American Mfg., Associates, Inc.

AMERICAN MANUFACTURING ASSOCIATES, INC. American Manufacturing Associates, Inc. and Debbie Ellis, Lillie Marie Scearce, Linda Tucker, and Barbara Gardner. Cases I I-CA-6718-1, I -CA- 6718-2, 11 -CA-6718-3, and 11-CA-6718-4 February 3, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On June 20, 1977, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions. 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 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. Respondent manufactures welt cord and edge roll used by furniture manufacturers. Thomas McCor- mick has had an interest in the Company since 1907 and has been its sole owner since 1971. His son-in- law, Elbert Bowman, was in charge of the plant from 1971 until June 1976. In June 1976, Douglas Boden- heimer assumed the position of production manager, responsible for production and quality. Bowman retained his supervisory status and title of plant manager, but his responsibilities were limited to the maintenance of machines. These changes were effec- tuated because the Company had suffered increasing losses during the 2 previous years, had received numerous complaints concerning defective materials, and had lost several good customers. In the latter part of July 1976, the first shift employees discussed among themselves their desire for a pay increase and appointed Scearce to broach the subject with Bodenheimer. At Scearce's request, Bodenheimer met in the breakroom with six employ- ees who expressed their desire for a pay increase. Bodenheimer responded that he thought they de- served a raise, he would check with McCormick, and he would get back with them. A day or two later Bodenheimer told Scearce that the employees should put their request for a raise in writing, indicating the amount they desired and the reasons why they thought they deserved an increase. Seven of the eight I Employees Ellis, Scearce, Gardner, Tucker, Hughes, and Meachum engaged in the work stoppage. 234 NLRB No. 105 first-shift employees signed a paper requesting a 25- cent increase, but when employee Ellis presented it to Bodenheimer he said he wanted each employee to prepare a statement individually. Later that morning Bodenheimer informed Ellis that he had talked to McCormick and that there would be no raises until production and quality improved. Six of the first- shift employees then decided to shut down their machines during working time and went to the break area.' About 15 to 20 minutes later Bodenheimer went to the break area and asked the employees what they were doing. They explained they thought they deserved a raise and wanted that message conveyed to McCormick. Bodenheimer said he would contact McCormick, left the area, and returned some 5 to 10 minutes later to explain that he was unable to reach McCormick. The employees then returned to work. The entire work stoppage lasted approximately 45 minutes. Soon thereafter, Bodenheimer told McCor- mick about the work stoppage. That afternoon Bodenheimer called each employee into his office and announced that McCormick had decided to grant the employees a 10-cent-an-hour increase and that a further increase would be considered when production and quality improved. While employees Tucker and Hughes were in Boden- heimer's office, he flipped through a stack of job applications on his desk, stated that he had reviewed them, and said, "[I I]f I had had somebody else that I could put in your place, I would have fired you all." Shortly after the work stoppage, Respondent hired six new employees for the third shift. Prior to this time there had never been a full complement of workers on that shift. After hiring the new third-shift employees, Bodenheimer in mid-August began mak- ing spot checks of the work output of 7 of Respon- dent's 15 employees. On September 3, Bodenheimer discharged employ- ees Ellis, Scearce, Tucker, Gardner, and Hughes.2 He told them that McCormick had been at the plant earlier that day and had instructed him to discharge them for unsatisfactory production and the poor quality of their work. When Ellis asked to be shown the defective work cited as the reason for their discharge, Bodenheimer did not produce any for their inspection. After being discharged Gardner went home and called Bowman at the plant to ask why she had been fired. Although stating that he had not discussed the matter with McCormick, Bowman replied that McCormick was still "mad" because the employees engaged in the work stoppage for a pay increase and that he "wanted to clean house." The next week Scearce also spoke to Bowman and inquired about 2 The complaint does not allege that Hughes' discharge was unlawful. 675 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the reference to her work on her termination slip. Bowman replied, "It wasn't the work." Following the five discharges on September 3, three of the newly hired third-shift employees were immediately transferred to the first shift. Another such employee was similarly moved in October, and a fifth third-shift employee was eventually trans- ferred to the first shift. Since these transfers, Respon- dent has not had a full third-shift work force. The Administrative Law Judge found, and we agree, that the July 1976 work stoppage constituted protected concerted activity. He, nevertheless, found that Respondent discharged the four alleged discri- minatees because of the poor quality of their work and inefficient production, and not because they engaged in the work stoppage. He therefore conclud- ed that their discharges were not violative of Section 8(a)(l) of the Act, and accordingly, dismissed the complaint in its entirety. The General Counsel excepts to the Administrative Law Judge's conclu- sion. We find merit in those exceptions, for the reasons set forth below. The record clearly reveals that McCormick, who made the decision to discharge the employees, was notified by Bodenheimer of the employees' participa- tion in the work stoppage. Furthermore, almost immediately after the work stoppage, Bodenheimer, demonstrating his animosity toward the employees, told two of them that he would have discharged them had he had qualified replacements. Shortly thereafter Bodenheimer in fact acted on that statement and for the first time hired a full complement of third-shift employees. A few weeks later, after sufficient time for these new employees to gain the necessary job experience, Respondent terminated five of the six employees who had engaged in the stoppage, and transferred most of the new employees to the first shift. Further, we note that, notwithstanding Respon- dent's claim that these new employees were hired to increase production and not to replace the first-shift employees, Respondent has not maintained a full third shift since the discharges. In light of these facts, and particularly the timing of the discharges, it is clear that the General Counsel has established a prima facie case that Respondent discharged the employees herein for having engaged in the work stoppage. Furthermore, contrary to the Administrative Law Judge, Respondent's asserted defense that the em- ployees were discharged because of poor work performance does not withstand scrutiny. Thus, Ellis received a 10-cent raise on January 8, and 5-cent raises on February 19 and April 29; Scearce received 20-cent raises on January 8 and April 8; Tucker received a 25-cent raise on January 8; and Gardner received a 10-cent raise on February 19. 4 While we specifically do not rely thereon, Bowman's statements to although Respondent had experienced production problems for some time prior to the discharges, the record reveals that each of the alleged discriminatees, in addition to the 10-cent-per-hour wage increase given to them only slightly more than I month prior to their discharges, also received at least one other increase in 1976.3 Furthermore, when the employees first approached Bodenheimer in late July and informed him that they desired an increase, Boden- heimer stated that he thought they deserved an increase. Additionally, each of the employees in- volved, with the exception of Ellis, had worked for Respondent on several occasions in the past, had later quit, and upon their subsequent applications for employment were readily rehired by Respondent. Most significantly, however, Respondent, in attempt- ing to justify its discharge of these employees, has failed to establish that the defective work in fact was attributable to these employees. In this regard, it is clear that Bodenheimer's inspection of the defective work was not conducted in a thorough and systemat- ic manner. Rather, it was limited to spot checks of some but not all of the production employees. Furthermore, with respect to certain defective edge rolls which Respondent attributed to certain of the discharged employees, Bodenheimer at the hearing conceded that at least five employees, two of whom were not discharged, could have been responsible for the work and that no effort was made to specifically identify which employees had in fact done the work. Bodenheimer also admitted that the defective work attributed to Tucker probably had been returned by the customer after Tucker's discharge, and thus could not have served as a reason for her discharge. Additionally, we note that, when Ellis at the time of the discharges asked to be shown the defective work which assertedly was a reason for the discharges, Bodenheimer did not produce any such work. Final- ly, with respect to the alleged low production levels of the discharged employees, the record clearly discloses that Bodenheimer's inspections again mere- ly consisted of spot checks through which he was unable with any certainty to ascertain the specific production levels of each of the employees. We therefore conclude that Respondent's asserted rea- sons for discharging the employees were pretextual.4 In view of the foregoing, we find that the General Counsel has established by a preponderance of the evidence that Respondent discharged the employees involved herein because of their having participated in protected concerted activity. We therefore con- Gardner and Scearce that the employees were not discharged for unsatisfac- tory work but rather because of their having engaged in the work stoppage are highly suggestive that Respondent's asserted reasons for the discharges were pretextual, particularly in view of Bowman's position in the Company and his relationship to McCormick. 676 AMERICAN MANUFACTURING ASSOCIATES, INC. elude, contrary to the Administrative Law Judge, that Respondent has violated Section 8(aXl) of the Act.5 THE REMEDY Having found that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act, we shall order Respondent to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act. We shall order Respondent to offer Debbie Ellis, Lillie Marie Scearce, Linda Tucker, and Barbara Gardner immediate and full reinstatement to their former positions or, in the event such jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges. We also shall require Respondent to make the above-named em- ployees whole for any loss of pay they may have suffered by reason of Respondent's unlawful conduct against them, by payment to each of a sum of money equal to that which she would have earned from the date of discharge to the date of an offer of reinstate- ment, less net earnings during such period. Backpay and interest thereon is to be computed in accordance with the formulas prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).6 CONCLUSIONS OF LAW i. Respondent is an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging on September 3, 1976, and thereafter refusing to reinstate, Debbie Ellis, Lillie Marie Scearce, Linda Tucker, and Barbara Gardner, because of their protected concerted activities, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor 5 Contrary to the suggestion of our dissenting colleague, we have considered the evidence favorable to Respondent in reaching our conclusion herein. Thus, we are mindful that Respondent had experienced production problems and suffered economic losses at the time of the discharges. We, however, also recognize, as found by the Administrative Law Judge but apparently ignored by our colleague, that Respondent's business had been experiencing such difficulties since 1973, some 3 years pnor to the discharges. Despite these circumstances Respondent's treatment of the employees involved herein prior to their work stoppage clearly was not indicative of dissatisfaction with their work and, indeed, as found by the Administrative Law Judge, when the employees requested a raise, Boden- heimer told them he thought they deserved one. Furthermore, as the Administrative Law Judge found, Respondent after the work stoppage made only spot checks of its employees' work and it is clear that the Relations Board hereby orders that the Respondent, American Manufacturing Associates, Inc., High Point, North Carolina, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they engage in protected concerted activities. (b) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Debbie Ellis, Lillie Marie Scearce, Linda Tucker, and Barbara Gardner to their former positions, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole the above-named employees for any loss of earnings they may have suffered by reason of the unlawful action taken against them, in the manner set forth in the section of this Decision entitled "The 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 Order. (d) Post at its High Point, North Carolina, plant and warehouse copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provid- ed by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. testimony of Respondent's own witnesses does not show that the defective work following the work stoppage was specifically attributed to the discharged employees. In view of the Administrative Law Judge's own factual findings and the admissions of Respondent's witnesses, and particularly in light of the proximity in time between the employees' work stoppage and their discharges, the circumstances herein compel the conclusion that the discharges were attributable to the work stoppage and therefore violative of the Act. 6 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716(1962). 7 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 677 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER MURPHY, dissenting: Contrary to my colleagues, I adopt the Decision of the Administrative Law Judge. All the facts upon which my colleagues rely are fully set forth by the Administrative Law Judge but, unlike the majority opinion herein, the Administrative Law Judge also weighed and considered the evidence favorable to Respondent. Thus, the Administrative Law Judge was aware of the circumstances which could have cast doubt on the motives for terminating the individuals involved herein. But he also was aware of and balanced the severe economic factors and undisputed production problems which existed at the plant.8 Like the Administrative Law Judge, and for the reasons fully set forth by him based on his credibility resolutions, I am persuaded that the General Counsel has not established by a preponderance of the evidence that the Charging Parties were discharged for their participation in protected concerted activi- ties, i.e., the work stoppage of July 1976. According- ly, I would dismiss the complaint in its entirety. 8 My colleagues in the majority rely on the fact that Bodenheimer acknowledged to the employees that they deserved a raise as evidence that Respondent was not dissatisfied with their work. But they fail to note that subsequently, before the work stoppage, Bodenheimer told employee Ellis that higher management had decided that no raises would be forthcoming until production and quality improved. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge employees because they engage in protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL offer to Debbie Ellis, Lillie Marie Scearce, Linda Tucker, and Barbara Gardner immediate and full reinstatement to their former positions or, if such jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privi- leges. WE WILL make the above-named employees whole for any loss of earnings they may have suffered because of our unlawful actions against them, with interest thereon. AMERICAN MANUFACTURING ASSOCIATES, INC. DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge: A hearing in this proceeding was held in Winston-Salem, North Caroli- na, on January 26 and 27, 1977. The complaint, issued by the General Counsel of the National Labor Relations Board on October 28, 1976, was based on unfair labor practice charges and amended charges filed between September 7 and October 20, 1976, by the four individuals named in the caption. The complaint alleges that the Respondent discharged the four named individuals on September 3, 1976, because of their protected concerted activities in violation of Section 8(a)(1) of the Act. The Respondent, in its answer, has denied the commission of any unfair labor practices. Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I hereby make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, a corporation with its plant and place of business in High Point, North Carolina, is engaged in the manufacture of welt cord and edge roll for the furniture industry. It annually purchases goods and raw materials for its High Point, North Carolina, plant from points directly outside the State of North Carolina valued in excess of $39,000. It annually causes to be manufactured, sold, and distributed from its High Point plant, products valued in excess of $100,000, of which products valued in excess of $50,000 were furnished to enterprises, each of which purchases goods valued in excess of $50,000 annual- ly from points and places directly outside the State of North Carolina. The complaint alleges, the answer admits, and I find the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE ALLEGED UNFAIR LABOR PRACTICES The Respondent manufactures welt cord and edge roll used by furniture manufacturers. Until 1971, Thomas B. McCormick owned 48 percent of the Respondent's stock. At that time he purchased all the remaining stock and became its sole owner. Carolina Foam and Paper Compa- ny, also owned by McCormick, is the Respondent's selling agent. Several months after McCormick became sole owner of the Respondent in 1971, he placed his son-in-law, Elbert Bowman, in charge of Respondent's plant. Beginning with t Certain errors in the transcript are hereby noted and corrected. The Respondent filed a posthearing motion to reopen the hearing for the limited purpose of receiving into evidence G.C. Exh. 6, together with the accompanying affidavit of Thomas B. McCormick, Respondent's sole owner, identifying and authenticating the exhibit. The exhibit contains the schedule of pay raises given to employees in 1976 and the document was referred to during the General Counsel's cross-examination of McCormick. The unopposed motion is granted, G.C. Exh. 6 is received, and Respon- dent's motion with the accompanying affidavit is received into evidence as Resp. Exh. 14. 678 AMERICAN MANUFACTURING ASSOCIATES, INC. the fiscal year ending October 31, 1973, the Respondent's operation suffered increasing losses and McCormick in- vested additional money into the business. Until 1976, the Respondent's operations were left entirely in the hands of Bowman. Faced with increasing losses, production prob- lems, and complaints from customers regarding defective materials and after prodding Bowman to improve the efficiency of the operation, McCormick hired Douglas Bodenheimer in June, 1976, to take charge of the plant.2 McCormick's testimony clearly shows he was dissatisfied with the manner in which Bowman had been operating the plant. Bodenheimer was instructed by McCormick to increase production and to improve the quality of the finished products. The Respondent had been experiencing difficulties in shipping complete orders and was making partial shipments. And in the first half of 1976, the Respondent had received numerous complaints concerning defective materials and had lost several good customers.3 On June 14, McCormick visited the plant and announced to the employees that Bodenheimer was in charge of production and quality and would be responsible for the hiring and firing and Bowman would be responsible for the maintenance of the machines. The Respondent at that time also posted shop rules. Bowman remained a supervisor albeit was relegated to a secondary role in the management hierarchy. McCormick, himself, only visited the plant on occasions. In the latter part of July, the employees on the first shift discussed among themselves their desire for a pay increase. They agreed Scearce would broach the subject to Boden- heimer. One morning in late July, at Scearce's request, Bodenheimer met in the break area with six employees. 4 They told Bodenheimer of their desire for a pay increase. Bodenheimer replied he thought they were deserving of it and would talk to McCormick and get back to them. About I or 2 days later, Bodenheimer told Scearce the employees should put in writing their request for an increase including the amount they desired and the reasons why they thought they were deserving of an increase. Seven of the eight employees on the first shift signed such paper requesting a 25-cent increase.5 When Bodenheimer looked at the signed statement given to him by Ellis, he handed it back to her and said he wanted each employee to prepare her individual statement. Later that same morning, Boden- heimer told Ellis he had talked to McCormick and there would be no raises until production and quality improved. Six of the first-shift employees then decided among themselves to shut down their machines during working time. 6 They then went to the break area and about 15-20 minutes later Bodenheimer came over and asked what they were doing. They explained they were deserving of a pay increase and wanted the message conveyed to McCormick. Bodenheimer said he would contact McCormick. He returned about 5-10 minutes later and said he was unable to contact McCormick. The employees then decided to 2 Unless otherwise indicated, all dates hereinafter refer to 1976. 3 Based on the testimony of McCormick and corroborating testimony of his son, Thomas L. and Clifton Peele, the latter two being salesmen for Respondent's selling agent, Carolina Foam. 4 Lillie Scearce. Barbara Gardner, Linda Tucker, Debbie Ellis, Mary Hughes, and Yukie Meachum. The same group that had met earlier with Bodenheimer and also Treva Hilton. resume working. The entire stoppage was of about 45 minutes duration. That same afternoon Bodenheimer called each employee to his office and announced McCor- mick had decided to grant the employees a 10-cent increase and a further increase would be considered when produc- tion and quality improved. Tucker testified she was in the office with Mary Hughes, and Bodenheimer had a stack of applications. She testified he said, "If I had had somebody else that I could put in your place, I would have fired you all." 7 Thereafter a 10-cent increase was given to all employees effective July 29. On September 3, the four alleged discriminatees and Hughes were discharged. Bo- denheimer told them McCormick had been at the plant that day and instructed him to discharge them for unsatis- factory production and quality. When Gardner came home after being discharged, she telephoned Bowman at the plant. She asked why she was fired. Bowman replied that McCormick was still mad because the employees had engaged in the work stoppage for a pay increase and had said that he "wanted to clean the house." But according to Gardner, Bowman initially told her he did not know they had been discharged. Scearce also testified she spoke to Bowman during the week following the discharge. She asked him why Meachum was not fired since she had also engaged in the work stoppage. According to Scearce, Bowman replied, Bodenheimer did not know Meachum had been involved in the stoppage. Bowman was not called as a witness. I have no doubt that Gardner and Scearce testified truthfully concerning their conversations with Bowman. On the other hand, I do not accept Bowman's reasons given to them as anything but speculative, if not untrue. He told Scearce that Bodenheimer was unaware that Meachum had engaged in the stoppage. This I find incredible and unworthy of belief. Bodenheimer was the one who met with the participants in the work stoppage and Meachum was one of the group. Moreover, Bowman admitted to Scearce and Gardner he was unaware they were about to be discharged and, as described below, McCormick did not consult with Bowman at all concern- ing his decision to effect the discharges. Thus, I cannot accept Bowman's statements to Scearce and Gardner as probative to support the General Counsel's theory the employees were discharged for engaging in the work stoppage. It may be idle speculation to suggest that Bowman was attempting to put himself in a good light in the eyes of the discharged employees at the expense of his successor, Bodenheimer and his father-in-law, who had deposed him from the top-management role in June. The record shows that McCormick was the one who made the decision to discharge the four alleged discrimina- tees and Mary Hughes. He testified they were discharged for poor work. He further testified he was unaware of the work stoppage or that the group of employees had petitioned Bodenheimer for a wage increase. Bodenheimer testified he did not inform McCormick of the stoppage or s The four alleged discriminatees (Ellis, Scearce, Tucker, and Gardner) Meachum, and Hughes. T Hughes was also discharged on September 3, but did not file any unfair labor practice charge nor was she called as a witness. Bodenheimer was not questioned regarding these conversations in his office. 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the group had requested the wage increase. Their denials that the stoppage or that the seven employees on the first shift had requested a pay increase came to McCormick's attention does not ring true. Bodenheimer had been on the job not much more than I month when the incident occurred. It is extremely unlikely that this would not have been reported to McCormick particularly when, as they testified, McCormick would check at least twice a week with Bodenheimer as to how the operation was running. But despite this finding, I am not convinced the preponderance of the evidence supports a finding that the termination of Scearce, Tucker, Gardner, and Ellis was because they had engaged in a work stoppage or petitioned for a wage increase. s McCormick for some period of time was dissatisfied with the production and the quality of work performed at the plant. He also was dissatisfied with the manner in which Bowman managed the operation. McCormick's reluctance to replace Bowman was obviously because Bowman was married to his daughter. But finally, in June, McCormick brought in Bodenheimer and stressed that Bodenheimer was charged with the responsibility to increase production and to improve the quality of the products being manufactured. As late as August 10, McCormick visited the plant and complained to the employees about the defective materials being returned by customers and remonstrated that he wanted the production of defective material halted and that he did not want to return there to talk about quality. He had visited the plant on earlier occasions since Bodenheimer was employed to complain about poor quality. The General Counsel contends that after the work stoppage and the plea for a wage increase by the first-shift employees, an entire new crew was hired on the third shift and as soon as they gained sufficient experience, the employees engaged in the earlier protected activity were summarily terminated. 9 The parties agreed that six employ- ees started on the third shift between August 11 and August 18.10 Five of the six, who engaged in the work stoppage, were discharged on September 3.11 They were all on the first shift. Ashburn and Mildred and Don Clark were immediately moved to the first shift. Mike Green- wood stayed on the third shift. Barry Brown moved to the first shift in October. Bonnie Brown was eventually moved to the first shift. But the record clearly shows these were not the only employees hired. Employees were hired in May, June, and July but they quit after working only a short time.12 Bodenheimer credibly testified that after the new employees were hired on the third shift he began making spot checks comparing the production of first shift employees against that of the new employees and found the new employees were outproducing the firstshift employ- ees.13 He also began tagging the work done by Billings, on the third shift, who began doing similar work on edge rolls as that performed by Ellis and Gardner on the first shift. Until August 10, Ellis and Gardner were the only two employees regularly sewing edge roll. It was defective edge s The Respondent does not contend such activity was not protected by the Act. 9 It should be noted that in late July, immediately after the work stoppage, Bodenheimer had told Tucker if replacements were available the protestors would have been fired. O1 Mike Greenwood, Mildred Clark, Barry Brown, Bonnie Brown, Darleen Ashburn, and Donley Clark. roll as well as welt cord that was being returned by customers. Subsequently the defective edge roll returned by customers did not have Billings' tag so Bodenheimer concluded it had been run by the first-shift employees. About August 22, Bodenheimer reported his comparisons to McCormick who told him to continue to make the comparisons and to report to him. Finally, on September 3, McCormick visited the plant and told Bodenheimer to discharge the five for unsatisfactory production and poor quality. McCormick testified that when he had visited the plant earlier, he noticed Bowman standing around talking to the girls, including Scearce. Analysis and Conclusions Six employees had met with Bodenheimer the latter part of July to discuss a pay increase. These same six and Hilton then signed a paper requesting a pay increase. Thereafter, six employees engaged in the work stoppage in the latter part of July. Five of the six who engaged in the work stoppage were thereafter discharged on September 3. I am mindful that to support a finding of an unlawful motiva- tion, it is not necessary to establish that an employer retaliated against all who engaged in a protected activity. But in the present case there is no question that McCor- mick was so concerned with the inefficiency at the plant that he even deposed his daughter's husband from his seat of authority. And even after Bodenheimer replaced Bow- man, McCormick kept a close check and visited the plant on several occasions and talked to Bodenheimer about twice a week. McCormick complained to the first-shift employees on about three occasions between June 10 and August 10 about the poor quality of the materials pro- duced. He had also urged Bodenheimer to hire more employees to increase the production. I am not convinced that the hiring of employees in mid-August for the third shift was designed to ultimately have them replace the first- shift employees who had engaged in the protected activity in the latter part of July. Accordingly, I conclude that the preponderance of the evidence does not support a finding that the four charging parties who were part of a group of six or seven who engaged in the July protected activity were discharged on September 3 for their participation in protected concerted activities. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The General Counsel has not established by a preponderance of the evidence that the Respondent has engaged in unfair labor practices within the meaning of Section 8(aX)) of the Act as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] 1 A seventh employee, Hilton, had joined in signing the statement requesting a pay increase. 12 Resp. Exh. 12 and testimony of Bodenheimer. 13 This included the production of Gardner, Tucker, Ellis, and Hughes. 680