G. W. Davis Corp.

204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD G. W. Davis Corporation and Barbara Joan Carter. Case 25-CA-4941 March 6, 1973 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 11, 1972, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of said Decision. 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.I The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint alleged and the General Counsel contends that the Respondent discharged or laid off Barbara Joan Carter, on or about March 14, 1972, because she had filed a grievance against the Respondent, or because Respondent believed she had, and because she engaged in other union activity,2 and that Respondent thereby violated Section 8(a)(3) and (1) of the Act. Carter was first employed by the Respondent in May 1969. She was subsequently laid off, reem- ployed in November 1969, and laid off again in June 1971. She served as treasurer of Local 59163 from July 1970 until November 1971 when she quit that post as she was leaving Indiana to seek work in the State of Washington. On November 18, 1971, while in layoff status, Carter notified the Respondent that she, her husband, and her family were leaving for Washington to seek work, and that her mail should be forwarded there. Although the Respondent contends that she stated at that time she was quitting, the Administrative Law Judge credited Carter's testimony that she did not. During December 1971, Carter telephoned Jean Gwin, Respondent's personnel manager, from the i The Respondent's request for oral argument is hereby denied as, in our opinion, the record in this case, including the exceptions and briefs, adequately presents the issues and positions of the parties 2 The Administrative Law Judge found that Mrs Carter was not engaged in such other union activity at any material time and hence recommended that the complaint be dismissed insofar as it so alleged The Administrative Law Judge's recommendation in this respect is hereby adopted 3 Local 5916, United Steelworkers of America, AFL-CIO, is the contractual bargaining agent of Respondent's employees 4 It appears that the Respondent's operation is seasonal in nature, with State of Washington, to inquire whether the plant had reopened for work.' Again, in January 1972 Carter called Gwin for the same reason. On January 5, 1972, Horowitz, Respondent's assistant general manager, wrote to Carter in Washington, advising her that on November 18, 1971, she had given Respondent notice that she was quitting, that her name had been removed from the seniority list, and that if she were reemployed it would be as a new employee without seniority.5 Carter returned to Richmond, Indiana, about February 5, 1972, and on Monday, February 7, she personally asked Horowitz for reemployment. He replied there was no work for her but said he would get in touch with her when there was work available. Carter again sought out Horowitz a few days later, at which time she was told by Horowitz that she had lost -her seniority. On February 16, 1972, Carter was employed by the Respondent as a new, or probation- ary employee.6 Carter remained in Respondent's employ until she was terminated on March 14, 1972, shortly before the end of the probationary period imposed by the Respondent. Throughout this period of employment, Carter complained that she should not have been treated as a new employee or deprived of her seniority. Horowitz admitted that he was aware of these complaints during February and March 1972. On the morning of March 14, 1972, Carter filled out a grievance form, in which she sought to have her seniority reinstated, and submitted it to various members of Local 5916's grievance committee for their signatures. None signed it and she left it with Sammie Lewis, an employee and a member of that committee. Subsequently, about noon that same day, Carter was terminated. The Respondent contends that she was terminated because she had been creating a disturbance and was talking to other employees on the production line, because she had a history of absence and tardiness during her previous period of employment, and because there had been complaints about her from other employees. The Administrative Law Judge, in agreement with the General Counsel, concluded that the reasons for Carter's termination advanced by the Respondent were pretexts, and he found that her termination was motivated by Respondent's knowledge, or its belief, that she had filed a grievance. We do not agree. peak employment normally being confined to the first several months of the calendar year 5 Under the terms of the Respondent's collective-bargaining agreement with Local 5916, new employees without seniority are considered probation- ary employees for the first 30 calendar days of employment and may be laid off or discharged "as exclusively determined by the Company" during that period G C Exh 2, X, sec 51 6 The complaint does not allege that the Respondent violated the Act by rehiring Carter as a probationary employee, and there is no evidence that it was motivated by unlawful considerations in doing so 202 NLRB No. 35 G. W. DAVIS CORP. Whether Respondent erred in concluding that Carter had quit when she went to Washington in November 1971 and in considering her a new employee is not of controlling consequence in our view. Respondent's right under the Act to terminate Carter for any reason but a discriminatory one is unaffected by her status as probationary employee or employee with seniority. Turning then to Respondent's purported reasons for terminating her, we are not persuaded that they are pretextual. With regard to the precipitate nature of Carter's discharge at midday, Gwin testified that probationary employees were frequently discharged at midday and that to her knowledge this had occurred in 1972. Horowitz testified that Respondent has a procedure for review of probationary employ- ees. Shortly before employees complete their 30-day probationary period, Gwin presents him with a list of those employees, with their date of hire and the date on which they would complete their probationary period. Horowitz then evaluates the employees' performance and decides whether to discharge them or not. Horowitz testified that this procedure was followed in Carter's case, and further stated that, during the month that Carter was employed in 1972, 6 to 8 probationary employees were so discharged. It is undisputed that Carter built a record of tardiness and absence during her earlier period of employment, a record which may have been con- doned or overlooked when she was rehired but on which Respondent had a right to rely in light of her subsequent behavior when considering whether to retain her beyond the probationary period. As to that, Horowitz testified without contradiction that he observed Carter talking to other employees on the production line on several occasions, and Gwin testified, also without contradiction, that other employees, as well as Carter's immediate supervisor, Moore, registered complaints about her. Horowitz further stated that one reason for terminating Carter was a report to him from Moore that she had created a disturbance on the production line. Moore denied that she created a disturbance on March 14 and further denied that he told Horowitz that she had. The Administrative Law Judge gave great weight to that seeming inconsistency, but Moore was asked only if those events occurred on March 14, the morning of the discharge, while Horowitz testified only that the event and Moore's report took place, without specifying a date when they occurred. Even assuming that Respondent's reasons for terminating Carter are suspect, it is not the Respon- dent's burden to prove that it discharged her for dust cause. The burden is on the General Counsel to establish a discriminatory motive for the termination by a preponderance of the evidence, if a violation is 205 to be found. This the General Counsel has failed to do. There is simply no evidence that Respondent knew, or believed, that Carter had filed a grievance.? Horowitz denied knowledge of the grievance until sometime after her termination. Sammie Lewis, a member of Local 5916's grievance committee, who physically possessed Carter's grievance on March 14, denied that he showed it to Respondent or men- tioned it before Carter's termination. Francis Wright, Local 5916's president, William Lewis, and Sammie Lewis, all members of Local 5916's grievance committee, denied knowledge of Carter's grievance until she unsuccessfully sought their signatures thereon on March 14. All denied mentioning the grievance or discussing the problem with representa- tives of the Respondent at any time before her discharge. The record is also devoid of evidence that, even if Respondent had known of Carter's grievance, it would have been motivated to discharge her for that reason. Local 5916 was certified as the collective- bargaining representative of Respondent's employees in March 1959. The current contract, effective from July 1, 1968, provides for the filing and resolution of grievances. So far as this record indicates, Respon- dent has never objected to the utilization of the grievance machinery. Indeed, the very morning that Carter was discharged, Sammie Lewis and Horowitz discussed a grievance which had been , filed by another employee, Hoover. The record contains no indication of adverse action against Hoover.8 Ac- cordingly, we shall dismiss the complaint herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I Respondent's admitted knowledge that Carter was complaining about her loss of seniority does not establish either as fact " We also note that no other unfair labor practices have been alleged DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case litigated pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. It was commenced by a complaint issued on June 22, 1972, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for Region 25 (Indianapolis, Indiana), naming G. W. Davis Corporation as the Respondent . Such complaint is based on a charge filed on May 9, 1972, as amended on June 21 , 1972, by Barbara Joan Carter, an individual. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In substance the complaint alleges that Respondent violated Section 8(a)(1) and (3), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some of the allegations of the complaint but denying that it committed any unfair labor practices. - Pursuant to due notice this case came on to be heard, and was tried before me, at Richmond, Indiana, on August 1 and 2, 1972. All parties were represented at and participated in the trial, and had full opportunity to introduce evidence , examine and cross-examine witnesses, file briefs, and offer oral argument. Respondent's motion to dismiss when the General Counsel rested was denied. All parties have submitted a brief. Respondent argued briefly at the close of the case. This case presents the issue of whether Respondent unlawfully discharged Mrs. Carter because she filed a grievance and engaged in other union activity, and because Respondent believed she had done so. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a corporation, is engaged at Richmond, Indiana, in manufacturing and selling gasoline-powered lawnmowers and related products. During the year preceding the issuance of the' complaint, Respondent purchased and received goods and materials valued in excess of $50,000 directly from States other than the State of Indiana. During the same period, it shipped products valued in excess of $50,000 directly to States other than the State of Indiana. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED Local 5916, United Steelworkers of America, AFL-CIO, herein called Local 5916, and United Steelworkers of America, AFL-CIO, herein called Steelworkers, each is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence Barbara Carter was first hired by Respondent on May 19, 1969. Thereafter, she was reemployed on November 26, 1969. (See G.C. Exh. 5A and B.) During this period, she worked on both assembly lines 1 and 2, as well as in the pressroom. She also became a member of Local 5916 and, from July 1970 to November 22, 1971, served as its treasurer. She resigned as treasurer on November 22, 1971. (See G.C. Exh. 7.) On about November 18, 1971, because of a layoff for lack of work, Mrs. Carter told Mrs. Gwin, Respondent's personnel manager, that the former was moving to the State of Washington and asked Mrs. Gwin to mail W-2 forms to an address there. But Mrs. Gwin was not told that Mrs. Carter was quitting her job . However, Mrs. Carter's husband and children went with her to Washington and she also stopped renting a house in Richmond . Neverthe- less, Mrs. Carter's husband quit his job in Richmond when they moved to Washington, and one of her children attended school while the family lived in Washington. In November 1971, Mrs. Carter left Indiana to go to Longview, Washington, where she remained until February 1, 1972. She did so because Respondent closed down because business was slack . In December 1971, Mrs . Carter telephoned Mrs. Jean Gwin, Respondent's personnel manager, inquiring whether the plant had reopened for work. Although stating that "they weren't back to work yet," Mrs. Gwin replied that Mrs. Carter had quit. The latter denied that she quit. Again in January 1972, Mrs. Carter called Mrs. Gwin to ask if "they had gone back to work yet." When Mrs. Gwin replied in the negative, Mrs. Carter stated she would return in February, but offered to come sooner if she were needed before then. She also wrote to Mrs. Gwin to the same effect about January 19, 1972. (See G.C. Exh. 3C.) About February 5, 1972, a Saturday, Mrs. Carter arrived at Richmond. The following Monday she spoke to Respondent's assistant general manager , Irving Horowitz, asking him for employment . He replied there was no work for her, but he would get hold of her. Two or 3 days later she again spoke to him. This time Horowitz told her that she had lost her seniority and that she had resigned from the Union. He had also written to her to this same effect. (See G.C. Exh. 3B.) On February 16, 1972, she was again employed by Respondent as 'a new employee. (See G.C. Exh. 5C.) Thereafter, Mrs. Carter spoke to Carl Himelick, J. C. May, Bill Lewis, Sammie Lewis, and Francis Wright, all connected with Local 5916, concerning her seniority. May is its steward, Wright its president and chairman of the grievance committee , and the Lewises are members of said grievance committee . Then on March 14, 1972, she filed a grievance with Sam Lewis because a member of the grievance committee is "supposed to sign it." See G.C. Exh. 6 for the written grievance , where Mrs. Carter insists that she did not quit, therefore, did not lose her seniority. She also asked Bill Lewis and Francis Wright to sign said grievance, but each refused to do so. So she ended up leaving it with Sam Lewis. At about 10 a.m. on the next day, March 15, J. C. May told Mrs. Carter that he had heard she would be laid off at noon of that day. Then at about 1l a.m. her foreman, James Moore, notified her that she would be laid off at noon but she would have to direct her questions to assistant general manager, Horowitz. This caused Mrs. Carter to call Carl Himelick at the union hall to apprise him that she had been laid off. Himelick advised her to go to Horowitz with him to see about her job. May also invited her to return to the shop so he could be with her when she spoke to Horowitz. But she did not return to the plant that day. The next day Mrs. Carter called on Sam Lewis at the plant, when she ascertained from him that he had not yet turned in her grievance. G. W DAVIS CORP. 207 The foregoing is an abridgment of Mrs. Carter's testimony . Another witness for the General Counsel, Respondent's assistant general manager, Irving Horowitz, testified substantially as follows. In manufacturing lawnmowers , Respondent operates two production lines. Mrs. Carter worked primarily on line 2 under Foreman James Moore. In late 1971, she left for the State of Washington and in February 1972, she asked Horowitz "for her job back." After she was rehired on February 16, 1972, Horowitz heard "rumors" in the plant that Mrs. Carter talked to various employees about her seniority. Although Mrs. Carter filed a grievance on March 14, 1972, with Sammie Lewis, Horowitz did not learn of it "until sometime after her employment was terminated," when Lewis presented him with the grievance 7 to 10 days after March 14. On said March 14, Horowitz instructed Foreman Moore to discharge Mrs. Carter . This decision was "based on representations by Moore that [Carter] was . . . creating a disturbance . . . [by] arguing with union officials and . . . with fellow employees while at work .. . she was conversing with people on either side of her on the [production ] line." Continuing, Horowitz asserted that his decision to terminate Mrs. Carter also was influenced by (a) the fact that upon reviewing her personnel file he discovered that she had, during her previous employment , three repri- mands for absenteeism , a very poor work record, and lateness, (b) that Respondent's personnel and payroll clerk reported to him complaints regarding Mrs. Carter's conduct on the line, and (c) because Mrs. Carter was a probationary employee she could be let go for any or no reason at any time within 30 days of being hired . In fact, Horowitz informed Mrs. Carter "that she was coming back as a probationary employee" when he hired her in February 1972. Another witness for the General Counsel , Jean Gwin, Respondent's personnel manager, testified substantially as follows. On December 13, 1971, Mrs. Gwin received a letter from Mrs. Carter stating that the latter was returning to Richmond and inquiring of Gwin when Carter's name comes up "for returning to work, and to get in touch with her at the Richmond [telephone number ] I gave you." (See G.C. Exh. 3A.) Not long after this, Horowitz wrote to Mrs. Carter on January 5, 1972, advising her that she informed Respondent on November 18, 1971, that she had quit and, therefore, her name had been removed from the seniority list and that she had to "seek re-employment . .. as a new employee with no seniority ." (See G.C. Exh . 3B.) There- upon, on January 18, 1972, Mrs. Carter wrote Mrs. Gwin "even though I don't get my regularjob back I do want to go back to work as soon as they call everyone back." (See G.C. Exh. 3C.) Mrs. Carter's "period of employment in 1971 ended November 18." In connection with Mrs. Carter's written grievance, Horowitz wrote something thereon denying it. Then Mrs. Gwin typed thereon that Mrs. Carter "resigned Nov. 18th, 1971. Mr. Horowitz reply, 1-5-72, . . . if rehired it would be as a new employee without seniority. Barbara Carter was rehired 2- 16-72 as a new employee and laid off 3-14-72." (See G .C. Exh. 6.) On November 18, 1971, Mrs. Carter called on Mrs. Gwin and stated that Carter was quitting , that she was moving her family to the State of Washington , gave Gwin an address to which Carter's W-2 form should be transmitted, and stated she was resigning as an officer of the Union. As a result, Mrs. Gwin notified the Indiana Employment Security Division that Mrs. Carter had quit . (See G.C. Exh. 4.) In addition a notation was made on Mrs. Carter's timecard that she "quit as of 11 -18-71." (See Resp. Exh. 1.) On January 4, 1972, Mrs. Carter from Washington called Mrs. Gwin "to see if she could have her job back." Mrs. Gwin told her that if Mrs. Carter came back it would be as a new employee with no seniority . This caused Mrs. Carter to say that only Mrs. Gwin knew the former had quit and should not mention it to anyone . Mrs. Gwin refused to withhold this fact from others because "other people did know." The General Counsel's final witness was James Moore, Respondent's production foreman . A conspectus of Moore's testimony is set forth at this point . In November 1971, Mrs. Carter told him she "was leaving the state" but did not say that she was quitting . When Mrs. Carter returned to work in February 1972, she worked under him on the production lines. Horowitz told him she came as a new employee . Sometime after 11 a.m. on March 14, 1972, Horowitz notified Moore to "lay off " Mrs. Carter at 11:30 a.m., but Horowitz gave no reason for taking this action. So Moore laid off Mrs. Carter at 11:30 a.m . without mentioning to her why she was being so laid off. Further, Moore claimed Mrs. Carter did not cause a disturbance on March 14, and he never told Horowitz that she did. B. Respondent 's Evidence James Moore also gave evidence as a witness for Respondent. An adequate abridgment of his testimony in this latter capacity follows. According to him , Mrs. Carter "lost quite a bit of time" as an employee prior to November 1971. In fact he issued her a "notice of reprimand . . . number three . . . for . . . excessive absenteeism" on March 23 , 1971 (see Resp . Exh. 3), and he knows "of other reprimands . . . she has got " for excessive absenteeism . This absenteeism resulted because she had minor children so that she often left work before quitting time to take care of them . However, he always excused her when she asked to go home during the day to attend to her children . Further, Mrs. Carter always "bitched" whenever she was taken off her regular job and assigned to another one. But she always did the work . Finally, Moore "understood" that, when Mrs. Carter returned in February 1972, "she was a new employee." Respondent's bookkeeper, Janet Wolfery, testified that of November 18, 1971, she was present and heard Mrs. Carter tell -Mrs. Gwin, Respondent's personnel manager, that Mrs. Carter was quitting and moving to the State of Washington, and that Mrs. Carter further said that she was going to tell Francis (Jess) Wright that because of this she was resigning as an officer of the Union. An employee of Respondent, William Lewis, who is a 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member of the grievance committee of Local 5916, testified that on March 14, 1972, Mrs. Carter presented him with a written grievance and asked him to sign it. Since he replied he knew nothing about the facts, she walked away with the paper. As far as he knows, she never resigned from Local 5916. Sammie Lewis, an employee of Respondent and also a member of said grievance committee, testified that on March 14, 1972, Mrs. Carter brought a written grievance to him. Without signing it, he instructed her to take it to the committee's chairman, Francis Wright, because Wright "always signed it first." So Mrs. Carter left carrying the paper with her. Later that day she returned, placed the grievance on his desk, and said, "You can either sign it or throw it in the trash." Thereupon Lewis took the paper and remarked, "I hear that you had quit ... and if you get Francis Wright to sign it I will sign it" However, Mrs. Carter insisted that she did not quit. At no time did she tell Lewis that she had quit. Lewis did nothing with the paper. Two or 3 days later Mrs. Carter accused Sammie of causing her to be laid off. But he denied this. When she asked him what he did with her written grievance, he replied that it still lay in his desk drawer. Then he offered to accompany her "right now" to take it up with Horowitz. Although Mrs. Carter did not accept this offer and left immediately, Lewis did go to see Horowitz. When Lewis went in to see Horowitz, he presented the grievance of Mrs. Carter to him. At no time prior to this had Lewis talked to Horowitz about said grievance or shown it to him. Such grievance was not signed by Lewis or any other member of the grievance committee, and only the top half of it had been filled out when Lewis gave it to Horowitz, i.e., the part ending with the words "as a new employ." (See G.C. Exh. 6.) During the morning of March 14, 1972, at about 10 or 11 a.m., Lewis talked to Horowitz about another grievance, that of employee Hoover, but did not mention Mrs. Carter's grievance during the conversation although it had previously been presented to Lewis at about 9 or 9:15 a.m. that morning. Francis Wright, president of Local 5916 and chairman of its grievance committee, testified in substance as follows. On about November 18, 1971, Mrs. Carter told him in the presence of Union Steward May that she was resigning as an officer of the Union because she was "quitting and going to the State of Washington." During 1971, Horowitz asked Wright and May to try to "straighten out" Mrs. Carter because of her excessive absences from work. Complying therewith, Wright did discuss this subject with Mrs. Carter. About March 14, 1972, Mrs. Carter requested Wright to sign her grievance. But Wright told her he could not do it because "she had quit and she was a probationary employee." Neither before nor after this did Wright discuss this grievance with her or with management. Respondent's personnel manager, Jean Gwin, who had previously been called as a witness for the General Counsel, also appeared as a witness for Respondent. As the Respondent's witness she testified substantially as follows. On November 18, 1971, Mrs. Carter told Mrs. Gwin that the former "was quitting and moving to Washington and resigning as an officer of the Union." Accordingly, Mrs. Gwin entered this fact in Mrs. Carter's personnel file and also "sent a form into the state . . . Unemployment Security Commission of the State of Indiana." See G.C. Exh. 4 for the latter document and Resp. Exh. I for the notation in Mrs. Carter's personnel file. In addition, Mrs. Gwin "marked off" Mrs. Carter from Respondent's November 1971 seniority list. (See Resp. Exh. 4.) Further, Mrs. Gwin excluded Mrs. Carter's name from Respondent's seniority lists for December 1971, and January, February, and March 1972. (See Resp. Exh. 5, 6, 7, and 8.) Copies of all seniority lists, including the foregoing, are given to President Francis Wright of Local 5916 and to Respondent's supervisors and are also posted at the plant's bulletin board for employees. At no time did Mrs. Carter contact or question Mrs. Gwin relative to the information disclosed in these posted lists. In 1971 Mrs. Carter had an absentee problem, usually on Friday, the payday, when she was "either tardy or she left in the middle of the day." This is reflected in her timecards. (See Resp. Exh. 9.) Following Mrs. •Carter's being rehired on February 16, 1972, Foreman Moore came to the front office "quite upset" because Mrs. Carter had become an employee at the plant. In fact, he told Mrs. Gwin that he refused to give Mrs. Carter a timecard. But Moore offered no explanation for his attitude towards Mrs. Carter. Explaining Respondent's procedure on layoffs, Mrs. Gwin stated that those in such status were recalled by Mrs. Gwin according to seniority. But Mrs. Gwin did not follow this procedure as to Mrs. Carter in January and February 1972, because Mrs. Carter "was no longer in our employ." However, Mrs. Gwin did pursue it in said January and February for other employees who had been laid off. Further, it is Respondent's policy to terminate or even occasionally temporarily layoff during the day probation- ary employees without giving any reason for such action. Respondent closed its case with testimony by Irving Horowitz, its assistant general manager, who testified essentially as follows. Early in February 1972, Mrs. Carter asked him "if work was available" because she was "desperately in need of work" and her husband was not working, but he informed her that nothing was available for her at that time. However, he did hire her on February 16, telling her on that occasion that "she was coming in as a new employee." She agreed to this by "nodding her head and uh huh but nothing further than that." From February 16 to March 14, 1972, Horowitz spoke to Sammie Lewis on various matters, but none of them referred to Mrs. Carter. Between February 16 and March 14, 1972, Horowitz laid off six to eight probationary employees. A list of the names of probationary employees about to complete their probationary service of 30 days (See G.C. Exh. 2, art. 51) are given to Horowitz by Mrs. Gwin approximately "a week prior to an employee's entry into the Union with the date that they are to enter the Union." This list includes the date of hire. Thereupon Horowitz passes "judgment ... on their performance for the last thirty days . . . I either discharge them or permit them to go into the Union." About March 10 or 12, 1972, Horowitz received such a list containing the name of Mrs. Carter. G. W. DAVIS CORP. 209 C. General Counsel's Rebuttal Evidence Mrs. Carter mentioned to William Lewis, a member of the grievance committee of Local 5916, on more than one occasion while employed by Respondent in 1972 that she "wanted her seniority." She also talked to Sammie Lewis in the same period concerning the identical subject. She spoke to each in the plant . And both William and Sammie were present and within hearing distance when she discussed this subject at the union hall with Union Officials J.C. May and Carl Himelick while she was working for Respondent in 1972. Further, whenever she was absent or left work before the workday ended she always had the permission of Horowitz to do so. D. Concluding Findings and Discussion Initially, I find that Mrs. Carter at no time material was engaged in union activity. This is because the record is entirely devoid of evidence that she was involved in or pursued conduct intended to aid, assist, or benefit Local 5916 or any other union. Hence I find that she was not terminated for union activity, and, therefore, recommend that the portion of the complaint alleging that she was let go for union activity be dismissed. See Rotax Metals, Inc., 163 NLRB 72, 79; Pacific Electricord Co., 153 NLRB 521, 361 F.2d 310 (C.A. 9). 1. As to whether Mrs. Carter quit It is my opinion, and I find, that Mrs. Carter did not quit on November 18, 1971, when she was on layoff status, but that she merely left the State of Indiana with her family on that date intending to return but entertaining the possibili- ty of remaining in Washington if she found satisfactory employment there. On this issue, I credit Mrs. Carter's testimony and do not credit Respondent's evidence not consonant therewith. It is true, and I find, that when Mrs. Carter left on November 18 her husband had quit his job in Richmond. While this fact cannot be ignored, and I have considered it, nevertheless it is not conclusive on the issue of whether Mrs. Carter intentionally severed her employment status with her employer in Richmond, the Respondent herein. Further, I also find that Mrs. Carter asked Mrs. Gwin on said November 18 to mail the former's W-2 form to a Washington address. But this is not conclusive that Mrs Carter had moved permanently from Richmond. Rather it is consistent with Mrs. Carter's contention, which I credit, that because her layoff by Respondent probably would continue until February 1972, she desired to receive her mail in Washington until then. Another fact, which I find, tending to detract from Mrs. Carter's contention that she did not quit is that she enrolled her minor children in school in Washington. But this establishes only that she did not want her children to get behind in their schooling, and does not compel the conclusion that she intended to remain permanently in Washington. In fact, since she had been on layoff status since May 1971, and since such seasonal layoff usually had in the past lasted until February of the following year, she remained an employee. Thus it is reasonable to assume that Mrs. Carter entertained a reasonable expectancy of being recalled . Hence Mrs . Carter was free to absent herself from Indiana from May to the following February without creating the impression that she had abandoned her employment in Richmond In any event, I credit Mrs . Carter that she did not quit on November 18, 1971, and that she did not tell anyone that she was quitting. It is true she resigned her office as treasurer in Local 5916 on November 18, 1971. But this is understandable, as she could not fulfill the duties of said office while away in the State of Washington . Hence I find that such resignation does not require a finding that she quit her job. I find that Mrs. Gwin did write "quit" on Respondent's records pertaining to Mrs. Carter . But I find she did so on the basis of statements made to her, as she testified, by other employees that Mrs. Carter had quit. These statements do not prove anything since such employees did not testify at the trial as to the source of their knowledge. The president of Local 5916 testified that Mrs. Carter told him she quit . It may be that he mistakenly thought she quit Respondent's employ when she informed him that she was resigning as treasurer of the Local. But it is significant that he did not say that she resigned from the Union, thus indicating that she did not quit her job . As noted above, I credit her that she did not tell him that she had quit her job. I do not credit Horowitz that he told Mrs. Carter that she started as a new employee when he hired her in February 1972, and that she acquiesced in this assertion. Rather, I credit Mrs. Carter that she did not say this. Her version is more reasonable because she immediately sought her seniority as soon as she returned to work, a fact inconsistent with the idea that she considered herself a probationary employee lacking any seniority. Then, again, Horowitz testified that he heard from employees that Mrs. Carter was claiming in February and March 1972 that she was not-,a new hire and that she was entitled to seniority based on her entire length of service . It is difficult to comprehend why he did not tell such employees , or tell Mrs. Carter after hearing such employees , that Mrs. Carter was hired as a new employee and could not claim seniority as a probationary employee . His silence under the circumstances has probative value that Mrs. Carter's testimony should be credited not only on the basis of demeanor but also because of the failure of Horowitz to do anything about what he heard in the plant. 2. As to the cause of Mrs Carter's termination As found above, Mrs. Carter did not quit. Accordingly, I find that when she returned to work in February 1972 she was not a probationary employee and, consequently, she was entitled to resort to the grievance procedure specified in the contract . Of course, if she were a new hire following her quitting, she could be terminated for any reason-ex- cept an unlawfully discriminatory one-before her proba- tionary period expired , i.e., within 30 days from the date her new employment commenced . (See G .C. Exh . 2, art. 51, p. 18) As a matter of law, even if she is not a new hire but is treated as an employee on layoff status who has been recalled to work, she may nevertheless be terminated for 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good cause, bad cause, or no cause at all so long as unlawfully discriminatory motives do not enter into the decision to release her as an employee. It is my opinion, and I find, that Mrs. Carter was terminated because Respondent knew, or at least believed, that she had filed a grievance protesting her not being granted seniority when she returned to work on February 16, 1972, and that the reasons given at the hearing (none was given to her when she was terminated) are pretexts to disguise the true reason. This ultimate finding is based on the entire record and the following subsidiary findings, which I hereby find as facts. a. Protesting or complaining about a seniority rating is an activity protected by the Act, and discharging an employee for such conduct contravenes Section 8(a)(1) of the Act. The Singer Company, 198 NLRB No. 122; Masco Products, Inc., 198 NLRB No. 70. Further , it is not incumbent upon Mrs. Carter that she show that her grievance was meritorious; her conduct is protected by the Act if the claim is colorable and made in good faith "even though it may ultimately fail." Rotax Metals, Inc., 163 NLRB 72, fn. 2. I find that her claim was made in good faith and that it was colorable and plausible. Cf. Singer Company, 198 NLRB No. 122. b. It is elementary that the present case must fail unless the General Counsel establishes that Respondent knew of Mrs. Carter's claim. In this connection I find that Horowitz, on his own testimony, heard from employees that Mrs. Carter was claiming she had been denied her seniority. This constitutes knowledge. But I also find knowledge may be inferred from the fact that Mrs. Carter was abruptly discharged in the middle of a workday and for a false reason. That false reason is that Horowitz stated that in part Mrs. Carter was discharged because Foreman Moore on March 14, 1972, told him that Mrs. Carter was disrupting the production line when, as a matter of fact, Moore, Respondent's witness, stated he did not so inform Horowitz on that day. In this respect I credit Moore that he uttered no such statement to Horowitz that day and do not credit Horowitz that Moore so told him. In addition, no reason was given to Mrs. Carter as to why she was being terminated. This also warrants the inference, and I draw it, that Respondent had knowledge that she was protesting her seniority rating. Such knowl- edge may well have been transmitted to Horowitz by Lewis while they were discussing employee Hoover's grievance. "The failure to give a reason ... by management for the discharge of employees properly may be considered by the Board . . . in determining the real motive which activated the discharge." Virginia Metalcrafters, Inc, 158 NLRB 958, 962. c. Although Horowitz contends Mrs. Carter was discharged in part for causing a disturbance on the production line, as reported to him by foreman Moore on March 14, 1972, Moore nevertheless expressly denied that he observed anything wrong on that date and also denied he complained of Mrs. Carter's conduct on March 14 to Horowitz Such inconsistency warrants the inference-and I draw it-that a discriminatory motive prompted the discharge of Mrs. Carter. And I find that such motive resulted from her grievance or complaint relating to her seniority, an activity protected by the Act. d. Further, Mrs. Carter was abruptly terminated in the middle of the day notwithstanding that foreman Moore found nothing wrong on that day warranting a precipitous discharge . Abruptness of a discharge warrants the finding -and I so find-that such discharge was prompted by a discriminatory intent . N.L.R.B. v. Montgomery Ward & Co., 249 F.2d 497, 502 (C.A. 2); N.L. R.B. v. Sutherland Lumber Co., Inc., 452 F.2d 67, 69, In . 4 (C.A. 7); Arkansas- Louisiana Gas Company, 142 NLRB 1083, 1085-86. "It is well established that direct evidence of discriminatory motivation is not necessary to support a finding of discrimination . Such intent may be inferred from the record as a whole." Heath International, Inc., 196 NLRB No. 42. The record herein fairly permits such a finding, and I so find. e. No warning was given to Mrs. Carter after she returned to work on February 16, 1972, that her conduct subjected her to the risk of being terminated. I find that it is reasonable to infer-and I do so-that an employee would be alerted that he is encountering possible discipli- nary action by conduct treated as objectionable by his employer . Hence I find that, under the circumstances, the failure to caution Mrs. Carter of the possibility of discharge is laden with probative value in ascertaining the activating reason for her discharge . E. Anthony & Sons, Inc. v. N L R. B., 163 F.2d 22, 26-27 (C.A.D.C.). N.L.R B v. National Seal, 336 F.2d 781 (C.A. 9), upon which Respondent relies, does not clash with the foregoing findings. It was decided on the ground that the evidence did not disclose that the employer in that case was prompted by discriminatory motives in releasing a proba- tionary employee . Unlike the facts in that case, I have found that Respondent in the instant case was induced by discriminatory considerations in discharging Mrs. Carter. I. Upon this aspect of the case it is worth mentioning that "direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistica- tion about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence." Come Corporation v. N. L. R. B., 375 F.2d 149, 152 (C.A. 4). Accord, Hartsell Mills v. N L.R.B., I1 I F.2d 291, 293 (C.A. 4). "Nowadays it is usually a case of more subtlety." N L.R.B. v. Neuhoff Bros, 375 F.2d 372, 374 (C.A. 5). g. Although Horowitz claimed that in part Mrs . Carter was discharged because of her bad work record prior to November 18, 1971, I find that this is a pretext . This is because Mrs. Carter was allowed to return to work on February 16, 1972, notwithstanding such alleged past unsatisfactory attendance and work performance. By permitting her to return to work despite such alleged deficiencies, Respondent overlooked or condoned them. By reviving them on March 14, 1972, after they had been ignored, Respondent may be found-and I so find-to have used them as a pretext to disguise the real reason, i.e., discharging her for engaging in activity protected by the Act. In this connection inconsistencies in the testimony of Respondent's officials support the inference that Mrs. G. W. DAVIS CORP. Carter was laid off for a discriminatory reason prohibited by the Act. Thus, Horowitz insisted that Mrs. Carter was terminated and not laid off. But Foreman Moore testified that Horowitz told him to layoff Carter. (See Tr. p. 99.) On the other hand Mrs. Gwin first alluded to the fact that Mrs. Carter quit on March 14 (see Tr. p. 26), but noted on Respondent's records that Mrs. Carter was "laid off 3-14-72." (See G.C. Exh 6, last line.) h. Foreman Moore gave no reason to Mrs. Carter when he dismissed her on March 14. This warrants the inference-and I draw it-that Mrs. Carter was discrimi- natorily terminated. N L.R.B. v. American Casting Service, 365 F.2d 168, 172 (C.A. 7); N L.R B. v. Plant City Steel Corp., 331 F.2d 511, 515 (C.A. 5). I. In addition, I find that Horowitz neither conducted a fair and impartial investigation of Mrs. Carter's alleged faults nor offered her an opportunity to explain her alleged misconduct or otherwise to defend herself. Yet she was terminated without even the semblance of a chance to vindicate herself. Failure to conduct a fair investigation under these circumstances is evidence of a discriminatory attitude toward the employee affected thereby. Norfolk Tallow Co, Inc., 154 NLRB, 1052, 1059. And the failure to ask Mrs. Carter of her version of this incident amounts to evidence of a discriminatory motivation towards her. Service Technology Corporation, 196 NLRB No. 160. J Finally, in order to find that Mrs. Carter's termina- tion was inspired by discriminatory considerations it is not imperative to find that her protected activity was the only element responsible therefor. It is sufficient to find she was discharged unlawfully if a substantial ground leading to it was her protected activity notwithstanding that a valid reason may also have simultaneously existed for discipli- nary measures against her. N.L.R.B. v. Lexington Chair Co, 361 F.2d 283, 295 (C.A. 4); N L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1); Sinclair Glass Co v. N.L R.B., 465 F.2d 209, 211 (C.A. 7). I expressly find that Mrs. Carter's protected activity was a substantial-but not necessarily the only-ground leading to her discharge. It is axiomatic, and I recognize, that the Board may not pass judgment upon the reasonableness or severity of a discharge, for this rests exclusively within the rights of management. N.L R.B v. United Parcel Service, 317 F.2d 912, 914, (C.A. 1). But this rule of law will not protect an employer who, in substantial part, is discriminately motivated in discharging an employee. N.L.R.B. v. Long- horn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). As noted above, I have found that Mrs. Carter's protected activity in substantial part contributed to her being terminated on March 14, 1972. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activity of Respondent set forth in section III, above, found to constitute an unfair labor practice, occurring in connection with its operations described in section I, above, has a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY 211 As Respondent has been found to have engaged in an unfair labor practice, I shall recommend that it be ordered to cease and desist therefrom and to take specific action, as set forth below, designed to effectuate the policies of the Act. Inasmuch as Respondent unlawfully terminated Mrs. Carter, it will be recommended that Respondent be ordered to offer her immediate and full reinstatement to her former position or, if such is not available, to one which is substantially equivalent thereto, without prejudice to her seniority and other rights and privileges. It will also be recommended that she be made whole for any loss of earnings suffered by reason of her termination. In making Mrs. Carter whole Respondent shall pay to her a sum of money equal to that which she would have earned as wages from the date she was terminated to the date she is reinstated or a proper offer of reinstatement is made, as the case may be, less her net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appropriate notices.. It is my opinion, and I find, that the termination of Mrs. Carter does not reflect a general disregard of or hostility to the Act. Accordingly, I find that a broad remedial order against Respondent is not warranted. Rather, I find that it will adequately effectuate the policies of the Act to enjoin Respondent from repeating the conduct found above to constitute a violation of the Act and similar or like conduct. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Local 5916 and Steelworkers each is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce within the meaning of Section 2(6) and (7), of the Act. 3. By terminating Barbara Joan Carter for presenting a grievance to it, said conduct being an activity protected by the Act, Respondent has engaged in an unfair labor practice condemned by Section 8(a)(1) of the Act. 4. The foregoing unfair labor practice affects com- merce with the contemplation of Section 2(6) and (7) of the Act. 5. Respondent has not engaged in any other unfair labor practices alleged in the complaint. [Recommended Order omitted from publication.]