testified that at the time he 10 Not denied by Roseman 11 See Resp Exh 7, supra 12 Resp Exh 8 was its working rules Relevant to this proceeding was the following ABSENTEEISM POLICY SHOULD YOU BE ABSENT FOR 3 CONSECUTIVE DAYS WITHOUT NOTIFYING THE COMPANY, WE WILL CONSIDER THAT YOU HAVE VOLUNTARILY QUIT AND YOUR SEPARA- TION WILL BE EFFECTED ONLY A VALID EXCUSE FOR YOUR INACTION WILL PERM/TA REINSTATEMENT 1R Other members of the organizing committee were Austin , Scales, Virginia Small, Jane Hager, Shirley Lowe, and Henry McKellip 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warned Smith he was her supervisor and was told by Richard Miller, another supervisor, to try to make her do something which would constitute cause for discharge because Hyde suspected her of being a leader in union activity and wanted to get nd of her. Miller did not testify. At 4:30 on May 27 Smith was told by Richard Miller that she was wanted at the office. She went there and found Hyde, Dombroski, Moseley and another employee named Mabel Head. Hyde told her and Head she had bad news and that the work was stacked up and that Respondent had no use for them. They protested that new girls were still being hired and Head told Hyde that they were fired because they were for the Union. Hyde then told them they were fired for their absenteeism and Smith asked to see Roseman. She told Roseman she had been absent for only 4 or 5 times that year but admitted being absent during 1970 due to her illness and illness in her family. Roseman told her she was discharged for her absenteeism during 1970. The day of discharge was a Thursday, neither a payday nor a closing of a pay period. Mabel Head testified that she had been employed for over 2 years and that she never received any verbal or written warnings concerning either her work or attendance. In March she signed an authorization card for the Union and became a member of the organizing committee. On May 27 she too was told by Miller that she was wanted in the office and her testimony as to what took place corroborates that of Smith to be the effect that they were told the work was slow and then that they were discharged for absenteeism after they confronted Hyde with the fact that Respondent was still hiring. Head, like Smith, stated that her absences had occurred in 1970 and not in 1971. Attendance records were not introduced as to either Smith or Head. Conclusions Unless I am to infer that every employee who signed a union card and was later discharged became ipso facto a discriminatee, I cannot find the discharge of Marilyn Fuller discriminatory, for there is no supporting evidence. She had been employed only briefly on the night shift when Bernstein told her to get a physical checkup. When she was ready to return she worked on the day shift for Hyde because there was no opening on the night shift and, on the basis of her own testimony, her performance was poor. Her union activity was minimal (the signing of a card on her break time) and could scarcely support, even in the circumstances of this case, an inference of company knowledge. Dismissal of the complaint with respect to Fuller will be recommended. The finding with respect to Smith and Head is contrary. Both had been employed for approximately 2 years and in a plant where turnover was high (according to Vice President Roseman); this is not an insignificant factor. Both not only signed union authorization cards but each was a member of the Union's organizing committee and 14 These included the dates of her employment, the date of her termination and the dates when she was out with her injury As to the date she signed her card, she "thought" it was before she hurt her ankle 15 While on sick leave she had received money from either the Respondent or its employees and a plant from Hyde distributed cards. At the time of their discharge and in the presence of three supervisors they were told that work was slow. Confronted with the fact Respondent was at that time hiring new employees they were told by Roseman, whom they asked to see, that they were discharged for high absenteeism. Confronted with the fact that in each instance their record for 1971 was good they were told that it was their 1970 records that prompted discharge. Comment on excuses so patently fictitious is unnecessary and I find both were discharged in violation of Section 8(a)(3). If the doctrine of res ipsa loquiter was applied to labor law this case would fit it. 4. Case 8-CA-6504 The complaint alleges that Respondent terminated the employment of Gail Smiley, Melissa Mack, Terry Caine, Mildred Steward, Aretha Allen, Celia Steplight, Marvelle Johnson, Lois Sears, and Betty Graves on May 24, 1971, in violation of Section 8(a)(3) and (1) of the Act. Gail Smiley testified that she was employed on the night shift for about 4 weeks. Her only union activity was the signing of an authorization card and there is no evidence that management was aware of this activity. During the first week of her employment (she did not fix the dates of her employment) she injured her ankle and was later told by Mike Bernstein that she should see a doctor. She did and when she returned to work with a doctor' s statement she was told that she had been replaced. Respondent's counsel attempted to establish her record for absenteeism during the brief period of her employment by cross- examination but Smiley had an almost total failure of recollection as to dates.14 In any event the night shift was laid off on May 28. Aretha Allen was employed as a packer on the day shift for a little more than a year. In April it was necessary for her to have an operation and she was given, according to her testimony, leave of absence commencing April 16 by Mary Hyde.15 Her union activity consisted of signing an authorization card and attending one union meeting (dates not fixed). On June 1 I she voted in the Board election but her vote was challenged on the ground she was no longer an employee. On June 30 she received a doctor's certificate that she was able to resume work (G.C. Exh. 2-b). She did not return to work on June 30 because the plant was closed for 2 weeks (the offices were open). On July 6 she talked to Hyde on the telephone and was told she had no job. Hyde admitted Allen was given sick leave and testified that she received a call from Allen on May 26 advising her (Hyde) that Allen would return on June 2.16 Hyde told her to bring a doctor's certificate with her when she returned. Hyde did not hear from her on June 2, 3, or 4 and applied the "3-day" rule, an assumption the employee had quit. Allen's attendance card was marked "quit 4/19/71." The report on her discharge is dated June 4 and states that she was "released" for not reporting on June 2, 3, or 4. A 16 Allen's testimony on this point is obscure She denies telling Hyde that she would report on June 2 but apparently had a conversation with Hyde on or about May 26 in which they agreed that she would not report back until she received clearance from her doctor G & S METAL PRODUCTS COMPANY, INC. 477 subsequent report by Hyde states that Hyde told her when she called on July 6 that she had been released on June 4. Cecila Steplight testified that she worked for the Respondent as a machine operator for over a year and that she was employed on the night shift when she was terminated. Her sole union activity was the signing of an authorization card which took place after her termination. In February she was pregnant, notified Mike Bernstein and was granted leave of absence. She had not applied for reinstatement at the time of hearing. Her vote was challenged at the election on the ground that she was no longer employed. Bernstein testified that Steplight never told him she was taking leave or that she was pregnant, and that he had never granted an employee matermty leave. Respondent's attendance report on Steplight indicates she worked 4 hours a day during March and April and was on leave of absence during May until the termination of the night shift on May 28. Conclusions The cases of Smiley, Allen, and Steplight will be considered separately since the circumstances varied. Smiley, as a member of the night shift, would have been terminated on May 28 in any event. On her own testimony she was incapacitated with an injured ankle during the first week of employment and when she reported back for work in either April or May she was told she had been replaced. At this time her only union activity consisted in signing a union card and she was not sure whether she had signed before or after her injury. Based on these meagre facts I find that the General Counsel has not sustained his burden of proof as to discriminatory motive. The difficulty with Allen's case is that, as is true of many small and marginal businesses, the personnel records were kept in a haphazard fashion. Thus her attendance card showing she quit on April 19 is completely in error since Hyde admitted Allen was excused on sick leave during April and May. I accept Allen's testimony that during her conversation with Hyde in late May she and Hyde agreed she would not report until she received her doctor's certificate, not received until June 30. I do not believe, since this was the condition of her reporting, that she told Hyde she would report on June 2. This, however, does not solve the issue since it must be shown that Hyde's notation of her discharge for violation of the 3-day rule on June 4 was not only an error but was an act motivated by discrimination. To establish discrimination it would be necessary to show that Respondent had reasonable grounds for suspecting, if not knowing, of her union activity and such grounds do not exist. Whether Allen signed her union cards before or after her injury I cannot infer that Respondent had knowledge of her action. While the leading organizers in a small plant may well be known to management and proof of such knowledge may be inferred I cannot accept the theory, without some support by extrinsic evidence, that an employer would know the identity of each and every employee who engaged in no more activity than the signing of a card and the cards here were signed either at lunch, breaktime, or at home. It is true that the Respondent, or so I have found, had an informer in the plant but it does not follow that an informer would be privy to such knowledge in detail. In fact the informer, Bobbie Chase, testified on behalf of the General Counsel and her testimony was confined to informing on her son and Odessa Austin. Respondent's policy with respect to Allen and its other employees with respect to termination may not have been an enlightened one but again we are dealing with a small business employing persons of little skills in the lower echelons of the labor market where enlightened policies in labor are seldom to be found. As to Steplight, there is no evidence of discrimination. She states that she went on pregnancy leave in February and did not sign a card until after her termination on May 28. She never applied for reinstatement. It will be recommended that the complaint as to allegations of discrimination respecting Smiley, Allen, and Steplight be dismissed. Melissa Mack, Mildred Steward, Carrie Caine, Narvella Johnson, Lois Sears, and Betty Graves were all employed on the night shift as press operators and all signed authorization cards prior to the termination of the shift on May 28.i7 When the night shift reported to work on May 28 the following notice (G.C. Exh. 2-a) was posted at the timeclock: NIGHT SHIFT EMPLOYEE NOTICE! ! DUE TO BUSINESS CONDITIONS BEYOND OUR CONTROL, WE REGRET THAT WE MUST CLOSE THE NIGHT SHIFT EFFECTIVE MAY, 28, 1971. TONIGHT WILL BE THE LAST NIGHT OF WORK. The notice was signed by Marvin Roseman, vice president. The employees had received no prior warning but all testified that Mike Bernstein told them they would be offered reemployment if the night shift was reinstated or if jobs became available on the day shift. The night shift was reopened on or about September 20. Harry Schwartz, Respondent's president, testified that consideration had been given to the discontinuance of the night shift as early as December, 1970. The immediate problem was the high turnover rate among the employees and the difficulty in obtaining competent supervisory personnel. The second difficulty was in obtaining raw materials such as aluminum, teflon and electrolytic tinplate. Schwartz explained his difficulties and his attempts to resolve them in some detail not much of which would be clear to one unfamiliar with the particular problem. His problem was further complicated by the steel strike which shut down his domestic source and the dock strike which shut down foreign sources. Schwartz testified that his reasons for not recalling the 'r The testimony of the employees was that the signing of the cards was the extent of their union activity and, as to those who were interrogated on this point, they testified that they signed the cards at home An exception was Lois Sears, who received cards from Odessa Austin for distribution There is no testimony that Sears or any of these employees signed a card in the shop 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD night shift employees when the shift was reinstated was that the attendance and turnover record were so poor that he thought it advisable to start with a new crew. Interrogated on cross-examination as to advertisements for employees in June, Schwartz' answer was that turnover made the continual running of the ads a necessity.18 Mike Bernstein testified that he was satisfied with the performance of the night shift in May. He was not interrogated as to attendance or turnover, although it might reasonably be implied that he was not dissatisfied. He denied that he told the employees that they would be the first to be recalled if night-shift operations were renewed. Conclusions I find no evidence that the layoff of the night shift was discriminatory. While the General Counsel alleges that six employees-none of whom engaged in union activity apart from the signing of union cards-were laid off due to their union activity, the fact is that these six were among 24 employees (one on leave) who were terminated when the shift was discontinued. It is true that the shutdown of a shift or a part of an operation may be found discriminatory when it has been established, among other things, that a disproportionate number of its employees were prounion and the employer had reason to suspect that fact. Here it would appear that the union represented only 25 percent of the complement of the night shift.19 The tally of ballots shows that of those voting in the election without challenge 43 percent (30 out of 69) voted for the Union As to Schwartz' testimony, I have already commented that that portion which related to his difficulty in obtaining access to raw materials was confusing to one without knowledge of the business. This does not mean that it was either evasive or untrue. Unfortunately, unless the General Counsel makes a study in depth of the economics of every business which pleads economic justification, which he has neither the time nor the facilities to do, he is not in a position to rebut such a defense on the economic issue alone. A Trial Examiner who does not have the benefit of any preinvestigation is more at a loss to make appraisal. The defense, however, is not impregnable and may be overcome by evidence from which it may reasonably be concluded that the true motive was discriminatory and the economic motive fictitious. Here there is no such evidence. Logic rejects an inference that the termination of shift of 24 employees was motivated by the fact that six of them had signed cards. Nor do I find any substance in the argument that Respondent was required to recall the night shift in September. Despite the fact that Bernstein may have assured the employees they would receive preferential treatment, the notice of termination did not so state and 18 G C Exh 2-d, an advertisement placed in the "Neighborhood News" on June 3 asked only for packers 10 It is reasonable to assume on the record of this case that had any other members of the night shift signed cards they would have been included in the complaint The signing of a card and employment on the night shift appears to have been the only requisite for inclusion The figures which I have used were those used by Bernstein, i e, the number of employees there is no evidence that Bernstein was authorized to speak for management on hiring policy.20 This case is simply further evidence that small enterprises employing persons for jobs which require little training or skill and paying minimal wages will suffer from high turnover, absenteeism, and poor personnel management. It will be recommended that the complaint in Case 8-CA-6504 be dismissed. 5. Case 8-CA-6538 The complaint herein alleges that Respondent, through John Porchia, plant manager, in June 1971, interrogated an employee regarding her union activity in violation of Section 8(a)(1) of the Act. It further alleges that on or about July 24, 1971, Respondent terminated the employment of Shirley Lowe because she had joined, assisted, favored, or became a member of the Union in violation of Section 8(a)(3) and (1) of the Act. Lowe testified that she was employed by Respondent from May, 1969, until her termination on July 23, 1971. At the time of her termination she was employed as a punch press operator. In April or May she signed an authoriza- tion card for the Union and became a member of the organizing committee. When the employees went on strike on June 3 she joined the picket line. Between the day of the strike and the day of the election (June 11) she was asked by John Porchia, plant manager, how she was going to vote in the election. He told her he knew she was for the Union but that he could talk to her. He also gave her a paper about another plant that had closed down and told her (or them), "This is your Union." 21 On July 15 she was suffering from a swollen hand and visited her doctor, Jack Meltzer, who gave her a slip stating that her hand was swollen and requesting Respondent to give her another job if possible.22 On Friday, date unspecified, she took the note to her foreman, Bob Stelarski, and went to work on the punch press. Monday she called in sick and on Tuesday she again reported and was told that Roseman would want to see her at 4 p.m. She met in Respondent's office with Schwartz, Roseman and Stelarski and after discussion of a transfer to another job she was told the only work they had for her was on the press. She advised them she had performed all the other jobs in the plant but received no offer. She was given a notice dated July 23 (Resp. Exh. 17) telling her that as a result of Meltzer's letter she was terminated and given two checks, one of which was marked "Final." The notice also advised her that if she received a letter within 5 days from Dr. Meltzer stating she could work without limitation she would be reinstated. Roseman testified that he prepared and delivered working on May 28. This would exclude both Smiley and Steplight 20 It is true that Bernstein was Schwartz' brother-in- law but the status of brothers-in-law has wide range 21 Porchia did not testify 22 G C Exh 2 The note is dated July I I so obviously there is further confusion as to dates G & S METAL PRODUCTS COMPANY, INC. 479 Respondent's notice to Lowe and that Respondent never received the letter requested from Meltzer. Conclusions Unless the motive for the termination of Lowe was discriminatory the treatment accorded Lowe by Respon- dent was little short of inhumane. Here, in a plant suffering from turnover, was an employee with over 2 years of service who had worked in practically every department. Suffering from a swollen hand she went to her doctor who advised her that a change from her job as press operator was advisable to speed recovery. Returning with that note she was put back on the samejob by her foreman and after 1 day's work was forced to take sick leave. Returning again she was again put back to work as a press operator and that afternoon her request for a transfer was denied by the president of the company, the only explanation being that the Respondent needed press operators. She was given her termination check and the notice referred to above. Respondent did not give her the option of extended sick leave-it gave her 5 days in which to provide a medical statement she could work without limitation. Her union activity was manifest. Under all the circumstances it is perhaps charitable to ascribe a discriminatory motive to Respondent. I find Lowe was terminated in violation of Section 8(a)(3) and (1) of the Act. As to the alleged unlawful interrogation of Lowe by Porchia I find it casual, trivial, and totally without impact upon her rights.23 The theory that every casual interroga- tion or even mention of a union by a supervisor in the presence of an employee, regardless of their relations or the circumstances, is per se a violation of the Act is arrant nonsense and some day the General Counsel may recognize that fact. 6. Case 8-CA-6572 The complaint alleges that Richard Hornyak was discharged by Respondent on August 9, 1971, because Respondent believed he had joined, assisted, favored, or became a member of the Union. Hornyak testified that he was hired by Respondent as assistant manager of the glue line. (Respondent's records indicate February 17.) He participated in the strike of June 3 by picketing24 and between that date and the date of the election he was transferred from his line job to general utility and maintenance work in the warehouse. The reason given him was that business was slow. During his employment his supervisors were Mary Hyde and Gene Dombroski. On the day of his transfer from the line he was told by Roseman and Hyde that he would be returned when work increased but about 1 month later he was told by Roseman, Hyde and Dombroski that he would not be reinstated because he had made too many mistakes.25 During this period he received a minor reprimand or warning from Hyde about washing up early, and was 23 The interrogation also took place after the picketing when Lowe's identity as union sympathizer had been clearly established 24 During the picketing he signed an authorization card and later became a member of the organizing committee and solicited memberships warned by Dombroski not to be late after lunch break and not to be caught talking to anyone. On or about July 28 he was given the job of inserting liners in pans and was also told to help another employee named James Benedict whenever help was needed. On July 28 he was inserting liners and also helped Benedict. That day he was given a written reprimand signed by Hyde and acknowledged by him stating his work was very slow and that he had only completed 2,000 pans in 5 hours. (Resp. Exh. 14.) The incident which precipitated his discharge involved another employee named Teddy Duncan. Hornyak testi- fied that on Friday, August 6, Duncan came to him and told him he (Duncan) was dissatisfied with working for Respondent and asked Hornyak if he knew of any place that was hiring. Hornyak told him he thought they were at a place called "Palevsky's". Hornyak gave him the name and address., On the following Monday, August 9, Harry Schwartz, Hyde, and Dombroski came to him at quitting time and Schwartz, whom he described as very angry, told him he did not mind if he went to Palevsky's but not to send anyone else there. He was told his check would be ready in 15 minutes, he collected it and left. As to this incident, Duncan, called by Respondent, testified that he was working in the stockroom about 10 a.m. on Friday when Hornyak came to him and told him he knew of a better job at Palevsky's and asked Duncan to leave and go with him and apply. Duncan told him he was happy where he was and neither one of them left. Duncan then testified that on that same day he reported the conversation to Hyde and signed a written statement describing the incident. (Resp. Exh. 18.) Hyde testified that Hornyak was hired as setup man for the packaging line and was responsible for getting the merchandise to packaging. Hyde said he was too slow for this job and transferred to the warehouse for general warehousing work. On July 14 Hornyak was called to the office and told of his deficiencies on the line and told he had been transferred to the warehouse26 because of the numerous errors in his work, including wrong labeling and wrong counting. Hyde testified that while employed as an inserter Hornyak was too slow, that in a period of 5 hours he had inserted only 2,000 liners whereas an average girl could do 1,000 an hour.27 According to Hyde, Hornyak admitted at the time of his transfer to the warehouse that he was not doing a good job and she stated that he did not do a good job in the warehouse. Hornyak was told at the time of his discharge on August 9 that poor work was the reason for his discharge. Roseman, who had no direct contact with Hornyak in his work, testified that he received reports that Hornyak's was unsatisfactory. Roseman testified that he was fired immediately after the "Duncan incident" because it was thought he should not solicit another employee to leave his employment and because of his poor work record. Conclusions The case is difficult because the charges against Hornyak 25 The date of this warning was later fixed as July 14. 26 Resp Exh l5 is Hyde's summary of this meeting 27 This was not established to be a quota, it is supported only by Hyde's testimony Hornyak, on recall, testified he thought the figure too high. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are based, with exceptions, upon generalities. If Hornyak is credited as to dates, then no fault was found with his work as a setup man on the line until he identified himself as an union adherent by appearing on the picket line. He was then transferred to the warehouse to perform what Hyde described as menial tasks. The interview on July 14 was provoked, according to Hyde by Hornyak's inquiry as to the expiration of his 90-day raise period. Respondent's Exhibit 14 indicates Hyde was considering giving him another trial, but on reconsideration decided against it because he had performed poorly in the past. There is conflict in the testimony between Hornyak and Hyde as to the reason Hornyak was transferred to the warehouse since Hornyak stated he was told work was slow and Hyde stated it was due to his poor work. Hyde testified that she had to check on him in the warehouse and found he was doing a poor job there, but Dombroski, not Hyde, was in charge of the warehouse although Hyde apparently had general supervisory jurisdiction. Just why Hornyak was then transferred to inserting pans is not clear. Nor is it clear how long he worked at the job. The evidence would indicate that he worked only 1 day and his production was unsatisfactory. No quotas or statistics were cited to prove Hyde's contention that a girl could work 1,000 pans an hour nor was it explained how or why such an individual count could or would be kept. Since the Duncan incident was alleged as the precipitat- ing but not the chief cause of Hornyak's discharge, and I credit Duncan's testimony as to the facts, the defense must rest on Hornyak's faulty performance on three different jobs. That defense might be sufficient were it not for the critical fact that no fault, except for minor reprimands, was found until after Hornyak_Joined the strike. I have already found that the chief organizer for the Union was discharged under pretext when her activity became known and her sister a short time later. John Chase was discharged shortly after his union activity was made known to Hyde for reasons I found discriminatory. In addition I have found that Juanita Smith, Mabel Head, and Shirley Lowe, all members of the Union's organizing committee, were discharged in violation of the Act. As to those employees with respect to whom I have recommend- ed dismissal of the charges, their union activity was minimal, it could not reasonably be inferred that it was known to Respondent, and, with respect to the night shift, economic justification was found. If my evaluation of the evidence and testimony is correct, then Respondent had a- firm policy of ridding itself of all known and active union adherents on the flimsiest of pretexts. Balancing all of the above intangibles I find that the General Counsel has sustained his burden of proof and that Richard Hornyak was discharged in violation of the Act. 7. Case 8-CA-6577 The complaint alleges that in June, 1971, Respondent interrogated an employee concerning her union activity in violation of Section 8(a)(1) of the Act and that on or about August 18 Respondent terminated the employment of Bobbie Jean Chase because she had joined, assisted, favored, or become a member of the Union in violation of Section 8(a)(3) of the Act. Bobbie Jean Chase testified that she had worked for Respondent for a little more than 4 years "altogether" as a punch press operator, packer, sampler, and displayer (packing cartons for display in stores). For about the last 3 years she had acted as informer on union activity for Respondent at the request of Roseman and Hyde, supra.28 In April 1971, after having informed on her son and Odessa Austin she told Roseman she did not want to continue to act as an informer. Roseman's response was that he knew what fear was but that he would appreciate "if I had anything, to tell him," or to talk to Schwartz. On or about April 27 Chase signed an authorization card and gave cards to two or three girls. She went out on the picket line on June 3 and when she returned the next day (the strike lasted only I day) Hyde told her she was surprised to see her out there. Chase also testified that she had borrowed some money from Harry Schwartz in January and that on the day after the picketing Schwartz "cussed her out" and told her to get back on the street with the man she was out there with and let him pay her bills. Chase testified that prior to the picketing (dates not fixed) she was hospitalized for about I week and given light work when she returned. After the picketing she was given a job which, she stated, required her to do lifting work which was too strenuous in view of her back injury. On August 17 she took a doctor's (Dr. R. O. Cooks) slip to Hyde which requested that she be given light work. She was taken by Hyde to the front office where Schwartz told her sampling was the lightest work they had and asked her to tear up the doctor's slip. When she refused she was told she had no job and the next day she was given notice of her termination (G.C. Exh. 2-e).29 This letter read: Dear Mrs. Chase: Your employment has been terminated as of August 18, 1971, by reason of the medical report delivered to May Hyde and -shown to Harry Schwartz and Mr. Marvin Roseman on August 17, 1971, since there is no employment in the capacity requested presently availa- ble. Conclusions The case of Chase closely parallels that of Shirley Lowe. Both had served Respondent for a long period of time and in various capacities. Both had apparently been in favor with the Respondent until they appeared on the picket line. Both later suffered from injuries which required a transfer to lighter work then they were then performing. Both were summarily discharged when they presented medical re- quests for job transfers on the ground that no other jobs 28 In addition to her testimony as previously set forth Chase testified that told Hyde the union fellows were Pearl Johnson and Julie Boone either at the end of February or early March 1971 she was asked by Mary 29 Both the note from Dr Cook and the letter of discharge were received Hyde if she had heard anything about the Union and she told Hyde she had as G C Exh 2-e not Hyde then told her it was starting up again on the "press side" and she G & S METAL PRODUCTS COMPANY, INC. were available, although such transfers had been provided them in the past. Neither was given the option of taking sick leave pending their recovery although in neither case is there evidence that the recovery period would be of substantial duration. In Chase's case there is the additional evidence that Hyde expressed amazement at her appearance on the picket line and that Schwartz upbraided her for her participation. I doubt that further elaboration is required. I find that Respondent violated Section 8(a)(1) of the Act when Hyde asked Chase in March if she had heard anything about the Union. This was not a casual inquiry. It was an attempt to gain specific knowledge of union activity from an employee who was at that time acting as an informer for the Respondent. In these circumstances it constituted a direct invasion of the employees' rights as guaranteed by Section 7. I also find on the summary and chronology of the facts above set forth that Chase was terminated in violation of Section 8(a)(3) of the Act. 8. The race issue Race was not alleged in the complaint nor litigated at the hearing as a ground of discrimination nor as evidence of discrimination. Nevertheless, and for reasons which are hardly obscure, counsel for the General Counsel has seen fit to raise the racial issue in his brief to the Trial Examiner after Respondent has been foreclosed of all opportunity to defend against it. Starting with the last paragraph on page 10 and continuing on page I I of his brief counsel states: Two possible theories might explain the reason for Respondent's action in laying off the night shift. No doubt the night shift were either discriminatorily laid off or discriminatorily refused reemployment because of their suspected Union sympathies. A high propor- tion of blacks were employed on the night shift. The Union's organizers, the Evans brothers were black. All discriminatees who were employed on the night shift were black. All the Union's adherents discharged to the date of layoff and prior to the election were black.3 A widely held political belief among whites in this country supports the theory that blacks tend to block vote in favor of individuals of their own race. Thus the Respondent could easily identify Union supporters by utilizing racial criteria. Moreover, this theory explains Respondent's opposition to the voting eligibility of Fuller, Allan, Steplight and Smiley, all blacks. Bobbie Chase, Lowe and Hornyak, the only white discnmina- tees, were terminated long after the election.4 3 John Chase was white but was active on behalf of Laborers 860 4 The Employer was perhaps fostering a divisive racial climate prior to the election by discharging blacks and favoring whites John Chase, though white, was discharged long before the Union's campaign , began, and thus,i his; discharge does not weaken this argument. I think that Respondent is entitled to have the above quoted language stricken from the brief but he has not so, 30 The Board has shown commendable zeal in reprimanding its triall examiners for conduct which it characterizes as "injudicious," a phrase usually employed when the Board does not agree that language employed by an examiner is properly deferential to precedent 481 moved (see, however, TX Exh. 1). While the language and the argument have been disregarded in reaching decision, I do consider brief comment required so that it may not be thought that the Trial Examiner condones conduct on the part of counsel for the General Counsel so highly unprofes- sional. Let it be clear that my complaint is twofold. First, I regard the timeliness of the raising of the issue-after close of hearing and the taking of evidence-as a breach of professional ethics. Second, I believe counsel for the General Counsel has gone even further and has distorted the facts, or at least their relevancy to his argument, in his brief. The timeliness of his action is a matter of record and not subject to explanation or excuse. The Board may condone it, but if so, the familiar charge of respondents that there is one rule for the General Counsel and another for opposing counsel will find support more substantial than it has to date.30 The General Counsel could, of course, impose his own standards of conduct upon his attorneys in which case an examiner would not be confronted with a situation such as this. It is inconceivable that the office of the General Counsel approved the tactics employed here but the responsibility cannot be avaded. Turning to the substance of the General Counsel's argument based on race, the record does not support two of the statements he has made. There is nothing in the record to show what proportion of blacks were employed on the night shift, and there is nothing in the record to show that the night shift was discontinued because its employees were suspected of union activity. If the General Counsel had such evidence then all the employees on the shift should have been included in the complaint and not just six black employees.31 Is the General Counsel himself discriminating? The only tangible evidence I have found with respect to the night shift and the attitude of its employees toward the Union is that 25 percent were alleged to have been union card signers while the record of the plant, as evidenced by the vote, shows that 43 percent of the employees would designate the Union as their bargaining agent. The union activity of the six employees alleged to be discriminatees, as I have already found, was both minimal and covert. It is true that all the union adherents discharged prior to the layoff were black. The statement is technically true but nevertheless misleading. John Chase, white, was discharged almost directly after his union activity, albeit on behalf of another union, became known. Austin and Scales, black, were discharged almost directly after their activity on behalf of the Union became known. Only a desperate counsel could assert racial discrimination on those facts. It is true that Head and Smith, black, were discharged for reasons discriminatory within the meaning of the Act but, again, both were active in the Union's organizational campaign as committee members and solicitors. There is 31 While there is no evidence to show whether any of the other 18 members of the shift signed cards, one reasonable inference to be drawn is that all employees on the shift who signed were included in the complaint Why would six be included and others in the same group be excluded'' 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no evidence to show that any white employee was equally prominent with the possible exception of Lowe32 and there is no evidence that she was identified as a union adherent until she joined the picket line. She was later discharged for her union activity on a patent pretext. I do not find that date of her unlawful discharge showed favoritism toward whites. As to Hornyak and Chase, both were discharged after the election, but there is no evidence that either participat- ed in any union activity until the date of the strike or that they were adherents of the Union until that time.33 Chase, like the other discriminatees, was terminated on the flimiest of pretexts and I do not accept the arguments that she was favored because she was not fired sooner. It might be pointed out to the General Counsel if the preelection discharges showed discrimination against blacks then the postelection discharges showed an equal discrimination against whites. All three of the postelection discriminatees were white. The block voting argument has been refuted so often that, per se, it no longer has credibility. This "belief" has been expressed with respect to all ethnic as well as racial groups, including the Irish, the Polish, the Germans, the Jewish, the Mexican and, in Alaska, presumably the Eskimo. Evidence that an employer has suspected a particular ethnic group to be prounion and discriminated against it accordingly must be more substantial than the ipse dixit of the General Counsel. I have stated that the reasons for raising the issue are hardly obscure.34 Clearly it suggests to the Trial Examiner that he is exposing himself to possible charges of racial bias and prejudice if his findings are against the General Counsel. It is a ploy which, if not forthrightly condemned by the Board, may be extended to attack every credibility ruling by a trial examiner where the conflict in testimony is between a black and a white witness. The fact that the issue is sensitive is the more reason for meeting it. 9. Case 8-CA-8329 On June 7, 1971 an election was held among the employees of the Respondent in a unit described as: All production and maintenance employees, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. The Tally of Ballots issued after the election showed that 81 ballots were cast, of which 39 were cast against and 30 for the Petitioner (the Union herein). There were 12 challenged ballots, a number sufficient to effect the results of the election. The ballots of the following employees were challenged on the ground that their names did not appear on the list of eligible voters: Juanita Smith Marilyn McManus Fuller Gail Smiley Betty Graves Tina Scales Melissa Mack Lois Sears Mable Head Celia Steplight Mildred Steward 32 General Counsel states Lowe was white The Trial Examiner has no independent recollection of her color 33 For obvious reasons no employee was discharged, according to the record, between the strike, June 1, and the election of June I I Narvehe Johnson Aretha Allen On September 23, 1971, the Regional Director issued an order directing hearing on challenged ballots and ordered that the issues raised by the challenges to the ballots of the above-named employees be resolved at a hearing before a Trial Examiner and that said hearing be consolidated with the hearing in Cases 8-CA-6349, 6393, 6440-2, 6504, and 6538. The consolidated hearing has been held. In accordance with the findings herein, I find that Gail Smiley, Lois Sears, Celia Steplight, Narvilie Johnson, Marilyn McManus Fuller, Betty Graves, Melissa Mack, Mildred Steward, and Aretha Allen were not employees of Respondent on the date of the election and that the challenges to their ballots should be sustained. Since the ballots of the remaining challenged voters, Juanita Smith, Tina Scales, and Mable Head would not be sufficient to affect the results of the election, the results of the election should therefore be certified. It will accordingly be recommended that this case be severed and referred to the Board. Upon the foregoing findings and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By interrogating an employee concerning the union activity of other employees and asking her to inform it of such activity Respondent violated Section 8(a)(1) of the Act. 2. By terminating the employment of Odessa Austin, Tina Scales, Juanita Smith, Mable Head, Shirley Lowe, John W. Chase, Richard Hornyak, and Bobbie Jean Chase for the purpose of discouraging membership in a labor organization Respondent violated Section 8(a)(3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 4. Respondent, by terminating the employment of Marilyn McManus Fuller, Gail Smiley, Carrie Cain, Mildred Steward, Aretha Allen, Celia Steplight, Narvilie Johnson, Lois Sears, Betty Graves, and Melissa Mack did not violate Section 8(a)(3) or (1) of the Act. THE REMEDY Having found the Respondent has engaged in and is engaging in certain unfair labor practices it will be recommended that it cease and desist from the same and take certain affirmative action necessary to effectuate the policies of the Act. Having found the Respondent terminated the employment of Odessa Austin, Tina Scales, Juanita Smith, Mabel Head, Shirley Lowe, John W. Chase, Richard Hornyak and Bobbie Jean Chase in violation of Section 8(a)(3) of the Act it will be recommended that Respondent offer them full and immediate reinstatement 31 Counsel for the General Counsel was sufficiently competent to know that his racial argument is totally lacking in merit, which makes his conduct the more deplorable G & S METAL PRODUCTS COMPANY, INC. 483 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 for any loss of earnings or other monetary loss they may have suffered by reason of the discrimination practiced against them. Said losses shall be computed on a quarterly basis with interest at 6 percent per annum. Upon the foregoing findings and conclusions of law and upon the entire record in this case, I recommend, pursuant to Section 10(c) of the Act, issuance of the following: 35 ORDER Respondent, G & S Metal Products Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogatmg,any employee as to the union activity of any other employee or asking her to inform Respondent of such activity. (b) Terminating the employment of any employee or otherwise affecting the hire, tenure or condition of employment of any employee to discourage union activity. (c) In any other manner interfering with, restraining or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following action necessary to effectuate the policies of the Act: (a) Offer Odessa Austin, Tina Scales, Juanita Smith, Mabel Head, Shirley Lowe, John W. Chase, Richard Hornyak, and Bobbie Jean Chase full and immediate reinstatement to their formerjobs or, if such jobs no longer exist, to substantially equivalent positions, without preju- dice to the seniority and other rights and privileges and make them and each of them whole for any loss of earnings or other monetary loss they may have suffered by reason of the discrimination practiced against them in the manner set forth in The Remedy. (b) Notify any of the above-named employees, if presently serving in the Armed Forces of the United States, of his right to full and immediate reinstatement after application in accordance with the Selective Service Act, after discharge. (c) Preserve and, upon request, make available to the Board and its agents for examination and copying, all payroll records, social security records, timecards, person- nel records and reports, and all other records relevant and necessary to a determination of the amount of backpay due under the term of this recommended Order. (d) Post at its Cleveland, Ohio, plant copies of the attached notice marked "Appendix." 36 Copies of said notice on forms furnished by the Regional Director for Region 8, after being duly signed by Respondent, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.37 IT IS FURTHER RECOMMENDED that Case 8-RC-8239 be severed and that the National Labor Relations Board shall certify the results of the election in Case 8-RC-8239. IT IS FURTHER RECOMMENDED that the complaint, as to allegations not specifically found to be violations of the Act, shall be dismissed. 35 In the event no exceptions are filed to this recommended Order provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and the recommended Order herein, shall as provided in Sec 10(c) of the Act and in Sec 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 36 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 37 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 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "