Physical Sciences Corp.

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Physical Sciences Corporation and UBC, Local Union No. 144, affiliated with United Brotherhood of Car- penters and Joiners of America, AFL-CIO. Cases 1O-CA-9258 and 10-CA-9258-2 September 21, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 16, 1972, Trial Examiner Alvin Lieber- man issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief, and General Counsel filed cross-excep- tions and a supporting brief, to which Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the 'Trial Examiner's Decision in light of the exceptions, cross-exceptions, and briefs, and has decided to af- firm the Trial Examiner's rulings, findings,' and con- clusions but only to the extent consistent herewith. 1. The Trial Examiner found that Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by dis- charging employees Charles Padgett and Gene Hane. He further found that the General Counsel had not sustained his burden of proving the allegation that Supervisor Emmett interrogated employees in viola- tion of Section 8(a)(1) of the Act .2 2. The Trial Examiner found, and we agree, that Supervisor Cranford's conversation with employee Jewell was not violative of Section 8(a)(1). However, we base this finding solely upon the fact that either version 3 of Cranford's remark was nothing more than a request for clarification of a rumor regarding the purported reason for the discharge of Hane, a close friend of Jewell, and that Jewell replied that he did not know why Hane was released. Furthermore, we do i 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 preponder- ance 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 As no exceptions were taken to these findings,-we hereby adopt them pro forma 3 Jewell testified first that Cranford "asked [him], he said that he heard that Gene Hane got fired on account of trying to start a union " He later testified that Cranford "told" him that he had heard Hane got fired for trying to start a union The Trial Examiner did not determine which version-"asked" or "told"-was spoken by Cranford not rely on the Trial Examiner's conclusion that the second version of Cranford's comment was not an unlawful threat because it was made by "a low level supervisor." Accordingly, for these reasons we shall dismiss this allegation of the complaint. 3. The Trial Examiner found that Supervisor Emmett's comment concerning the elimination of part-time or overtime work should employees become members of a union did not constitute a threat in violation of Section 8(a)(1) of the Act. We do not agree. On October 13, 1971, the day following the distri- bution of union literature and cards at Respondent's gate, as Supervisor Emmett entered the shop, an em- ployee called him to the work table and asked what he thought about the Union. Emmett replied that as a representative of the Employer he could not discuss the Union with the employees, but he added that if the employees were in a union they would be unable to work part-time or overtime. The Trial Examiner found that by his answer Emmett effectively disassociated Respondent from responsibility for his statement. However, Emmett's mere assertion that as a supervisor he was not allowed to discuss the Union, followed immediately by the comment concerning overtime does not lessen the im- pact of the remark made by Emmett or absolve Re- spondent of responsibility for it. Furthermore, Emmett's remark was not couched in terms of an opinion, nor did Emmett designate it as such.4 We find, therefore, that Emmett's comment constituted a threat that Respondent would eliminate part-time or overtime work if the employees joined a union, which violated Section 8(a)(1) of the Act. 4. The Trial Examiner found that Respondent discharged India Sturkey because of her prounion at- titude in violation of Section 8(a)(3) and (1) of the Act. We disagree. Sturkey, who had experienced two periods of ab- sence from work for medical treatment due to an injury she had received on her first day in Respondent's employ, came back to work and was assigned to Supervisor Emmett on September 21, 1971. From her return to work until her discharge on October 13, as the Trial Examiner found, Sturkey exhibited many work faults, such as, loafing when she should have been working and returning late from rest and lunch breaks. As a result of her inefficient perfor- mance, much of Sturkey's work failed to pass inspec- tion and had to be redone. Emmett corrected her on numerous occasions, and on the morning of October ° In Folger Coffee Company, 188 NLRB No 22, relied on by the Trial Examiner, the supervisor's answer contained its own disavowal of respon- sibility, and by emphasizing that he "didn 't know," the supervisor was obvi- ously expressing his own opinion 199 NLRB No. 27 PHYSICAL SCIENCES CORPORATION 13, before the incident described in paragraph 3, above, he told her that her work had not improved and that she would not receive another warning. Sturkey was present at the table later that morn- ing when Emmett remarked that if the employees were in a union they would not be able to work part- time or overtime. Sturkey replied that "that wasn't true because her husband on his job was union and worked part-time and overtime." Later that same afternoon, after having given Sturkey her final warning, Emmett found that Sturkey's work had not improved and was still being rejected by the inspector because of mistakes. He then discharged Sturkey, telling her that her employment was being terminated because "her quality of work had not improved and [he] did not feel that she was adaptable to that type of work." While finding that Sturkey was, in fact, a poor employee, the Trial Examiner concluded that such was not the reason for her discharge. Relying upon Sturkey's lone remark in reply to Emmett's statement, the Trial Examiner found that Respondent had knowledge of Sturkey's "prounion attitude and prob- able support of the Union." He further found that the timing of Sturkey's discharge, a short time after her manifestation of approval of unions, and the relative- ly long period during which Respondent permitted her to work in spite of her known deficiencies, were persuasive evidence of discriminatory motivation. We do not agree with the Trial Examiner's con- clusion. As noted above, Sturkey had received several warnings previously concerning her work; yet, despite a final warning on the day of her discharge, she con- tinued to submit faulty work that afternoon. Given Sturkey's inadequate work record, we do not infer, as did the Trial Examiner, discriminatory motive either on the basis of Sturkey's contradicting Emmett's com- ment concerning the loss of overtime or part-time work, or because of the timing of the discharge in relation to that incident. In our view, contrary to the Trial Examiner's finding, Sturkey's remark to Emmett does not necessarily reflect a "sympathetic attitude toward unions";5 rather, Sturkey merely described her personal knowledge of her husband's work situation in direct reply to Emmett's comment. Furthermore, unlike the Trial Examiner, we do not find that 3 weeks is a "relatively long period" for Respondent to have suffered Sturkey's defects, particularly in light of the fact that her difficulties were in part initially caused by an injury which she sustained at work. We conclude, therefore, from the above, that Sturkey was lawfully discharged because of her poor employment record, after her supervisor had correct- 5 Member Jenkins does not subscribe to his colleagues ' evaluation of Sturkey's remark 203 ed her on numerous occasions and had given her a final warning. Accordingly, we shall dismiss this alle- gation of the complaint. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. AMENDED CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by threatening elimination of part-time or overtime work if the employees joined a union. 4. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging Charles Padgett, Gene Hane, and India Sturkey. 5. The unfair labor practices engaged in by Re- spondent as set forth in Conclusion of Law 3 affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Phys- ical Sciences Corporation, Macon, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in UBC, Local Union No. 144, affiliated with United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by threatening to eliminate part-time or overtime work if the employees join a union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guar- anteed in Section 7 of the National Labor Relations Act, as amended, or to refrain from any or all such activities. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its premises copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 10 of the National Labor Relations Board, after being duly signed by Respondent's authorized representa- tive, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. 6 In the event that this 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 " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive 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, Room 701, Peachtree Building, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Tele- phone 404-526-5760. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial Examiner: The trial in this proceeding,' with all parties represented, was held before me in Macon, Georgia, on January 13, 14, and 19, 1972, upon the General Counsel's complaint dated December 9, 1971,2 and Respondent's answer.3 In general, the issues lit- igated were whether Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (the Act). Particularly, the principal questions for decision are as follows: 1. Did Respondent violate Section 8(a)(1) of the Act by threatening employees and interrogating them concerning their activities in support of UBC, Local Union No. 144, affiliated with United Brotherhood of Carpenters and Join- ers of America (the Union)? 2. Did Respondent violate Section 8(a)(3) of the Act by discharging three employees: Charles Padgett, Gene Hane, and India Sturkey?4 Upon the entire record,5 upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the briefs submitted,' I make the following: FINDINGS OF FACT 7 After a trial in which all parties had the opportunity to present their evidence , the National Labor Rela- tions Board has found that we violated the law and has ordered us to post this notice and we intend to carry out the order of the Board, and abide by the following: WE WILL NOT threaten to eliminate part-time or overtime work if you join a union. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act. PHYSICAL SCIENCES CORPORATION (Employer) Dated By (Representative) (Title) I JURISDICTION Respondent, a Georgia corporation, is engaged in Ma- con, Georgia, in the manufacture and sale of armament ' The caption of this proceeding, as set forth above, conforms to its amendment at the trial 2 The complaint was issued pursuant to charges filed on October 26 and 27, 1971, by UBC, Local Union No 144 3 During the trial pars 2 and 3 of the answer were amended to admit, respectively, the allegations of pars 5 and 6 of the complaint At the end of the General Counsel's case -in-chief I dismissed the com- plaint insofar as it alleges that two other employees, Cathelia Jackson and Julia Watkins, were also discharged in violation of Sec 8(a)(3) of the Act In his brief the General Counsel urges me to reconsider this matter. Having done so, I adhere to my original ruling. 5 Issued simultaneously is a separate order correcting obvious inadvertent errors in the stenographic transcript of this proceeding. 6 Although all the arguments of the parties and the authorities cited by them, whether appearing in their brief or made orally at the trial , may not be discussed in this Decision, each has been carefully weighed and consid- ered 7 Respondent's motion made at the conclusion of the trial, upon which decision was reserved , is disposed of in accordance with the findings and conclusions set forth in this Decision. PHYSICAL SCIENCES CORPORATION 205 systems. During 1970, a representative period, Respondent purchased and received goods and materials valued at more than $50,000 from suppliers located outside the State of Georgia. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the asser- tion of jurisdiction over this matter by the National Labor Relations Board (the Board) is warranted. Siemons Mailing Service, 122 NLRB 81, 85. 11 THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Force (Air Force), Respondent, at all material times, has been engaged in manufacturing bomb racks. Among their components are housings which are fabricated in Respondent's sheetmetal shop and painted in its paint de- partment.12 Stationed in Respondent's plant are government in- spectors whose function, among other things, is to make certain that the contract requirements as to quality of prod- uct are met. Should they determine, upon examination of the material manufactured by Respondent, that this is not being done, the government inspectors have authority to declare Respondent in default of its obligations under its Air Force contract and to impose appropriate sanctions, including the cancellation of the contract. III INTRODUCTION Briefly, this case concerns itself with events which occurred while the Union was seeking to organize Respondent's employees. Included among these, the com- plaint alleges, were violations of Section 8(a)(1) of the Act by Respondent 8 and its discharge of three employees, con- tended by the General Counsel to have been in contraven- tion of Section 8(a)(3).1° Respondent denies the complaint's allegations that it violated Section' 8(a)(1) of the Act. Admitting the dis- charges, Respondent asserts that Charles Padgett and Gene Hane were dismissed for lack of work, and that the termina- tion of India Sturkey's employment was caused by her poor work habits and inefficiency. Respondent argues, accord- ingly, that it did not violate Section 8(a)(3). IV. PRELIMINARY FINDINGS I I A. Respondent's Operations 1. Respondent's contract with the United States Air Force Pursuant to a contract with the United States Air Force 6 The nature of these claimed violations appears above in my statement of the principal questions for decision. 9 The Union made no opening statement at the trial, nor did it submit a brief I assume, however, that its position is the same as the General Counsel's 10 In pertinent part these sections provide- Sec 8(a) It shall be an unfair labor practice for an employer- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7, (3) by discrimination in regard to hire or tenure of employment to encourage or discourage membership in any labor orga- nization ... Sec 7, insofar as relevant , states: Sec 7 Employees shall have the right to self-organization, to form, loin, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection .. . 11 The purpose of these findings is to furnish a frame of reference within 2. Respondent's method of ordering paint Respondent began work under its contract with the Air Force in the spring of 1971. At that time Respondent estimated the amount of a particular type of first-coat paint needed for all the bomb racks to be produced and placed an order for the entire quantity with Eagle Bridges Paint Company (Eagle Bridges), which like Respondent was lo- cated in Macon. Because the paint involved was volatile and composed of special ingredients, some of which were explosive, Re- spondent arranged with Eagle Bridges to deliver it in install- ments as needed. Under this system when Eagle Bridges received a requisition for paint from Respondent it would manufacture the amount called for and usually deliver it within a few days. 3. Respondent's paint department and its supervisor During the summer of 1971, after working for Respon- dent in other capacities, Earl Bennett became the supervisor of the paint department. His usual working hours, as super- visor, corresponded to Respondent's first shift, which ended at 4 p.m. On September 14, 1971,13 the supply of first coat paint began to run low. Bennett brought this to the attention of Respondent's director of purchasing who placed an order for 120 gallons with Eagle Bridges. As it happened, howev- er, Eagle Bridges did not have on hand all the special ingre- dients necessary to manufacture this type of paint. Accordingly, instead of complying with its usual custom of which to consider the facts relating to Respondent 's alleged unfair labor practices and the conclusions to which they may give rise. To the extent that the contentions of the parties relate specifically to the findings made here they will be treated here, although they, as well as the findings , may again be considered in other contexts. 12 One of the alleged discriminatees, India Sturkey, worked in the sheetme- tal shop. The other two, Charles Padgett and Gene Hane, worked in the paint department. 3 All dates hereinafter mentioned without stating a year fall within 1971. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making delivery within a few days of receiving a requisition for the kind of paint in question, Eagle Budges delivered 61 gallons on October 12 and the remainder on October 16. In the meanwhile, on September 28 Respondent's supply of first-coat paint became completely exhausted. Robert Borders, Respondent's president, ascribed the absence of first-coat paint between September 28 and Octo- ber 12 to mismanagement by Bennett, the supervisor of the paint department. Borders also attributed to mismanage- ment by Bennett the quality of the work being done in the paint department which, he had been informed by the gov- ernment inspectors, was poor. In the latter connection, Borders testified that while Bennett was the supervisor of the paint department "the government [inspectors] made a big issue out of the poor workmanship that was being done." Borders further testi- fied, in this regard, that the inspectors "put [him] on notice that [he] either correct the deficiencies and turn out paint work that was acceptable according to the specifications [of Respondent's contract with the Air Force] or they would refuse to let [Respondent] ship any merchandise [which would be] cause for default on the entire contract." To rectify the situation Borders, himself, assumed the overall supervision of the paint department on October 15. Upon being informed of this Bennett quit his employment with Respondent. Among his reasons for resigning, Bennett testified, were his failure to obtain "the cooperation [he] needed"; his feeling at the time that he "had no future with the company"; and his having gotten "a little bit mad with Mr. Borders." Bennett remained out of work from the time of his resignation until about December 1. On or about November I, Borders, Respondent's president, asked Bennett whether he would like a position with Advanced Peripheral Systems, Corporation (A.P.S.A.C.), a corporation which had recently been organized by people who had formerly worked for Respondent. Bennett having expressed interest, Borders recommended him to A.P.S.A.C. for employment and, on or about December 1, Bennett was hired by that concern as a salesman. B. The Union's Organizing Campaign The Union began its organizational efforts among Respondent's employees in September 1971. During that month the Union's representative, R. H. Lovelady, visited the home of Charles Padgett and Gene Hane,14 and there talked with them about the Union. For the same purpose Lovelady also visited other employees, some of whose names he received from Padgett, at their homes. On October 4, 1971, Padgett and Hane signed cards at their home authorizing the Union to act as their collective- bargaining agent. At the same time Lovelady gave Padgett additional cards for distribution to other employees. Love- lady instructed Padgett as to the manner in which this should be done. In this connection, as Lovelady testified, he told Padgett not to contact employees "on company time"; to talk only with employees who seemed to be interested in 14 Hane is Padgett's stepson Both live in the same house Their discharge by Respondent on October 6,197 1, is alleged in the complaint as having been violative of Sec 8(a)(3) of the Act the Union; and not to talk to any employees "in the pres- ence of any supervisors." In apparent conformity with these instructions Padgett spoke to just one employee about signing a card. He did this during the morning rest break on October 6, about an hour before his discharge. The only other organizing activity carried on by the Union consisted of its distribution of literature and authori- zation cards at Respondent's plant during the afternoon of October 12. V THE ALLEGED UNFAIR LABOR PRACTICES A. Facts and Contentions Concerning Respondent's Alleged 8(a)(3) Violations by Discharging Padgett and Hane and Related Events Alleged To Be 8(a)(1) Violations 1. The discharges Charles Padgett and Gene Hane, Padgett's stepson, worked in Respondent's paint department. They were dis- charged on October 6, 1971. The General Counsel contends that the discharges were violative of Section 8(a)(3) of the Act. Respondent asserts that the termination of the employ- ment of Padgett and Hane was occasioned solely by the lack of work in the paint department resulting from the complete absence of first-coat paint after September 28. a. Respondent's evidence cncerhing the discharge of Padgett and Hane 5 On Saturday, October 2, 1971, conferences were held among Williams, Michael Romans, Respondent's director of manufacturing, and Earl Bennett, then supervisor of the paint department. The purpose of these meetings was to decide upon the steps to be taken in view of the exhaustion of the supply of first-coat paint. The conferees discussed "the possibility of letting some people go out of the paint department" and it was tentative- ly decided that this should be done. Although no particular employees were selected for dismissal in the event of an ultimate determination to follow that course, Williams men- tioned that he had seen Padgett loafing when he should have been working and that on occasion he had not seen Hane in the paint department when he should have been there. 15 Joel Williams, Respondent's production manager, was its principal wit- ness insofar as this branch of the case is concerned What is here recounted is in accordance with, and the quotations are taken from, Williams' testimo- ny Although the evidence given by Williams appeared to have the ring of truth, nothing set forth in the text should be construed as a finding that the events described actually occurred As appears below, I have rejected as being unworthy of belief the evidence adduced by the General Counsel to establish that Padgett and Hane were discharged because of their union activity In view of this it is unnecessary to make findings based on Williams' testimony in support of Respondent's contrary position. " Management can discharge for good cause, or bad cause, or no cause at all It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification . it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids " N L R B v. McGahey et a!, 233 F.2d 406, 413 (C A 5) It is well settled that it is incumbent upon the General Counsel to prove by credible evidence that an employer' s "real motivating purpose" in discharging an employee falls within the proscription of Sec 8(a)(3) of the Act Absent such proof, findings as to some other reason for a discharge need not be made PHYSICAL SCIENCES CORPORATION Concurring with Williams concerning Padgett's lack of in- dustry, Bennett said "he wanted to let [Padgett] go," as well as some women because in Bennett's opinion "they were not doing a good job." On the following Monday or Tuesday, October 4 or 5, a decision was finally made to dismiss Padgett, Hane, and two other paint department employees. The latter were the women mentioned by Bennett the previous Saturday. The decision to terminate the employment of Padgett, Hane, and the other two employees was implemented on Tuesday, October 6. About 10:30 a.m. on that day Bennett, accompanied by Williams, Respondent's production man- ager, called the four employees out of the paint department and told them "they were being laid off for lack of work." To "let [the employees] down more diplomatically" Wil- liams added that Respondent was "considering automating the paint department." b. The General Counsel's evidence concerning the discharge discharge of Padgett and Hane 6 During the evening of Tuesday, October 5, 1971, Ben- nett, while at home, received a telephone call from Frank Borders, Respondent's director of purchasing and the son of Robert Borders, Respondent's president. Frank Borders asked Bennett to return to Respondent's plant. 17 Bennett complied with this request. Upon his arrival at the plant Bennett was informed by Robert Borders that "an anonymous ... white lady" had called him on the telephone and had told him that "Charles [Padgett] was at her house using strong arm tactics to have her sign one of these union cards." Bennett asked what Borders "wanted [him] to do about it." Borders replied "we are not going to do anything right at present. We'll find out more about it tomorrow morning ... and we will make a decision then." At about 10 a.m. the next day, October 6, Robert Bor- ders inquired as to whether Bennett "had found out any more about [their] previous conversation." Receiving Bennett's negative answer, Borders directed Bennett to dis- charge Padgett. Being told by Bennett that if Padgett were discharged Hane, his stepson, would quit, Borders ordered Bennett to discharge Hane also and tell them both that their employment was being terminated for "lack of work."Is Some 30 minutes later Bennett, accompanied by Joel Williams, Respondent's production manager, called Pad- gett and Hane out of the paint department and told them that they were being dismissed "for lack of work" and that "automation was coming in to the paint shop." Also pur- suant to instructions from Borders, Bennett, at the same time, discharged 2 women employees who, Borders thought, had been engaged in "hanky-panky" with a former supervi- 16 Just as Joel Williams was Respondent's principal witness concerning this branch of the case, Earl Bennett, formerly the supervisor of Respondent's paint department, was the General Counsel's corresponding chief witness What is stated here is in accordance with, and the quotations are taken from, his testimony 17 Frank Borders denied making this call 18 Robert Borders denied receiving a telephone call from anyone com- plaining about Padgett's use of "strong arm tactics" in connection with the signing of a union card, denied telling Bennett that he had received such a telephone call, and denied ordering Bennett to discharge Padgett and Hane sor. 207 2. Bennett's pretrial statement and affidavit On October 21, 1971, 6 days after his resignation from Respondent's employ, Bennett, at the request of R. H. Love- lady, the Union's representative, signed an unsworn state- ment 19 (herein called the union statement) containing the gist of the testimony he later gave at the trial. A week later, on October 28, Bennett made an affidavit,20 sworn to before an agent of the Board (herein called the Board affidavit), to the same effect. Both documents were executed while Ben- nett was without employment, after he had unsuccessfully sought employment, and before his conversation with Rob- ert Borders, Respondent's president, concerning a position with A.P.S.A.C. 1 In this connection, Bennett testified that when Lovelady asked him to make the union statement Lovelady told him that if he did so he would receive assis- tance in obtaining a job. Before making the union statement Bennett telephoned Frank Borders, Respondent's director of purchasing and the son of its president. As Borders testified, Bennett told him that "some people from the Union ... wanted him to sign a statement saying that the people [including Padgett and Hane] were laid off because of Union activities," but that he would not do this because "in fact he knew that the people were laid off because of lack of work," and that he intended to sign a statement saying so. A few days later Bennett again called Frank Borders. This time, as Borders further testified, Bennett informed Borders that he had signed a statement at the union hall "saying that the people were laid off for lack of work." Bennett then told Borders that "he was still out of work" and asked him whether he needed "any help in the paint shop." In contrast to Frank Borders' clear, concise, and lucid description of his telephone conversations with Bennett concerning the union statement, Bennett's testimony on the same subject was most confusing and in several respects self-contradictory. Thus, to point out only a few examples of the foregoing, at one point Bennett said that he made only one call to Borders and at another point he said he made two calls. At one point he said that he talked to Borders about the Board affidavit and at another point he said he talked about the union statement. At one point Bennett said that he told Borders during the first telephone conversation that he would say in the union statement that the discharges were for lack of work and at another point he said that the reason for the discharges was never dis- cussed during the telephone conversations, but that this discussion was had while he was still working for Respon- dent; this, even though at an earlier time Bennett testified that Lovelady, the Union's representative, did not ask him for a statement concerning the discharges until after he left Respondent's employ. To confound the matter still further, Bennett finally testified that he never had any discussion with Borders concerning what he would say in the union statement. 19 Respondent's Exhibit (Resp Exh) 8 20 Resp Exh 9 21 It will be remembered that Bennett's conversation with Borders regard- ing employment with A P S A C occurred on about November 1. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The retraction letter On November 17, 1971, apparently while negotiations between Robert Borders, Respondent's president, and A.P. S.A.C. concerning the latter's hiring Bennett were in prog- ress, Bennett sought to retract his Board affidavit 22 In a letter 23 to this end (herein referred to as the retraction let- ter), written by Bennett to the Board agent before whom the affidavit was executed, Bennett stated that he "wish[ed] . . . to retract [his] statement because ... it is detrimental to [Respondent] ... and [that he] was under duress from Mr. R. H. Lovelady [the Union's Representa- tive] at the time of said statement." Bennett further wrote that when he made the affidavit his "personal feelings to- ward [his] future with [Respondent] prejudiced [his] state- ment and exaggerated certain things [he] said in the statement ...." The final paragraph of Bennett' s letter is as follows: On the day of the hearing, with your office, NLRB, I was entertained by Mr. Lovelady for lunch. We had lunch at Grmnin' s Bar-B-Que and then re- turned to the office for my statement. At this time, I had no knowledge the [sic] consequences involving this case. At this time after my statement, I was handed one five dollar bill by Mr. Lovelady. He said this is not payment enough so don't let anyone whatsoever know that this transaction came about. At the time, Mr. Lo- velady did not know that my feelings lie with Physical Sciences Corporation. Bennett reiterated on the witness stand the statements contained in his retraction letter concerning the payment he received from Lovelady after making the affidavit and his prejudice and personal feeling toward Respondent when he made it.24 Concerning the latter, Bennett stated at the trial that he was not then prejudiced against Respondent.25 Notwithstanding the content of the letter written by Bennett seeking the retraction of his Board affidavit con- cerning the duress he was under when he made it, the exag- gerations it contained, and his prejudice and personal feelings against Respondent when it was executed, Bennett testified that he did not attempt to retract the affidavit because it was "untrue [but] because [he] just did not want to get involved." 4. The acceptability of Bennett's testimony Bennett's testimony concerning the discharge of Pad- gett and Hane tracks what appears in his Board affidavit which, in turn, is similar to what appears in his union state- ment. Upon consideration of the circumstances surround- ing Bennett's execution of the union statement and his Board affidavit, as set forth in his retraction letter,26 I con- 22 As I have noted , Bennett's Board affidavit contained the gist of the testimony he gave at the trial concerning the discharge of Padgett and Hane 23 Resp. Exh. 10 24 As was typical of Bennett's testimony , in almost his very next breath he denied having "feelings of prejudice and personal reasons for giving the statement." 25 Bennett's testimony in this regard was given on January 13, 1972, some 6 weeks after he started to work for A P S.A.C. 26 Bennett's letter has great probative value. It is, basically, a declaration against his interest On well-settled principles, therefore, it can be taken as true. clude that they as well as his testimony are a tissue of lies and that Bennett is an opportunist who has a greater regard for his self-interest than he has for the truth. Thus, as Bennett wrote in his letter seeking to retract his Board affidavit, when he executed the affidavit "duress" was being exerted upon him by Lovelady, the Union's rep- resentative27 The letter further discloses that the affidavit was a product of Bennett's prejudice against Respondent for having removed him as supervisor of its paint depart- ment. This prejudice, as the letter goes on to state, resulted in Bennett's having "exaggerated certain things" in the affi- davit. Although the letter does not explicate what was exag- gerated it clearly has reference to Bennett's story as to the circumstances under which Padgett and Hane were dis- charged28 The capstone to this entire matter, as is also disclosed by Bennett's retraction letter, is that his affidavit, containing the substance of his testimony at the trial con- cerning the discharge of Padgett and Hane, was bought and paid for by Lovelady. That Bennett's prejudice against Respondent had evaporated at the time of the trial is understandable. Ben- nett was then already in the job which had been obtained for him with A.P.S.A.C. by Robert Borders, Respondent's president. Notwithstanding Bennett's testimony as to his reason for writing the retraction letter, stated by Bennett to be his desire not to become involved in this proceeding,29 he did become involved. He was called as a witness by the General Counsel. Testifying under oath, Bennett could not very well ad- mit what the retraction letter clearly indicated; i.e., that his affidavit, containing the substance of his testimony con- cerning the discharge of Padgett and Hane, was a complete fabrication. Had Bennett done so he would have laid him- self open to prosecution for perjury. Accordingly, Bennett's testimony regarding the reason for Respondent's discharge of Padgett and Hane is rejected as being unworthy of belief. In arriving at this conclusion I rely not only on Bennett's retraction letter, the material portions of which Bennett reiterated at the trial, but also upon his confusing and self-contradictory testimony con- cerning his telephone conversations with Frank Borders, Respondent's director of purchasing, relating to his execu- tion of the union statement and Bennett's obvious oppor- tunism which seemed to color his every action in connection with this matter. 5. The Cranford-Jewell conversation Until October 15, 1971, on which day his employment with Respondent was terminated for "lack of work,"" Kai- 27 The nature of the duress is not made apparent in the letter . What is clear, however, is that a week before the affidavit 's execution Lovelady, the Union's representative, offered to assist Bennett in obtaining employment in exchange for his signing the union statement. 28 To "exaggerate" is defined in the American College Dictionary, pub- lished by Random House, as "to magnify beyond the limits of truth " See also to the same effect, Webster's Third New International Dictionary. 29 If this is to be construed as an attempt by Bennett to give the lie to the retraction letter, it is a weak reed , indeed, with which to ward off the letter's strong language 30 G C Exh. 8. PHYSICAL SCIENCES CORPORATION ser Cranford was a foreman in Respondent's paint depart- ment. He worked on the second shift as did Grover Jewell, an employee, who was married to Gene Hane's sister on December 17. Jewell quit his job with Respondent on Octo- ber 15. On October 8 Jewell and Cranford had a conversation relating to Hane's discharge. Jewell originally testified that Cranford "walked up to me and asked me, he said that he heard that Gene Hane got fired on account of trying to start a union." Upon the continuation of his examination on the same subject Jewell substituted the words "told me" for "asked me, he said" and added that his reply to Cranford was "I don't know." The General Counsel contends that Cranford's state- ment to Jewell constituted a threat that Respondent would discharge employees for engaging in union activity. As such, the General Counsel further argues, it was violative of Sec- tion 8(a)(1) of the Act. B. Concluding Findings Concerning Respondent's Alleged 8(a)(3) Violations by Discharging Padgett and Hane and Alleged 8(a)(1) Violations Resulting From the Cranford Jewell Conversation 1. The Cranford-Jewell conversation If the first version of Cranford's statement given by Jewell is correct, it was, as indicated by Jewell's reply, mere- ly an innocuous request for information by Cranford as to the reason for Hane's discharge from a person about to marry Hane's sister, and therefore, seemingly, in, a position to know. If Jewell's second version of the statement made to him by Cranford is correct, it was, indeed, a threat to discharge employees for engaging in union activity. But it was a threat by a low-level supervisor not shown by the evidence to be empowered to effectuate it. This being so, it cannot be held to have been violative of Section 8(a)(1) of the Act. Dixie Cup, etc., 157 NLRB 167,168,204; cf. N.L.R.B. v. Nabors, etc., 196 F.2d 272, 276 (C.A. 5), cert. denied 344 U.S. 865. In view of my conclusion in this regard I will recommend the dismissal of paragraph 9 and the related portions of paragraph 13 of the complaint. 2. The discharge of Padgett and Hane The General Counsel does not contend that Cranford's statement to Jewell constituted an admission by Respondent that it discharged Padgett and Hane for engag- ing in union activity, nor do I construe it as such 3I Accord- ingly, to find that Padgett and Hane were discharged for this reason reliance would have to be placed on the testimo- ny given by Earl Bennett, formerly the supervisor of Respondent's paint department. Having rejected Bennett's testimony as being unworthy 31 On brief the General Counsel points out that "the record does not reflect [Cranford's] source of information on this point" He speculates , however, that Bennett "was the source." If Bennett was, indeed, the "source" then Cranford's statement suffers from the same infirmities as Bennett's testimo- ny. 209 of belief and there being no other probative evidence in the record to establish that Padgett and Hane were discharged because they supported the Union, I conclude that the Gen- eral Counsel has not sustained his burden of proving that Respondent discharged Padgett and Hane in violation of Section 8(a)(3) of the Act. Accordingly, I shall recommend that paragraphs 11 and 12 of the complaint be dismissed insofar as they relate to Padgett and Hane. C. Facts Concerning Respondent's Alleged 8(a)(3) Violations by Discharging Sturkey and Related Events Alleged To Be 8(a)(1) Violations 1. Sturkey's discharge and Emmett's remark concerning part-time and overtime work India Sturkey began to work for Respondent on July 21, 1971.On the first day of her employment she was injured while operating a machine necessitating her absence from Respondent's plant for medical treatment during two sep- arate intervals of substantial duration. About September 21, upon her return after her second absence, Sturkey was as- signed to Respondent's sheetmetal shop where she worked at a table with some six other employees. Sturkey was dis- charged on October 13. From the time of her return to work on September 21 until her discharge on October 13 Sturkey exhibited many faults. She loafed while she should have been working. She was often late in returning from rest and lunch breaks. She performed her duties in an inefficient manner for which reason much of the work she turned out failed to pass in- spection and had to be redone. Sturkey's poor work habits and other deficiencies came to Respondent's attention soon after September 21. As Rob- ert Emmett, the sheetmetal shop supervisor testified he dis- cussed her poor work and work habits with Sturkey and "corrected her ... on numerous occasions ... maybe once every other day." As I set forth in an earlier portion of this Decision, in the afternoon of October 12 the Union distributed literature and authorization cards at Respondent's plant. The next morning this became the subject of much conversation among employees in the sheetmetal shop. Shortly before lunchtime on October 13, while the em- ployees were still talking about the union literature and cards which had been passed out the previous day, Emmett, the sheetmetal shop supervisor, entered the shop. An em- ployee called him to the table at which Sturkey and other employees, including Rose Dinkens, were working and 'asked him what he thought about the Union and the cards which the Union had distributed. Emmett replied that as a representative of management he was prohibited from dis- cussing the Union with employees. Nevertheless, he re- marked that if employees were in a union they would be unable to work part-time or overtime. At this point, while Emmett was still at the table, Sturkey interjected that what Emmett had said "was a story ... that wasn't true because her husband on his job was union and worked part-time and overtime. "32 32 My findings concerning Emmett's remark as to part- time and overtime 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later that day, October 13, about 3:45 p.m. Emmett summoned Sturkey to his office and there discharged her. At that time Emmett told Sturkey, as he testified, that her employment was being terminated because "her quality of work had not improved and [he] did not feel that she was adaptable to that type of work." 2. The interrogation The complaint alleges that on October 13, 1971, Em- mett, the supervisor of the sheetmetal shop, interrogated employees concerning the Union. In support of this allega- tion India Sturkey testified that Emmett preceded his re- mark about the elimination of part-time or overtime work, described in detail above, by asking the employees at her table whether they had received authorization cards the previous day and whether they "had ... filled them out and sent them in." Four employees working at the table with Sturkey at the time were called as witnesses. None, including Rose Dinkens, upon whose credibility, as I have already indica- ted, I place great store, testified that Emmett asked the questions attributed to him by Sturkey. There being, thus, an absence of corroborative evi- dence on this point from witnesses who were in a position to offer it, I conclude that the General Counsel has not sustained his burden of proving Emmett's interrogation of employees. Accordingly, I will recommend the dismissal of paragraph 8 and the related portion of paragraph 13 of the complaint. D. Contentions and Concluding Findings Concerning Respondent's Alleged Unfair Labor Practices in Connection With Sturkey's Discharge The complaint alleges that the comment dealing with the discontinuance of part-time or overtime work made by Emmett, the supervisor of the sheetmetal shop, and the discharge of India Sturkey several hours later were unfair labor practices. For convenience each will be discussed sep- arately. 1. Emmett's comment The General Counsel contends that Emmett's com- ment concerning the elimination of part-time or overtime work should employees become members of a union consti- tuted a threat violative of Section 8(a)(1) of the Act on Respondent's part. I do not agree. Emmett's comment was made during a conversation with employees which they initiated by asking him what he work and Sturkey's response are based on, and the quotations appearing in the text are taken from, testimony given by Rose Dmkens and upon Sturkey's testimony insofar as it was corroborated by Dinkens' In crediting Dinkens I have taken into account her excellent demeanor on the witness stand as well as the fact that because of her employment by Respondent at the time of the trial her testimony, seemingly adverse to Respondent, was in a sense contrary to her interest and for this reason not likely to be false Georgia Rug Mill, 131 NLRB 1304, 1305, modified on other grounds 308 F 2d 89 (C A 5) Accordingly, the evidence given by Emmett is not credited to the extent that it differed from Dinkens' thought about the Union. His answer was that as a repre- sentative of Respondent he could not discuss the Union with them . In this manner Emmett effectively disassociated Respondent from what followed . Emmett then went on to say what he, personally and not as a representative of Re- spondent, thought would eventuate if employees joined a union-that they would not be able to work part-time or overtime. I do not construe Emmett's remark as a threat that Respondent would eliminate part-time or overtime work if the employeesjoined a union . It was merely his opinion that this would be the result of their doing so, given at their request. Cf. Folger Coffee Company, 188 NLRB No. 22. I conclude, therefore, that Emmett's comment was not a threat violative of Section 8(a)(1) of the Act . Accordingly, I will recommend the dismissal of paragraph 7 and the related portion of paragraph 13 of the complaint. 2. Sturkey's discharge Respondent contends that Sturkey's employment was terminated because she was not a good employee. As Re- spondent put it in its brief, it had "problems ... with Mrs. Sturkey about the quality of her work, her ability to do the work and her poor work habits." I agree that Sturkey was a poor employee, but I do not agree that she was discharged for this reason. Sturkey's faults as an employee came to Respondent's attention almost immediately upon her return to work on September 21, 1971, following her second absence for medi- cal treatment. Notwithstanding this and the fact that Em- mett, the supervisor of Respondent's sheetmetal shop, spoke to her about her deficiencies "once every other day," Stur- key was permitted to continue working for 3 weeks. On October 13, several hours after she registered her disagree- ment with Emmett's opinion concerning the effect of union- ization, thereby indicating a sympathetic attitude toward unions and that she probably, if not actually, supported the Union, she was discharged, ostensibly because of her defi- ciencies as an employee. The timing of Sturkey's discharge, coming hard on the heels of her expression of approval of unions, and the rela- tively long period during which Respondent suffered Sturkey's defects persuade me that the asserted reason for her discharge was a pretext.33 I am further persuaded, for the same reasons, that the motivating cause for Sturkey's discharge was her manifestation of a prounion attitude and probable support of the Union. In connection with the foregoing, it has been held that "the abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829. It has likewise been held that "an employer's tolerance of an employee's shortcomings until he engages in union activity is an indicium of discriminatory motivation." Vir- ginia Metalcrafters, Inc., 158 NLRB 958, 962, enfd. 387 F.2d 379 (C.A. 4). I conclude, therefore, that by discharging Sturkey Re- 33 "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause " N L R B v Solo Cup Company, 237 F 2d 521, 525 (C A. 8) PHYSICAL SCIENCES CORPORATION spondent violated Section 8(a)(3) and (1) of the Act.34 VI THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's unfair labor practices, as found above, occurring in connection with its operations set forth in sec- tion I, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VII THE REMEDY Having found that Respondent engaged in unfair la- bor practices within the meaning of Section 8(a)(3) and (1) of the Act, my recommended Order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act, including an immediate offer of full reinstatement to India Sturkey. Any backpay found to be due to Sturkey shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest in the amount and manner provided for in Isis Plumbing & Heat- ing Co., 138 NLRB 716. 74 For cases in which the Board found that discharges under circumstances similar to those presented here fell within the purview of Sec 8(a)(3) of the Act see Pembeck Oil Corporation, 165 NLRB 367, 370-371, 373, enfd in this respect 404 F.2d 105 (C.A 2), and Nitro Super Market, Inc, 161 NLRB 505, 516-517 35 N L R B v. Entwistle Manufacturing Company, 120 F 2d 532, 536 (C A 4). 211 Because unfair labor practices which result in the de- privation of employment, as is the situation here, go "to the very heart of the Act,"35 broad cease-and-desist provisions will be included in my recommended Order. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging India Sturkey because of her proun- ion attitude and because she seemed to be a supporter of the Union, thereby discouraging membership in the Union, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. Respondent did not engage in any unfair labor prac- tices independently falling within the purview of Section 8(a)(1) of the Act. 5. Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging Charles Padgett and Gene Hane. 6. The unfair labor practices engaged in by Respondent as set forth in Conclusion of Law 3, above, affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]