Coble Dairy Products Cooperative, Inc.

160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coble Dairy Products Cooperative , Inc. and Chauf- feurs, Teamsters and Helpers Local Union No. 391, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Petitioner. Cases 11-CA-4901 and 11- RC-3500 August 1, 1973 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, KENNEDY, AND PENELLO On November 29, 1972, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein.' We do not agree with the Administrative Law Judge's conclusion that Beck was unlawfully dis- charged. In the first place, the record does not support his finding that Respondent had knowledge of Beck's union activity. As described by the Administrative Law Judge, Beck's union activity was that, "A few weeks before he was discharged in 1972 he not only signed a union card but also distributed union cards and handbills to employees of Respondent." But there is no direct evidence of Respondent's awareness of this activity and it does not appear to have been conducted in circumstances which would warrant an inference of knowledge thereof by Respondent.' Equally without adequate record support, even as- 1 The General Counsel did not file exceptions to the dismissal of certain 8(a)(1) allegations of the complaint It appears to us that the Administrative Law Judge inadvertently omitted the word "not" between the words "does" and "violate" on p 5, 16, of his Decision, and we hereby correct that inadvertence in Crosby's case, we disclaim reliance on the fact that Personnel Manager Worrell was unable to give Crosby a reason for his termination The record does not show that Worrell knew why Crosby was being discharged, he was carrying out orders from Plant Manager Townsend and was not aware of the circumstances attending the discharge decision However, this does not affect our agreement with the ultimate conclusion of the Administrative Law Judge as to Crosby 2 The fact that the Administrative Law Judge also found that there was no direct evidence of Respondent's awareness of Beck's union activity and was compelled to rely on an inference of such knowledge, without any mention of Beck's testimony quoted by Member Fanning, in fn 4, infra, has led us to the conclusion that the Administrative Law Judge, who did not credit Beck in all respects, did not accept that testimony as fact either suming Respondent acquired knowledge of Beck's union activity, is the Administrative Law Judge's finding that the discharge of Beck was motivated by such activity. Beck, together with other employees, was insubordinate in refusing to obey an order to haul crates. There is a conflict in the evidence, not resolved by the Administrative Law Judge, as to the impact of this refusal to work, Respondent claiming that it caused a shutdown of the department, idling 60 men. In any event, we cannot agree with the Administrative Law Judge that Beck's dereliction was condoned by Respondent because it did not discharge him until 4 days later or that it was of no concern to Respondent "until it was ascertained that he was engaging in union activity." The record shows that Respondent's division manager moved to discipline those who par- ticipated in the refusal to work, Beck included, imme- diately upon receiving a report of the incident.' And there is no indication in the record that Beck engaged in any union activity subsequent to this misconduct or that Respondent thereafter became aware of the prior union activity by him. In these circumstances, and upon the entire record, we are not satisfied that the General Counsel has shown by a preponderance of the evidence that Beck was discharged for union activity rather than for cause.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Coble Dairy Products Coop- 3 Williamson, one of those involved, was not discharged because Supervi- sor Rummage expressed the belief that Williamson had been intimidated by the others in his refusal to work and asked that an exception be made in his favor Nor can we attach the same significance as Member Fanning to Respondent's failure to take disciplinary action against Hughes Hughes was considered by Supervisor Rummage to be an excellent employee and the circumstances attending his failure on certain occasions to respond immedi- ately to orders must be viewed differently than the concerted refusal to work in which Beck participated 4 Member Fanning disagrees and would adopt the Administrative Law Judge's finding that Beck was discriminatorily discharged For the reasons given by the Administrative Law Judge, he disagrees with his colleagues' finding that the evidence is insufficient to establish that Respondent had knowledge of Beck's union activities in addition, he relies also on Beck's uncontroverted testimony that "Yes, I told [Supervisor Rummage] that I was definitely for the Union and I thought that it would really help because it didn't look like the Company was going to try to help the employees " In support of the Administrative Law Judge's finding that the reason given for Beck's discharge (insubordination) was a pretext, Member Fanning also views as significant other evidence Williamson, who with Beck refused to haul crates momentarily, was not fired, but has since been promoted to the position of group leader Daryl Hughes, who has recently voluntarily left Respondent's employ, testified that he previously engaged in this same con- duct as Beck without being subject to disciplinary action On cross -examina- tion Supervisor Rummage acknowledged that Hughes on numerous occasions failed to respond immediately and disciplinary action was never taken 205 NLRB No. 29 COBLE DAIRY PRODUCTS 161 erative, Inc., Lexington, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order as modified herein: 1. Delete the name "Joey Beck" from section 2(a). 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. IT IS FURTHER ORDERED that the election held on May 18, 1972, in Case 11-RC-3500 be, and it hereby is, set aside.' [Direction of Second Election and Excelsior foot- note omitted from publication.] alent one, without prejudice to the semority and other rights and privileges enjoyed by each, and make each whole for any loss of pay he may have suffered by reason of his discharge, with interest at the rate of 6 percent per annum. All our employees are free to become, remain, or refuse to become or remain members of said Local Union No. 391, or any other labor organization. COBLE DAIRY PRODUCTS CO-OPERATIVE, INC (Employer) 5 Since we find that Beck was not unlawfully discharged, we do not rely on that discharge in setting aside the election. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Chauf- feurs, Teamsters, and Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion, by discharging employees or otherwise dis- criminating in any manner in respect to their tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate employees about their and other employees' union member- ship, activities, and desires. WE WILL NOT promise increases in wages or other benefits to employees in order to discour- age membership in, interest in, or activities for the above-named Local Union No. 391, or any other labor organization. WE WILL NOT grant to employees wage increas- es, paid holidays, and other benefits in order to discourage membership in, interest in, or activi- ties on behalf of said Local Union No. 391, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise and enjoyment of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer Franklin Owens, David L. Cros- by, and Thomas Fowler, each immediate and full reinstatement to his former position or, if such position no longer exists, to a substantially equiv- Dated By (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 compli- ance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211, Ext. 360. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: This is an unfair labor practice case and a representative case, con- solidated and litigated pursuant to Section 10(b) of the Na- tional Labor Relations Act, herein called the Act (29 U.S.C. 160 (b) ). The unfair labor practice case (Case 11-CA-4901) was initiated by a complaint issued on July 28, and amend- ed on September 12, 1972, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for the Region 11 naming Coble Dairy Products Cooperative, Inc., as the Respondent. Said complaint, as amended, is based on a charge, an amended charge, and a third amended charged filed on April 17, May 19, June 5, and July 27, 1972, respectively, by Chauffeurs, Teamsters, and Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America. Said Charging Party is herein called the Union or Local 391. In substance the complaint as amended on September 12, 1972, alleges that Respondent violated Section 8(a)(1) and (3), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. The complaint was also orally amended at the trial. Respondent has filed an answer and an amended answer. As amended said an- swer admits some of the allegations of the complaint as amended but denies that Respondent committed any unfair labor practices. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the representation case (Case I1-RC-3500) the Union II THE LABOR ORGANIZATION INVOLVED filed a petition to represent an appropriate unit of the Company's employees. The Regional Director on April 21 directed an election thereon, and such election was held on May 18, 1972. Pursuant to due notice this consolidated case came on to be heard, and was tried before me, at Lexington, North Carolina, on September 19 and 20, 1972. All parties were represented at and participated in the trial, and had full opportunity to introduce evidence, examine and cross-ex- amine witnesses, and offer oral argument. A brief has been received from the General Counsel. The unfair labor practice case presents the following is- sues Whether Respondent: 1. Threatened employees with reprisals if they got into the Union or if the Union was voted in. 2. Unlawfully interrogated employees concerning their union or concerted activities, concerning the identity of employees who had signed union cards, and as to their voting intentions in a representation election. 3. Promised or granted employees benefits to forget about the Union or to refrain from union activities. 4. Attempted to induce employees to remove their names from the Union committee list, or to withdraw union au- thorization cards which they had signed. 5. Discharged employees Beck, Owens, Crosby, Fowler, and Blum for engaging in union and other protected activi- ties. In the representation case the issues are whether the Em- ployer improperly interfered with the election, and thus the election should be set aside, by: 1. Granting a wage increase on March 17, 1972, after the petition had been filed. 2. Discharging members of the Union's organizing com- mittee. 3. Coercing members of said organizing committee. 4. Committed other acts which interfered with, and pre- cluded, a fair election. Upon the entire record in this case, and from my observa- tion of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I AS TO JURISDICTION Coble Dairy Products Cooperative, Inc., a North Caroli- na corporation, herein called the Employer, Respondent, or the Company, is engaged at Lexington, North Carolina, in the business of processing and distributing dairy products. During the year preceding the issuance of the complaint on July 28, 1972, the Company manufactured, sold, and shipped goods valued in excess of $50,000 directly to points outside the State of North Carolina, and purchased materi- als valued in excess of $50,000 directly from points outside said State. I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over the Company in this proceeding. The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence Respondent received a letter from the Union, dated Feb- ruary 22, 1972, notifying the former that the Union "is in the process of organizing Coble Dairy Corp. . . . at its Lexington, N. C., facility," and listing 12 named employees as composing members of "an in-plant committee to assist this Local Union in the organizing effort." (See G.C. Exh. 2.) According to Respondent's process division manager, Richard E. Black, this was the "first official notice" the Company had of the Union's organizing efforts. However, Black stated that "there was a rumor" of the Union's cam- paign before this. Black also testified that Respondent made a check with other employers in the area to find out the "employment background of the members of said in-plant committee." David Crosby was a member of said committee. According to Black "we assumed that" Crosby had quit as he did not report for work, and Crosby therefore "was discharged." Respondent "for years" has had an unwritten rule "that if a man does not report for work, does not call his supervisor, or does not report in, after the second day, we assume that he had quit, and we remove him from the payroll." Another employee on said committee is Thomas Fowler. As Black testified, Fowler also "did not report for work. We assumed that he had quit, and he was discharged. This is our policy." Black contended that Franklin Owens, another member of said committee, was discharged because he re- fused to obey an order of his supervisor, Henry Rummage, to accompany Rummage to get some cases, so that Rum- mage was compelled to perform this task alone. Although Owens "eventually did show up" Rummage had practically completed the job by then. Employee Joe Beck, another member of said union committee, was discharged for the same reason as Owens, as testified by Black. This lack of cases caused the milk pure pack department to close down "at least 30 minutes waiting on cases." Thus 50 to 60 em- ployees became idle. Employee Glen Blum quit, according to Black. Continuing, Black testified that on March 16, 1972, Re- spondent granted to its employees a general wage increase of 5-1/2 percent and six paid holidays. At no time in the past had there been a general wage increase but, rather "employees would be given [consideration] for an increase on their anniversary date." And at no time previously had Respondent granted any paid holidays. 1. The termination of Glen E. Blum About January 15, 1972, Blum was hired by the Company as an extra man in the sales department . As such he rode "with the supervisor when a man is sick and can't work and helps the supervisor with the route ." Towards the end of March he was no longer an extra man but was assigned to COBLE DAIRY PRODUCTS a school route , which included about 20 wholesale stops and 5 schools. He was then told by his supervisor, Sales Manag- er Ralph Beam, that this route would be discontinued when school was out and that Blum would then resume his former status of an extra man. Blum later was appointed to the Union's in-plant committee. (See G.C. Exh. 2.) Sometime after February 15 Cliff Jones succeeded in in- ducing Blum to sign a union card. Between March 1 and May 30 Supervisors Murphy and Weaver asked Blum whether Blum thought "there were enough to support the union," if there were "any from the sales department that were supporting the union ," and whether Blum had signed such a card . Blum answered that he signed such a card. In addition Supervisor Wilkes "asked me [Blum] the same questions during the last 2 weeks in February," and also whether Blum had been to union meetings and whether Blum had distributed union cards. Blum answered these questions in the affirmative. Further, Murphy, Wilkes, and Weaver asked Blum often what transpired at union meet- ings shortly after the meetings were held. Blum obtained several stickers at one of the union meet- ings. (See G.C. Exh. 6.) He affixed one on the company truck he drove and also on his own automobile . However, Sales Manager Beam , in the presence of Harvey Lewis, instructed Blum to remove it immediately from said truck because it was company property, adding that Blum was free to vote as he pleased . This instruction does violate Section 8(a)(1) of the Act. About 2 days before June 1 Sales Manager Beam and Harvey Lewis told Blum to see Personnel Manager Bob Worrell because Blum's route was about to be discontinued as schools would soon close for the summer . They also informed Blum that Worrell had certain plant jobs which he desired to offer Blum. When Blum saw Worrell the latter offered him a choice of jobs in the ice cream room or in the cooler at $2 an hour . However, Worrell encouraged Blum not to accept any of these because they involved longer working hours, i.e., 48 hours a week , and suggested that Blum seek employment with Pepsi-Cola or Coca-Cola "where they paid a commission." Continuing, Worrell men- tioned that Respondent was not a union plant , that he did not expect it would ever become unionized , and that Re- spondent "had the right to move the people around inside the plant the best way they saw fit." Blum insisted to Worrell it "was about union activities," and claimed he was next in line for the route of Trivette, another route driver who had injured his back . Further, Blum admitted to Worrell he was not interested in a plant job. Worrell then told Blum to see Ralph Beam. When Blum spoke to Beam the former said he knew "it was union activi- ties," and Blum asked to be laid off or fired . The next day, June 1, Blum was given a layoff slip reading "school route was discontinued , was offered Job in the plant . . . and bad attitude." 2. The termination of Thomas W. Fowler Fowler was hired by the Company about August 8, 1971, to work in its warehouse . At that time he was being treated for a stomach ulcer, and the Company was cognizant of this. He became a member of the in -plant organizing commit- 163 tee of the Union, and Respondent was notified thereof by letter dated February 22, 1972. (See G.C. Exh. 2) In addition he campaigned for the Union and "had cards filled out for it." On one occasion around February 18, 1972, Dock Su- pervisor Terry Whichard told him that Whichard "didn't want [Fowler] or Tim Everhart to be hurt or to lose our jobs over the union situation." I find this does not violate Section 8(a)(1) of the Act. Whichard also said that he thought that Fowler and Everhart had withdrawn their names from said in-plant committee and added that he was glad they got off the committee . In fact Fowler had not withdrawn. This "thought" does not contravene the Act. At another time Whichard asked Fowler and Everhart and the members of the in-plant committee "what [they] needed and what would be [their] pay rate and [ their] bene- fits to withdraw from the union." The group responded that they wanted paid holidays, an increase in pay, "and more benefits." About March 16, 1972, a Thursday, when Fowler report- ed to work at about 5:30 a.m. he felt sick, i.e., he was suffering from an ulcerated stomach . Nevertheless he worked until 7 a.m. when he decided to go home. He so informed "the boy" with whom he was working and then punched out. Customarily no supervisor is present at 7 a.m., and none was at work at this time on this Thursday. The following Monday Fowler reported to work at 5:30 a.m. Not finding his timecard in the rack he went to Terry Michaels at the personnel office at 9 a.m. to inquire about his card. Michaels replied that "they were getting [Fowler's] clearance papers fixed up" because Fowler had left the job without notifying anyone. When Fowler asked "what was the reason I was being fired," Michaels replied it was for failing to notify anyone when Fowler went home early the previous Thursday. In the past Fowler always called in when he stayed out because of his ulcerated stomach and informed Tim Everhart, at that time a nonsupervisory em- ployee, that Fowler was not coming to work. At no time was Fowler criticized for so informing Everhart rather than a supervisor. On cross-examination Fowler asserted that Re- spondent at no time informed him "about attendance [or that he was] expected to report to work or call in," and no one told him "anything about walking off the job without notice." However, Fowler did call in when sick because this was his custom ; and he did report to an employee that he was going home on the Thursday in question. 3. The termination of David L. Crosby Crosby was hired on August 31, 1971, by Respondent to work in the milk cooler . He served on the Union's in-plant committee. (See G.C. Exh. 2.) He last worked for the Com- pany on Saturday, April 15, 1972. When he reported to work the following Tuesday, he observed that his timecard was not in the box. Upon asking supervisor Worrell the reason therefor, Worrell replied that it was removed pursuant to orders from Plant Manager Townsend and that Worrell had nothing to do with it. As Crosby was leaving the plant he asked Townsend, whom he saw on the way out, why Townsend "pulled my card." Townsend replied, "If you lay out a day and you don't call in or send word, that is just part of the Company 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy, and you know you are going to get fired ." But Cros- by insisted to Townsend that Townsend fired him "on ac- count of the union." However, Townsend denied this. On one occasion in the past Crosby missed a day of work without calling in , but his supervisor, Henry Rummage, said and did nothing about it Nor was Crosby reprimanded or warned for failing to call in for such absence. On the Monday before he was discharged , i.e., the day he missed work , Respondent called Crosby's home, according to Crosby, but he was out of town then . When he returned home his brother-in-law, who answered the telephone on Monday, informed him of said call. However , on the prior occasion when Crosby missed a day's work Respondent did not call him at home. 4. The termination of Joey Beck Respondent hired Beck about October 1969 as a produce receiver. Later he was transferred to a billing clerk. A few weeks before he was discharged in 1972 he not only signed a union card but also distributed union cards and handbills to employees of Respondent. About April 14, 1972, Supervisor Henry Rummage asked employees Joe Huffman , Frank Owens, and Joey Beck to follow him upstairs where they were wanted . When Beck arrived there he was ushered into an office where Supervi- sors Worrell, Rummage, and Townsend were present with him. Then Townsend said that on the preceding Monday Rummage had asked Beck and employee J. D. Williams to haul cases but that Beck had refused . As a result "the Com- pany had to shut down ." Because it was "costly" to shut down, according to Townsend, he then and there dis- charged Beck According to Beck, on the Monday in question Rummage asked him and J . D. Williams to "help us haul some cases." Beck and Williams "just jokingly" replied they had no time to do this. Beck also "jokingly" said, "Go on, I am busy." Thereupon Rummage walked away without saying any- thing. Very shortly thereafter, i.e., 3 to 5 minutes later, Wil- liams and Beck did go to the backyard and helped Rummage finish loading the cases . Williams was not fired, but Beck was , for this incident . Further, Beck testified that the pure pack department did not shut down at any time on that Monday. 5. The termination of Franklin D. Owens Owens was hired by Respondent about 8 months before April 14, 1972, to roll milk on trucks and to load trucks. Later he was assigned to unloading route trucks as they returned to the plant. His supervisors were Henry Rum- mage and, for a while, Terry Whichard . The latter was after a while transferred to another department. Because "pressure" at work became so extensive that he "could not stand it," Owens talked to fellow employees about it. As a result in February 1972, he contacted Russell Hogan , the representative of the Union who, in turn, in- structed and guided Owens how to organize Respondent's plant. At first an in-plant organizing union committee was formed, with Owens being one of the members. (See G.C. Exh. 2.) Later the members of said committee "picked up our union cards." In addition Owens attended two meetings called by Respondent and at which Supervisors Richard Black, Ed Townsend, and Tim Ridge spoke. And from Feb- ruary until his discharge he distributed union handbills to employees. He was observed performing this latter under- taking by supervisors Terry Whichard and Henry Rum- mage. When these two spoke to him about these handbills he "just ignored them." As stated elsewhere in this Decision Supervisor Whichard asked Owens to sign a withdrawal application from the Union (see G.C. Exh. 8), but Owens refused to do so. In April 1972, Whichard told Owens that a 5.5-percent in- crease was being granted When Owens then observed that "it took the union to wake them up," Whichard replied, "That's right " Sometime in March 1972, Whichard called Owens at the latter's home one evening to come to the plant. When Owens arrived at the plant Whichard brought him to Supervisors Townsend and Ridge. Ridge promised Owens $3.15 if Owens could induce the employees "to turn back on the union and stop the union ." But Owens refused to accept this offer. However, Ridge also added his hands were tied and he personally could not give anybody anything, but claimed he could get "them to come across" if the employ- ees would hold off a couple weeks and not turn in their union cards. As Owens left Whichard offered him a steak supper "to get this thing settled." Whichard also said he would see if he could get the employees "better benefits, insurance, and increase . . . wages." On the morning of about April 14, 1972, when Owens reported to work, supervisor Rummage told Owens and three other employees to go to Plant Manager Townsend's office. When Owens entered it he found Supervisors Town- send, Worrell, and Rummage therein. Then Townsend told Owens, "I am firing you for union activities" and for hand- billing on the job. When Owens stated he would not leave until he received his paycheck Townsend threatened to "call the law." As a result Owens left. He was soon handed his check "in the street." But Owens testified that he did not engage in these activities while on thejob or "on the clock." Later Owens received a termination slip stating that he was discharged because he "abused Company property." The termination slip about abusing company property relat- ed to the fact that Owens was accused of backing a truck too hard into the dock . But this incident was not mentioned by Townsend when he fired Owens. Said truck, a very old trash truck without tags or licenses on it , was occasionally operated by Owens in the Company's yard. He testified that he did back the truck into the dock "a little bit harder, not no harder than anybody has ever done it," because his shoe, having become greasy from walking on sour milk, slipped off the clutch. But the truck had no brakes. Yet no damage was done to the truck or the dock. In fact others have backed into the dock much harder than Owens, either dam- aging the truck, or other property, or both. On cross-examination Owens claimed he had the "biggest portion" in starting and running the Union's organizing drive at Respondent's plant, but he "needed help" at it. Those who helped him in this respect are employees Cliff Jones and Warner . But Jones and Warner were not fired. Owens also testified on cross that he solicited employees during only when "they were on break" and only on his, and COBLE DAIRY PRODUCTS not company, time. However, he was accused by manage- ment of doing this during working hours, a fact which he denied to management . Also, on cross Owens testified that he was called in on a Wednesday to work hauling crates, that he performed such work all day Wednesday in the rain, and on the next day, Thursday, he was fired. But at no time did Owens refuse to haul crates when asked to do so. 6. Certain evidence bearing on some discharges Employee Thomas Daryl Hughes, who worked for Re- spondent about 6-1/2 or 7 years before he left in early May 1972, testified substantially as follows: His regularjob at Coble Dairy was to move trucks around the yard, back them into the dock to be loaded by others, and to drive them away from the docks after they were loaded. "On numerous occasions" he was asked by his su- pervisor (Henry Rummage) to do work which he, Hughes, "didn't want to do." When so asked he would "tell [the supervisor] to get lost." However, 15 or 20 minutes later he "would go ahead and do" the work to which he had been assigned. In addition, he sometimes remained away from work for a day but did not always call in when he so missed going to the plant. He was not reprimanded, criticized, or warned for not calling in under these circumstances, but would merely be asked why he stayed out. Whenever he did call in on such occurrences he spoke to whomever answered the telephone. 7. As to alleged 8(a)(1) violations During the week of May 8, 1972, Supervisor Richard Murphy asked employee David Foster Owens, a route salesman, how Owens was going to vote in the election soon to be held in Case 11-RC-3500. Owens replied that he had not yet made up his mind. The following week Murphy asked Owens if the latter had made up his mind, but Owens replied that he was still undecided. Continuing, Murphy described how the "men under him .. . were reacting to the union campaign"; that two of Murphy's men "were active for the union"; and that Blum was "very active" for the Union and "would be terminated." Further, Murphy stated to Owens that those working on school routes would not receive an increase in their base pay, "to make up for his loss . if the union got in . . . when school was out." Although Murphy's statements depict antiunion hostility, I find they do not violate Section 8(a)(1) of the Act. Francis E. Barnhill, an employee in the company ice cream shipping department, testified that his supervisor, James E. Saunders, a week or 10 days before the election held on May 18, 1972, addressed a group composed of all the employees, about seven in number, of this department. Saunders told the group that they were getting into some- thing they did not know anything about and which they could not handle; that unions would cause trouble among the employees and "misunderstanding between the people and the Company"; that, if the Union was voted in, "usually it would cause strikes and plant shutdowns, and things of 165 that nature"; and that he had "worked under a union and that it wasn't what everybody thought it was." While I find that the foregoing remarks of Saunders display union ani- mus, I further find that they contain no promise of benefits or threat of reprisals. Accordingly, I find that they are not coercive and are consequently protected as free speech by Section 8(c) of the Act. Hence I find they do not contravene Section 8(a)(1) of the Act. Riteful Lewis Warner, a group leader on the second shift in shipping until about September 12, 1972, testified sub- stantially as follows. (Since he not only voted in the election but also acted as the Union's observer at it, I find he is not a supervisor within the meaning of the Act.) Prior to the general wage raise of March 1972, he received a raise. This occurred when he quit about 2 years before, and it was granted to him to induce him to return. The last general raise to employees was given about 4 or 5 years before 1972. Nothing in this paragraph contravenes the Act. Warner further testified that in the past he knew of five employees who missed work for a day or more than one occasion, yet not one of them was discharged for failing to call in that they would be out for the day. He also asserted that employees, including himself, who are caught up in their work go to the "barbecue center" for 30 to 45 minutes without being reprimanded therefor. On such occasions not only did supervisors observe such conduct without object- ing to it but the employees also "were on the clock" while at the barbecue center. On another occasion, Respondent's Manager Ridge told Warner, among other things, that "they had not had a union at this plant . . . we have checked with our department supervisors and found that people don't want a union, and we don't need a third party to help operate our business." Although this statement manifests union animus, I find it is not coercive and, consequently, is not prohibited by Section 8(a)(1) of the Act. About the second week in March 1972, Dock Supervisor Terry Whichard asked employee David L. Crosby if Frank Owens talked to Crosby about the union meeting conducted the night before. This is not coercive. Whichard also at this time told Crosby that Whichard wanted Owens to tell Cros- by if Owens and Crosby were "going to forget about the union they are going to pay us $3.00 an hour." Owens was present at the time. Respondent was then paying $2 an hour. At another time Whichard told Crosby to forget about the Union and "it would be best ... to go on and forget about it since [Crosby] wouldn't have the same benefits that everyone else did, [Crosby] wasn't involved in it." This is not coercive, and I so find. The last of March 1972, Crosby attended a meeting called by Respondent. The others members of the Union's in-plant committee also were present. Respondent's Managers Rich- ard Black and Ed Townsend addressed them. Townsend asked them to forget about the Union because the Company could deal with them without a union. Then he said that he was going "to make a settlement" with them on "pay raises and wages." Following this, Black stated that "we are going to have better insurance than we have." About the third week in March 1972, Supervisor Which- ard told employee David L. Crosby that "after this thing was over, the union," Whichard was going to take Crosby 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the YMCA and give Crosby a beating. Whichard added that he wasn't going to do it dust then because "somebody would think that it was on account of the union." This statement was offered by the General Counsel only to show union animus. On one occasion supervisor Whichard told employee Joey Beck, "I am glad to see that you ain't taking part in what is going on." When Beck asked what Whichard meant by this, the latter answered, "You know what the other employees are discussing." I find that this is too indefinite to be considered as an antiunion statement. In any event it is not a statement condemned by Section 8(a)(1) of the Act. Sometime in February 1972, Dock Supervisor Henry Rummage discussed the Union with Warner and employee Joey Beck. I find nothing in it disclosing union animus or amounting to an unfair labor practice. The conversation need not be repeated here. On another occasion supervisor Whichard told employee Joey Beck that the Company had dust given all employees a 5.5-percent increase in wages and inaugurated six paid holidays. While employee Franklin Owens was distributing hand- bills he was observed doing it by Supervisor Terry Which- ard. Later Whichard handed Owens "a form to get our union card back," and told Owens that if Owens signed this form the latter's union card would be returned to him. A blank copy of this form, in evidence as General Counsel's Exhibit 8, is addressed to the NLRB in Winston-Salem, North Carolina, refers to the Union, mentions that the sub- scriber works for Coble Dairy in Lexington, states that the subscriber recently signed an application for membership in the Teamsters, and asserts that "I have changed my mind and would like to withdraw my application." Although Whichard asked Owens to sign it the latter refused to do so. Owens also testified that Supervisor Whichard told him to come to manager Tim Ridge's office "at night and of- fered" Owens $3.15 an hour. This resulted from the fact, according to Owens, that his wife spoke to management on behalf of Owens. As a result, when Owens was called, he went to the plant, where he met Ridge, Whichard, and Plant Manager Townsend. Owens told these supervisors that his wife was going to the hospital and that he could not afford it on his present pay . Since Mr. and Mrs . Owens in effect asked this raise I find it was not offered as an antiunion inducement. On another occasion, that same evening, Whichard asked a group of employees "what they wanted, and . . . wrote down on paper" what he was "going to get" for them. One of such employees was Owens. As no promise was made in this conversation I find that it does not transgress Section 8(a)(1) of the Act. B. The Company's Defense Homer M. Ridge, often called Tim Ridge, is Respondent's division manager . A conspectus of his testi- mony follows. Respondent does not have extra or spare drivers in the sales department . Employee Glen E. Blum was employed in said sales department . The Company does have school routes, but these are discontinued in the sum- mer. When so discontinued , the employee who served such route is moved to another open route "in the branch" if one is available; otherwise an effort is made to place him in the processing plant. In the spring of 1972, Ridge asked that Frank Owens meet with Ridge, Supervisor Whichard, and Plant Superin- tendent Townsend sometime after 5 p.m., I day after Owens indicated he "wanted to meet with us." Owens, quite upset, claimed that his wife had been very annoyed by receiving anonymous telephone calls, and he, Owens, "was interested in bringing this thing to a halt, the union activities." Fur- ther, Owens complained that, as his wife had to go to the hospital, he "needed to make more money." Ridge replied that, because wages had been frozen, he could not do any- thing at the time, but "we were continuously working to upgrade our benefit program, salaries, and our whole bene- fit program. . . . If you [Owens] and your committee are all split up on this thing and are interested in calling a halt to union activities, get with your committee and discuss it." But neither Ridge nor anyone present offered Owens $3.15 an hour or anything else to stop the Union. Nor did Ridge ask Owens to stop the union campaign. As a result of talking to Supervisor Whichard the next morning, Ridge met with the Union's in-plant committee. Supervisors Townsend and Black also attended. Townsend told them their demands "had been passed on to" him, that he would not recognize the committee as a bargaining com- mittee or agent for the employees, and that "we would continue to go dust like we were going." He also told them that "we were continually attempting to upgrade our bene- fits, salaries , and our complete insurance and benefit pro- gram." But no promises were made or offered. Ridge made the decision to discharge employees Joey Beck and Franklin Owens. During the Union's organizing campaign Ridge "let pass across his desk" all "normal rou- tine firings"; but "if it involved any of our committee or violations of a serious nature," he asked that such "be brought to my office for review." The cases of Owens and Beck were presented to Ridge by Mr. Robbins. Supervisor Townsend was also present. Owens was fired for ramming the "case truck" into the loading dock and, as an employee reported, Owens "hit it again." In addition Owens, as well as Williamson, Huffman, and Beck, disobeyed Supervisor Rummage's order to help pick up some cases. So Ridge instructed Townsend and Rummage to discharge these four employees. But Rum- mage, protesting that, if all left, "we'd have to close down the plant," requested that Williamson be retained because Rummage "felt like [Williamson] was intimidated." So Wil- liamson was kept on. However, Ridge did not know whether Williamson belonged to the Union or not. In the past the Company has "been on an anniversary increase for employees." But the Company had been dis- pleased with this system for some time. Consequently, in October or November 1971, the Company was "in the pro- cess of working up a new wage range, pay scale, for our employees," when the intervening wage freeze prevented the Company from "making further moves." In addition, the Company in 1972 was "also working on paid holidays for our employees," before the advent of the Union. As soon as possible thereafter paid holidays were instituted. But the Union's organizing campaign had nothing to do with such COBLE DAIRY PRODUCTS 167 paid holidays. As a matter of fact, Ridge said, employees Jones and Warner told him that the paid holidays and the pay increas- es "were in violation of the fair trade practices." Ridge replied that, as he had heard nothing from the Union and "felt" that the employees were not interested in a union, he would "put these pay increases and holidays into effect." According to Ridge, when route salesmen are sick, a su- pervisor fills in for such salesmen. However, if it is an ex- tended illness, "we'd probably have to replace the route man and work him back in somewhere else." Ridge also testified that he first learned of the Union's campaign at the plant in February 1972, before receiving the Union's letter in evidence as General Counsel's Exhibit 2. Finally, he testified that the Company has a policy on warning employees but "it's up to each individual supervi- sor." Edward L. Townsend was Respondent's plant manager until about May 3, 1972, when he left the Company. He testified in substance as follows. Townsend attended a con- ference in Ridge's office with employee Owens, after Mrs. Owens had spoken to Townsend. Supervisor Whichard also was present at said conference. Owens complained that he had financial problems because his father was gravely ill and Mrs. Owens was going to the hospital. Owens then continued by asserting that, although he "wasn't responsi- ble for starting the union," he "had the ability to stop it because he had, the cards in his possession." Thereupon Ridge replied that the way to make more money was to do a good job so as to be in a position to be promoted. But no one in the room offered Owens an increase in pay or sug- gested that Owens stop the Union's campaign. The next morning Townsend attended a meeting at which Ridge spoke to the Union's in-plant committee. Among other things Ridge insisted that he did not recognize the committee as representing all the employees and refused to consider any requests the committee might put to him. Supervisor Michael discussed employee Thomas Fowler's case with Townsend. Since Fowler was absent without call- ing in, Townsend instructed both Michael and the person- nel department to terminate him. So Michael wrote "quit?" on Fowler's timecard. (See Resp. Exh. 3.) This had been done to others in similar cases, according to Townsend. Townsend also discharged employees Beck and Franklin Owens after receiving a report on them from Manager Ridge. In said report Ridge made the decision to have them terminated. In discharging Owens, Townsend told him it resulted (a) from "abuse to company equipment" in twice "hitting" the platform when backing up a truck; (b) from insubordination in failing to obey an order to obtain empty cases, so that "the machine were shut down"; and (c) be- cause Owens "had tried to solicit for the Union while he was on duty on the shipping platform," although Townsend and the shop superintendent and shipping supervisor had per- sonally warned him previously not to do so. When Townsend discharged employee Beck he told Beck it was for failing to follow instructions of Supervisor Rum- mage to obtain some cases. Townsend also was present when employee David Cros- by asked his supervisor to change Crosby's job because Crosby had a problem in getting to work. Supervisor Tys- inger then told Crosby, in Townsend's presence, that Cros- by would be "let go" unless Crosby became more dependa- ble in coming to work. Another witness for Respondent is its plant personnel manager, Robert Worrell. An adequate summary of his testimony is here set forth. Shortly before Blum's route closed for the summer recess of the schools it served, Blum asked Worrell if anyjob was available in the plant. Worrell replied that three jobs were open, each paying $2 an hour and averaged, "with the hours worked," approximately $450 a month. Blum's average earnings on the school route were $4.75 an hour. But Blum stated that he had no interest whatever in any of these three plant jobs and insisted only on getting back his job as spare man in the route sales division. Blum further said he would wait 2 days to be called back to his sales route job and, if he did not obtain it in that time, he would go to the NLRB. Worrell advised Blum that, since Blum had sales training, he could make more money working on a sales route for Pepsi-Cola or Coca-Cola. When an employee is hired Worrell explains to him at the time that an employee must call in whenever he misses coming in on workdays, and that if he fails to do so he is discharged. He so informed employees Thomas Fowler and David Crosby when they were hired. At 7 o'clock in the morning, according to Worrell, a group leader, Fowler, is in the warehouse, Supervisor Mi- chael is "downstairs," and Supervisors Whichard and Rum- mage are also in the plant. Worrell also corroborated what Supervisor Townsend told employees Owens and Beck when Townsend discharged them. Sales Manager Ralph Beam in substance testified as fol- lows for Respondent: In such capacity Beam directs and controls the route sales drivers. When any of said drivers are out sick or on vacation a supervisor substitutes for them. But there are no spare or extra route men. Driver Blum worked as such route salesman, but he was not a spare or extra man; he was a trainee. When school was closed in the summer of 1972, other route work was neither available, nor was expected to open, for Blum. Accordingly, Beam in- formed Blum of this situation and offered to try to find Blum a job in the plant. In addition Beam told Blum to see Personnel Manager Worrell. So Blum spoke to Worrell. After conversing with Worrell, Blum told Beam that the plant jobs described by Worrell did not appeal to Blum. On one occasion Beam instructed Blum to remove a union "Vote Yes" sticker from a company route truck which Blum drove, but also assured Blum that he, Beam, had no objection to Blum's attaching such a sticker to Blum's "per- sonal truck." At another time Beam received a report from employee John Meyers that employees Frank Owens "hit the plat- form" twice with a truck. Beam passed on this information to Manager Ridge. But Beam did not investigate this inci- dent to ascertain the actual facts. Richard Murphy is the Company's wholesale route super- visor. He testified substantially as follows. While riding with employee Blum "on the last day of the route " Blum told Murphy that the route "was going to be done away with, school was going out," but Murphy made no reply to this. At no time did Murphy talk about the Union with Blum or Frank Owens or question Blum or Frank Owens about any 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities at the plant. However, Murphy did once ask employee Foster Owens what Owens thought about the Union and asked Owens to vote; but Murphy never told Owens that Blum would be discharged, or that milk routes would not be equalized if the Union came in. Route Supervisor E. R. Weaver rode with Blum some- times. On these occasions Blum talked about the Union, but at no time did Weaver interrogate Blum about the Union. Terry Whichard, Respondent's warehouse supervisor, testified substantially as follows. He denies that he ever told any employee that he did not want such employee to get hurt or lose his job. However, around lunch time one day at the barbecue center a group of employees requested to present some grievances to him. Whichard agreed but re- quested that Supervisor Terry Michael also be present. That night Whichard met with said employees in Manager Ridge's office. He listed their complaints and gave this list and their demands to Ridge. See Respondent's Exhibit 4 for the names of the said employees and their respective indi- vidual demands. As a group such employees wanted insur- ance and paid holidays. Prior to this Whichard was present when Plant Manager Townsend, at the request of employee Franklin Owens, met Owens in Ridge's office. On this occasion Owens explained that a forthcoming operation for his wife placed him in financial straits. Continuing, Owens mentioned that he pos- sessed "the union cards" and "would like to do away with it." Ridge answered that he could make no promises, but no one there offered Owens $3.15 an hour. At no time did Whichard offer any employee "any benefits in connection with the union of any kind." Whichard further testified that, when the warehouse was operating, at least one supervisor, and generally seven or eight, was present. (Supervisor Rummage also testified to this effect.) Nor did he offer employee Crosby $3 an hour to get out of the Union. However, Whichard did refuse Crosby's invitation to go to the "Y" because of the union thing and I didn't want to break any rules." But Whichard neither asked Crosby to come to the "Y" nor offered to beat up Crosby. And Whichard did not offer employee Joey Beck any increase in wages or benefits. However, Whichard did tell some employees that, under the wage freeze , "all the company could do" was to give a 5.5-percent increase. And he did not offer Owens a steak dinner "to compromise problems." Although Whichard admitted he passed out documents in evidence as General Counsel's Exhibit 8 he did so only when "approached by many members of the plant asking to have their names withdrawn." But he did not distribute the same to any employee who did not ask for it. Whichard "guessed" that company officials prepared General Counsel's Exhibit 8; he did not have anything to do with its preparation. Whichard was present when Supervisor Tysinger told em- ployee Crosby that Tysinger was a little "leary" of having Crosby work in the cooler because Crosby was not regular in coming to work. Respondent also put in evidence documents showing that employees were "separated" for "failing to show for work" or "would not work regular." (See Resp. Exhs. 1 & 2.) How- ever, some of them disclose that such "termination" was "voluntary" while others state it was "involuntary." And two of them state "Employee left job. No word from him as to why," while another reads, "Not reliable." Henry Rummage, Respondent's shipping supervisor, gave testimony substantially as follows. On Monday, April 11, 1972, the plant closed down a half hour about 10:30 a.m. for lack of crates. This resulted when employees Joey Beck, J. D. Williamson, and Franklin Owens failed to obey his orders to assist him in hauling crates. However, after Rum- mage had loaded two-thirds of the crates, i.e., about 10 minutes later, these employees did come to assist him. Four days later Rummage reported this situation to Plant Manag- er Townsend. On the same day as the foregoing report was made Manager Ridge issued an order to discharge these employees. These discharges were consummated when Townsend called in each of said employees and, in the presence of Rummage, informed each one he was discharged for insu- bordination in not helping Rummage load the crates. In addition, Owens was told he was discharged also for "abus- ing company property, soliciting, union activity." But, ac- cording to Rummage, the union activity of Owens was not identified or described by Townsend. However, Williamson's discharge was revoked when Rummage pro- tested he, Rummage, was deprived of "a good portion" of his work force by such discharges. According to Rummage, Williamson has since been promoted to group leader. On cross-examination Rummage conceded that employ- ee Daryl Hughes on occasion "in a joking manner" refused to obey Rummage's instructions but Hughes "always did it [later]. He eventually did it." Another there were "possibly" other employees like Hughes who did not at first comply with Rummage's command but subsequently did the work anyway. Neither Hughes nor any of such employees were reported to management by Rummage for such conduct. C. Concluding Findings and Discussion 1. As to the termination of Glen E. Blum A critical examination of the record convinces me, and I find, that Blum was not terminated for his union activities, that no work was available on his route when it was discon- tinued for the summer recess, and that although he was offered work in the plant when such route was discontinued he refused such offer. The foregoing finding is based on the entire record. While it is true that Respondent entertained union animus and also committed unfair labor practices, as found elsewhere herein, I nevertheless find that these factors did not proxi- mately contribute to Blum's termination, for I expressly find that Blum's school route was discontinued for nondiscrimi- natory, economic reasons, and not because he engaged in union activities . The fact, which I find on crediting Blum, that he engaged in union activity, although it may be con- sidered (and I have not overlooked it) in itself is inadequate to establish that he was terminated for such activity. P. G. Berland Paint City, Inc., 199 NLRB No. 45. It is true, and I find, that Blum told Respondent that he was next in line for the route of Trivette, another route COBLE DAIRY PRODUCTS 169 driver who had injured his back. But the record is barren of evidence that Respondent followed any seniority policy. Hence I am unable to find that declining to offer Trivette's route to Blum was induced by discriminatory or antiunion motives. Nor do I find that Blum was discriminated against when he was discouraged to accept a plant job which was available to him. This is because I find that Respondent was expressly told by Blum that he would not take such a job and that Respondent naturally felt that Blum would not be happy in a plant position. Finally, I do not credit the General Counsel's evidence that a supervisor of Respondent, Richard Murphy, told an employee, David Owens, that Blum would be discharged. Even if I do credit this evidence patently it establishes noth- ing as the General Counsel's other evidence discloses that Blum was not discharged. The fact is, as I have found here- in, that Blum turned down the tender of a plant job when his school route closed down for the summer. 2. The termination of Thomas W. Fowler It is my opinion, and I find, that Fowler was discharged for engaging in union activity, and that the ground given for his termination, i.e., leaving the job without notifying any- one, is a pretext to disguise the true reason . This ultimate finding is derived from the entire record and the following subsidiary findings which hereby find as facts. a. Fowler was active on behalf of the Union. Also he was a member of the Union's in-plant organizing committee, and Respondent had knowledge thereof as disclosed by General Counsel's Exhibit 2. As a member of such commit- tee he became a target for employer concern. Patently dis- charging an employee who performs substantial efforts for a union may frustrate or at least effectively retard such union's drive to organize a plant. "Obviously the discharge of a leading union advocate is a most effective method of undermining a union organizational effort ." N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5, 1965). This fact may be considered in ascertaining the actual reason inspiring a discharge. Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298, 304 (C.A. 4, 1966). In this connection it is significant that "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence." Corrie Corporation v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4, 1967). "Nowadays it is usually a case of more subtlety.... " N L.R.B. v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5, 1967). Hence it is not unusual for an employer to stress an employee's real or doubtful deficiencies to justify a termination prompted by antiunion motives. I find that the foregoing observations of the above courts extend to Fowler's discharge. b. Respondent entertained antiunion animus. This alone will not sustain the General Counsel's burden of proof (N.L. R B. v. Threads, Inc., 308 F.2d I (C.A, 4, 1962)), but it is a factor which may be evaluated in determining the true rea- son for Fowler's discharge. c. Respondent had no rule about notifying supervisors when leaving the job. Its contrary evidence is not credited. In any event, I find that if such a rule existed it was not uniformly enforced; and, also, I find it was never called to the attention of Fowler. Consequently I find that the sudden revival of said rule to get rid of Fowler connotes that it was applied on account of antiunion motives. d. Fowler was precipitately discharged during the height of the Union's campaign. It is undeniable that mere abruptness of a discharge during a union's drive does not preclude a discharge from being effected for cause. Cf. Mill- er Electric Manufacturing Co. v. N.L R.B., 265 F.2d 225, 226-227 (C.A. 7, 1959); Whitcraft Houseboat Division, North American Rockwell Corp., 195 NLRB 1046. But I find that in Fowler's case the suddenness of the decision to terminate him, when appraised along with other facts found herein, points to the conclusion that his conduct would not have resulted in his discharge if he had not been an active propo- nent of the Union at Respondent's plant. And it is true that I may not question the seventy of the penalty imposed for what I consider a possible minor infrac- tion of Respondent's policies. N.L.R.B. v. United Parcel Service, 317 F.2d 912, 914 (C.A. 1, 1963). Nevertheless "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity." N.L.R.B. v. Sym- ons Manufacturing Co., 328 F.2d 835, 387 (C.A. 7, 1964). Accord: N L.R.B. v. Murray-Ohio Manufacturing Company, 358 F.2d 948, 950 (C.A. 6, 1966). I find that Fowler's alleged dereliction was "seized upon by Respondent to serve a dis- criminatory purpose." N L R. B. v. West Side Carpet Clean- ing Co., 329 F.2d 758, 761 (C.A. 6, 1964). e. Finally, in order to find a discriminatory discharge it is not necessary to find that Fowler's union activity was the only factor responsible for his being terminated. It is suffi- cient to conclude that his discharge was unlawful if his union activity was a motivating or substantial ground for his discharge notwithstanding that a valid ground may have existed for applying disciplinary measures. N.L.R.B. v. Lex- ington Chair Co., 361 F.2d 283, 295 (C.A. 4, 1966). And I expressly find that Fowler's union activity was a substantial or motivating-but not necessarily the only-ground for his discharge. 3. The termination of David L. Crosby In Crosby's case I find that he was discharged for his union activity and that the reason advanced for terminating him, i.e., being absent from work one day without calling in, is a pretext. This ultimate finding is based on the entire record and the following subsidiary findings, which I hereby find as facts. a. Crosby was active on behalf of the Union as he served on its in-plant organizing committee. And Respondent had actual knowledge thereof. (See G.C. Exh. 2) b. As found elsewhere herein Respondent displayed an antiunion attitude. Naturally this, without more, will not warrant a finding that Crosby was discriminatorily dis- charged, and I so rule. But it is a factor which may be evaluated in arriving at the true reason for Crosby's dis- charge. c. Respondent had no policy on absenteeism or, if it had, such was not communicated to Crosby. Evidence of Re- 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent inconsistent with this finding is not credited. In any event I find that Crosby in the past was neither disci- plined nor warned on his failure to call in when absent. Failure to alert an employee that his nonobservance of a rule exposed him to the risk of losing his job warrants the inference-and I draw it-that a warning would be given to an employee that he is encountering possible disciplinary action by conduct looked upon as objectionable by his em- ployer. I find that the failure to put Crosby on notice under the circumstances has probative value in arriving at the actual reason for terminating him. E. Anthony & Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C., 1947); N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 699 (C.A. 8, 1965). And I find that his past failure to call in was overlooked or condoned. Mid-west Towel & Linen Service, 143 NLRB 744, 754, enforced 339 F.2d 948 (C.A. 7, 1964). d. Even if Crosby violated a company rule by not calling in this will not aid Respondent if the real motivation for his discharge was his union activity. I find that such activity was the real motivation for Crosby's discharge. Of course it need not be the only reason, so long as it was a substantial reason for the discharge. For the fact that a valid reason exists for a discharge will not render the discharge lawful if it was also discriminatorily motivated. e. Although Crosby inquired of Personnel Manager Worrell for a reason for his termination Worrell was unable to give one. "This refusal to tell [Crosby] was a circumstance which might `alone . . . be enough to support an inference that the discharge was discriminatory.'" N.L.R.B. v. Mel- rose Processing Co., supra. While it is true that Manager Townsend later gave Crosby a reason for the latter's dis- charge, the fact remains that Worrell could not or would not offer one. I find that this warrants the inference, which I draw, that under the circumstances Crosby was discrimina- torily terminated. N. L. R. B. v. Homedale Tractor Co., 211 F.2d 309, 314 (C.A. 9, 1954), cert. denied 348 U.S. 833 (1954). 4 The termination of Joey Beck Beck was discharged for union activity, and I so find. In addition, I find that the reason given for his termination, i.e., that he refused to obey Supervisor Rummage's order to haul cases or crates, is a pretext . This ultimate finding is based on the entire record and the following subsidiary findings which I hereby find as facts: a. Beck engaged in union activity. While no direct evi- dence indicates that Respondent had knowledge thereof I find that the Company was aware of his union activity from the circumstances attendant upon his discharge . "This [cir- cumstantial] evidence raises more than a suspicion of illegal motivation. Indeed, the only plausible inference that can be drawn from this record is that Respondent did learn of [Beck's] union activities and discharged him for these activi- ties." Long Island Airport Limousine Service Corp., 191 NLRB 94, enfd. 468 F.2d 292 (C.A. 2, 1972). b. Notwithstanding that Beck did not immediately re- spond to Rummage's order, nothing was done about it by Rummage . In fact Beck did comply with said order about 10 minutes later . As a matter of fact nothing was done about Beck's alleged insubordination until 4 days later when he was discharged by Townsend. Under the circumstances I find that Beck's dereliction was condoned or overlooked. Midwest Towel Service, supra Thus I find that Beck's diso- bedience of Rummage's order did not cause Respondent any concern, even though Respondent contends it had to close down the pure pack department for about 30 minutes as a result thereof, until it was ascertained that he was engaging in union activity. c. Beck was discharged without being given an opportu- nity to explain his alleged misconduct. Failure to offer him an opportunity to defend himself constitutes circumstantial evidence that he was being discriminatorily discharged. d. Beck was abruptly discharged long after his alleged misconduct occurred and contemporaneously with the Union's organizing campaign. This circumstance makes op- erative the principle that abruptness, manner, and timing of a discharge cast light upon the issue of whether an employee was terminated for cause or whether the reason asserted therefor is advanced as a pretext to hide antiunion hostility behind a discharge. Arkansas-Louisiana Gas Company, 142 NLRB 1083, 1085-1086. "The abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co, 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957). While I recognize that the suddenness of a discharge during a union campaign will not per se taint a lawful dis- charge into an unlawful one, I nevertheless find that Beck's discharge was inspired by his union activity. "The mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful.. . . " N.L.R.B. v. Symons Manufacturing Co., supra. e. It is not essential that Beck's union activity be the only ground for his discharge to find that he was unlawfully terminated. Such discharge is discriminatory, notwithstand- ing a valid ground may have existed warranting his termina- tion, so long as his union activity was a motivating or substantial reason for terminating him. I so find. 5. The termination of Franklin D. Owens I find that Owens was discharged for his activity on be- half of the Union. Further, I find that the reasons assigned for his discharge, namely, "abusing Company property," union activity on company time, and refusing an order to haul crates, are pretexts. This ultimate finding is based on the entire record and the following subsidiary findings which I hereby find as facts. a. Owens was a member of the Union's in-plant organiz- ing committee, and Respondent was cognizant of this. (See G.C. Exh. 2.) He also was a very active proponent of the union movement at the plant, and, under the circumstances, I find that Respondent was aware of this. b. Respondent entertained antiunion hostility, as found elsewhere herein. c. Owens did not disobey any order to haul crates. Inso- far as Respondent's evidence is inconsistent with this find- ing I do not credit it. d. Although Owens engaged in union activity at the plant, I find that he did so during nonworking hours. Hence the ascertain that he engaged in such conduct during work- ing hours is not accurate. Giving a false reason "warrants COBLE DAIRY PRODUCTS 171 the inference that some other reason was being concealed ... if the employer is indepently shown to have an antiun- ion animus which the discharge would gratify, it may be a fair inference that this [a discriminatory motive] was the true reason." N.L.R B v. Joseph Antell, Inc., supra. e. Owens was discharged about 4 days after his alleged abuse of company property. Hence I find this conduct was overlooked, condoned, or disregarded. Resurrecting it days later is some indication that a discriminatory motive lurked behind his termination. f. Owens was abruptly discharged during the Union's campaign. This alone proves nothing. But it may be consid- ered. It indicates, and I find, that his union activity, rather than his alleged misconduct, caused him to lose his job. g. No fair and objective investigation was conducted by Respondent to ascertain whether Owens in fact did abuse company property, a truck, by allegedly intentionally back- ing it into a loading dock Nor was Owens permitted to defend himself by giving him an opportunity to present his version of this incident. Failure to make a fair investigation of an employee's alleged misconduct is evidence of a discn- minatory intent, especially when viewed in the light of Respondent's hostility of the Union on whose behalf the employee was active. Norfolk Tallow Co., Inc., 154 NLRB 1052, 1059. h. I have followed the rule that it is not enough to show that the Employer opposes or dislikes unions. Wellington Mill v. N. L. R. B., 330 F.2d 579, 586-587 (C.A. 4, 1964), cert. denied 379 U.S. 882 (1964). However, I find that, on the entire record herein, it has,been shown that Respondent's antipathy to the Union is proximately linked with the dis- charge of Owens. And it is not necessary to find that Owens was discharged only for discriminatory reasons to render such discharge lawful. Even if lawful cause existed for such discharge it is nevertheless an unlawful discharge if a substantial or moti- vating reason therefor was discriminatory. I so find. 6. The alleged 8(a)(1) violations Supervisors Murphy, Wiles, and Weaver asked employee Blum, each at different times, if there were enough employ- ees to support the Union, whether any in the sales depart- ment were supporting the Union, whether Blum had signed a union card, and what transpired at union meetings. Addi- tionally, Wilkes also asked Blum whether Blum had been to union meetings and had distributed union cards. Respondent's evidence inconsistent with the foregoing is not credited. I find that such interrogation is coercive and therefore contravenes Section 8(a)(1) of the Act. On one occasion Supervisor Whichard asked employees Fowler and Everhart and the members of the in-plant com- mittee what was needed in "pay rate" and "benefits" to induce them to withdraw from the Union. Respondent's evidence not consonant with this is not credited. I find that this is a promise of benefit forbidden by Section 8(a)(1) of the Act. Whichard also asked employee Franklin Owens to sign a withdrawal application from the Union. Whichard's denial is not credited. I find this is forbidden by Section 8(a)(1) of the Act. At another time Whichard said to Owens that Whichard would try to get Respondent to obtain better benefits, insurance, and wages. I find this is not a promise of benefit and accordingly does not transgress Section 8(a)(1) of the Act. Whichard once told employee Crosby that Crosby and Owens would receive $3 an hour to forget the Union. Whichard's denial is not credited. This is a promise of bene- fit interdicted by the Act. Manager Townsend told a group of employees which included Crosby that Respondent intended to raise wages and "have better insurance." This is a promise of benefit condemned by the Act. Manager Ridge once promised Franklin Owens $3.15 an hour if Owens could induce employees to repudiate the Union. I find this is a promise of benefit proscribed by Section 8(a)(1) of the Act. On one occasion Supervisor Whichard told employee Joey Beck that the Company had just given all employees a 5.5-percent wage increase and inaugurated six paid holi- days. Since this occurred during the Union's campaign, and no announcement before said campaign was made concern- ing the possibility that such benefits were being considered, I find this is the conferring of benefits intended to discour- age interest in or sympathy for the Union. On March 16, 1972, Respondent granted its employees, as testified to by Division Manager Black, whom I credit on this branch of the case, a general increase of 5.5-percent and six paid holidays. I find this occurred during the Union's campaign without prior announcement to employees that such was being considered. Accordingly I find that this action violates Section 8(a)(1) of the Act. 7. Rules of law followed In making the findings of fact set forth above I have been guided by certain principles of law here briefly delineated. The burden of proof rests upon the General Counsel to establish the allegations of the complaint, and this burden at no time shifts. Hence there is no burden on the Respon- dent to disprove any of the allegations of the complaint. Further, the failure of the Respondent to establish any one or more of its defenses does not constitute affirmative evi- dence aiding the General Counsel in sustaining his burden of proof. N.L.R.B. v. Harry F. Berggren & Sons, Inc., 406 F.2d 239, 246 (C.A. 8, 1969), cert. denied 396 U.S. 823 (1969); Council of Bagel and Bialy Bakeries, 175 NLRB 902, 903. Finally, as noted above I have resolved some credibility issues against the Respondent in that I have not credited it on certain aspects of the case. But this does not amount to affirmative evidence capable of supporting or establishing the General Counsel's obligation to prove his case . Guinan v. Famous Players, 167 N.E. 235, 243 (Mass.). "The mere disbelief of testimony establishes nothing." N.L.R.B. v. Jo- seph Antell, Inc., supra. Cf. N.L.R.B. v. Walton Manufactur- ing Co., 369 U.S. 404, 408 (1962), where the Supreme Court states that if a witness "is fabricating ... there [may be] no alternative but to assume the truth of what he denies." In my opinion Walton, supra, is inapplicable to the instant case, and I so rule. 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, found to constitute unfair labor practices, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As Respondent has been found to have engaged in cer- tain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take specif- ic action, as set forth below, designed to effectuate the poli- cies of the Act. In view of the fact that Respondent unlawfully dis- charged Beck, Owens, Crosby, and Fowler, it will be recom- mended that it be ordered to offer each of them immediate and full reinstatement to his former position or, if such is not available, one which is substantially equivalent thereto, without prejudice to the seniority and other rights and privi- leges of each. It will also be recommended that each be made whole for any loss of earnings suffered by each. In making whole the four above-mentioned dischargees Respondent shall pay to each a sum of money equal to that which he would have earned as wages from the date he was terminated to the date of reinstatement or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner provided in F W. Wool- worth Company, 90 NLRB 289, with interest thereon at 6 percent per annum calculated according to the formula pre- scribed in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board or its agents, upon reasonable request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay, if any, may be due. Finally, it will be recommended that Respondent post appropriate notices. The unfair labor practices found herein go "to the very heart of the Act." N.L.R.B. v. Entwhistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Accordingly, the Board's Order should be comprehensive enough to prevent further infrac- tion of the Act by Respondent in any manner. I shall so recommend. Cf. R & R Screen Engraving, Inc., 151 NLRB 1579, 1587. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Sec- tion 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By engaging in the conduct set forth in this paragraph Respondent has committed unfair labor practices forbidden by Section 8(a)(1) of the Act. (a) Coercively interrogating employees regarding their and other employee's union membership, desires, and activ- ities. (b) Promising increase in wages and other benefits to employees to discourage membership in, interest in, or ac- tivities for, the Union. (c) Requesting employees to withdraw from the Union, or to revoke the union authorization cards or membership in the Union. (d) Granting to employees wage increases, paid holidays, and other benefits to discourage membership in, interest in, or activities for, the Union. 4. By discrimination in regard to the tenure of employ- ment of Joey Beck, Franklin Owens, David L. Crosby, and Thomas Fowler, thereby discouraging membership in the Union, a labor organization, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 5. The above-described unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. 6. Respondent has not committed any other unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER' Respondent, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Coercively interrogating employees concerning their and other employees' union membership, activities, and de- sires. (c) Promising increases in wages or other benefits to em- ployees to discourage membership in, interest in, or activi- ties for, the Union or any other labor organization. (d) Requesting employees to withdraw from the Union, or to revoke union authorization cards or membership in the Union. (e) Granting to employees wage increases, paid holidays, and other benefits to discourage membership in, interest in, or activities on behalf of, the Union or any other labor organization. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise or enjoyment of rights guaranteed to them by Section 7 of the Act. 2. Take the following action designed to effectuate the 1 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 COBLE DAIRY PRODUCTS policies of the Act: (a) Offer Joey Beck, Franklin Owens, David L. Crosby, and Thomas Fowler immediate and full reinstatement each to his former position or, if such no longer exists, to a substantially equivalent one, without prejudice to the sen- iority and other rights and privileges enjoyed by each, and make each whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him, with interest at the rate of 6 percent, as provided in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all other records necessary to ascer- tain the amount, if any, of backpay, due under the terms of this recommended Order (c) Post at its premises at Lexington, North Carolina, copies of the notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 11, after being signed by a duly authorized representative of Respondent, 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 no- tices are not altered, defaced, or covered by any other mate- rial. (d) Notify the Regional Director for Region 11, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. REPORT ON OBJECTIONS TO ELECTION Objection I alleges that "The employer granting a 5.5% wage increase to all employees on March 16, 1972, after the 2 In the event 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 173 petition had been filed by the Union." Admittedly this in- crease was granted. Since this occurred the day before the petition was filed on March 17, I find this objection is not well taken. Accordingly, I recommend that the Board over- rule this objection. Objection 3 states "The employer discharging members of the organizing committee on or about April 14, 1972, Case No. 11-CA-4901." As recited above, I have found that Franklin Owens, David Crosby, and Thomas Fowler, all members of said committee, were illegally discharged after March 17, 1972, and before the election was held on May 18, 1972. Having so found, I further find that said dis- charges interfered with a free election. Accordingly I recom- mend that this objection be sustained. The text of Objection 5 reads "The coercion by the em- ployer of employees serving on the organizing committee, who were known to be supporter of the Union." Since the discharges mentioned in the preceding paragraph were dis- criminatory, I find that they constituted coercion. It is there- fore unnecessary to ascertain whether members of the committee were coerced by other conduct of the Employer. And I find that said coercion impaired the right of employ- ees to be free of restraint in the election. So I recommend that this objection be sustained. Objection 6 alleges that "By these and other acts, the employer interfered with the free choice of voters and in- serted an atmosphere which precluded a fair election." As found above Joey Beck was discriminatorily discharged during the critical period. I find this infringed upon a fair election. Hence I need not inquire whether any additional "other act," not specified in this objection, also interfered with a free election being held. Accordingly, I recommend that this objection be sustained. Since some of the objections have been found to be meri- torious I recommend, on the basis thereof, that the election be set aside and a new election be conducted when it has been determined that a free election can be held. This rec- ommendation is made to the Board inasmuch as the Re- gional Director's order consolidating the cases provides that Case I1-RC-3500, the representation case, "be transferred and continued before the Board."