Rowe Furniture Corp. of Missouri, Inc.

ROWE FURNITURE CORP. OF MISSOURI 155 Rowe Furniture Corporation of Missouri, Inc. and Upholsterers' International Union of North Ameri- ca, AFL-CIO Rowe Furniture Corporation of Missouri, Inc. and Upholsterers' International Union of North Ameri- ca, AFL-CIO, Petitioner. Cases 14-CA-6092, 14-CA-6114, 14-CA-6135, 14-CA-6154, and 14-RC-6641 November 8, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 28, 1971, Trial Examiner Thomas S. Wilson issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions and the General Counsel filed exceptions 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 herein modified. Respondent excepts to the Trial Examiner's find- ings that Respondent violated Section 8(a)(1) and (3) of the Act by discharging Freda Aldridge Dunning. We find merit in this exception.' Respondent assertedly discharged Dunning on February 2, 1971, for neglecting her work, interfering with the work of others, persistent conversations during worktime, and using abusive language-all after several warnings. The Trial Examiner found that these were not the reasons Mrs. Dunning was discharged. Rather, he found that Respondent's vice president and general manager, Bohon, knew or suspected that Dunning was prounion and might lead others to vote for the Union, and that he fired her for this reason, in violation of Section 8(a)(3) and (1) of the Act. We believe this conclusion of the Trial Examiner is not supported by the record as a whole. The Trial Examiner cites evidence that showed that Dunning did talk a lot while working, that she did yell to people on occasion, and that she let out with I Member Kennedy dissents from his colleagues' finding that Respon- dent violated Sec 8(a)(l) and (3) of the Act in discharging Ray Calton. The finding of violation as to Gilton appears to be predicated upon speculation that a fellow employee informed on Gilton even though the affirmative evidence is to the contrary Gilton, who was a probationary employee, had a poor attendance record and had been tardy reporting to work On the day of his discharge, the Respondent learned that he had falsified his employment record by omitting Florsheim as a previous exuberant shouts as breaktime approached. Further, she had received a written reprimand about a month before her discharge for using abusive language toward a supervisor and had received oral repri- mands for talking too much on the job. Although the Trial Examiner stated that Respondent's evidence did not show that any of these instances had occurred for a month or more prior to her discharge, this finding directly follows a summary of Respon- dent's evidence, including evidence that utility man Armes had in the preceding 2 weeks spoken to Dunning and Sharon Haffard on a couple of occasions about talking too much, and that he had done this under orders of Bohon and Foreman Sisson. More significantly, the Trial Examiner's finding that Bohon knew or suspected that Mrs. Dunning was prounion is not supported by the record. Mrs. Dunning's union activities were limited to signing a union authorization card and attending one of the union meetings. Although Mrs. Dunning testified that she had spoken on occasion to fellow employees about the Union, she also testified that she had not spoken to any supervisors of it. The Trial Examiner based his finding in part on the fact that Mrs. Dunning was an extrovert who was very friendly and talkative and inferred that it must have been known by Bohon that she was for the Union. The Trial Examiner further inferred that Respon- dent knew of Mrs. Dunning's union activities based on the testimony of utility man Armes. Armes testified that employee Sharon Haffard rode to work with him and when he learned of the union organizing he asked Haffard if she knew anything about it. When Haffard replied that she did know of it, Armes stated that, although he did not know her opinion of it, he opposed the Union and, since they were neighbors and friends, he thought it best for them not to discuss it. The Trial Examiner inferred from this that Armes must have sensed that he and Haffard held divergent views about the Union. He further inferred that since Haffard and Dunning were friends, Armes must have known that Haffard and Dunning did not hold divergent views on the Union. We believe this inference to be too broad to support a finding that Respondent suspected Mrs. Dunning of being prounion, especially since Armes testified that he and Haffard said nothing more employer. When discharged at Florsheim, the Manager was physically beaten by Gilton. As found by the Administrative Law Judge, Gilton "practically went berserk" when he was discharged by Respondent As he was leaving, Gilton threatened: "I'll get everyone of you sons of bitches and if you don't believe them [me?], you dust ask over at Floresheim" Even if Member Kennedy were to find that Gilton's discharge violated the Act, he would find his conduct immediately following his termination would bar his reinstatement. 200 NLRB No. 1 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about the Union and there is no evidence to the contrary. We are unwilling to find that an employer has unlawfully discharged an employee because of her union activities where, as in this case, these union activities are minimal, the only findings that the Respondent knew of the employee's union activities are based on inferences which we feel are too broad to adopt, and where the employee had admittedly carried on the unprotected activity for which Respondent assertedly fired her. For these reasons, we will dismiss the allegation in the complaint relating to the discharge of Mrs. Dunning. Unlike our colleague, we affirm both the Trial Examiner's finding that Respondent discharged employee Gilton in violation of Section 8(a)(1) and (3) of the Act, and his recommended Order reinstat- ing Gilton with backpay. Respondent's asserted reason for discharging Gilton, that he had falsified his employment applica- tion and not mentioned his trouble at Florsheim, does not withstand scrutiny. Respondent's general manager, Bohon, testified that he received an unsolicited call from the manager of Florsheim on the morning of February 4, 1971, in which such manager told Bohon of trouble they had had with Gilton when he was employed there. Thereafter, Bohon checked Gilton's employment application and found that Gilton had not mentioned Florsheim as a former employer, and he had indicated that he had not had trouble with any prior employer. Because of this, according to Bohon, he then decided to discharge Gilton. The Trial Examiner did not credit this account, and found that the Florsheim incident had nothing to do with Bohon's decision to fire Gilton, but rather was brought into this case by Gilton himself after he was discharged. The record supports such a finding. At the time Gilton was told of his discharge by Foreman Sisson (which was about 4 p.m.), the only reasons given were that he missed too much work and that his work was poor. No mention was made of his falsifying his work application or of his trouble with Florsheim. Further, even later, when Gilton returned and accused Respondent officials and a fellow employee, Jarrell, of "framing" him, there was admittedly no mention of the Florsheim incident by Bohon. It was at that time that Gilton mentioned his trouble at Florsheim. Although Bohon and Sisson differ in their testimony as to when and by whom the decision to discharge Gilton was made, Sisson admittedly was told nothing by Bohon, and knew nothing of the Florsheim incident or the application falsification at the time he discharged Gilton. The reasons given to Gilton for his discharge also appear to be a pretext. Although his attendance record was somewhat poor, he had never received a reprimand for it. Further, his attendance was the subject for discussion between Bohon and Sisson the day before Gilton's discharge, and they had decided at that time, against discharging him. Thus dismissing the application falsification and the attendance record as the reasons for Gilton's discharge as being pretextual, we come to the real reason for the discharge, Gilton's prounion sympathy and activity. On the afternoon Gilton was dis- charged, fellow employee Jarrell went to Sisson's office twice. In the short span between these visits to Sisson, Jarrell asked Gilton if he was still for the Union, to which he received an affirmative answer. Shortly after Jarrell's second visit to Sisson's office, Gilton was summoned to Sisson's office and dis- charged. Although Jarrell denied speaking to Sisson of Gilton's position on the Union, his contradictory testimony, combined with the events immediately surrounding his visits to Sisson, provide grounds for the inference that he did speak to Sisson of Gilton. In agreeing with the Trial Examiner that Respon- dent did have knowledge of Gilton's union activities however, we do not rely solely on an inference that employee Jarrell told Sisson about such activity, but also on the fact that Respondent had its utility men (found herein to be supervisors), watching for union activity which they were to report to Respondent. Since Gilton had signed a union authorization card, had attended a union meeting, and had discussed the Union around the shop with other employees, including Jarrell, it is inconceivable that' Respondent, in its efforts to learn of all the union activity around the shop, failed to learn of Gilton's stand. For the foregoing reasons, as well as others detailed by the Trial Examiner, we find Gilton was dis- charged in violation of Section 8(a)(3). We also find that Gilton's activities at the time of his discharge do not negate his reinstatement rights, in light of Respondent's unlawfully causing Gilton to lose his job. Further, as stated by the Trial Examiner, because of the passage of time, it seems reasonable to believe that there will not be a repetition of such an incident. We find merit in some of the General Counsel's exceptions to the Trial Examiner's failure to find violations of Section 8(a)(1) where he did find that interrogations as to union activities had in fact been engaged in by supervisory employees. In his Decision, the Trial Examiner found that when discriminatee Charles Millican had been interviewed for employment by Respondent's per- sonnel manager, Don Green, the latter inquired of Millican if the plants he had worked in before had been unionized, asked what Millican thought of ROWE FURNITURE CORP. OF MISSOURI 157 unions, and explained that the Respondent was not unionized and that things were different there in Poplar Bluff than they were in Michigan. The Trial Examiner also found that after Bohon had discharged discriminatee Trout, Bohon inquired if Trout had heard anything about the Union, to which Trout replied, "You are sunk." The Trial Examiner further found that the day after the second union meeting, while utility man McMeans and employee Charles Dunning were conversing about the meeting, McMeans inquired, "What's Robert Hasting anyway, is he some kind of a wheel down there?" We find the foregoing incidents constitute coercive interrogations relating to union activities, in violation of Section 8(a)(1) of the Act. As we agree with the Trial Examiner that Respon- dent's unfair labor practices have made the holding of a free and fair election in the near future an impossibility, we will dismiss the petition in Case 14-RC-6641 and order Respondent to bargain with the Union concerning the wages and working conditions of employees in the unit found appropri- ate by the Trial Examiner. 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 the Respondent, Rowe Furniture Corporation of Missouri, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified. 1. Insert the following as paragraph 1(c) and reletter the present paragraph 1(c) as 1(d): "(c) Interrogating employees as to their union membership or activities, or as to the union member- ship and activities of other employees." 2. Delete from paragraph 2(a) the name of Freda Aldridge Dunning. 3. Substitute the attached notice for the Trial Examiner's notice. IT IS FURTHER ORDERED that the petition in Case 14-RC-6641 be, and it hereby is, dismissed. any term or condition of employment of any of our employees because of their membership in or activities on behalf of the Union or of any other labor organization of their choice. WE WILL offer to Richard G. Trout, Ray Gilton, Ronnie Roach, and Charles J. Millican immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position , without preju- dice to his seniority or other rights and privileges, and pay each of them for any loss of pay he may have suffered by reason of our discrimination against him together with interest thereon at 6 percent per annum. WE WILL NOT interrogate our employees con- cerning their union membership or activities or the union membership or activities of other employees. WE WILL, upon request, bargain collectively in good faith with Upholsterers' International Un- ion of North America, AFL-CIO, as the exclusive representative of our employees in the unit found by the National Labor Relations Board to be appropriate, with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and, if an understand- ing is reached, embody same in a written signed agreement. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, including Upholster- ers' International Union of North America, AFL-CIO, to bargain collectively through a bargaining agent chosen by our employees, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activities. RowE FURNITURE CORPORATION OF MISSOURI, INC. (Employer) Dated By (Representative) (Title) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT in any manner discriminate in regard to the hire and tenure of employment or 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 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4142. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILSON, Trial Examiner: Upon charges duly filed on February 8 and 22 and March 5 and 16, 1971, by Upholsterers' International Union of North America, AFL-CIO, herein referred to as the Union or the Charging Party, the General Counsel of the National Labor Relations Board, herein referred to as the General Counsel' and the Board, respectively, by the Regional Director for Region 14 (St. Louis, Missouri), issued its complaint dated March 31, 1971, against Rowe Furniture Corporation of Missouri, Inc., herein referred to as the Respondent. By order dated April 13, 1971, said Regional Director consolidated the aforementioned complaint of those consolidated cases with the Charging Party's objec- tions to the election conducted on March 3, 1971, among Respondent's employees in the following described appro- priate collective-bargaming unit: All production and maintenance employees at the employer's Poplar Bluff, Missouri plant, excluding over-the-road truckdrivers, office clericals, guards, professional employees, and supervisors as defined in the Act. on the ground that the 8(a)(1) allegations in the complaint covered the undetermined objections to the election. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing thereon was held in Poplar Bluff, Missouri, on June 14, 1971, before Trial Examiner Eugene E. Dixon2 and before me from July 6 through 9 and from July 27 through 30, 1971. All parties appeared at the hearing, were presented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing oral argument was waived. Briefs were received from General Counsel and the Charging Party on September 13, 1971. Respondent filed no brief. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and accordingly I find: Rowe Furniture Corporation of Missouri, Inc., is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of the State of Missouri.3 At all times material herein, Respon- dent has maintained its principal office and place of business at 2700 Central Street in the city of Poplar Bluff, and State of Missouri, herein called the Poplar Bluff plant. Respondent is, and has been at all times material herein, engaged in the manufacture, sale, and distribution of upholstered furniture and related products. The Poplar Bluff plant is the only facility involved in this proceeding. During the year ending December 31, 1970, which period is representative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, purchased and caused to be transport- ed and delivered to its Poplar Bluff plant, textiles, wood, metal, stuffing, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its plant in Poplar Bluff, Missouri, directly from points located outside the State of Missouri. Accordingly, I find that Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION INVOLVED Upholsterers' International Union of North America, AFL-CIO, is a labor organization admitting to member- ship employees of Respondent. III. THE UNFAIR LABOR PRACTICES AND OBJECTIONS TO THE ELECTION A. Supervision at the Poplar Bluff Plant Respondent's parent, Rowe Furniture Corporation, is a Virginia corporation headquartered in Salem, Virginia.4 Presently it operates at least seven plants manufacturing furniture in Virginia and other localities. According to its stationery it is celebrating its 25th anniversary year in 1971. In 1968 Respondent commenced the manufacture of upholstered living room furniture in Poplar Bluff, Missour- i, under the name in the caption hereof and moved into its present air-conditioned plant about March 1970. Since its inception the Poplar Bluff plant has been in charge of Robert Jackson (Jack) Bohon, vice president of Respondent and general manager of the Poplar Bluff plant who, in turn, reports to Lloyd Rowe, vice president plant operations, in Salem, Virginia. Bohon himself has been an employee and/or official of Rowe for some 24 years. By December 14, 1970, there were about 79 production 1 This term specifically includes the attorney appearing for the General ment until July 6, 1971. He heard no testimony in the case. Counsel at the hearing. 3 Respondent's parent company is Rowe Furniture Corporation head- 2 All Trial Examiner Dixon did on June 14 was to hear argument on quartered in Salem, Virginia. Respondent's motion to postpone the hearing and to grant the postpone- 4 See Rowe Furniture Corporation, 145 NLRB 1175. ROWE FURNITURE CORP. OF MISSOURI employees, exclusive of over-the-road truckdrivers, office clericals, guards, professional employees and officials employed by Respondent at its Poplar Bluff operation. The testimony at this as well as in the R case, 14-RC-6641, shows that Bohon, as general manager of the Poplar Bluff plant had full supervision of the whole plant. Under Bohon there was Don Green in charge of purchas- ing andpersonnel and, according to Respondent's evidence, two "foremen" in charge of all the plant production, to wit, Trubie Graham in charge of what might be called the "soft goods" departments5 and John Willie Sisson in charge of the "hard goods" departments .6 The evidence also disclosed that Trubie Graham was in an airplane accident on December 13, 1970, which incapacitated him until May 1971 during which time Sisson added supervi- sion of the soft goods departments to his supervision of the hard goods departments. According ' to Respondent here, and in the R case, the above-mentioned were the only "supervisors" in the plant, hence I "foreman" to 79 production employees. The evidence further disclosed that there are in Respon- dent's plant eight separate departments with a varying number of production employees in each. There are also eight so-called utility men. Three of these utility men, to wit, Jack Heaton, Oliver McMeans, and Tom Bounds, oversaw the assembly department which consists of two automated lines where the frames are upholstered. Line I here consists of 5 employees ' while line 2 has 10 such employees. At all times material here utility man McMeans oversaw line 1 while utility men Heaton and Bounds, at least until the December 13 accidem, oversaw line 2. There were other utility men in the other departments, such as Jerry Jett in the frame and spring department, Jerry Armes in the cutting department and during the crucial period, due to as injury to utility man Miller in the airplane accident, in the sewing department for example. At the R case proceeding in St. Louis on January 21, 1971, Respondent maintained' that none of these utility men had any authority which qualified them as supervisors within the meaning of the Act as they only acted upon direct orders of their "foreman." On the other hand, the Union in the representation proceeding argued that in some instances at least, these eight employees known here as "utility men" were supervisors within the meaning of the Act. The Regional Director agreed with Respondent that the utility men were merely employees and, thus, included the utility', men in the unit thereby making them eligible to vote in the March 3, 1971, election. The complaint herein alleges that John Heaton and Oliver McMeans, two of the aforementioned utility men, acted as "agents" for and on behalf of Respondent. At the instant hearing further details as to the superviso- ry status of these eight utility men was brought out in the evidence, as is permissible. Southern Airways, 124 NLRB No. 93, enfd. in part 290 F.2d 5,19 (C.A. 5). In addition to these utility men Respondent had what it called "floaters," who were employees with skills sufficient so that they could fill in for absent employees or help train new employees. Floaters filled'' in or trained as ordered by 5 The soft goods departments would consist of fabric storage, cutting, sewing, and cushion stuffing. 159 the utility men. No claim is made that the floaters were supervisors. As noted, following the airplane accident of December 13 in which "foreman" Trubie Graham and utility man Miller of the sewing department were temporarily incapa- citated at least until about May, "foreman" Sisson added the supervision of the soft ware departments , theretofor under Graham, to his own hardware department and utility man Jerry Armes added the sewing department, where Miller had been prior to the accident, to his own cutting department. In addition utility men Bounds and McMeans of the assembly department were told to report to Sisson through utility man Heaton who was freed of his duties on line 2 so that he would be available to do what Respondent chose to call, but not define, "more leg work" for Sisson. Heaton testified that, although there was no change in his authority, he had to do more "on my own" because of the unavailability of Sisson due to his added supervisory duties in the soft ware department. About the time of the representation hearing in St. Louis on January 21 Heaton reported to Bounds that Bohon intended to "downgrade" the utility men but without changing their duties, responsibilities, or pay in an effort to have the Regional Office include utility men within the appropriate unit so that they could vote in the coming representation election. Before that hearing utility man Kennedy was told by Bohon that "he would possibly have to sacrifice me and Jack Heaton and possibly another one in order to get the rest of them [utility men] a vote." By order dated February 3, the Regional Director did hold that "the evidence [at the representation hearing] failed to show that the utility men possess any of the indicia of supervisory authority." The evidence presented at the instant hearing proved that utility men were hourly paid. Their rate of pay was unspecified but approximated 50 cents an hour above the base rate of employees earning at a rate of 120 percent production and thus equaled or bettered that of an employee producing at that rate on incentive pay. Further, and contrary to the Regional Director's finding, the evidence, as will be disclosed hereinafter, proved that utility men: 1. Could, and did, issue orders on their own to other employees, which orders were to be obeyed on pain of discharge; 2. Could, and did, orally reprimand employees for alleged deficiencies in production or conduct; 3. Could, and did, issue written reprimands under their own name with the threat that further deficiency would result in discharge; 4. Could, and did, make effective recommendation regarding alleged deficiencies of employees to Bohon and/or Sisson with discharge resulting; and 5. Could, and did, threaten employees with discharge on their own. At this hearing, as at the representation case hearing, Respondent claimed that utility men did the above only at 6 Hard goods included the frame and spring departments, assembly department, and shipping department. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the explicit direction of Bohon and/or Sisson. That contention was disproved here. In addition, in an apparently unguarded moment, Sisson issued a written reprimand to employee Freda Aldridge Dunning for using "profane language" to a "supervisor," Jerry Armes. The truth of the matter is that Respondent at Poplar Bluff had, in fact, "downgraded" its supervisory staff at least one step in addition to changing the almost universal terms in use.7 In fact Bohon was the general manager. Graham and Sisson were superintendents of the soft ware and hardware departments, respectively, rather than "foremen." And "utility men" were, in fact, the depart- ment foremen in the usual sense of that term. Under the facts disclosed herein there can be no question, and I therefore find, that the utility men at Respondent's Poplar Bluff plant had the requisite authority and qualify as supervisors within the meaning of the Act. B. Basic Facts Jack Wuichet, an organizer for the Union, began getting in touch with Respondent's employees about organizing Respondent's plant about December 1, 1970. By December 7 he had set up an organizing committee consisting of employees Robert Hasting, Philip Randall, Tom Parks, and Jim Blakeney. James (Tom) Parks left Respondent's employ a few weeks later to attend college and was replaced on the committee by Ronnie Roach. By December 16, 1970, 49 employees had executed unambiguous cards authorizing the Union to bargain collectively with Respondent on their behalf out of a staff which in December numbered 71 excluding the utility men or 79 including them. Hence at that time the Union was the majority representative of Respondent's employees in the appropriate production and maintenance unit. By letter dated December 17, the Union notified Respondent that a majority of its employees had executed such authorization cards and demanded recognition and bargaining, accompanied with the offer to allow a neutral third person to determine the question of the authenticity of the signatures and the majority. Prior to the receipt by Respondent of this letter on December 18, employee Robert Hasting had informed utility man Heaton that the Union was writing a letter demanding recognition. Heaton admitted receiving this information from Hasting but could "not remember" if he had passed that intelligence on to Bohon or any other Respondent official.8 Ten days later on January 28, 1971, Respondent answered, refusing recognition on the ground that "circum- stances coming to our attention convince us that your union does not represent a majority of our employees" and suggesting that the issue be settled by a Board-conducted election. 7 At the instant hearing even Respondent's able counsel once apologized for becoming mixed up on the local nomenclature because it differed from that in use at other of Respondent's plants. 8 Heaton was a most amenable witness on direct examination by Respondent while answering leading questions but a most conveniently forgetful one on cross-examination. His obvious tendencies did nothing to enhance his credibility- From other matters admittedly reported to officials In fact the Union had filed a petition for certification on December 18. On January 19 the utility men attended their regular weekly utility study group presided over by Bohon. This time Respondent's production manager Lloyd Rowe from Salem, Virginia, was in attendance . The matter of the representation hearing scheduled for St. Louis on January 21 came up. Those utility men present were advised that the company officials did not then know if utility men would be classed as employees in the unit or as supervisors so that it would be best if the utility men said nothing about their feelings towards the Union. During the meeting Rowe remarked that, "We had licked the Union before and can do it again." It was at this meeting that Bohon told the men that the best thing they could do would be to "keep your eyes and ears open and report back so that he could nip it in the bud." 9 The testimony is in conflict as to whether Bohon actually used the words "union" or "union activities" in this connection or not. Heaton testified that he understood the statement to refer to a "slowdown." However utility men Kennedy and Bounds, at least, understood Bohon to be referring to union activities.10 The Board held an election among Respondent's employees in the unit then found appropriate, including the utility men, on March 3 which resulted in a tie vote of 36 for and 36 against union representation . Respondent challenged the ballots of four discharged employees, to wit, Ronnie Roach, Freda Aldridge, Ray Gilton, and Charles Millican. Those ballots have not been opened or counted. All these discharges are alleged here to have been discriminatory and in violation of Section 8(a)(1) and (3) of the Act in the instant complaint. The Charging Party filed timely objections to the election on various grounds, some of which are here alleged to constitute interference, restraint, and coercion, as well as due to the unopened challenged ballots of the four discharged employees. By order dated April 13, 1971, the Regional Director eliminated certain of these objections but referred the remainder to the Trial Examiner hearing this unfair labor practice for determination. Believing that these objections can best be handled as an integral part of the charges of unfair labor practices against Respondent here rather than as a separate individual matter, this Trial Examiner will so handle them and so will proceed forthwith to the unfair labor practice allegations. C. Discharges and Other Discrimination 1. Richard Troutt Richard Troutt was employed by Respondent on the assembly line under Foreman Sisson and utility men Heaton, McMeans, and Bounds from July 1970 to the date by Heaton during this period, the inference is that he reported this intelligence also. 9 On direct examination Bohon acknowledged that one of his favorite expressions is "keep your eyes and ears open and keep me informed as to what is happening." iS This no doubt accounts for the numerous "reports from the floor" which permeated this hearing, especially from Heaton ROWE FURNITURE CORP. OF MISSOURI 161 of his discharge on December 17, 1970. He was never reprimanded, orally or in writing, during his employment. On December 8 Troutt signed a union authorization card for employee Phillip Randall in the Respondent's employ- ee parking lot and thereafter had verbally let his fellow employees know at work that he was in favor of the Union. At 10:I5 a.m. on December 17, 1970, Bohon sent word to Bounds to bring Troutt to his office where Bohon accused Troutt of having shot floater Bill Walker that morning with a staple fired from an air gun and using profane language to Bounds, both, according to Bohon, dischargeable offenses and notified Troutt that he was discharged. Troutt denied that he had shot Walker that day and suggested that he was not the only employee who shot staples from the air guns. Despite these denials Bohon discharged Troutt and ordered Bounds to get Troutt's tools and escort him from the plant. While Bohon and Troutt were alone in the office awaiting Bounds' return, Bohon inquired if Troutt had heard anything about the Union. Troutt's answer was, "You are sunk." 11 While present at this meeting Bounds did not deny to Bohon Troutt's alleged use of profane language towards him although he did deny that Troutt had ever used such language to him at the hearing. The Respondent's story is somewhat different. Accord- ing to Bohon, in the early afternoon of December 16 while looking out from his mezzanine office, he saw Troutt fire an air gun toward Walker. At that distance Bohon could not see whether a staple left the air gun but testified that he did see Walker "flinch" and, therefore, assumed that the gun had been loaded. Recognizing the obvious danger involved but being too busy at the time to do anything about it then, Bohon made a note on his calendar to remind hire of the matter the following day. Early in the morning of December 17 Heaton reported to Bohon in his office, according to Heaton, that he had seen Troutt shoot Walker that morning. Thirty minutes later Bohon called a conference in his office of Sisson, Heaton, and Bounds in which Bohon told the others that he had seen Troutt shoot Walker that morning and that, if after an investigation that should prove that to be true, he was discharging Troutt. There- upon, according to Bohon, Heaton stated that no investiga- tion was necessary as he had seen Troutt shoot Walker that 11 This latter part of Troutt's testimony Bohon denied based on the fact that, as he originally testified, the first he knew of the Union was when he received the letter demanding recognition on December 18. Subsequently in his testimony Bohon acknowledged that he had heard rumors or "reports from the floor" of the Union since the opening of the plant in 1968 Admittedly Heaton had learned a few days before December 18 from Hasting that the Union was going to send Respondent this letter demanding recognition. Utility Man Bounds also knew of the Union from Troutt and from Hasting some weeks before the Troutt discharge. "Reports from the floor" in Respondent's plant were matters picked up from conversations heard on the floor and reported to management by utility men. Sisson acknowledged that these "reports from the floor" constituted, in more common parlance, a "grapevine" and that he, Sisson , had never known a plant without one. Under these facts I cannot credit Bohon's denial and must find that Bohon knew both about the existence of the union organizing campaign and Troutt's participation therein at the time of the discharge. 12 Bounds' testimony was different still. He claimed that the first he heard of the Troutt discharge was when Heaton came to hum on the line and ordered him to take Troutt to Bohon's office to be discharged morning. Thereupon, without further investigation, Bohon sent Bounds to get Troutt for the discharge interview.12 The net result was that Troutt was discharged that morning and left the plant. He has never been reinstated. Early the following morning, December 18, Sisson called Bounds to his office stating that he had seen Bounds talking to Troutt that morning a short distance from the plant and wanted to know what they had been talking about. Bounds answered that Troutt had been telling him that Troutt wanted his paycheck at noon. Sisson answered that he "thought that Richard [Trouts] had something to do with the Union and hoped to hell that [Bounds] didn't have nothing to do with it." 13 I agree with Bohon that shooting staples from an air gun at another employee is a highly dangerous occupation and should be prohibited. But the fact of the matter at Respondent's plant is that every employee there, including Heaton, McMeans, and Bounds, as well as the ordinary employees had been guilty of this same offense since the plant opened. There was admittedly no company rule prohibiting such use of the air guns. Such shooting was a common practice throughout the plant, as all the utility men and employees who testified admitted even though Bohon testified that he never before had seen any such act. Heaton testified that he recognized the danger of shooting staples at employees but he did not know that it was serious enough to cause an employee's discharge. After Troutt's discharge Bohon gave orders to Heaton to relay to Bounds and McMeans that, if they ever saw anyone else shooting staples, they were to usher the guilty employee out of the plant' even before reporting the incident to Bohon. It thus appears that, for this offense at least, utility men were given the right to preemptorily discharge employees. Under the circumstances here I am convinced, and therefore find, that Bohon and Sisson both had knowledge at least as early as December 15, despite their denials, of the union organizing drive then going on in the plant, that this alleged shooting episode was used as a pretext for the discharge of Troutt and that, in fact, Bohon used this pretext as his opening gambit against the union drive because Respondent knew or considered Troutt to be prounion and in an effort to head off that organizational drive in violation of Section 8(a)(3) and (1). In addition I also find that Sisson warned Randall about 13 Sisson admitted having called Bounds to his office after seeing Bounds in the industrial park near the plant with Troutt that morning but denied having said anything about the Union based on the fact that Sisson "did not think" he had been told anything about the Union at that time. However, acting upon a "report from the floor" brought to him by Heaton, Sisson on December 15 about 1.30 p.m. admittedly called in Philip Randall, a union committeeman who had been spending a considerable amount of time in the evenings at this time with Wuichet soliciting employees to sign union authorization cards, and told Randall, "I understand things aren't goingjust right around here to suit you," and, after Randall stated that things were just fine, added, "Well, I heard you have been keeping some bad company." After Randall had denied knowing who he meant by "bad company," Sisson said that he thought Randall did and then reminded Randall that, "And you know I didn't have to give you your job back the first time you worked here." According to Sisson and Heaton, the "report from the floor" Sisson acted on was only to the effect that Randall "had been doing a lot of running around at night" and was "living it up" I found Sisson to be an unconvincing witness. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the "bad company," i.e., the union organizer, he had been keeping in order to coerce Randall into abandoning his efforts on behalf of the Union in violation of Section 8(a)(1) of the Act. 2. Treatment of Robert Hasting Robert Hasting has been an employee of Respondent almost from the beginning of Respondent's operation in Poplar Bluff. During the critical period here he regularly worked positions 7-8 on line 2 under Heaton and McMeans as utility men. Admittedly he was one of the better and more versatile upholsterers. In December 1970, he became probably the most active employee member of the employees' organizing committee which was formed by Wuichet about December 7 and secured more signed authorization cards than any other employee. It was Hasting who admittedly told Heaton several days before December 18, the day of its receipt, of the letter which the Union was sending Respondent on the question of recognition.14 Even earlier Bounds had also learned of the Union's organizing effort from Hasting and from Troutt. In fact Bohon admitted knowing that Hasting was the first employee to display a union sticker on his automobile. Thus there can be no doubt that Respondent well knew of Hasting's prounion sympathies as well as the fact that he was the leader of the organizing attempt. On January 18 the Union held an open meeting attended by about 35 employees. On January 19 the regular utility men's meeting was held where Bohon and Rowe spoke as found heretofore. It was just prior to the St. Louis representation hearing that Bohon told utility man Kennedy that he might have to "sacrifice" Heaton and Kennedy and perhaps another utility man in order to get the remainder the right to vote in the election as part of the appropriate unit. This testimony corroborated Heaton's quoting of Bohon to Bounds that the utility men were to be "downgraded" without any change in their authority, responsibility, or pay. Rowe, Bohon, and another attorney from Machen's firm appeared on behalf of Respondent at St. Louis. The Union was represented there by Organizer Wuichet, Attorney Armbruster, and employees Hasting, Roach, and Blake- ney. Hasting, who had been subpenaed for the hearing, made arrangements with Bounds to be absent on January 21, a Thursday. Heaton noted the absence of these three employees on that day. Upon his return from St. Louis Heaton inquired of Hasting as to how much the Union was paying him and inquired as to what had happened at the meeting. McMeans made much the same inquires of Hasting. On February 19, the day after the Union's second meeting, McMeans asked Charles Dunning, "What's Robert Hasting anyway, is he some kind of a wheel down there?" 14 When asked if he had reported this intelligence to Bohon, Heaton answered: "I don't remember if I did ... I could have and forgotten." As noted, Heaton excelled in forgetting. 15 In this conflict of testimony I must credit the testimony of Hasting who appeared to be an honest, straightforward witness who was telling the truth and whose testimony in this and other regards conformed with Respondent's written records. On the other hand, Heaton's amenability on Within a day or two after the St. Louis meeting Heaton and McMeans admittedly began to watch Hasting at work on the assembly line minutely. Instead of the usual 2-or-3- minute watch which had been customary, both utility men began to stand over Hasting at his work for periods ranging from 15-30 minutes each. Finally Hasting became irritated enough and told them, in vain, "to get off my back." This accomplished nothing as the two utility men continued their practice until 2 months or so before the present hearing when their inspection returned to normal. Heaton and McMeans acknowledged that during this period they did increase their inspection of Hasting's work. Their explanation was that within a day or two of the St. Louis meeting the quality of Hasting's work slumped so precipitously and badly as to require such close inspection. The utility men attributed Hasting's alleged slump to nervousness over getting behind in his work and to another "report from the floor," which Bohon also received, that Hasting had been told by the Union that he would be discharged, because of his activities for the Union apparently. Bohon admitted receiving this "report from the floor," and even though believing that it accounted in part, at least, for Hasting's alleged poor quality, also admitted that he made no attempt to reassure Hasting in any way that the alleged report was false. Nor did Sisson who knew of this report. On the other hand, however, Hasting testified, and Heaton denied, that prior to the March 3 election Heaton told Hasting, "It don't matter, some day, somewhere, somehow, I will find you and we will get you „i5 In addition beginning on Saturday, January 23, and continuing thereafter until the week ending March 21 Hasting was required to work overtime on innumerable occasions even though Hasting complained to Heaton that he did not like or want to work overtime. When, on February 2, Hasting complained to Heaton about over- time, Heaton replied that "we don't want you going to all those union meetings." 16 Respondent's records prove that Hasting worked a weekly average of 41.63 hours during the last 6 months of 1970 as against an average of 42 hours per week for the first 6 months of 1971. But even here there is a difference. In 1970 the whole plant worked a 9-hour day from August to the middle of October whereas the overtime Hasting worked in 1971 occurred between January 23 and the week ending March 28 during which period Hasting was individually selected to work overtime with a small crew despite his known objection to overtime. The whole plant was not working overtime. Respondent's witnesses, Sisson and Heaton, explained the continual selection of Hasting for overtime work during 1971 on the grounds that, when repairs were to be made, they selected the best men in the plant with the requisite skills and versatility for the work to be done. Admittedly Hasting had both the skills and the versatility. direct and forgetfulness on cross led him on occasion to contradict himself within minutes, in instances on the same page of the transcript. 16 Heaton denied making this statement . But he also denied at first that Hasting had ever complained about having to work overtone . Heaton finally had to change this testimony because even Bohon had received reports of Hasting's complaints about having to work overtime. ROWE FURNITURE CORP. OF MISSOURI 163 So, according to them, they had to continue to select Hasting for overtime work in order to get that repair work done. This testimony raises an interesting dilemma. If Respon- dent is to be believed, it seems that, during overtime hours, Hasting's services were essential because of his acknow- ledged versatility and excellent workmanship whereas, during regular hours during the same exact period of time, Hasting's workmanship had become so bad that both Heaton and McMeans were required to stand over him at work in order to get passable quality out of him. Thus Respondent appears to be walking down the opposite sides of the same street. This dilemma appears to dissolve, however, in the face of other records ' of the Respondent which prove that a majority of Hasting's overtime hours were spent on work known as "cleaning," which is unskilled work and thus did not require either Hasting's skills or versatility. The evidence is so strong and so convincing that I must find, as I here do, that Respondent deliberately and with malice of forethought simultaneously harassed Hasting by standing over his shoulder during his working hours and at the same time forced him to work unwanted overtime hours for the purpose, as Heaton told him, "to keep him from attending all these union meetings" and/or to find "something, somewhere, somehow" with which to dis- charge him because of his known leadership of the union organizing efforts at the plant , all in violation of Section 8(a)(1) and (3) of the Act. 3. Freda Aldridge Dunning Freda Dunning, nee Aldridge, began her employment with Respondent on February 4, 1969, in the sewing department. Trubie Graham was her "foreman" until his accident of December 13 when John Sisson replaced him as such "foreman" until Graham's return in May 1971. At the same time utility man Jerry Armes added the sewing department to his cutting department, replacing utility man Miller who was injured in this same airplane accident. Freda17 and Sharon Hafford worked at machines side by side and some short distance from the other sewers in the sewing department. They were good friends. In fact Sharon had ridden to work with Freda until Sharon and her husband moved into a house belonging to Jerry Armes' grandfather which was next door to the house of Jerry Armes. Thereafter Sharon rode to and from work with Armes. Freda was paid at a base rate of $2. 10 per hour and was one of the few sewers in the department who produced at a rate of 100 percent or more. Sharon's production rate was not as good as Freda's. Conversation between the sewers was commonplace in the sewing department. Throughout their careers with Respondent Freda and Sharon talked together even during working hours. Under Graham's foremanship this habit of theirs of talking did not appear to bother Respondent or to interfere with the work of others because, while occasional- ly they were told they were talking too much , neither was ever given a reprimand for such behavior. Then in December the Union commenced to organize. Charles Dunning, who was to marry Freda the following April, signed a union authorization card on December 8. Freda and Sharon signed similar cards a week later on December 15. Thereafter Freda did receive one written reprimand from Sisson which read as follows: You are being reprimanded for using abusive (sic) language toward your superviser (sic), any further misconduct on your part and you will be discharged. [Emphasis supplied.] At some undisclosed date Bohon dated this reprimand in parenthesis as "Jan. 2 app." 18 The facts leading to this reprimand were that on this particular day Sharon had been shouting across the sewing-cutting room area trying in vain to attract Armes' attention as she required his help . In order to assist Sharon, Freda, who is chunky, good-natured, and definitely an extrovert, rose from her machine and yelled across the noise of the sewing machines to the far end of the area: "Armes, get your ass over here." Promptly upon receipt of this order which he, like everyone else in the area, heard , Armes, describing himself as somewhat "embarrassed," promptly proceeded as directed and took care of Sharon's problem as well as indicating to Freda that her language had been impolite. Sisson estimated that this episode took place between 2 weeks and 2 months before Freda's discharge on February 2. Whenever the reprimand was actually given by Sisson, Armes had suggested that Freda not be reprimanded for the episode. Sisson's decision to overrule Armes on the reprimand may have been influenced by the fact that once or twice Freda had greeted his appearance in the area with a shout of "Hey Grouchy." According to Sisson, he ignored these greetings. During Freda's last few months at work Armes admit- tedly had told Freda and Sharon a few times that the "bosses" were on his back because they had seen the two talking and requested that they "keep it down a little." Similarly Armes did the same to other sewers in the department. There was no company rule against talking and, according to Armes, was permissible so long as it "did not get out of hand." About 11 :30 a.m. on February 2, the day when Sharon was sick and Armes had instructed Freda to give Sharon assistance, Sisson ordered Armes to send Freda to him. Upon her arrival, Sisson proceeded to discharge her because of her conduct and because her talking was "bothering other people in her department." Freda objected that she did not talk anymore than anyone else in the department which Sisson disputed, adding that he "was only doing what Mr. Bohon had told him to do." Sisson told Freda not to leave the room as Armes would get her belongings from the plant . Freda objected and went back for her belongings herself where she met Bohon and asked why he had fired her. 17 Mrs. Dunning will be referred to herem as Freda to distinguish her is The "app." meant "approximately" according to Bohon. from her husband Charles Dunning. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bohan took Freda to his office and told her that he was firing her because she talked too much and bothered the people around her. Freda inquired if anything was wrong with her work. Bohon answered in the negative, adding that Freda "could probably run 20 percent higher" and that he "hated to fire [Freda] because I would be a loss to the Company, that when he put another girl on that same job that she could only probably run 30 percent." Freda suggested that, if she, Freda, was fired for talking, then Sharon should be fired also for the same reason. Bohon answered that, "if Sharon was guilty and she was proven guilty, she was proven to be an active part of the conversation, that I would discharge her also." Freda begged for a second chance and promised not to do any talking. Bohon refused her a second chance. Thus was Freda discharged. She has never been reinstated. Freda requested and received the following letter dated February 16 over Bohon's signature which reads as follows: This is to advise that you were employed at our plant from February 4, 1969, until February 2, 1971. During this period you worked as a seamstress. You were discharged for neglecting your work and interfering with the work of other employees in persistent conversation and sometimes abusive lan- guage during work time-all after several warnings. Considered solely on the surface and in a vacuum the contention that Freda was discriminatorily discharged on February 2 appears to be somewhat nebulous. The evidence consists largely of the facts that Freda and her friend Sharon signed union authorization cards on the same day in December and that Freda, along with about 35 other employees, had attended the union meeting on January 18 plus the fact that approximately 2 weeks thereafter she was fired precipitously in the middle of the day on February 2. However considered as an integral part of the whole picture here, General Counsel's contention makes sense. The timing of Freda's discharge is interesting. Bohon abruptly in the middle of the day discharged Freda or. a day when there appeared to be nothing to trigger such discharge. It was a day when Freda, acting on direct orders from Armes, was tending an ailing Sharon, much of the time in the restroom and thus off the floor where whatever conversation Freda had could not have "disturbed the work of others." Yet Sisson, stating that he was acting on the direct orders of Bohon, and Bohon both informed Freda that she was being discharged for talking too much and disturbing the work of others. Bohon acknowledged that he realized that Freda had been off the floor a lot that day and assumed (correctly) that she had been in the restroom. Consequently Bohon could have seen Freda talking to and disturbing Sharon even less than usual on this particular day due to her numerous absences with Sharon in the restroom. He testified that, when he did see her talking to Sharon, Freda seemed to have been the instigator of the conversations with Sharon an apparently unwilling participant which under the circumstances of Sharon's illness would appear to have been perfectly normal and natural that day. Yet it was this day that Bohon chose to discharge Freda precipitously and without warning. Why the sudden discharge on this particular day? Why was Bohon so adamant about Freda's dismissal at this time while simultaneously stating how he "hated" to see her go because he realized that her 100-percent production would have to be replaced by a new girl whose production would amount to about 30 percent? Obviously Freda's production was not the cause of the dismissal-but rather argued strongly for Freda's retention. At the hearing Bohon, Sisson, and Armes all referred at length to various episodes where Freda had emitted loud "whoops" at breaktimes or at the end of the day, where Freda had yelled "Hey Grouchy" to Sisson across the room, where Freda had scattered dust and lint around the area by dusting off the lamps with an airhose, where Freda with a shout had transformed a float into a scooter as she left the department at the end of the day, and, of course, her loud and preemptory order to Armes to get over to help Sharon. Also, on orders from Sisson or Bohon, Armes had on a couple of occasions in the preceding 2 weeks spoken to Freda and Sharon about talking a bit too much. The evidence leaves no doubt but that Freda liked to talk, was as described a "showoff," was uninhibited and a complete extrovert. But Respondent's evidence proved that none of the above particularized incidents referred to had occurred in the period of a month or more prior to her discharge except, perhaps, the incident of Freda's preemptory order to Armes which Bohon had noted on the written reprimand as having occurred on January 2 "approximate- ly." Hence it is clear that none of the episodes to which Respondent referred had "interfered with the work of others" for a month or so before Freda's discharge and, besides, the interference from these related incidents would have been minimal-even disregarding the fact that they might even have helped morale. Quite obviously there was more involved in this discharge than either Sisson or Bohon told Freda. It was about this time that Respondent began tallying up the possible election result. Admittedly Bohon mentally computed the votes using such objective standards as the warmth of an employee's greeting and whether the employee's eyes rose or fell upon his approach, etc., to determine that individual employee's probable vote in the election. But the evidence proved that Bohon did not rely exclusively on the above objective criteria because he asked at least one utility man, Kennedy, how each of the eight employees under him would vote and discussed the possibilities of the upcoming vote with Sisson19 who, with Heaton, figured the election to be a 38-38 tie, a remarkably accurate poll as events turned out, which, of course, had necessitated an equally accurate determination of the preference of each individual employee. In fact Bohon even visited Trubie Graham in the hospital after the accident to get his opinion as to how his employees would vote. Hence, it is clear that Respondent was keeping a close 19 Sisson testified that he "could not recall" if Bohon's inquiries descended to the preference of the individual employees. I ROWE FURNITURE CORP. OF MISSOURI 165 and accurate tally of votes and knew that one vote might decide the election. Bohon disclaimed having any knowledge as to how Freda felt about the Union. With a young lady as friendly and talkative as Respondent maintained the extrovert Freda to be, this is a surprising contention especially for one as interested in the election results as Bohon and with all the "reports from the floor" he was receiving. Bohon was not one to close his ears to information. In fact he sought it. This claim is even more surprising in Freda's case because Bohon had a direct pipeline to a definitive determination of Freda's preference through the Armes- Sharon Hafford carpool and babysitting arrangement.20 Armes testified that he first learned of the Union just about the time of the St. Louis meeting, no doubt at the utility men's meeting on January 19, and on the next morning asked Sharon during the drive to work if she knew anything about the Union. Naturally Sharon did and said so. Whereupon, according to Armes who acknowledged that he personally,opposed the Union, he answered, "Well, I don't know of [what] your opinion is on it, I have my opinion, we both have a right to think what we want, we are neighbors and friends and we will just not discuss it and that way we will remain neighbors and friends." It appears from this revealing testimony that Armes some- how sensed that he and Sharon held divergent views regarding the Union. So, according to Armes, nothing further was ever said about the Union 21 But he also knew that Freda and Sharon remained friends and hence did not hold divergent views on the Union. But, even accepting Armes' testimony at face value, with an employee as talkative as Respondent claimed Freda to be and with as much research into the question of the employees' preferences on the union matter as Bohon was doing on his own and with Trubie Graham, Sisson, and Heaton, among others, it would be a miracle if Bohon was in the dark as to Freda's position. Consequently, I cannot credit Bohon's denial of knowing that Freda was proumon. Then the reasons which both Bohon and Sisson gave Freda for abruptly terminating her employment on February 2 were obviously untrue,22 inapplicable or outdated, at least on the day of the discharge because that day, acting upon direct orders from Armes, Freda was caring for the ailing Sharon largely in the restroom where she could not have been interfering with the work of others on the floor. Furthermore the other specific objectionable conduct referred to all was a month or more in the past. With, a tight representation election coming up where every vote is going to count, it is dangerous for an employer who does not want a union in the plant to allow a talkative, showoff, extrovert to spend too much time talking in the restrooms-even though she may be under 20 Each day 'utility man Armes drove Sharon to and from work and Mrs. Armes babysat the Hafford children. 21 Neither side called Sharon as a witness. 22 See Shattuck Denn Mining ' Corporation v. N L.RB., 362 F.2d 466 (C.A. 9, 1966). 23 Jarrell testified that on this occasion he was called to Sisson's office and asked about a prospective employee who had listed Jarrell as a reference. 24 Gilton already knew from previous conversations about the Union orders to tend a sick fellow employee. Extroverts have a tendency to be leaders and influence people on issues. When considered as an integral part of the whole, the discharge of Freda on February 2 fits into the pattern of the other discharges during this period and convinces me that Bohon discharged Freda Dunning on February 2 because he knew, or suspected, that she was prounion and might lead others to vote for the Union in violation of Section 8(a)(1) and (3) of the Act. I so find. 4. Discharge of Ray Gilton On November 18, 1970, Gilton began his employment with Respondent in the frame and spring department working on a two-man operation where he was trained by utility man Jerry Jett and floater Paul Jarrell. Gilton learned the job in average time and worked at it, teamed with James (Tom) Parks, until about a week before his discharge on February 4 when Parks, who had been on the employees' organizing committee, left Respondent's em- ploy in order to go to college. Upon Parks' departure, Jarrell began training new employee Gene Mohr to team up with Gilton. Gilton executed a union authorization card on Decem- ber 14, attended the January 18 union meeting, and also discussed the need for a union in the plant with his fellow employees and Jarrell. Gilton was absent a total of 4 days during his employment with Respondent and was late reporting for work on occasion but had received no written or oral reprimands for those or other reasons. His personal relationships with his fellow workers and supervisors was good. Gilton was absent on February 3 due to automobile trouble. He reported back to work again on February 4 and was again working with Mohr and Jarrell. About 2:30 p.m. Jett asked Gilton to work overtime that evening. Gilton demurred a bit because his car was still in the repair shop and he had arranged a 4 p.m. ride to the shop. However when Jett suggested that he would drive Gilton to the repair shop, Gilton readily agreed to the overtime work. About an hour later Jarrell left the job and went to Sisson's office and then returned to work.23 Upon his return from the office Jarrell inquired of Gilton if he were still for the Union. Gilton answered that he thought the Union could do more for him than the Company and that the Company had had its chance so that he was going to give the Union its chance 24 A few minutes thereafter Jarrell returned to Sisson's office.25 About 3:45, after Jarrell had again returned to work, Jett appeared and told Gilton that Sisson wanted to see him in the office. Upon his arrival in company with Jett, Sisson with Jarrell that Jarrell feared that, if the Union succeeded, Respondent would move its plant back to Virginia and, therefore, he was against the Union. After first denying that any such conversation took place, Jarrell testified that "it was possible" that he and Gilton discussed the Union at this time. 25 Jarrell testified that he went to Sisson's office on this occasion to discover for Mohr what Mohr's wage rate was. Mohr had already worked for Respondent for about a week at this time. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told Gilton that he was being discharged because he had missed too much work and because of his poor work. Gilton inquired if the discharge was caused by his union activities. Sisson answered that the Union had nothing to do with it.26 Gilton then asked for his check but was told that he could only get that on payday, Friday. Then Gilton warned Sisson that if Respondent "beat him out" of his unemployment, he (Gilton) "would see [Sisson ] around." The session became heated on Gilton's part before he finally departed about 4 p.m. Gilton returned to the plant about 5 p.m. He was mad. Seeing Jarrell, Gilton accused him of having "framed" Gilton by reporting his prounion sentiments to Sisson. Jarrell denied the accusation. Gilton practically went berserk. He attempted to start a fight with Jarrell and threatened "to get" Sisson and other of Respondent's officials if they "did him out" of his unemployment. As Gilton was leaving, Bohon who was present throughout heard Gilton say, "I'll get everyone of you sons of bitches and if you don't believe them [me?], you just ask over at Florsheim." The others present heard much the same. After a considerable period of tension, Gilton finally left the plant with no physical damage done. As Jarrell left the plant on his way home, Gilton followed Jarrell's car in his own automobile until Jarrell managed to elude Gilton en route. Thus was Gilton discharged. As requested, Gilton received the following letter of explanation dated February 16 over the signature of Bohon: This is to advise that you were employed at our plant from November 19, 1970 until February 4, 1971, as a probationary frame assembler. You were discharged on February 4, 1971 for having falsified your employment application,27 for an unac- ceptable attendance record, mediocre work perform ance, and unwillingness to work overtime as needed -all during your probationary period. Further, during the conversation leading to, and following your discharge, you created a dangerous situation by your foul language and threats to employees of the Compa- ny. Thus the testimony makes out a strong, clear case that Gilton was discrimmatorily discharged. I make this finding despite the fact that Sisson testified that he had no knowledge of Gilton's union sympathies. This denial comes with poor grace in the light of the intensive research which was being done on that subject by Bohon, Sisson, Heaton, et al. and by a man who was expert enough on that subject to prophesy a tie election. I do not credit the denial. Jarrell also denied having informed Sisson that Gilton was still for the Union only a few minutes prior to the discharge. But Jarrell also had originally denied having talked about the Union to Gilton in the short space of time between his two visits to Sisson but finally acknowledged that "it was possible" that he and Gilton had discussed the Union in that short interval between visits. I therefore have no hesitation, despite these denials, in 26 Sisson denied knowing anything about Gilton's union sympathies. 27 This is the first mention of this basis for discharge. finding that Sisson and Respondent had knowledge that Gilton was in favor of the Union before the discharge on February 4. At the exit interview Sisson informed Gilton that he was being discharged because of his absences, tardiness, and poor workmanship. However the evidence shows that on February 3, the day Gilton was absent due to automobile trouble, Bohon and Sisson had conferred about Gilton and had decided against discharging him for those very same causes. The only new element added on February 4 was the confirmation of Gilton's stand about the Union. But, on the other hand, Bohon contended that the real reason for ordering the discharge of Gilton was his falsification of his job application. He testified that early on the morning of February 4 he received an unsolicited telephone call from the manager of the Florsheim Shoe plant across the street informing him that that morning while bringing his wife to work at Respondent's plant, the manager had noted Gilton going into the plant to work. The manager then informed Bohon that Gilton had previously worked at Florsheim and, when discharged, had physically beaten up the manager. This was news to Bohon but it convinced him that Gilton was not the type of employee Respondent wanted. After the phone conversa- tion Bohan checked Gilton's job application form and discovered that Gilton had omitted Florsheim as a previous employer and had answered "No" to the question as to whether the applicant had had trouble with any prior employer. This, according to Bohon, decided him that Gilton had to be discharged. So, after that discovery, that morning Bohon called in Sisson and instructed him to discharge Gilton "at the end of the day" but to be sure to have somebody with him at all times during the exit interview with Gilton. Bohon admits that he did not tell Sisson about the Florsheim telephone call or the falsified application prior to the discharge. He testified that the reason that he concealed this information was to prevent Sisson from getting "nervous." Gilton corroborated the facts disclosed in this telephone call and that he had deliberately falsified his job applica- tion. There is, however, no corroboration as to the date of this telephone call. The Florsheim manager was not called as a witness. There are a number of facts here which tend to refute Bohon's testimony of having received this unsolicited telephone call from Florsheim on the morning of February 4. 1. Bohon did not discharge Gilton immediately upon the receipt of the Florsheim information and his check of the application form. If this information made Gilton as undesirable an employee as Bohon claimed, the normal thing would seem to have been to have fired Gilton immediately. 2. Bohon did not tell Sisson, his second in command, anything about the Florsheim information or the falsified job application. This seems passing strange . Bohon's purported excuse, i.e., that knowing these facts might make Sisson "nervous," justifies the use of the expression ROWE FURNITURE CORP. OF MISSOURI 167 "poppycock." Bohon could have saved Sisson's nerves by discharging Gilton himself. He had done so with others. 3. Bohon specifically ordered Sisson to discharge Gilton "at the end of the day." This undue delay does not appear to fit the crime as seen by Bohon. 4. Bohon's instruction to Sisson that he should be sure always to have somebody present at the exit interview with Gilton implies that Bohon feared the possibility of violence. However, Sisson testified that such an instruction was not unusual. Some companies like to have witnesses around. 5. Bohon and Sisson disagree on when the decision was made to discharge Gilton, with Sisson claiming that he made the decision in the middle of the afternoon of ]February 4. 6. About 2:30 p.m. on that day, February 4, Gilton was requested by Jett to work overtime that evening. This established fact refutes both Bohon and Sisson because, if Sisson knew that Gilton was to be discharged "at the end of the day," or had made up his own mind to discharge Gilton that day, Gilton would hardly have been asked to work overtime. Respondent's answer, of course, would be that it was Jett who made the request of Gilton and he knew nothing of the impending discharge. However Respondent's evidence regarding the supervisory status of utility men was that Sisson-not the utility man-selected the employees to work overtime. Once again Respondent would like to walk on both sides of the street. 7. By his admitted reticence Bohon permitted Sisson to give Gilton false reasons for his discharge, to wit, absences, tardiness, and poor workmanship, whereas the real reason, according to Bohon, the falsification of the application, was never mentioned to anyone. Of course, according to Bohon, Sisson was ignorant of the real reason Bohon had ordered the discharge. But only the day before, February 3, Bohon and Sisson had allegedly talked over Gilton and decided against firing him for the very reasons Sisson gave for the discharge at the exit interview. 8. Even though Bohon was present at the 5 p.m. ruckus, Bohon never mentioned the Florsheim incident even though its disclosure would have shifted the onus to Gilton, eliminated his charge of frameup against Jarrell, and probably stopped the whole incident. But tense as the situation was, Bohon did not say one word about Florsheim. 9. But Bohon's memory was vivid that, in order to prove the reality of the threats he was making, Gilton's parting shot was, "If you don't believe me, ask them down at Florsheim." This was the sole mention of Florsheim during this whole incident. It appears to have brought the Florsheim incident into this case. For the Florsheim manager to have first noted that Gilton was an employee of Respondent on this particular day, February 4, would have been pure coincidence, possible but not probable, particularly as his wife had been working for Respondent at least as long as Gilton had. The odds against such a coincidence must be rather large. The 28 The record does not disclose what penalty, if any, was accessed and paid after this plea. Sisson testified to another occasion when Gilton was at the bowling alley watching while Sisson and Jarrell were bowling for Respondent's team As to this Sisson testified, and I ordered it stricken, that Gilton was watching odds in favor of Bohon's investigating Florsheim after Gilton's parting remark must be rated at about 100 percent. For these reasons and because of the numerous gaps in Respondent's credibility throughout this hearing, I am convinced, and therefore find, that the Florsheim incident came to light as a result of Gilton's 5 p.m. statement and not prior to the discharge. Accordingly the facts require, and I find, that Gilton was discharged by Respondent on February 4 because of his known preference for union representation and in order to discourage union membership and activity in violation of Section 8(a)(1) and (3) of the Act. Unhappily that does not end this matter because I am sure that, if Respondent had filed a brief herein, it would argue that, even if Gilton were discriminatorily discharged, his actions and threats thereafter disqualify him for reinstatement. It is true that at the time of the discharge Gilton threatened to "get" Jarrell and all the Respondent officials present in vulgar, profane language, that he followed Jarrell's automobile as Jarrell left the plant, that some time after the interview Gilton ran into the Jarrell family at a shopping center, got into another fracas during which Mrs. Jarrell apparently was knocked down for which, when Jarrell swore out a warrant against him, Gilton pleaded guilty.28 Gilton's threats at the time of his discharge and the indications he gave of an intent to make good on those threats thereafter are not to be condoned. Gilton was dead wrong. But, on the other hand, Respondent here is far from being without fault. It lied to Gilton. It gave Gilton good cause to believe that it had indeed "framed" him. Respondent caused him to lose his livelihood in violation of the law and it provoked the whole incident. Up until that event the evidence proved that Gilton got along well personally in the plant. Because of the time which has now elapsed since that event and because the hearing herein no doubt cleared the air by making each side more cognizant of the problems of the other, it seems reasonable to believe that there will be no repetition of the incident and, consequently, I feel that the usual remedy of reinstatement with backpay will be appropriate here. 5. Ronnie Roach Ronnie Roach was employed by Respondent on May 25, 1970, and worked continuously thereafter exclusive of a period when he was absent from work due to an on-the-job injury in August. He returned to work permanently on September 24. He signed a union authorization card on December 11, 1970, and replaced Tom Parks on the employees' organiz- ing committee when Parks left for college. Roach originally had worked in the frame assembly the match "with the intention, I'm sure, with trying to start some trouble." Factually, however, nothing happened except that one of the wives called the police. Thus this incident proved to be more a case of nerves than anything else. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department but, after his injury, became a spring installer. During his employment Roach received one written reprimand but was spoken to about his frequent tardiness. Roach had been afflicted with ulcers since childhood which caused him to be absent occasionally or to have to see a doctor. This physical ailment he had noted on his job application form. But Bohon testified that he knew nothing about it until called to his attention during the investiga- tion in this case. On January 21 Roach attended the St. Louis representa- tion hearing with fellow employees Robert Hasting and Blakeney. It was well known to Respondent's supervisory staff that Hasting and Roach were the first two employees to display union automobile stickers on their automo- biles.29 About 3:50 p.m. on February 4 utility man Jett requested that Roach work overtime that evening. Roach demurred saying that he had some important business to attend to and then, while Jett was still standing looking at him, Roach added, "Well, if you want to know what kind of business it is, it is going to a union meeting." Roach worked an hour overtime that night and was ordered to report the next morning at 6:30 a.m., instead of the usual starting time of 7:30 a.m., so as to get in another hour of overtime work. On February 5 Roach reported as requested and worked until about 7:30 a.m. when he asked Jett for time off because of stomach cramps. About 10 minutes later after Jett had apparently consulted with Sisson, Roach was excused from work. That afternoon Roach returned to the plant to pick up his weekly paycheck. After some confusion as to who had his check, Sisson sent him to Don Green's office where Sisson wanted to talk to him. In Green's office Sisson told Roach that Roach "had been missing too much work and that he couldn't have it no more and that he was going to have to let [Roach] go." Sisson also mentioned Roach's tardiness and said that he did not want any hard feelings between them. Thus was Roach discharged. As requested, Respondent under date of February 16 sent Roach the following letter explaining the cause of his discharge: This is to advise that you were employed at our plant from May 25, 1970, until February 5, 1971. You worked as a frame assembler for 7 months, and as a spring installer for the remainder of your employment. You were discharged on February 5, 1971 for unwill- ingness to work overtime as needed, and for an unacceptable attendance record, having been absent for 25 days, and tardy 27 days during the year 1970. After reprimands you made no improvement in 1971 having been absent 4 days. The contentions raised in this letter require a look at the record, to wit, Respondent's Exhibit 12 which is a compilation prepared by Respondent of Roach's attend- ance record throughout his employment. This record shows that in 1970 Roach was absent a total of 26 days of which 21 were due to an on-the-job injury, and he was tardy 31 times running from 1 to 15 minutes each. This record further shows that, after receiving a written reprimand on November 12, 1970, Roach left the plant once at 11:30 a.m. for which there is a doctor's report in the file, was late twice (once for 4 hours 15 minutes and the other for 4 minutes) and was listed as "out" three times for 1 hour 22 minutes, 1 hour 54 minutes, and on December 31 for 3 hours 29 minutes.30 It was agreed that all Roach's absences had been "excused absences." The record further shows that for the year 1971 Roach was absent three times which included January 21 when Roach, as Respondent well knew, was in St. Louis for the representation hearing, and was never tardy. Roach's attendance record was perfect from the date of the St. Louis meeting to about 8:30 on the morning of February 5 when Respondent excused him because of illness. Later that day Respondent chose to discharge him. At the hearing Bohon conceded that there had been some "improvement" in Roach's attendance during 1971 despite his letter to the contrary. As for Roach's "unwillingness to work overtime as needed," Roach acknowledged that during his period of employment he had objected to working overtime three or four times. While Roach demurred to working overtime on February 4 because, as he informed Jett, of "important business-a union committee meeting," he not only worked the requested hour overtime on that day but also reported an hour early on February 5 for another requested overtime. This tends to refute the contention contained in the February 16 letter. Hence when Respondent discharged Roach on the evening of February 5, Roach's attendance record had been perfect for better than 2 weeks-until he became ill about 7:30 that last morning-and, in addition, he had worked an hour of overtime on both February 4 and 5. On the other hand, he was known to have been absent on union business in St. Louis on January 21, was known to have a union sticker displayed on his automobile, and had demurred temporarily at working overtime on the day before his discharge because he preferred to attend a union committee meeting. All the facts here lead but to the conclusion, which I here find, that Respondent discharged Ronnie Roach on February 5, 1971, because he was known to be one of the leaders of the Union and in order to discourage union membership and activities among its employees in viola- tion of Section 8(a)(1) and (3) of the Act. 6. Charles Millican Charles Millican was employed by Respondent as a dispatcher for the two assembly lines from the date of his hire in October 1970 until his discharge on February 19, 1971. When Don Green, personnel manager, interviewed Millican at the time of his hire, Green noted that much of Millican's prior employment had been in the State of Michigan and inquired if those plants had been unionized, and then, after an affirmative answer, asked what Millican 29 Bohon had seen lots of these auto stickers. Heaton knew of six or 3° These `buts" may have been for dental appointments which seven cars with such stickers on them Sisson saw none. Respondent had arranged for Roach. ROWE FURNITURE CORP. OF MISSOURI thought of unions. Milhcan's answer was noncommittal, some good, some bad. Green thereupon explained that Rowe had no union and that things were different in Poplar Bluff than they were in Michigan. He also inquired as to why Millican sought a job in Poplar Bluff and if he would be permanent. Millican's answers apparently satis- fied Green so Millican was hired that day with Sisson explaining his job to him. As the dispatcher it was Millican's job to supply the two automated assembly lines with their 15 operators with all the necessary frames and materials for them to turn out completely finished living room upholstered furniture at the end of the line. This meant that Millican had to push stacked frames on vehicular "floats" from the frame and spring department to the head of the automated line. He then removed the frames from the float and put an individual frame on a vehicle known as a "buck" which was attached to the line and automatically thereafter went to each operator on that line. After completion the furniture was removed from the buck by the cleaners and the bucks returned to the head of the assembly line by an automated drag line. In addition it was Millican's duty to secure the necessary covering, cotton, cardboard, orna- mental wood pieces etc. which would be used on each piece of living room furniture. As was the case with all the men in that department Millican worked under the supervision of Jack Heaton, Tom Bounds, and Oliver McMeans, the utility men. Millican learned his job in a normal period of time. His job evaluation sheet indicates that he received one written reprimand which reads as follows: "You are being reprimanded for not doing your job properly, not following orders or instructions, and leaving your job area too often. S/ Jack Heaton 1-15-71.1131 About a week prior to the aforementioned reprimand Heaton had ordered Millican to sort out some arm cushions. When Millican told Heaton that he was too busy, did not have the time and, besides, that was not part of his job, Heaton retorted, "Any time I tell you to do anything it's your job-so you will either do it or else I will send you home." Millican and Heaton thereupon took the matter to Sisson who listened to the story and then stated, "if he don't have the time to do it he can't do it." Subsequently Heaton told Millican that he did not like people who couldn't do what he told them right then and there without having to make a big issue of it and taking it to the "big boss." Millican acknowledged that his work had been criticized three or four times during his employment. On one occasion about 2 months after Millican started work, the cleaners were slow returning bucks to the assembly line. Sisson noting this told Millican to go help the cleaners if that ever happened again and he had time. Then a short time later Heaton criticized Millican for having gone and helped the cleaners and being away from his work area too often. Millican was confused. Also prior to his discharge Millican had been told to be more careful while moving floats loaded with frames by the 31 Both Sisson and Heaton testified that Heaton administered this reprimand on direct orders of Sisson . Sisson was not present at the 169 frame and spring department to the assembly line so that these frames would not fall. Millican attended the February 18 union meeting at which time he secured a 15 inch by 4 inch union automobile sticker reading "Vote U. I. U. AFL-CIO" which he promptly placed on the back window of his automobile. The following morning, February 19, Millican drove his automobile so decorated into the employees parking lot and parked. Parking immediately behind him was another automobile containing Jack Heaton and Oliver McMeans who watched Millican leave the car and enter the plant. Just before noon that day no bucks were coming back from the cleaners. Heaton inquired why Millican did not have enough "setups," i.e., frames on bucks, for the assembly line. Millican told him that no bucks were coming back and asked Heaton to get him some . Heaton terminated the conversation by saying "I will see about that after lunch." Soon after lunch Millican ran out of bucks entirely and again requested Heaton to get him some. The line began to run down for lack of bucks. Millican asked Heaton for permission to go home as he was not feeling well. About 2 p.m. Heaton took Millican to see Sisson. Sisson said that Millican was not keeping up with production, was holding up too many people, and he thought "it was time for us to part company." Millican argued that he could not keep up production if he could not get bucks for setups. Sisson answered, "Well, that's your job to make sure you keep bucks up there." Millican reminded Sisson that, when he tried to get bucks, he had received a written reprimand for doing it. Sisson replied, "well, that's too bad" and handed Millican his check and asked Heaton to take him out of the plant. Under date of February 25 Respondent advised Millican of the reasons for his discharge in the following letter: This is to advise you that you were employed at our plant from October 12, 1970, to February 19, 1971. During this time you worked as a dispatcher, supplying the workers in department number 8 cover assembly. You were terminated for (1) Your refusal to obey orders. (2) Performing your work in a very careless manner. (3) Failure to keep up your work, thereby holding up a large number of workers-all after proper warning against such misconduct. One other thing occurred on the morning of February 19. Sometime that morning while the trouble with the bucks was going on, Heaton ordered Millican to get a certain wood part. Millican answered that he did not have the time at the moment but would when he could. Thereafter, according to Heaton, after giving Millican this order, he stood watching Millican and saw him go over to the cutting area and start playing with an air hose. After watching Millican play "about" 10 minutes, Heaton thereupon went and complained about the trouble he was having with Millican to Sisson who said that he "would go ahead with it." According to Millican, after receiving the order, he went to ask the cutter for some cotton which was also needed for the assembly line but had to wait there reprimand. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while Heaton and the cutter conversed during which time he did examine the air hose which he claimed he had never seen before. No doubt something of this nature occurred sometime that morning but not as either one of these witnesses testified. One thing is clear: Millican did not get the wood part as ordered. According to Sisson's testimony, after Heaton's report on the trouble he was having with Millican, Sisson went to Bohon and they decided to discharge Millican that afternoon. Sisson testified that he did not "remember" if he and Bohon discussed Millican's union sympathies during that conversation nor did Sisson "remember" if Heaton had said anything to him about Millican's having a union sticker on his car.32 There is no doubt that Millican was not the perfect employee. On occasion frames fell off the floats as he was pushing them to the assembly line. But the evidence showed that frames occasionally fell no matter who was pushing the floats, both before and after Millican's tenure. No doubt Millican did look at the air gun. But the Troutt case indicates that this was a common practice throughout the plant. No doubt Millican did forget things and was on occasion careless. But the perfect employee has not yet been born. So, taking Respondent's letter of February 25 at face value, Millican was discharged because he disobeyed the orders of Heaton, his utility man. This bears upon the question of the supervisory status of utility men and proves: (1) Utility men had the authority to give orders which were to be obeyed on pain of discharge, and (2) utility men had the authority to make effective recommen- dations for an employee's discharge.33 Again taking Respondent's letter at face value, Millican was discharged for careless work and failure to keep up but this contention is contradicted by the 2-1/2 cents34 automatic raise which Millican received just 3 days before his discharge. These raises were automatic if the employ- ee's work was satisfactory. In this connection it must be here said that Respondent's credibility throughout this hearing left much to be desired. As was the pattern throughout this case, Millican was discharged within hours of the time that Heaton saw the union sticker on his car. In Hasting's case the discrimina- tion began 2 days after his appearance in St. Louis. In Troutt's case it happened promptly upon Respondent's learning that the Union was going to send a letter demanding recognition. In Roach's case it followed within hours-albeit the following day-of his expressed prefer- ence for attending a union meeting to working overtime- -albeit that he had worked overtime twice in the meantime. In Gilton's case the retaliatory move occurred within minutes. In Aldridge's case it happened as soon as she began to spend too much time in the restroom-albeit while nursing a fellow employee. Clearly Bohon had meant what he said about "nipping it in the bud." Accordingly I must, and hereby do, find that on February 19 Respondent discharged Charles Millican because of his suspected membership and known activities 32 In fact, Sisson could not recall having ever seen a union automobile sticker. 33 Sisson testified that he accepted Heaton's word regarding the alleged on behalf of the Union and in order to discourage such membership and activities among its employees in viola- tion of Section 8(a)(1) and (3) of the Act. D. Refusal To Bargain and Objections to the Election As heretofore found, on December 18, 1970, the Union made formal demand upon Respondent to recognize and bargain with the Union as the exclusive representative of its employees in the appropriate unit together with an offer to permit a third party to determine the authenticity of the union signed authorization cards as well as the majority. Respondent refused this request because of certain unspecified "information coming to our attention" which allegedly convinced Respondent that the Union did not represent a majority. As of December 18, 49 of Respondent's 78 (including utility men whom I have excluded from the unit as supervisors within the meaning of the Act) employees in the appropriate unit. The authenticity of these cards was not questioned during the hearing. Hence, as of the time of the request, the Union was by law the exclusive representa- tive of the employees in the appropriate unit. After refusing this demand for recognition, Respondent used the time so created to engage in massive unfair labor practices, including the discriminatory discharges of four employees, Aldridge, Gilton, Roach, and Millican, who were all part of the appropriate unit at the time of their discharges, in an effort to destroy the Union's majority. For the same purpose Respondent made a continuing public display in its treatment of union leader Robert Hasting of what employees could expect if they, continued to support the Union. Thus Respondent's unfair labor practices were both massive and continuous. As a result when the Board conducted its election on March 3, that election resulted in a 38-38 tie, Through Respondent's successful "downgrading," the eight utility men were permitted to vote in this election. The ballots of the four dischargees above mentioned were challenged and not counted, awaiting the decision of a Trial Examiner. As these four dischargees were eligible voters at the time of their discharges and have here been found to have been discriminatorily discharged in violation of the Act, Res- pondent's challenges to their ballots must be overruled. Contrary to the determination of the Regional Director, it has also been found herein that Respondent's "utility men" were and are supervisors within the meaning of the Act and, therefore, not members of the appropriate unit or eligible to vote in the election. Respondent's massive unfair labor practices during this period were intended to, and did, affect the results of the election of March 3. In addition I am convinced that through those deliberate unfair labor practices Respondent has made the possibility of holding a' free and fair election in the near future an impossibility. Consequently I also believe that the expression of the employees' desire for union representation as shown by the signed authorization cards is a better indication of their disobedience and made no investigation thereof. 34 The evidence is unclear as to whether this last raise was 2-1/2 or 7-1/2 cents. ROWE FURNITURE CORP. OF MISSOURI 171 desires in that regard than either the March 3 election or another election in the future. The facts show that on December 18, 1970, Respondent refused to bargain with the Union as the exclusive representative of its employees in the appropriate unit in violation of Section 8(a)(1) and (5) of the Act. Accordingly, I will order that Respondent, upon request, bargain with the Union as such exclusive representative of its employ- ees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship 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. exclusive representative of its employees in regard to wages, hours, working conditions, and grievances and, if agreement is reached, to embody such agreement in a written signed document. The appropriate unit is as follows: All production and maintenance employees at Respon- dent's Poplar Bluff, Missouri, plant, excluding over-the- road truckdrivers, office clericals, guards, professional employees and supervisors as defined in the Act including utility men.35 Because of the type of the unfair labor practices engaged in by Respondent, I sense an opposition by Respondent to the policies of the Act in general and I deem it necessary to order Respondent to cease and desist from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record herein, I make the following: CONCLUSIONS OF LAW V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that the Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated in regard to the hire and tenure of employment of Richard G. Troutt on December 17, 1970, Freda Aldridge Dunning on February 2, 1971, Ray Gilton on February 4, Ronnie Roach on February 5, and Charles J. Millican on February 19, 1971, because of their membership and activities on behalf of the Union in violation of Section 8(a)(1) and (3) of the Act, I will recommend that Respondent offer each of them immediate and full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his or her seniority or other rights and privileges and make each whole for any loss of pay he may have suffered by reason of said discrimination against him on or after the date of the discrimination by payment to each of a sum of money equal to that which he would have earned from the date of the discrimination to the date of the offer of reinstatement, less the net earnings of each during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum, Having also found that Respondent has discriminated in regard to the conditions of employment of Robert Hasting from and after January 23, 1971, I will recommend that Respondent cease and desist therefrom. Having also found that Respondent has refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act, I will order that Respondent, upon request, bargain in good faith with the Union as the 35 Based on far more complete evidence than the Regional Director had, I have concluded, contrary to the Regional Director's decision, that all utility men are supervisors within the meaning of the Act and, therefore, expressly excluded utility men from the appropriate unit. 36 In the event no exceptions are filed as provided by Sec. 102.46 of the 1. Upholsterers' International Union of North Ameri- ca, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Richard G. Troutt on December 17, 1970, Freda Aldridge Dunning on February 2, Ray Gilton on February 4, Ronnie Roach on February 5, and Charles J. Millican on February 19, 1971, and discriminating in regard to the conditions of employment of Robert Hasting on and after January 23, 1971, because of their union membership and activities on behalf of the Union and in order to discourage such union membership and activities, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 3. By refusing to bargain collectively with the Union as the majority representative of the majority of Respondent's employees in the appropriate unit on and after December 28, 1970, Respondent has refused to bargain in good faith with the Union as such representative in violation of Section 8(a)(1) and (5) of the Act. 4. By interfering with, restraining, and coercing its employees in the rights guaranteed them in Section 7 of the Act, Respondent has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 36 ORDER Respondent, Rowe Furniture Corporation of Missouri, Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided 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. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., Poplar Bluff, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating in regard to the hire and tenure of employment or any term or condition of employment of any of its employees because of their membership in or activities on behalf of the Union or any other labor organization of their choice. (b) Refusing to bargain in good faith with Upholsterers' International Union of North America, AFL-CIO, as the exclusive representative of Respondent's employees in the appropriate unit which is: All production and maintenance employees at Respon- dent's Poplar Bluff, Missouri, plant, excluding over-the- road truckdrivers, office clericals, guards, professional employees and supervisors as defined in the Act including all utility men. (c) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Richard D. Troutt, Freda Aldridge Dunning, Ray Gilton, Ronnie Roach, and Charles J. Millican immediate and full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make each whole for any loss of pay he may have suffered on and after the date of the discrimina- tion against him, by reason of such discrimination in the manner set forth in the section of this Decision entitled "The Remedy," with interest thereon at 6 percent per annum. (b) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after 31 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." discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (c) Upon request, bargain collectively in good faith with Upholsterers' International Union of North America, AFL-CIO, as the exclusive representative of Respondent's employees in the aforefound appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody same in a written signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, as well as all other records necessary to analyze and compute the amount of backpay due under the terms of this recommended Order. (e) Post at its Poplar Bluff, Missouri, plant copies of the attached notice marked "Appendix." 37 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.38 IT IS FURTHER RECOMMENDED that, unless Respondent notifies said Regional Director within 20 days from the receipt hereof that it will take the action here ordered, the Board issue an order directing Respondent to take the action here ordered. 38 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 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith."