Armour and Co.

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jacob E. Decker and Sons, a Division of Armour and Company and Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO, Local Union P-54. Case 16-CA-4488 March 22, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 10, 1972, Administrative Law Judge' Lowell Goerlich issued his initial attached Decision in this case in which it was found that the General Counsel had not produced sufficient evidence to establish a prima facie case of Respondent's violation of Section 8(a)(3) of the National Labor Relations Act, as amended, herein referred to as the Act. Accordingly, he granted the Respondent's motion to dismiss the 8(a)(3) allegations of the complaint and denied the General Counsel's motion to amend the complaint to include an allegation that the Respon- dent discriminatorily demoted Willie Hamilton "to a less desirable status of employment." Thereafter, the General Counsel filed exceptions to the initial Decision,2 and the Board issued an order in which it found that the General Counsel had established a prima facie case of violations of Section 8(a)(3) and (1) of the Act and that the Administrative Law Judge erred in dismissing those allegations of the complaint for lack of a prima facie case. The Board's finding of a prima facie case with respect to the 8(a)(3) allegation that Charles Galbraith had been discriminatorily discharged was based upon the General Counsel's offer of evidence showing that: "(1) Galbraith is the only employee in the history of Respondent at its Texarkana plant to be discharged pursuant to this rule violation; (2) Galbraith had been guilty of this type of conduct over and over during his year of employment with Respondent; however, he was not discharged until the advent of the Union; (3) Respondent had knowledge of Galbraith's union activity through its informers who engaged in illegal surveillance at the request of the Respondent; (4) the discriminate application of the rule requiring employees to phone in thirty minutes prior to work time in the event they were to be absent from work, i.e., the rule was not applied each time an employee did not call in; (5) in the conversation between Woodruff and Galbraith concerning Gal- t The tale of "Trial Examiner" was changed to -Administrative Law Judge" effective August 19, 1972 2 It was also held in the initial Decision that the Respondent had committed only those 8 (a)(I) violations which were admitted by the Respondent 3 In view of the Board's ruling , the Administrative Law Judge granted the General Counsel's motion to amend the complaint to include an braith's union sympathies Woodruff indicated that he (Woodruff) would remove his protective hand from Galbraith if Galbraith signed a union card." The Board's finding of a prima facie case of the discriminatory suspension and demotion of Willie Hamilton to a less desirable status of employment3 was based upon the General Counsel's proffer of the following evidence: "(1) Woodruff summoned Myles into Woodruff's office and interrogated Myles as to Hamilton's possible alignment with the Union; (2) Respondent had knowledge of Hamilton's attend- ance at a Union meeting through its unlawful surveillance of such meeting; (3) the discriminate use and application of the rule requiring employees to call in each day thirty minutes prior to work time in the event they are absent. In this regard, the smoke meat foreman testified Hamilton had been absent from work ten to fifteen times and had called in prior to work `on and off' and (4) if Hamilton was suspended for violation of the rule alone, then his reclassification to a less desirable job should have no connection with his suspension." Based on these findings the Board's Order remand- ed the case for a determination of whether the Respondent did in fact commit the violations alleged in the complaint, including the preparation and issuance of a Supplemental Decision setting forth findings of fact, conclusions of law, and recommen- dations in conformity with the Board's Rules and Regulations. On November 17, 1972, Administrative Law Judge Goerlich issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent 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 attached Decision and Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt the recom- mended Order in his Supplemental Decision, and those findings and conclusions4 set forth in his Supplemental Decision, and to adopt the recom- mended Order in his initial Decision to the extent it is not inconsistent with the Board's Order of August 11, 1972. allegation that the Respondent discnmmatorily demoted Willie Hamilton "to a less desirable status of employment " a On p 9, 22, of the Supplemental Decision, the Administrative Law Judge inadvertently states the date of Charles Galbraith's unlawful discharge as occurring on September 8, 1972 We correct this error by noting the correct date to be September 8. 1971 202 NLRB No. 97 JACOB E . DECKER AND SONS 641 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, to the extent that it is not inconsistent with the Board's Order of August 11, 1972, and the Supplemental Order of the Administrative Law Judge and hereby orders that Respondent , Jacob E. Decker and Sons, a Division of Armour and Company, Texarkana, Texas, its officers , agents, successors, and assigns, shall take the action set forth in the said recommended Order and Supplemental Order. The Trial Examiner finds that at all times material herein Respondent is and has been an employer, as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATION INVOLVED At all times herein Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Umon P-54, hereinafter referred to as the Umon, is and has been a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LOWELL GOERLICH , Trial Examiner : A charge was filed by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union P-54, on Septem- ber 14, 1971, and upon the same date the charge was served by registered mail upon the Respondent herein , Jacob E. Decker and Sons, a Division of Armour and Company. A complaint and notice of hearing was issued on November 5, 1971, in which it was alleged that the Respondent had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein referred to as the Act, by unlawful interrogations, threats, and surveillance, and by discriminatorily suspending employee Willie Hamilton on September 8, 9, and 10, 1971, and by discharging employee Charles Galbraith on August 27, 1971. The Respondent filed timely answer in which it denied that it had engaged in any of the unfair labor practices alleged. The case came on for hearing on January 13 and 14, 1972, at Texarkana, Texas. Each party was afforded a full opportunity to be heard, to call, examine, and cross- examine witnesses, to argue orally on the record , to submit proposed findings of fact and conclusions , and to file briefs All briefs have been carefully considered by the Trial Examiner. Upon the whole record and upon his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENT The Respondent is and has been at all times material herein a Delaware corporation with principal offices in Phoenix, Arizona. Respondent is engaged in the processing and distribution of meat and meat products from its plant in Texarkana, Texas. During the preceding 12 months prior to filing the complaint herein, a representative period, the Respondent bought goods valued in excess of $50,000 which it caused to be shipped in interstate commerce from points located directly outside of the State of Texas to its Texarkana, Texas, location. A. The Pertinent Facts The Union commenced an organizational drive at the Respondent's Texarkana plant on July 10, 1971, which culminated in an election on November 5, 1971, in which the Union was designated as the bargaining representative. During this period the Union held seven or eight organizational meetings of the Respondent 's employees. Employee James DeLoach attended an organizational meeting on Saturday, August 21 , 1971, at the Master Hosts Inn, Texarkana, Arkansas, and informed the employees present that H. R. Woodruff , the Respondent's Texarkana plant manager, had sent him to the meeting . On that day upon leaving work DeLoach, while standing in front of Woodruff's office, observed that he thought he would go to the union meeting. Woodruff said, "Well, if you do, I would appreciate it if you would let me know what was going on out there and who was going to be there." DeLoach failed to contact Woodruff after the meeting. Woodruff, nevertheless, telephoned DeLoach and asked him what had occurred at the meeting and who had been present. DeLoach supplied Woodruff with the names of 12 employees who had attended the meeting, among which were the names of alleged discriminatees Charles Galbraith and Willie Hamilton. About a week later DeLoach attended another union organizational meeting. Woodruff asked DeLoach "what went on." DeLoach answered, "Oh, about the same as usual." According to employee Henry D. Myles, in the second or third week in August 1971, Woodruff asked him whether he knew what was causing Willie Hamilton 's dissatisfac- tion . Myles said that Hamilton had not complained to him. Woodruff then asked him whether he knew of the employees' attempt to organize the plant . Myles answered in the negative . Woodruff continued, "What about Willie Hamilton?" Myles replied, "Willie Hamilton doesn't have the ability to make no contact like that." During the conversation Woodruff also asked Myles what he thought about the Union. Myles replied that he thought it was "a good idea." On August 12, 1971, Willie Hamilton received a communication from the Respondent entitled "First Warning." Among other things in the warning it was recited that "On August 6, 1971, you were scheduled to work at 6 a.m. Your wife called in and reported you off with a sprained ankle . According to instructions, issued in 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a letter to all employees, you are to report to me at least thirty minutes before you [sic] scheduled work time, this you did not do." The disciplinary procedure which had been posted on the bulletin board was incorporated in the warning as follows. First offense-A written warning: Second offense-A written warning; plus, I week suspension without pay; Third offense-A written warning; plus, 2 weeks suspension without pay; Any further offense will be subject to dismissal. A paragraph added, "If the second and third offense is serious enough [sic] according to the rules and regulations, you could be discharged." On September 3, 1971, Hamilton received a second written warning for an offense described as follows: On September 2, 1971 you were scheduled for work at 5:00 a.m. Your wife called me at 5:30 a.m. to report you off sick for the day. On September 3, 1971 you were scheduled for work at 5:00 a.m. and you did not report off and as I write this letter at 11:30 a.m., I have not heard from you." In the warning it was noted that "This is your second warning and according to the rules posted on the bulletin board, you are given a one week suspension without pay. You will be scheduled back to work on September 13, 1971." This suspension is claimed by the General Counsel to have been discriminatory. ` Hamilton testified that he informed the Respondent that he was sick on September 2, 1971, and would not be available for work. Thereafter he was absent on Friday and Monday. He reported for work on September 7, 1971, at which time he presented a doctor's statement to Foreman Hubert Ekstrum. Ekstrum did not read the statement. Thereafter Ekstrum told Hamilton to go home and he would call Dr. Jamison. Hamilton was instructed to contact Ekstrum at 4 o'clock. When Hamilton phoned Ekstrum said, "Come down and report on Friday morning and we will check with Ray to see what time he wants you to come in Monday morning." Prior to his suspension Hamilton worked in the receiving department. When he returned to work from his suspen- sion he was assigned to a skinning machine, which was a lesser paying job. Hamilton had previously worked for about 3 months on the skinning machine. The General Counsel claims that Hamilton's assignment to the skinning machine was also discriminatory. On September 8, 1969, alleged discriminatee Charles Galbraith received a first written warning. The warning concerned Galbraith's representation that his car had broken down on September 4, 1969. Galbraith did not appear for work until September 8, 1969. Galbraith was warned, "According to our rules and regulations posted on the Bulletin Board, if this happens again, you will be suspended for one week without pay." On October 5, 1970, Galbraith received a second written warning at which time he was given a 1-week suspension without pay. On this occasion, October 2, 1970, Galbraith was scheduled to work at 6:30 a.m., but he did not show up or report that he would not be in until 7:10. In the warning Galbraith was reminded that "any time an employee had to be absent they were to report out at least thirty minutes before their scheduled work time." On March 25, 1971, Galbraith received a third written warning with the admonition, "If this happens again, you will be dismissed according to rules and regulations posted on the bulletin board." The third warning mentioned that Galbraith was scheduled to work at 6:30 p.m. and, as of 8:45 p.m., he had not reported as instructed to do.i On September 8, 1971, Galbraith received a fourth written warning. In this warning it was pointed out that Galbraith was scheduled to work at 6:30 a.m. on September 7, 1971, and at 7:30 a.m. someone called in and said that he was sick. The warning noted that this was 1- 1/2 hours after he was supposed to report according to the posted rules The warning also noted that the situation had been discussed between Galbraith, Watson, and Ekstrum on several occasions. It was further pointed out that on September 8, 1971, Galbraith had not called at all. The warning concluded, "This is your fourth warning letter and in accordance with the rule posted on the bulletin board, you are today dismissed as an employee of this company." The General Counsel claims that Galbraith's dismissal on September 8, 1971, was discriminatory. Prior to his discharge Galbraith had attended about three or four union organizational meetings. About 4 days before the meeting of August 21, 1971, according to Galbraith, as he was walking up the aisle, Plant Manager Woodruff approached him, put his arm around him, and said, "Hey, Charlie boy, you haven't signed one of them cards, have you?" Galbraith answered that he had not signed a card, whereupon Woodruff responded, "Well, you know you are already skating on thin [sic] ice," and added, "Well, if you signed one of those cards I have got my hands off you and out the door you go." About 3 weeks before this incident occurred, according to Galbraith, Raymond Watson, warehouse foreman, asked him what he thought about the Union, and Galbraith answered, "Well, I think it is a good deal." Galbraith testified that on Tuesday morning, September 7, 1971, he was sick at his girlfriend's house where there was no telephone. Thus he asked her son to make a telephone call to the plant for him. He appeared at the plant on Wednesday in order to tell the Respondent that he was not feeling better and that he was going to go to a doctor. Ekstrum reminded him that he had not called in; Galbraith responded that he "sent her son to call in for me." Ekstrum said, "That's a flimsy excuse." Galbraith remonstrated, "I was sick and there wasn't no phone; how can I call in?" Ekstrum answered, "Charles, we dust ain't goin to take this excuse this time. Just pick up your check and go." The foregoing evidence was produced during the General Counsel's case-in-chief. B. Conclusions and Reasons Therefor The Trial Examiner is of the opinion that the General Counsel has not adduced evidence which establishes a prima facie case that the Respondent discriminatorily I These warnings were given before the union drive commenced JACOB E. DECKER AND SONS 643 suspended Willie Hamilton and discriminatonly dis- charged Charles Galbraith. For this reason the Trial Examiner grants the Respondent's motion to dismiss the Section 8(a)(3) allegations of the complaint.2 In regard to the allegations in the complaint concerning 8(a)(1) violations of the Act the Trial Examiner is of the opinion that by reason of the Respondent's denials the General Counsel has not established by a preponderance of the evidence such violations of the Act except for those which were admitted by the Respondent.3 The admitted violations concern Woodruff's interrogations in regard to union activities and his participation in surveillance of the employees' union activities. Accordingly the Trial Examin- er finds that by engaging in such activities the Respondent violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act.4 Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Trial Examiner hereby issues the following recommended: 5 ORDER Respondent Jacob E. Decker and Sons, a Division of Armour and Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees regarding their union activities and the union activities of other employees. (b) Unlawfully engaging in surveillance of its employees' union activities, giving the impression that it is engaging in surveillance of its employees' union activities, or encourag- ing employees to engage in surveillance of employees' union activities on its behalf. 2. Take the following affirmative action which will effectuate the policies of the Act. (a) Post at its Texarkana, Texas, plant copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.? IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in this Decision. 2 For the same reason the Trial Examiner denies the General Counsel's motion to amend the complaint to include an allegation that the Respondent discnminatonly demoted Willie Hamilton "to a less desirable status of employment 3 In connection with Woodruffs testimony counsel for the Respondent said, "I think that Mr Woodruff is admitting to clearly 8 (a)(1) violations " 4 The Respondent contends that "The General Counsel should be assessed costs, attorney fees and expenses of Respondent 's expert witness for prosecuting such a frivolous case to trial " The Respondent cites Tudee Products, Inc, 194 NLRB No 198, and N LR B v Smith & Wesson, 424 F 2d 1072, 1073 (C A 1) While the Respondent's contention may be well taken in an appropriate case, nevertheless, because a finding of unfair labor practices is sustained its contention finds no support in the present proceedings 5 In the event no exceptions are filed as provided by Sec 102 46 of the 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 6 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 " r 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 16, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully interrogate our employees in respect to their union activities or the union activities of other employees. WE WILL NOT engage in surveillance in respect to our employees' union activities. WE WILL NOT give the impression to our employees that we are engaging in surveillance in respect to our employees' union activities. WE WILL NOT encourage employees to engage in surveillance of our employees' union activities on our behalf. All of our employees are free to become or remain, or refrain from becoming or remaining, members of a labor organization. 644 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD JACOB E. DECKER AND SONS, A DIVISION OF ARMOUR AND COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921. SUPPLEMENTAL DECISION LOWELL GOERLICH, Administrative Law Judge: On March 10, 1972, the initial Decision in this case was rendered in which it was found that the General Counsel had not produced sufficient evidence to establish a prima facie case of Respondent's violation of Section 8(a)(3) of the National Labor Relations Act, as amended, herein referred to as the Act. The Respondent's motion to dismiss the 8(a)(3) allegations of the complaint was granted, and the General Counsel's motion to amend the complaint to include an allegation that the Respondent discriminatonly demoted Willie Hamilton "to a less desirable status of employment" was denied. Thereafter, the General Counsel filed exceptions to the initial Decision,' and the Board issued an order in which it found that the General Counsel had established a prima facie case of violations of Section 8(a)(3) and (1) of the Act and that the "Trial Examiner erred" in dismissing these allegations of the complaint for lack of a prima facie case. The Board's finding of a prima facie case with respect to the 8(a)(3) allegation that Charles Galbraith had been discriminatorily discharged was based upon the General Counsel's offer of evidence showing that: "(1) Galbraith is the only employee in the history of Respondent at its Texarkana plant to be discharged pursuant to this rule violation; (2) Galbraith had been guilty of this type of conduct over and over during his year of employment with Respondent; however, he was not discharged until the advent of the Union; (3) Respondent had knowledge of Galbraith's union activity through its informers who engaged in illegal surveillance at the request of the Respondent; (4) the discriminate application of the rule requiring employees to phone in thirty minutes prior to work time in the event they were to be absent from work, i e the rule was not applied each time an employee did not I It was also held in the initial decision that the Respondent had committed only those 8(a)(I) violations which were admitted by the Respondent 2 In view of the Board's ruling, the General Counsel's motion to amend the complaint to include an allegation that the Respondent discriminatorily demoted Willie Hamilton "to a less desirable status of employment" is granted 3 The facts found herein are based on the record as a whole and the observation of witnesses call in; (5) in the conversation between Woodruff and Galbraith concerning Galbraith's union sympathies Wood- ruff indicated that he (Woodruff) would remove his protective hand from Galbraith if Galbraith signed a union card." The Board's finding of a prima facie case of the discriminatory suspension and demotion of Willie Hamul- ton to a less desirable status of employment2 was based upon the General Counsel's proffer of the following evidence: "(1) Woodruff summoned Myles into Wood- ruff's office and interrogated Myles as to Hamilton's possible alignment with the Union; (2) Respondent had knowledge of Hamilton's attendance at a Union meeting through its unlawful surveillance of such meeting; (3) the discriminate use and application of the rule requiring employees to call in each day thirty minutes prior to work time in the event they are absent. In this regard, the smoke meat foreman testified Hamilton had been absent from work ten to fifteen times and had called in prior to work ,on and off' and (4) if Hamilton was suspended for violation of the rule alone, then his reclassification to a less desirable job should have no connection with his suspen- sion " Based on these findings the Board's Order remanded the case for a determination of whether the Respondent did in fact commit the violations alleged in the complaint, including the preparation and issuance of a Supplemental Decision setting forth findings of fact, conclusions of law, and recommendations in conformity with the Board's Rules and Regulations. The scope of the Board's remand commands a de novo reconsideration of the entire record in this case. SUPPLEMENTAL FINDINGS OF FACT,3 CONCLUSIONS, AND REASONS THEREFOR I THE UNFAIR LABOR PRACTICES A. The Alleged Violations of Section 8(a)(1) In the initial Decision in this case a violation of Section 8(a)(1) of the Act was found in Plant Manager Woodruff's admitted "interrogations in regard to union activities and participation in surveillance of the employees' union activities."4 In response to the Board's remand and upon a reexamination of the record as a whole, with due regard for the demeanor of the witnesses, the following additional 8(a)(1) violations are found: The Respondent violated Section 8(a)(1) of the Act in early August when Woodruff interrogated Henry Myles as to Willie Hamilton's dissatisfaction, Myles' knowledge of 4 Woodruff admitted that he contacted James DeLoach after the union meeting of August 21, and "[H ]e gave me a list of the names of the individuals that were there " He also admitted that unnamed employees gave him the names of those who attended other union meetings As the Board stated in Abex Corporation-Engineered Products Division, 162 NLRB 328, 329, °[1 ]nterrogation which seeks to place an employee in the position of acting as an informer regarding the union activity of his fellow-employees is coercive " See also N L R B v Builders Supply Company of Houston, 410 F 2d 606 (C A 5) JACOB E DECKER AND SONS 645 the employees' attempt to organize the plant, and Hamil- ton's "possible alignment with the union." 5 The Respondent further violated Section 8(a)(1) of the Act 3 or 4 days prior to the August 21 meeting when Woodruff threatened to "remove his protective hand from Galbraith if Galbraith signed a union card."6 Finally, the Respondent violated Section 8(a)(1) of the Act when Woodruff threatened to discharge James DeLoach for union activity on August 23.7 B. The Alleged Violations of Section 8(a)(3) It is well established that the General Counsel bears the burden of proving an unlawful discharge or suspension.8 However, the Respondent must provide the Board with an adequate explanation for a discharge or suspension once a prima facie case of possible discrimination has been established.9 An adequate explanation requires a showing that a discharge or suspension was not motivated by a desire to discourage union activity. "[A]n employer may hire and discharge at will so long as his action is not based on opposition to union activities." N.L.R.B. v. Little Rock Downtowner, Inc., 341 F.2d 1020, 1021 (C.A. 8). "[A]bsent a showing of antiunion motivation, an employer may discharge an employee for a good reason, a bad reason, or no reason at all... ." O. A. Fuller Supermarkets, Inc, 374 F.2d 197 (C.A. 5). However, the "mere existence of a valid ground for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicat- ed solely on those grounds, and not by a desire to discourage union activity." N.L.R B v. Symons Manufac- turing Co., 328 F.2d 835, 837 (C.A. 7).10 "A justifiable ground for dismissal is no defense if it is a pretext and not the moving cause." N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 525 (C.A. 8). ". . . the real motive' of the employer in an alleged § 8(a)(3) violation is decisive .." N.L.R.B. v. Brown Food Stores, 380 U.S. 278, 287 1. The discharge of Charles Galbraith The Respondent claims that Charles Galbraith was discharged for his fourth failure to comply with long- existing company rules and not because of his union activity. A list of company rules was posted on the Respondent's bulletin board. Accompanying these rules was a notice that a violation of 1 of the first 19 of the company rules would be penalized by a written warning, a second violation by a 1-week suspension, a third by a 2- week suspension, and a fourth by discharge. The employ- ees had been instructed that they were required to report an absence to the company 30 minutes before the time they were scheduled to begin work on the day of the absence; a failure to do so was considered a violation of the aforementioned company work rules. Charles Galbraith had received his first, second, and third' warnings on September 8, 1969, October 5, 1970, and March 25, 1971, respectively. The company was notified that Galbraith would be absent on September 7, 1971, at 7:30 a.m., 1 hour later than required by the company rules. On September 8, Galbraith did not call in to report his absence at all; he appeared at the plant late in the day to inform the Respondent that he was ill. Galbraith received his fourth warning letter, which informed him that he was discharged, on that same day. The Respondent claims that Galbraith's discharge was motivated solely by his violation of company rules. In support of this claim Respondent's witnesses, Wood- ruff, W.C. Campbell, Armour and Company manager of labor relations, and H.C. Beale, executive administrator of Decker and Sons, testified that employees who violated-the rule requiring the reporting of an absence one-half hour prior to the scheduled work time were always disciplined. This testimony was refuted. Henry Myles testified that he had been absent "a number of times" without calling in and that no disciplinary action had been taken against him. Galbraith stated that he had been absent, failed to call in, and escaped discipline on numerous occasion. He recalled being absent 10 to 20 times in the year previous to his discharge. Asked if he called in to report his absences, he said, "Sometimes I did and sometimes I didn't." The General Counsel's cross-examination of Raymond Wat- son, the smoked meat foreman, revealed that Willie Hamilton, a frequent absentee, reported to the company 30 minutes prior to worktime "off and on"; however, Hamilton never received a warning letter until August 12, 1971, less than a month before his suspension and after the start of the union campaign.ii Asked what would happen to such an employee who had failed to call in to report an absence on two separate occasions, Watson replied, "Sometimes he gets suspended." 12 The Respondent has failed to show that Galbraith was discharged in accordance with an automatic disciplinary procedure which was applied without exception in all cases of employee rule violations. First, Respondent's witnesses, Campbell and Beale, admitted that they might be unaware of a failure on the part of the plant manager to enforce the company rules strictly. Woodruff, who insisted that plant rules were strictly and completely enforced, was contradic- ted by Watson who was in a better position to know 5 Myles' version of this conversation , which is credited , is set out in the initial Decision in this case See also the Board's findings in its Order remanding the case to the Trial Examiner 6 Galbraith's version of this conversation , which is credited, is set out in the initial Decision in this case See also the Board's findings in its Order remanding the case to the Trial Examiner I DeLoach testified "[H ]e said, 'I guess you know you have got two warnings I can write you two more and you know what that would mean' I asked him, 'For what"' He said .'You went out there to the union meeting, you got drunk , you showed your ass and you signed a union card' " Although Woodruff testified, the foregoing testimony of DeLoach is uncontroverted in the record " See N L R B v Borden, 392 F 2d 412, 416 (C A 5), G H Hicks and Sons, Incorporated, 141 NLRB 1272, 1273 9 N L R B v Standard Container Co, 428 F 2d 793, 794 (C A 5) is The principle was well stated by the Court of Appeals for the Second Circuit in N L R B v Great Eastern Color Lithographic Corp, 309 F 2d 352, 355, cert denied 373 U S 950 The issue before us is not, of course, whether or not there existed grounds for discharge of these employees apart from their union activities The fact that the employer had ample reason for discharging them is of no moment [E]ven though the discharges may have been based upon other reasons as well, if the employer was partly motivated by union activity, the discharges were violative of the Act ii See the Board's findings in its Order remanding the case to the Trial Examiner 12 Emphasis supplied 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whether absentees who failed to notify the company were always disciplmed.13 Weighing the testimony of Woodruff, whose assertions were found to be incredible with respect to the alleged 8(a)(1) violations, against the testimony of Myles, Galbraith, and Watson that rule enforcement was sporadic, the testimony of the latter must be credited. Second, the Respondent introduced time records purport- ing to show that Galbraith and Hamilton were disciplined on every occasion when they failed to call in to report an absence. (Resp. Exhs. 1l and 12.) The General Counsel impeached these records by showing that they did not reveal Willie Hamilton's unexcused absence of August 6, 1971.14 Third, although an average of 2 of the company's approximately 50 employees were absent on any given day, Galbraith was the only employee ever fired for failure to call in to report an absence. It seems reasonable to assume that this would not be the case if the 30-minute rule were strictly enforced. The Respondent never contended that Galbraith was a poor employee.15 The reason advanced for his discharge was that it was in accordance with established policy from which the company never deviated. The fallacy of this contention has been demonstrated. When "the reasons advanced [for a discharge] are not persuasive the [protect- ed] activity may well disclose the real motive behind the employer's action." N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). "Proof .. . that the reason given [for a termination] was false warrants the inference that some other reason was being concealed . . . . If the employer is independently shown to have a union animus which the discharge would gratify, it may be a fair inference that this was the true reason." N L.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1). Evidence of the Respondent's union animus and support for the inference of an unlawful discharge is found in its violations of Section 8(a)(1) of the Act, all of which were committed by Plant Manager Woodruff, who was instru- mental in the decision to fire Galbraith.16 "When a .. . manager holding . . . antiunion bias . . . is involved directly in the decision whether to discharge an employee, the Board is entitled to conclude that this was a case of the threat made good." N.L.R.B. v. Neuhoff Brothers Packers, Inc., 375 F.2d 372, 374, 376 (C.A. 5). Other factors, apart from the 8(a)(1) violations, support the inference that the discharge of Galbraith was unlawful. First, although Campbell testified that Armour and Company had a good longstanding relationship with the Amalgamated Meat Cutters and claimed that Armour had not conducted vigorous antiunion campaigns in other locations, he admitted that he felt unionization was unnecessary. Furthermore, the existence of Armour's claimed nonhostile companywide relations with the Meat Cutters is irrelevant in a given plant whose manager 13 The employees were instructed to call Ekstrum, the plant superintend- ent, or Foreman Watson if they expected to be absent Ekstrum did not testify as to the strictness of disciplinary enforcement of company rules. Beale testified that if Ekstrum and Watson decided not to report a rule violation to Woodruff, Woodruff would be unaware of such violation 14 Hamilton received his first warning of August 12 for this unexcused absence 15 Both Woodruff and Ekstrum stated that they liked Galbraith's work 16 Woodruff called Beale, told him of Galbraith's fourth violation of harbors union animus. Second, Woodruff reported the names of employees attending union meetings to Beale. The reporting of this information should have been unnecessary if the company's policy during a union campaign was, as Campbell claimed, merely to insure that the employees would vote "knowing what all the facts were." Third and most important, the timing of the company's use of its disciplinary rules is highly significant. Galbraith was discharged on September 8, 1971; the warning letter to Willie Hamilton informing him of his 1- week suspension was dated September 3, 1971, and his suspension was effective from September 8 to September 10. Woodruff knew that both Galbraith and Hamilton had attended union meetings. Woodruff originally claimed that he did not discipline any of the other employees who attended union meetings prior to the election. However, cross-examination by the General Counsel revealed that Charlie King was given a 2-week suspension and a third warning letter 2 weeks before the election and that Henry Myles received a 1-week suspension and second warning letter on October 26, also a short time before the election of November 5. Both of these men were on the list taken by Woodruff of employees who attended union meetings. Examination of Respondent's exhibits reveals additionally that Willie Hamilton's first warning letter was issued on August 12, 1971, at a time during the union campaign when Hamilton had already been in attendance at union meetings and about the time Woodruff interrogated Myles on the subject of Hamilton's "dissatisfaction." 17 Finally, Jim Holland, acknowledged by Woodruff to be the "main" union leader, received his first warning on August 10, 1971, also during the union campaign. Thus, six disciplinary letters were sent to known union adherents during August, September, and October 1971, the major months of the union campaign, a total equal to one less than the number of disciplinary letters issued during the entire year of 1970. The Respondent attempted to support its claim that the discharge of Galbraith was not discriminatory by showing that other employees who attended- union meetings were not disciplined. Woodruff specifically testified that Jim Holland, the main union leader, was not discharged and that no other unionmen, besides Galbraith and Hamilton, were disciplined. To the contrary, Holland and at least two other union adherents were disciplined. These additional disciplinary sanctions to union supporters, although not charged as independent violations of the Act, do constitute evidence of union animus and support for the inference of unlawful discharge. The Respondent's issuance of six warnings in so short a period of time is either a mathematically improbable coincidence or persuasive evidence of illegal intent.18 Although such evidence is circumstantial, and the Respondent directly denied dis- criminatory intent, "[i It would indeed be the unusual case company rules, and asked him "if there was to be any deviation from company policy because there was union activities underway " Beale readily agreed that Galbraith should be discharged 17 The union drive began on July 10, 1971 18 "[T]he unexplained coincidence of time with respect to the principal events was really no coincidence at all, but rather part of a deliberate effort by the management to scotch the lawful measures of the employees before that had progressed too far toward fruition N LR B v Jamestown Sterling Corp, 211 F 2d 725 (C A 2) JACOB E. DECKER AND SONS in which the link between the discharge and the union activity could be supplied exclusively by direct evidence. Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial evidence." N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A.8).' Therefore, on the basis of the record as a whole, it is concluded and found that the "real motive" 19 for the Respondent's discharge of Galbraith was to discourage membership in a labor organization and to interfere with the right of employees "to self-organization and to form, join, or assist labor organizations." The discharge of Galbraith was a violation of Section 8(a)(3) of the Act. Since the Respondent's motive was clearly unlawful, its asserted reason for the discharge of Galbraith becomes immaterial . The existence of an alternative ground for the action taken is no defense where, as here, the Respondent's actual motivation was based on unlawful discrimination. Webster Wood Industries, Inc., 169 NLRB 67. "[T]he existence of a proper reason for discharge is no defense if the discharge was actually made for an improper purpose." John Klann Moving and Trucking Company, 411 F.2d 261 (C.A. 6). Moreover, the Respondent has not sustained its burden of rebutting the prima facie case established by the General Counsel as found by the Board and credited herein. The Board has stated in National Automobile and Casualty Insurance Co., 199 NLRB No. 1, "Fundamentally, a prima facie case is one which is established by sufficient evidence and can be overcome only by a preponderance of competent, credible rebutting evidence." 2. The suspension of Willie Hamilton The Respondent claimed that Willie Hamilton's suspen- sion of September 8, 9, and 10, 1971, resulted from his failure to report an absence 30 minutes prior to his scheduled worktime. His second violation of company rules. The Respondent admitted that Hamilton was a good worker, claiming that its disciplinary procedure had been automatically invoked only because of this rule violation. As noted in the discussion concerning the illegal discharge of Galbraith, the company failed to prove that it never deviated from its policy of punishing those who failed to call in to report an absence. Watson testified that "Hamilton had been absent from work ten to fifteen times and had called in prior to work `on and off' "; 20 yet before Hamilton's suspension he had received only one warning in his year of work for the company. Again, the falsity of the reason given for this suspension warrants the inference that the suspension was motivated by the Employer's desire to discourage employee union activity. This infer- ence is supported by the Respondent's knowledge of Hamilton's union activity2i and Woodruff's interrogation 19 N L R B v Brown Food Stores, supra 20 See the Board's findings in its Order remanding the case to the Trial Examiner 21 In its brief the Respondent relies on Tampa Times Company v NLRB, 193 F 2d 582, 583 (C A 5), for the proposition that it must be affirmatively shown that persons responsible for a discriminatory discharge had actual knowledge of the dischargee's union activities The Respondent claims that the General Counsel has not shown such knowledge of Galbraith and Hamilton 's union activities other than knowledge of their 647 of Myles on the subject of Hamilton's "dissatisfaction." The evidence of Respondent's union animus and other factors supporting the inference of unlawful discharge discussed with respect to the discharge of Galbraith are equally applicable here. Hence, it is concluded that the Respondent's suspension of Willie Hamilton on September 8, 9, and 10 was violative of Section 8(a)(3) of the Act. Moreover, as in the case of Galbraith, the Respondent has not sustained its burden of rebutting the prima facie case of the General Counsel which was found by the Board and credited herein. See National Automobile and Casualty Insurance Co., supra. 3. The change in Willie Hamilton's job classification When Willie Hamilton returned to work from his suspension on September 13, he was transferred from the Receiving Department to the Skinning Department, which involved an 18-cent cut in pay. Hamilton testified that although he was hired to work in the Receiving Depart- ment and was working there at the time of his suspension, he had previously worked on the skinning machine "for a while," "maybe a couple of months." The reason advanced by the Respondent for Hamilton's transfer, which is considered to be valid and not of a discriminatory nature, is that about a week before Hamilton's suspension Henry Myles informed Watson that Hamilton could not read or write. This deficiency made Hamilton unable to perform the necessary recordkeeping functions of a receiver. It is therefore concluded that the change in Hamilton's job status was made for business purposes and was not in violation of the Act. SUPPLEMENTAL CONCLUSIONS OF LAW 1. By unlawfully discharging Charles Galbraith on September 8, 1972, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and 8(a)(3) of the Act. 2. By unlawfully suspending Willie Hamilton on September 8, 9, and 10, 1971, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) and 8(a)(3) of the Act. SUPPLEMENTAL RECOMMENDED REMEDY It having been found that the Respondent unlawfully discharged Charles Galbraith and thereby violated Section 8(a)(1) and 8(a)(3) of the Act, it is recommended that the Respondent remedy such unlawful conduct. It is recom- mended in accordance with Board policy 22 that Respon- dent offer Charles Galbraith immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position, without attendance at one union meeting However, the record reveals that Woodruff knew that Hamilton attended five union meetings and that Galbraith attended at least "a couple " In any case, the required showing of knowledge of union activity to support a finding of an illegal discharge is satisfied by a showing of knowledge of attendance at even one union meeting The statute protects those who engage in minimal union activity as well as more vociferous union advocates 22 See The Rushton Company, 158 NLRB 1730, 1740 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suffered as a result of the discrimination against him by payment to him of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of an offer of reinstatement, less net earnings during such period to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It is further recommended, in accordance with the above formula, that the loss of earnings caused by the Respon- dent's discriminatory 3-day suspension be paid by the Respondent to Willie Hamilton. It is further recommended that the Respondent be ordered to rescind and expunge Charles Galbraith's fourth warning dated September 8, 1971, and Willie Hamilton's second warning dated September 3, 1971, from their personnel records. Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, it is recommended that the Board issue the following recommended: 23 SUPPLEMENTAL ORDER The Respondent, Jacob E. Decker and Sons, a Division of Armour and Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities of its employees, or membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization , by unlawfully discriminatonly dis- charging or suspending any of its employees. (b) Unlawfully threatening to fire or discipline employ- ees for engaging in concerted activities. (c) In any other manner interfering with , restraining, or coercing its employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities subject to the union-security requirements of Section 8(a)(3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Charles Galbraith immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges, discharging, if necessary, any employee hired to replace him, and make him whole for any loss of pay that he may have suffered by reason of the Respondent's discrimina- tion against him in accordance with the recommendations set forth in the section of this Decision entitled "Supple- mental Recommended Remedy." (b) Make Willie Hamilton whole for any loss of pay that he may have suffered by reason of the Respondent's discrimination against him in accordance with the recom- mendations set forth in the section of this Decision entitled "Supplemental Recommended Remedy." (c) 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, and all other records necessary to analyze the amount of backpay due under the terms of this Supplemental Order. (d) Notify immediately the above-named individual, 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. (e) Rescind and expunge from its personnel records Charles Galbraith's fourth warning dated September 8, 1971, and Willie Hamilton's second warning dated Septem- ber 3, 1971. (f) Post at its Texarkana, Texas, plant copies of the attached notice marked "Appendix A.1124 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Supplemental Decision, what steps have been taken to comply herewith.25 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges violations of the Act other than those found in the decisions in this case. 23 In the event no exceptions are filed as provided by Sec 102 46 of the 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 supplemental findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 24 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 " 25 In the event that this recommended Supplemental Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read. "Notify the Regional Director for Region 16, in wnting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board, after a trial in which all parties were permitted to introduce evidence, found that JACOB E. DECKER AND SONS we discharged Charles Galbraith and suspended Willie Hamilton unlawfully and that by their discharge and suspension we discouraged employees from becoming and remaining members of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. WE WILL offer Charles Galbraith his formerjob or, if his job no longer exists, a substantially equivalent position. WE WILL restore his seniority and pay him any backpay he lost because we discharged him. WE WILL pay Willie Hamilton any backpay he lost because we suspended him. WE WILL NOT discharge or suspend any employee for the same reasons for which the Board found that we discharged and suspended the above-named employ- ees. WE WILL NOT unlawfully discharge or suspend employees for lawfully engaging in union activities or protected concerted activity. WE WILL NOT unlawfully interrogate our employees in respect to their union activities or the union activities of other employees. WE WILL NOT engage in surveillance in respect to our employees' union activities. WE WILL NOT give the impression to our employees that we are engaging in surveillance in respect to our employees' union activities. WE WILL NOT encourage employees to engage in surveillance of our employees' union activities on our behalf. WE WILL NOT threaten employees for engaging in union activities. The laws of the United States give all employees these rights: To organize themselves 649 To form, join, or help unions To bargain as a group through representatives they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any and all of these things subject to the union-security requirements of Section 8(a)(3) of the National Labor Relations Act, as amended. All of you are free to remain or refrain from becoming or remaining members of a labor organization. Dated By JACOB E. DECKER AND SONS, A DIVISION OF ARMOUR AND COMPANY (Employer) (Representative) (Title) We will 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 discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.